Hammer et al v. City of Sun Valley et al

Filing 139

MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS MOTION TO RE-OPEN AND EXPAND DISCOVERY BASED ON WAIVER OF PRIVILEGES (Dkt. No. 110 - IT IS HEREBY ORDERED that Plaintiffs Motion to Re-Open and Expand Discovery Based on Waiver of Privileges (Docket No. 110 ) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

SHARON R. HAMMER and JAMES R.
DONOVAL, husband and wife,

Case No.: 1:13-cv-211-EJL
MEMORANDUM DECISION AND
ORDER RE: PLAINTIFFS’ MOTION
TO RE-OPEN AND EXPAND
DISCOVERY BASED ON WAIVER
OF PRIVILEGES

Plaintiffs,
vs.
CITY OF SUN VALLEY; NILS RIBI, in his
individual and official capacity; and DeWAYNE
BRISCOE, in his individual and official capacity,

(Docket No. 110)

Defendants.
Now pending before the Court is Plaintiffs’ Motion to Re-Open and Expand Discovery
Based on Waiver of Privileges (Docket No. 110). Having carefully considered the record,
participated in oral argument, and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
BACKGROUND
Plaintiff Sharon Hammer wants to re-open discovery, arguing that, (1) by attaching a Sun
Valley internal disciplinary investigation report (the “Ball Report”) in support of their Motion for
Summary Judgment, Defendants waived any previously-asserted attorney client privilege and/or
work product protection relating to the Ball Report; and (2) because the Ball Report is integral to
several of Plaintiff’s claims against Defendants, discovery should be re-opened to permit
additional discovery surrounding the investigation leading up to the Ball Report, including the
Ball Report itself. This action has a long history with many moving parts; however, for the
purpose of resolving the current Motion, the relevant facts informing the instant dispute include:
MEMORANDUM DECISION AND ORDER - 1

1.

Plaintiff initiated this action on May 3, 2013, asserting 14 Counts against

Defendants, seeking relief under various federal and state statutes related to Plaintiff ’s
termination as the Sun Valley City Administrator in January 2012. See Compl. (Docket No. 1).
2.

On August 2, 2013, U.S. District Judge Edward J. Lodge entered a Scheduling

Order, outlining a May 19, 2014 discovery deadline. See Sched. Order (Docket No. 13).
3.

On February 5, 2014, Defendants filed a Motion for Judgment on the Pleadings

pursuant to FRCP 12(c), requesting the dismissal of certain identified Counts within Plaintiff’s
Complaint. See Defs.’ 12(c) Mot. for J. on the Pldgs. (Docket No. 18).
4.

On June 17, 2014, Judge Lodge granted Defendants’ Motion for Judgment on the

Pleadings and dismissed Counts 1-8, 10, and 12-14 of Plaintiff’s Complaint (leaving Counts 9
and 11 for trial). See 6/17/14 (Docket No. 41).
5.

On June 18, 2014, in a factually-related case in Idaho state court (identified by

Plaintiff as the “Ball Report Public Records Case”), Plaintiff and Defendant City of Sun Valley
entered into a “Stipulation for Dismissal.” wherein the parties addressed the Ball Report and
agreed on the following terms:
¶ 5.

Defendant City of Sun Valley recognizes that [the Ball
Report] is a public record of the City but maintains that such
record is exempt from a Public Records Request filed
pursuant to I.C. § 9-342 upon the grounds that such report is
attorney work product and, therefore, exempt from
disclosure. the City will continue to maintain this position
and will only release the report upon Court Order requiring
it do so.

¶ 6.

Both parties acknowledge that [the Ball Report] has been
published and made available through the Idaho Mountain
Express and is, therefore, in the public domain at the present
time.

¶ 7.

In the event that the City is ordered to release [the Ball
Report] it will release, as well [a 28-page “Demand for
Correction” in response to the Ball Report, a two-page letter

MEMORANDUM DECISION AND ORDER - 2

from the Sun Valley City Attorney responding to the
“Demand for Correction,” and a one-page coversheet]
contemporaneously, in one set of documents.
Stip., attached as Ex. M to Donoval Aff. (Docket No. 111, Att. 10).
6.

On June 27, 2014, Defendants moved for summary judgment on Counts 9 and 11

of Plaintiff’s Complaint. See Defs.’ MSJ (Docket No. 47). In support thereof, Defendants
attached as an exhibit (filed under seal) the Ball Report and its accompanying exhibits (259
pages). See Ball Rpt., attached as Ex. F to Briscoe Decl. (Docket No. 49).
7.

On July 28, 2015, Judge Lodge granted Defendants’ Motion for Summary

Judgment, dismissed Counts 9 and 11 of Plaintiff’s Complaint, and dismissed the case in its
entirety. See 7/28/15 MDO & J. (Docket Nos. 71 & 72).
8.

On August 11, 2015, Plaintiff filed a Motion for Reconsideration of Entry of

Summary Judgment (amended on August 28, 2015) related to the dismissal of her liberty
interest, stigma plus claims (Count 9). See Mots. to Recon. (Docket Nos. 77 & 81).
9.

On August 27, 2015, Plaintiff filed a Notice of Appeal, appealing Judge Lodge’s

above-referenced June 17, 2014 and July 28, 2015 Orders (granting Defendants’ Motion for
Judgment on the Pleadings and Motion for Summary Judgment). See Not. of Appeal (Docket
No. 80).
10.

On January 29, 2016, Defendants issued a Notice of Intent to Subpoena

Documents from Third-Party, informing Plaintiff’s counsel that, on February 1, 2016,
Defendants intended to serve non-party Hagen, Streiff, Newton & Oshiro (“HSNO”) a subpoena
for production of documents. See Not. of Intent to Subpoena Docs. from Third-Party, attached
as Ex. D to Emergency Mot. to Quash Third-Party Subpoena (Docket No. 87, Att. 1). HSNO is
an accounting firm that Plaintiff sued for defamation in a separate case in Idaho state court
related to allegedly-false statements made in a forensic audit report issued by HSNO pertaining
MEMORANDUM DECISION AND ORDER - 3

to Plaintiff’s conduct as the Sun Valley City Administrator. See Emergency Mot. to Quash
Third-Party Subpoena, p. 3 (Docket No. 87).
11.

On February 1, 2016, Plaintiff filed an Emergency Motion to Quash Third-Party

Subpoena, requesting that Defendants’ subpoena to HSNO be quashed. See id. at p. 5 (“As (a)
the entire case herein has been dismissed subject only to the Motion to Reconsider, (b) all
discovery in the matter has been closed since at least May 14, 2014, and (c) the documents being
sought by the Defendant are subject to the confidentiality provision of the Settlement Agreement,
[Plaintiff] seeks that the Court quash the Subpoena pursuant to its authority under FRCP 45.”).
12.

On March 10, 2016, Judge Lodge denied Defendants’ above-referenced Motions

for Reconsideration. See 3/10/16 MDO (Docket No. 94).
13.

On May 11, 2016, Defendants withdrew their subpoena to HSNO, indicating

nonetheless that they “do not intend to waive any right to re-issue the subpoena if it becomes
necessary to do so based on arguments made by Plaintiff in the pending appeal.” Defs.’ Not. of
Withdrawal of Third-Party Subpoena, p. 1 (Docket No. 99). That same day, the Court denied
Defendants’ Emergency Motion to Quash Third-Party Subpoena as moot. See 5/11/16 Docket
Entry Order (Docket No. 100).
14.

On August 11, 2017, the Ninth Circuit, affirmed, in part, reversed, in part, and

remanded the action back to this Court, stating:
To conclude, we affirm the district court’s grant of the 12(c) motion;
the denial of Hammer’s motion to convert; and the denial of
Hammer’s motion to amend. We reverse the district court’s
judgment of Hammer’s unconstitutional bias claim; liberty interest,
stigma plus claim; the claims against Ribi and Briscoe in their
individual capacities; Donoval’s claim; and the entry of costs. . . . .
AFFIRMED in part, REVERSED in part, and REMANDED.
8/11/17 Mem., p. 4 (Docket No. 104) (emphasis in original).

MEMORANDUM DECISION AND ORDER - 4

15.

On October 5, 2017, Judge Lodge directed the parties “to confer with one another

and jointly file a notice with the Court indicating how the parties would propose or intend to
proceed in light of the Ninth Circuit’s decision.” 10/5/17 Order, p. 1 (Docket No. 107).
16.

On November 1, 2017, the parties filed a Joint Notice of Intent to Proceed. See

Joint Not. (Docket No. 108). Relevant here, the parties’ Notice spoke to the need for “additional
discovery,” stating:
Previously, Defendants filed a third-party subpoena to HSNO seeking supplemental
materials that did not exist during the original period of discovery that Plaintiffs
moved to quash. Ultimately, Defendants withdrew that subpoena due to the Court
dismissing Plaintiffs’ motion for reconsideration. Now that the mandate has
revived certain claims, the parties have agreed that the subpoena can now proceed
without objection, and the discovery can be produced by HSNO. Further, any
depositions or supplemental discovery pertaining to the subject matter of the HSNO
subpoena would also be permitted.
The period to complete this relevant discovery would be six months from the date
of the Court’s new scheduling order.
Id. at pp. 1-2. Although the Notice also referenced future dispositive motions, mediation or
ADR, and a request for a trial setting, neither party indicated the need for any additional
discovery beyond that related to HSNO. See generally id.
17.

On November 22, 2017, Judge Lodge issued an Amended Scheduling Order,

memorializing the parties’ preferences as relayed in the Notice and indicating that “[t]he
additional discovery anticipated and as stated in the Notice shall be completed by May 22,
2018.” See 11/22/17 Am. Sched. Order, p. 1 (Docket No. 109).
18.

On January 30, 2018, Plaintiff filed the at-issue Motion, requesting that discovery

be re-opened – specifically as to the Ball Report – because Defendants waived any privilege
and/or protection concerning the Ball Report when they included it and its related documents
alongside their June 27, 2014 Motion for Summary Judgment. See Pl.’s Mem. in Supp. of Mot.
to Re-Open and Expand Disc., p. 13 (Docket No. 110, Att. 1) (“Because the privileges were
MEMORANDUM DECISION AND ORDER - 5

waived after the close of discovery, discovery related to the Hammer Investigation, Investigator
Ball and the Ball Report should be re-opened to allow the Defendants to supplement their
disclosures and to allow for additional discovery and depositions.”).1 Defendants object to these
efforts, countering that (1) Plaintiff failed to include the need to conduct discovery regarding the
Ball Report within the parties’ November 1, 2017 Joint Notice of Intent to Proceed following
remand from the Ninth Circuit; (2) Plaintiff’s request to re-open discovery is untimely because
the Ball Report-related documents filed in conjunction with Defendants’ Motion for Summary
Judgment had already been produced to Plaintiff on October 31, 2013; (3) Plaintiff waived any
argument to Defendants’ use of the Ball Report and its related documents when responding to
Defendants’ Motion for Summary Judgment (but failing to raise the issue); and (4) there is no
waiver that would justify the re-opening of discovery regardless. See generally Defs.’ Resp. to
Mot. to Re-Open Disc. (Docket No. 113).
DISCUSSION
At its core, Plaintiff’s Motion is an attempt to amend the August 2, 2013 Scheduling
Order and extend the May 19, 2014 discovery deadline referenced therein to allow for the
discovery she now seeks. Modifying scheduling orders requires a showing of “good cause.” See

1

To the extent Plaintiff argues that Defendants waived any privilege/protection
concerning the Ball Report because they didn’t follow the June 18, 2014 Stipulation submitted in
the Ball Report Public Records Case, the argument is misplaced. See Pl.’s Mem. in Supp. of
Mot. to Re-Open and Expand Disc., p. 6 (Docket No. 110, Att. 1) (“The submission of the Ball
Report to this Court in support of the Defendants’ request for the entry of summary judgment
was not required to be submitted by order of this Court, thus making the disclosure of the Ball
Report a direct violation of the Stipulation that had been entered into in the Ball Report Public
Records Case just nine (9) days earlier. In addition, the Defendants failed to include the
Hammer Ball Report Objections in the pleadings that were mandated by the Stipulation in the
Ball Report Public Records Case to be also disclosed if the Ball Report was ever released.”). To
be clear, a violation of the Stipulation in the Ball Report Public Records Case is just that – a
violation; it does not inform the separate issue of whether a waiver of privilege/protection took
place, owing to that violation. Said another way, had Defendants complied with the Stipulation’s
terms, Plaintiff’s waiver arguments would remain intact.
MEMORANDUM DECISION AND ORDER - 6

Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s
consent.”). FRCP 16(b)(4)’s good cause standard “primarily considers the diligence of the party
seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
1992). If a pretrial schedule cannot be met despite the diligence of the party seeking an
extension of time, the Court may modify its scheduling order. See Miller & Kane, Federal
Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (good cause means scheduling deadlines
cannot be met despite the party’s diligence). Carelessness is not good cause for extending a
discovery deadline. See Johnson, 975 F.2d 609. “Although the existence or degree of prejudice
to the party opposing the modification might supply additional reasons to deny a motion, the
focus of the inquiry is upon the moving party’s reasons for seeking modification[;] [i]f that party
was not diligent, the inquiry should end.” Id. (citations omitted). Moreover, where a motion is
made to extend a deadline after the deadline has expired, the movant must show excusable
neglect. See Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be done within a specified
time, the court may, for good cause, extend the time . . . on motion made after the time has
expired if the party failed to act because of excusable neglect.”).
Here, Plaintiff moved to extend the (original) May 19, 2014 discovery deadline on
January 30, 2018;2 as such, Plaintiff must show not only good cause for the extension under
FRCP 16(b)(4), but also that any delay in so moving for the extension was the product of
excusable neglect under FRCP 6(b)(1)(B). In other words, part of the good cause showing
generally required by this Court includes an explanation for why a timely request to extend the

2

It is apparent that Plaintiff is attempting to extend the May 19, 2014 discovery deadline
(as outlined in the August 2, 2013 Scheduling Order), and not the May 22, 2018 deadline to
conduct additional discovery (as outlined in the November 22, 2017 Amended Scheduling
Order), because (1) otherwise, there would be nothing to “re-open” in that her January 20, 2018
Motion preceded the May 22, 2018 deadline by over four months, and (2) the May 22, 2018
deadline applied only to the HSNO-related discovery. See supra.
MEMORANDUM DECISION AND ORDER - 7

discovery deadline could not have been made before May 19, 2014 – i.e., excusable neglect.3
Plaintiff has not met this burden for at least three reasons.4
First, Plaintiff and her counsel had the same Ball Report-related materials filed in support
of Defendants’ June 27, 2014 Motion for Summary Judgment (in this case) as early as October
31, 2013 (albeit in relation to a different, but still unquestionably related, state court case).5 See
Naylor Decl. in Supp. of Defs.’ Resp. to Mot. to Re-Open Disc. at ¶ 5 (Docket No. 113, Att. 1)
(“The pages at issue here, Ball 1-259, which were filed under seal in Defendants’ summary
judgment motion pursuant to that protective order, were first disclosed on October 31, 2013 [(in

3

These concepts – good cause (informed by a party’s diligence (see supra)) and
excusable neglect – unquestionably overlap when understanding that excusable neglect requires
consideration of four factors: “(1) the danger of prejudice to the opposing party; (2) the length of
delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether
the movant acted in good faith.” Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24
(9th Cir. 2001) (citing Pioneer Inv. Servs. Co. v. Brunswick Associates P’ship, 507 U.S. 380, 395
(1993)). Whether it is possible to have good cause but not excusable neglect (or vice versa) is
not examined here; suffice it to say, based upon the record now before the Court, neither good
cause, nor excusable neglect exists for the purpose of re-opening discovery.
4

Because good cause is lacking to amend the August 2, 2013 Scheduling Order and
extend the May 19, 2014 discovery deadline in the first place, the Court need not address the
issues raised by Plaintiff’s related (but still distinct) arguments for doing so – namely, whether
Defendants actually waived any privileges/protections when they either previously produced the
Ball Report materials, or attached the Ball Report materials to their June 27, 2014 Motion for
Summary Judgment. See, e.g., Cortex v. Republic Mortg., LLC, 2016 WL 7888018, at *1 (D.
Nev. 2016) (“Cortes’ arguments in favor of reopening discovery are unpersuasive. Cortes cites
to no authority that supports her position that discovery should be reopened; rather she reiterates
why she believes she is entitled to responsive documents. Cortes’s arguments might have been
appropriate as part of a motion to compel . . . . They do not constitute ‘good cause’ in a motion
to reopen discovery.”) (emphasis added).
5

Still, Defendants produced these same materials to Plaintiff in this case approximately
two weeks later on November 15, 2013. See Naylor Decl. in Supp. of Defs.’ Resp. to Mot. to
Re-Open Disc. at ¶ 7 (Docket No. 113, Att. 1) (“In the current action, the Plaintiffs issued a
subpoena to Ms. Ball on October 18, 2013, generally seeking any and all documents related to
her investigation. In response, and on behalf of Mrs. Ball, on November 15, 2013, Defendants
disclosed duplicates of the documents previously disclosed on October 31, 2013 in the state case
CV-2012-479, after the parties agreed on a similar protective order regarding the confidentiality
of those documents in this action.”).
MEMORANDUM DECISION AND ORDER - 8

response to Plaintiff’s May 6, 2013 subpoena to Ms. Ball “generally seeking any and all
documents related to her investigation”)].”). Yet, despite having this material in the several
months leading up to the May 19, 2014 discovery deadline, Plaintiff failed to pursue the
additional discovery she now seeks via the same waiver arguments she now wants this Court to
consider.
Second, when Defendants included the Ball Report materials in their June 27, 2014
Motion for Summary Judgment, Plaintiff had the opportunity at that time to move to re-open the
discovery period that had closed only a month prior. However, not only did Plaintiff’s July 22,
2014 response to Defendants’ Motion for Summary Judgment not incorporate any of the waiver
arguments she now offers up, she never moved to re-open discovery (or amend the Scheduling
Order to extend the discovery deadline to accommodate additional discovery) until almost four
years later when she filed the instant Motion.
Third, following remand from the Ninth Circuit in August 2017, the parties had an
opportunity to present proposals to Judge Lodge for moving the case forward in light of the
Ninth Circuit’s decision reviving certain of Plaintiff’s claims. But, again, Plaintiff did not raise
the issue of re-opening discovery based upon Defendants’ prior conduct relating to their Motion
for Summary Judgment and/or the Ball Report. Rather, in November 2017, the parties jointly
submitted a proposal speaking to the “additional discovery” needed before proceeding to trial,
which Judge Lodge adopted. See supra. That additional discovery related only to HSNO, not
the Ball Report. See id.
The Court has sought to glean from this extensive record any possible support that might
exist for Plaintiff’s motion. But, after doing so, it cannot be said that either good cause exists to
amend the Scheduling Order and permit discovery beyond the original May 19, 2014 discovery
deadline, or that any delay in so moving for such relief amounts to excusable neglect. Without
MEMORANDUM DECISION AND ORDER - 9

concluding that each reason listed above alone is sufficient for denying Plaintiff’s Motion, there
is no question but that the combination of such reasons indicates that Plaintiff’s latest attempt at
exploring the depths of the Ball Report is a creative afterthought, driven by arguments that may
or may not have traction, but were raised too late regardless.
Accordingly, and in the exercise of its discretion, the Court concludes that whatever
neglect existed by way of Plaintiff only now moving to re-open discovery and/or to amend the
Scheduling Order, it is not excusable. This is a firm line, but not an inequitable line, for the
reason that cases must be managed in a sensible manner to move them forward and that in doing
so “findings of excusable neglect should be reserved for extraordinary cases presented by unique
or extraordinary circumstances.” Vanorden v. Bannock Co., 2015 WL 2193803, at *3 (D. Idaho
2015). Simply put, the record does not support such a finding here. Plaintiffs’ Motion to ReOpen and Expand Discovery Based on Waiver of Privileges (Docket No. 110) is denied.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Re-Open
and Expand Discovery Based on Waiver of Privileges (Docket No. 110) is DENIED.

DATED: August 20, 2018
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 10