Timothy v. Oneida County et al

Filing 59

MEMORANDUM DECISION AND ORDER - IT IS ORDERED that: 1. Defendants Motion for a Protective Order (Dkt. 56 ) is GRANTED in part and DENIED in part as explained above. 2. Plaintiffs Motion for Partial Summary Judgment (Dkt. 41 ) is DENIED WITHOUT PREJ UDICE to refiling the motion at the conclusion of discovery. 3. Defendants Cross-Motion for Partial Summary Judgment (Dkt. 46 ) is DENIED WITHOUT PREJUDICE to refiling the motion at the conclusion of discovery. 4. Plaintiffs Motion for Continuance o f Defendants Motion for Partial Summary Judgment Pursuant to Rule 56(d) (Dkt. 51 ) is GRANTED.5. The parties Stipulated Motion to Extend Discovery Deadlines (Dkt. 58 ) is GRANTED to the following extent: a. The discovery cutoff is extended from 4/8 /2016 through and including 7/8/2016. b. The dispositive-motion deadline is extended from 5/9/2016 through including 8/9/2016. (Discovery due by 7/8/2016. Dispositive Motions due by 8/9/2016.) Signed by Judge B. Lynn Winmill. (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
FOR THE DISTRICT OF IDAHO

HEATHER S. TIMOTHY, an individual,
Case No. 4:14-cv-00362-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
ONEIDA COUNTY, a political
subdivision of the State of Idaho; and
DUSTIN W. SMITH, individually and in
his capacity as Prosecuting Attorney for
Oneida County, Idaho,
Defendants.

INTRODUCTION
There are five motions pending before the Court: (1) Defendants’ Motion for a
Protective Order; (2) Plaintiff Heather Timothy’s Motion for Partial Summary Judgment;
(3) Defendants Oneida County and Dustin Smith’s Cross-Motion for Partial Summary
Judgment; (4) plaintiff’s Motion for a Rule 56(d) Continuance; and (5) the parties’ Joint
Stipulated Motion to Extend Discovery Deadlines because of ongoing, unresolved
discovery disputes. See Dkts. 56, 41, 46, 51, and 58, respectively. For the reasons
explained below, the Court will: (a) grant in part and deny in part Defendants’ motion for
a protective order; (b) grant plaintiff’s motion for a continuance; (c) deny all pending

MEMORANDUM DECISION AND ORDER - 1

motions for summary judgment without prejudice; and (d) extend the discovery and
dispositive-motion filing deadlines by approximately 90 days.
FACTUAL BACKGROUND
Plaintiff Heather Timothy was employed by Oneida County Prosecuting Attorney
Dustin Smith in his public and private office from 2005 until her termination in March
2014. Timothy claims she was fired because she reported that Smith was misusing public
funds. Timothy said Smith was paying himself monies for part-time secretarial services
even though the Oneida County prosecutor did not employ a part-time secretary.
Timothy reported her concerns to Oneida County Sheriff Jeff Semrad, who conducted an
investigation of the matter. Ultimately, Smith was not prosecuted for the alleged
misappropriation.
Timothy alleges five claims in this action: (1) retaliatory discharge in violation of
the First and Fourteenth Amendments; (2) denial of due process in violation of the First
and Fourteenth Amendments; (3) termination of public employment in violation of Idaho
law; (4) negligent infliction of emotional distress; and (5) termination of private
employment in violation of public policy.
PROCEDURAL BACKGROUND
In February 2015, the Court entered a Case Management Order, establishing
various litigation deadlines, including a February 8, 2016 discovery cutoff and a March 8,
2016 cutoff for filing dispositive motions. Case Management Order, Dkt. 21, ¶¶ 2, 5.
The Court later extended those deadlines by roughly two months, such that the extended
discovery cutoff was April 8, 2016, and the extended dispositive-motion deadline was
MEMORANDUM DECISION AND ORDER - 2

May 9, 2016. See Amended Case Management Order, Dkt. 48, ¶¶ 1, 5.
In December 2015 – well before these deadlines expired – Timothy filed her
motion for partial summary judgment. See Dkt. 41. Defendants responded with a crossmotion for partial summary judgment on Timothy’s due process claim. See Dkt. 46. As
to the other claims, defendants indicate that, at this point, they are simply responding to
plaintiff’s motion for summary judgment, but nevertheless hint that may file their own
motion for summary judgment on these claims when discovery concludes. See Motion
Mem., Dkt. 46-1, at 17 n.4.
Defendants’ cross-motion for partial summary judgment on the due-process claim
prompted Timothy to file a motion to continue under Federal Rule of Civil Procedure
56(d). See Dkt. 51. Timothy now says she needs more time to conduct discovery on the
due process claim – despite having filed her own motion for summary judgment on that
claim. In seeking a continuance, Timothy says she has been unable to depose the
defendants “due to ongoing discovery disputes.” Id. at 2. As defendants point out,
however, this alleged inability to depose the defendants did not prevent Timothy from
moving for summary judgment in the first place. Moreover, despite asking the Court to
allow her more time to conduct discovery on the second claim, Timothy incongruously
continues to ask the Court “to rule, as a matter of law, that the hearing offered Timothy
did not comply with the Due Process Clause of the U.S. Constitution.” Dkt. 52, at 4.
Defendants justifiably complain that plaintiff’s litigation tactics are prejudicial. They ask
the Court to deny the motion for a continuance and issue a ruling on their cross-motion
for partial summary judgment. Alternatively, defendants ask the Court to “postpone
MEMORANDUM DECISION AND ORDER - 3

ruling on both parties’ summary judgment motions on due process until after discovery is
completed and avoid having it presented in such a confusing, piecemeal, and legally
incorrect manner . . . .” Dkt. 54, at 5.
Meanwhile, the parties have been engaged in a discovery dispute, with the
defendants ultimately refusing to produce some witnesses (including Defendants Smith
and Oneida County) for deposition until the Court clarifies whether certain lines of
questioning will be permitted. After an unsuccessful attempt to informally mediate the
discovery dispute with Court staff, defendants filed a motion for a protective order. Dkt.
56. The parties say the litigation has reached a standstill because they are unable to
proceed with the depositions until the Court weighs rules on the motion for a protective
order. They therefore ask the Court to again extend the discovery and dispositive-motion
cutoffs.
ANALYSIS
The Court will resolve each motion in turn, beginning with defendants’ motion for
a protective order.
1.

Defendants’ Motion for a Protective Order
Federal Rule of Civil Procedure 26(c) authorizes district courts to issue “any order

which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden.” Fed. R. Civ. P. 26(c). The Supreme Court has interpreted
this language as conferring “broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection is required.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36 (1984). As the Court observed, “[t]he unique character
MEMORANDUM DECISION AND ORDER - 4

of the discovery process requires that the trial court have substantial latitude to fashion
protective orders.” Id. (as quoted in Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,
307 F.3d 1206, 1211-12 (9th Cir. 2002)).
In seeking a protective order, defendants focus on the recent amendments to
Federal Rule of Civil Procedure 26(b)(1). 1 The amendments to this rule allow discovery
of
any nonprivileged matter that is relevant to any party’s claim or defense
and is proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely
benefit.
Fed. R. Civ. P. 26(b)(1) (emphasis added).
A. Defendants’ Request for Limitations on Discovery Regarding the Part-

Time-Secretarial Services Arrangement
Defendants focus on the proportionality language in Rule 26(b)(1). They say that
Timothy’s discovery efforts regarding the payments Oneida County made to Dustin
Smith for part-time secretarial services are “grossly disproportionate to its relevance in
this case.” Motion, Dkt. 56, at 7. In advancing this argument, defendants emphasize that
they have conceded key elements of Timothy’s First Amendment and state whistleblower
claims.

1

These amendments govern all proceedings in civil cases thereafter commenced and, insofar as
just and practicable, in all proceedings then pending. The Court finds that applying the standards of Rule
26(b)(1), as amended, to defendants’ motion for a protective order is just and practicable.

MEMORANDUM DECISION AND ORDER - 5

Regarding the First Amendment claim, the Ninth Circuit employs a “sequential
five-step series of questions” to determine whether an employer impermissibly retaliated
against an employee for protected speech:
(1)

whether the plaintiff spoke on a matter of public concern;

(2)

whether the plaintiff spoke as a private citizen or public employee;

(3)

whether the plaintiff’s protected speech was a substantial or motivating
factor in the adverse employment action;

(4)

whether the state had an adequate justification for treating the employee
differently from other members of the general public; and

(5)

whether the state would have taken the adverse employment action even
absent the protected speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Defendants concede that Timothy
spoke on a matter of public concern, and, further, that she spoke as a private citizen.
Significantly, however, defendants are not willing to concede that Timothy’s protected
speech was a substantial or motivating factor in their decision to terminate her.
Timothy’s claim under Idaho’s Whistleblower Act is defined in Idaho Code
section 6-2105(4), which provides:
To prevail . . ., the employee shall establish, by a preponderance of
the evidence, that the employee has suffered an adverse action
because the employee, or a person acting on his behalf engaged or
intended to engage in an activity protected under section 6-2104,
Idaho Code.
See also Van v. Portneuf Med. Ctr., 212 P.3d 982, 987-88 (2009). Section 6-2104, in
turn, states:
(1)(a) An employer may not take adverse action against an employee
because the employee, or a person authorized to act on behalf of the
MEMORANDUM DECISION AND ORDER - 6

employee, communicates in good faith the existence of any waste of
public funds, property or manpower, or a violation or suspected
violation of a law, rule or regulation adopted under the law of this state,
a political subdivision of this state or the United States. Such
communication shall be made at a time and in a manner which gives the
employer reasonable opportunity to correct the waste or violation.

(b) For purposes of subsection (1)(a) of this section, an employee
communicates in good faith if there is a reasonable basis in fact for the
communication. Good faith is lacking where the employee knew or
reasonably ought to have known that the report is malicious, false or
frivolous.
(emphasis added).
As to this claim, defendants “acknowledge that Plaintiff had a good faith basis to
bring her allegations to Sheriff Semrad and to participate in the ISP investigation.”
Motion, Dkt. 56, at 9. Again, however, the defendants are unwilling to concede that they
took “adverse action against [Timothy] because [she] . . . communicate[d]” her
allegations to Sheriff Semrad and the ISP investigation. 2
Defendants say that, in light of their concessions, plaintiff should focus her
discovery efforts on the reasons for her termination – not on the particulars of the parttime secretarial services arrangement between Smith and Oneida County. Defendants
report that Timothy is instead devoting “an inordinate amount of discovery into the issue

2

Although the parties did not discuss this in their briefing, the issue of whether Timothy was
discharged because of her protected activities may also be relevant to her claim that she was discharged in
violation of public policy, since the issue there is whether “the motivation for discharge contravenes
public policy.” Edmonson v. Shearer Lumber Prods., 75 P.3d 733, 737 (Idaho 2003).

MEMORANDUM DECISION AND ORDER - 7

of potential criminal culpability of Smith and the county commissioners related to the
authorization of part-time secretarial services performed by Dustin Smith’s wife in 2012
through 2014, even though this issue has limited relevance.” Motion, Dkt. 56, at 8.
Defendants say that “what is taking place is obviously an attempt by plaintiff to reconstruct and try the criminal issues relating to the part-time secretarial payments instead
of trying to prove whether her termination was lawful or her due process rights (if any)
denied.” Id. at 9. Defendants thus seek a protective order preventing Timothy from
conducting any further discovery into the issue of part-time secretarial payments other
than the deposition of Dustin Smith.
In response, Timothy says the arrangement regarding part-time secretarial services
payments is, in fact, relevant to why she was terminated. Her theory of the case is that
the secretarial-services arrangement was illegal, and that this, in turn motivated Smith to
fire her to cover up his own allegedly wrongful actions. Timothy explains her theory as
follows:
The special prosecutor announced his decision not to charge Smith for
misappropriating public funds only after Timothy had already been
terminated by Smith. When Smith terminated Timothy, Smith did not
know whether he would be charged or not. When Smith terminated
Timothy, all Smith knew was whether or not he had misappropriated
funds for part-time secretarial services. Whether Smith, when he
terminated Timothy, knew he had misappropriated funds from Oneida
County, is relevant to whether Smith, when he terminated Timothy, was
retaliating against her for reporting his alleged misappropriation of
funds to the Sheriff. If Smith knew, when he terminated Timothy, that
he was guilty of misappropriating funds and was therefore likely facing
criminal charges and disbarment, his motive for retaliating against
Timothy for reporting him to the Sheriff would have been much greater
than if he knew he was innocent.

MEMORANDUM DECISION AND ORDER - 8

Response Br., Dkt. 55, at 5.
To a certain extent, plaintiff’s arguments regarding Smith are not responsive to
defendants’ motion, since defendants concede that plaintiff should be allowed to question
Smith about the part-time secretarial services arrangement. 3 Indeed, the defendants’
concession would permit Timothy to fully explore with Smith the question which is
central to their argument for expansive discovery – “whether [he] knew, when he
terminated Timothy, that he was guilty of misappropriating funds and was therefore
likely facing criminal charges and disbarment.” Id. The more pressing issue is whether
Timothy should be prevented from asking any further questions of other witnesses about
part-time secretarial services, or otherwise conducting discovery into the issue. In other
words, should Timothy be allowed to use discovery in this case to fully re-open the
investigation of Smith’s conduct?
The Court begins by observing that the secretarial-services arrangement is clearly
relevant to this action. As noted above, Timothy claims she was fired because she told
Sheriff Semrad that Smith was accepting payments from Oneida County for part-time
secretarial services that were not actually being rendered. The particulars of the
arrangement are therefore relevant in the sense that they may lead to discoverable
information. See generally Fed. R. Evid. 401 (defining relevant evidence); Fed. R. Civ. P

3

There is one exception; defendants say Timothy should not be permitted to ask questions about
Exhibit L. That issue is addressed below, in paragraph B.

MEMORANDUM DECISION AND ORDER - 9

26(b)(1) (“Information within [the] scope of discovery need not be admissible in
evidence to be discoverable”).
On the other hand, in light of defendants’ concessions, it would seem that
Timothy’s discovery efforts can and should focus on information regarding why she was
fired – as opposed to delving into the details of the secretarial payment arrangement. But
that process cannot be as circumscribed as defendants wish. While discovery should be
focused exclusively on what role Timothy’s whistleblowing activity played in the
decision by Smith – or any other decisionmaker – to terminate her employment, there are
presumably a number of other individuals who will have information about what Smith
knew and understood about the investigation when he decided to terminate Timothy.
Therefore, that subject cannot be off-limits in the deposition of others with knowledge of
the investigation and the decision to terminate.
What would be excessive and disproportionate to the needs of the case, however,
would be to fully re-investigate the allegations made by Timothy and investigated by
Sheriff Semrad and the special prosecutor. Plaintiff’s claims will fail or succeed based
on what Smith knew at the time and whether that knowledge motivated him to discharge
her. Those claims will not be materially advanced by information obtained through an
expensive, time-consuming, leave-no-stone-unturned discovery effort conducted several
years after her termination.
Under these circumstances, the Court will deny defendants’ request for a blanket
order prohibiting Timothy from conducting further discovery into the part-time
secretarial services arrangement. On the other hand, the Court will grant the request to
MEMORANDUM DECISION AND ORDER - 10

the extent they seek to restrict Timothy from inquiring into those arrangements with other
witnesses, except to establish that Timothy’s termination was motivated by her
complaints.
The Court is mindful that this decision does not provide the parties with a clear
roadmap for future discovery. But it is not possible to devise such a roadmap in the
abstract. Ideally, a judge could be present at the depositions and resolve objections about
any particular question on the spot. But that approach is not feasible. As an alternative,
the Court is willing to meet with counsel and establish reasonable guidelines for future
discovery. To that end, the Court would expect counsel to meet immediately and confer
in good faith to identify a limited number of examples where the parties disagree as to
whether certain discovery is or is not relevant and proportional to the needs of the case.
The Court will then makes itself available for a short conference with counsel in an effort
to create more meaningful guidelines.
B.

Exhibit L

The Court will deny defendants’ request for an order preventing Timothy from
asking questions about Exhibit L. Exhibit L is an August 4, 2014 letter defendant Dustin
Smith wrote to the Office of Bar Counsel. Smith wrote the letter directly to the Idaho
State Bar, in response to a complaint Sheriff Semrad had made against him. Smith says
the sole purpose of the letter was to defend himself against Semrad’s allegations of
misconduct. Motion, Dkt. 56, at 3. Plaintiff obtained the letter by submitting a public
records request to Sheriff Semrad, who, in turn, produced the letter to her. See Dkt. 2512.
MEMORANDUM DECISION AND ORDER - 11

Preliminarily, defendants object to the manner in which plaintiff obtained this
document. Plaintiff says she obtained the documents by serving a subpoena and a public
records request – under Idaho’s Public Records Act – to obtain the document directly
from Sheriff Semrad. The Idaho legislature clarified, however, that its Public Records
Act is not “available to supplement, augment, substitute or supplant discovery
procedures” in any federal or state civil action. Idaho Code § 74-115(3). Defendants say
that if Timothy had submitted a document request to the County, they would have had a
chance to object. Instead, Sheriff Semrad, who is apparently sympathetic to plaintiff,
simply turned over the document to the plaintiff without any advance warning to defense
counsel.
Regardless of how plaintiff obtained the document, the Court will ultimately have
to determine if Exhibit L is properly withheld under the Idaho Bar Commission Rule
defendants are invoking. For that reason, the Court will proceed to answer the ultimate,
substantive questions regarding Exhibit L, which are: (1) Is Exhibit L a “confidential”
document under Idaho Bar Commission Rule 521? and (2) If so, should the Court seal the
letter and prohibit plaintiff from conducting any further discovery into the letter?
Defendants contend Exhibit L is a “confidential” document under Idaho Bar
Commission Rule 521, which provides as follows:
RULE 521. Access To Information
(a) Availability of Information. All proceedings and records relating

MEMORANDUM DECISION AND ORDER - 12

to Professional Conduct,[ 4] except the work product of Bar
Counsel, a Hearing Committee or the Professional Conduct Board,
shall be available to the public after the filing and service of Formal
Charges, unless the Grievant or Respondent obtains a protective
order for specific testimony, documents or records.
(b) Confidentiality. Prior to the filing and service of Formal Charges, a
Professional Conduct matter is confidential, except that the
pendency, subject and status of a Professional Conduct matter may
be disclosed by Bar Counsel if:
(1) the Lawyer has waived confidentiality in writing;
(2) the matter is based upon allegations that include either the
conviction of a crime or public reciprocal discipline;
(3) the matter is based upon allegations that have become generally
known to the public; or
(4) there is a need to notify another person or organization,
including the Client Assistance Fund, in order to protect the
public, the administration of justice, or the legal profession.
Idaho Bar Comm’n R. 521(a), (b).
Smith says that because the bar never pursued formal charges against him, all bar
records and proceedings – including Exhibit L – must remain confidential. Timothy does
not squarely address this argument, other than to say she would be unfairly sanctioned if
she is not permitted to ask questions about Exhibit L.
A threshold problem with defendants’ assertion of an Idaho state-law
“confidentiality” privilege is that federal courts are not bound to recognize state

4

Professional Conduct is defined as “conduct that occurs within or without the attorney-client
relationship that reflects upon the Lawyer's fitness to practice law.” Idaho Bar Comm’n R. 501(k).

MEMORANDUM DECISION AND ORDER - 13

privileges in a federal question case. See generally Fed. R. Evid. 501; Garrett v. City &
Cnty. of San Francisco, 818 F.2d 1515, 1519 n.6 (9th Cir. 1987) (personnel files
discoverable in a federal civil rights action despite claims of privilege under state law).
Here, Timothy has joined federal and state law claims in the same action, but the Ninth
Circuit has clarified that claims of privilege are still determined under federal law. See,
e.g., Agster v. Maricopa Cnty., 422 F.3d 836, 830 (9th Cir. 2005). Though a federal court
may attempt to accommodate the policies reflected in state law, 5 it is still the defendants’
burden to justify application of the state rule.
Defendants have not shouldered that burden. In fact, neither side discusses the
policy behind Idaho Bar Commission Rule 521 or Idaho Court Administrative Rule 32.
The Idaho Supreme Court’s policy statement regarding Rule 32 may shed some light on
the subject. It provides that a variety of documents that are exempt from disclosure –
including “[a]llegations of attorney misconduct received by the Idaho State Bar and
records of the Idaho State bar relating to attorney discipline, except where confidentiality
is waived under the Idaho Bar Commission Rules.” Idaho Court Admin. R. 32(g)(26). In
adopting Rule 32, the Supreme Court explained that it was meant to provide access to
court records in a manner that, “[p]romotes accessibility to court records,” while at the

5

See Breed v. United States District Court, 542 F.2d 1114, 1115 (9th Cir.1976) (state privilege
law, while not binding in federal question case, can be a useful referent); Leon v. Cnty. of San Diego, 202
F.R.D. 631, 635 (S.D. Cal. 2001) (federal courts should attempt to accommodate state privilege in federal
question cases unless doing so would impair assertion of a federal right); United States v. King, 73 F.R.D.
103, 105 (E.D.N.Y.1976) (“A strong policy of comity between state and federal sovereignties impels
federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal
substantive and procedural policy.”).

MEMORANDUM DECISION AND ORDER - 14

same time “[p]rotect[ing] individual privacy rights and interests” and “[m]inimiz[ing]
reluctance to use the court system.” Id. § (a)(1), (6), (8).
Generally speaking, if the Idaho State Bar were obligated to disclose records
relating to each allegation of attorney misconduct, aggrieved clients might be less willing
to complain about attorney misconduct. Full disclosure of disciplinary proceeding
records could also interfere with the bar’s ability to issue private – as opposed to public –
reprimands. See, e..g, Idaho Bar Comm’n Rule 506(d), (e), and (g) (relating to “Public
Censure,” “Public Reprimand,” and “Private Reprimand,” respectively).
On the other hand, the overriding policy in any § 1983 case is “one of disclosure
of relevant information in the interest of promoting the search for truth in a federal
question case.” Burke v. N.Y. City Police Dep., 115 F.R.D. 220, 225 (S.D.N.Y. 1987).
In this case, the search for truth mainly involves answering this question: Why was
Heather Timothy fired? Relevant to defendants’ request for a protective order, the
question is whether Dustin Smith’s letter to the Idaho State Bar will reveal why Timothy
was fired. The letter does not discuss Timothy’s termination, so it is not directly helpful.
Timothy, however, argues that the letter is still useful because she believes it will help
her attack Smith’s credibility. Specifically, she says Exhibit L will show that Smith lied
to the Idaho State Bar about whether the County Commissioners had approved his receipt
of payments for part-time secretarial services, which, in turn, would support her assertion
that Smith lied about why he fired her. See Response Br., Dkt. 55, at 5-6. (“Evidence
that Smith lied to the State Bar about whether the County Commissioners had approved
his receipt of payments for part-time secretarial services allegedly performed by his wife
MEMORANDUM DECISION AND ORDER - 15

is relevant to the issue of whether Smith lied about why he fired Timothy who had first
reported his receipt of payments for part-time secretarial services to the Sheriff.”).
The Court will deny the motion to prohibit any questioning regarding Exhibit L.
Although defendants invoke the state-law confidentiality rule to protect Exhibit L from
disclosure, they fail to appreciate that in this federal action, they must enunciate the
specific harms that might flow from disclosure. Such an explanation is critical
considering the general principles of truth-seeking in discovery, its broad application to
any relevant, non-privileged material, and the general presumption against invocation of
privilege in § 1983 cases. The Court will, however, limit its holding to the narrow and
specific facts of this case. Further, just because the Court is allowing Timothy to ask
questions about Exhibit L during discovery does not necessarily mean the Court will
allow such questioning at trial, or that it will admit Exhibit L into evidence during trial.
That is another issue for another day.
2.

Plaintiffs’ Motion to Continue
Despite having filed her own motion for summary judgment on the due process

claim, Timothy now claims she needs to conduct additional discovery in order to defend
defendants’ cross-motion for summary judgment on the same claim. She seeks a
continuance under Federal Rule of Civil Procedure 56(d).
Under Rule 56(d), the Court may defer consideration of defendants’ cross-motion
for partial summary judgment if Timothy shows that she “cannot present facts essential to
justify . . . [her] opposition.” A party requesting a continuance pursuant to Rule 56(d)
must identify by affidavit “the specific facts that further discovery would reveal, and
MEMORANDUM DECISION AND ORDER - 16

explain why those facts would preclude summary judgment.” Tatum v. City of San
Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).
Timothy’s counsel has submitted an affidavit explaining that they have been
unable to depose Defendants Dustin Smith and Oneida County. Muhonen Aff., Dkt. 51-1,
¶ 8. Plaintiffs have been pressing for these depositions for several months, but the parties
disputed the proper parameters of these depositions. Timothy says that these depositions
will allow her to establish that Timothy was “removed from her ‘at-will’ status with her
employment with Oneida County and Smith in many instances.” Id. ¶ 17.
The Court will grant the Rule 56(d) motion because it appears that Timothy has
been diligent in seeking to depose these defendants. The Court reaches this decision with
some reluctance. After all, Timothy decided to forge ahead with her motion for summary
judgment, despite knowing full well that she had not been able to depose Smith or Oneida
County. If she truly believed she needed to take these depositions before filing her
motion, she should have waited. Nevertheless, the Court believes defense counsel should
have offered to produce defendants for their depositions, notwithstanding the dispute
regarding discovery into the part-time secretarial services payments. If these defendants
had been offered up for deposition, the litigation could have moved forward more
expeditiously and plaintiff could have taken the discovery she now says she needs to
defend the cross-motion for summary judgment.
The Court will therefore grant the Rule 56(d) motion and deny defendants’ crossmotion for summary judgment without prejudice. Defendant may renew this motion at
the conclusion of the discovery.
MEMORANDUM DECISION AND ORDER - 17

3.

Plaintiffs’ Motions for Summary Judgment
Likewise, the Court will defer ruling on plaintiffs’ motion for partial summary

judgment until the conclusion of discovery. As noted above, defendants indicate that
they may be filing a motion for summary judgment on these additional claims as well.
Additionally, both sides indicate that they want the opportunity to (1) supplement
briefing on the currently pending motions for summary judgment; and (2) file additional
motions for summary judgment. Stipulation, Dkt. 58, ¶ 7.
Under these circumstances, the most logical, efficient way to proceed is to allow
the discovery period to conclude, and then allow the parties to file fresh summary
judgment motions, rather than to supplement existing motions and file additional
motions. The Court will therefore deny all pending summary judgment motions without
prejudice to the parties’ refiling their motions at the conclusion of the discovery period.
Further, if both parties intend to file motions, they are ordered to meet and confer so as to
minimize briefing. The Court generally prefers to have four briefs on cross-motions for
summary judgment, rather than six, as follow: (1) Motion for Summary Judgment, with a
supporting brief; (2) Opposition and Cross-Motion, supported by a single brief; (3)
Response to the Cross-Motion & Reply in Support of the Initial Motion; supported by a
single brief; and (4) Reply in support of the cross-motion.
4.

Stipulated Motion to Extend Discovery Deadlines
The parties have asked for an extension of the discovery deadlines. According to

the parties, progress in this litigation came to a complete standstill because of the
discovery dispute regarding Exhibit L and the part-time secretarial services payment and
MEMORANDUM DECISION AND ORDER - 18

Exhibit L. Additionally, the parties are now in the midst of yet another discovery dispute
regarding an email defendants produced in February 2016. Id. at 2. The parties have
entered into certain stipulations to resolve this dispute, including a stipulation that the
discovery period remain open for 45 days following the last of depositions of a set of five
depositions. The parties also stipulated that they shall have 30 days after the close of
discovery to file additional motions for summary judgment.
The Court will extend the discovery cutoff in this case, as well as the dispositive
motion deadline, for approximately 90 days – primarily because the parties’ first
discovery motion pended before this Court for a lengthy period. The parties should be
able to schedule their depositions and resolve any additional disputes within the newly
expanded time frames. The Court also reminds the parties that this Court is not in the
practice of extending discovery deadlines simply because the parties are having discovery
disputes. They should govern themselves accordingly.
ORDER
IT IS ORDERED that:
1. Defendants’ Motion for a Protective Order (Dkt. 56) is GRANTED in part
and DENIED in part as explained above.
2. Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 41) is DENIED
WITHOUT PREJUDICE to refiling the motion at the conclusion of discovery.
3. Plaintiff’s Cross-Motion for Partial Summary Judgment (Dkt. 46) is DENIED
WITHOUT PREJUDICE to refiling the motion at the conclusion of discovery.

MEMORANDUM DECISION AND ORDER - 19

4. Plaintiffs’ Motion for Continuance of Defendants’ Motion for Partial Summary
Judgment Pursuant to Rule 56(d) (Dkt. 51) is GRANTED.
5. The parties’ Stipulated Motion to Extend Discovery Deadlines is GRANTED
to the following extent:
a. The discovery cutoff is extended from April 8, 2016 through and
including July 8, 2016.
b. The dispositive-motion deadline is extended from May 9, 2016 through
including August 9, 2016.

DATED: May 18, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 20