Vasquez v. City of Idaho Falls

Filing 100

MEMORANDUM DECISION AND ORDER RE: IN CAMERA REVIEW - Discovery remains CLOSED in this case. Idaho Falls need not respond to Plaintiffs Fourth Set of Discovery Request. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

Case 4:16-cv-00184-DCN Document 100 Filed 07/08/20 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LUIS AUGUSTINE VASQUEZ,
Case No. 4:16-cv-00184-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER RE. IN CAMERA REVIEW

v.
CITY OF IDAHO FALLS,
Defendant.

I.

INTRODUCTION

Pursuant to the Court’s “Memorandum Decision and Order Re. Motion For
Sanctions, or Alternatively, Motion To Compel and/or To Reopen Discovery On A Limited
Basis,” Idaho Falls provided the Court with its proposed supplemental responses to
Plaintiff’s Fourth Set of Discovery Request and accompanying documents. Dkt. 99. After
completing its in camera review, the Court has determined Idaho Falls need not respond to
Plaintiff’s Fourth Set of Discovery Requests.
II.

BACKGROUND

Idaho Falls disclosed Brent Martin as a potential witness in its initial disclosures on
January 13, 2017, stating:
Brent Martin, City of Idaho Falls Parks and Recreation Superintendent, c/o
Blake Hall, HALL ANGELL & ASSOCIATES, LLP, 1075 S Utah Avenue,
Suite 150, Idaho Falls, ID 83402, phone number [phone]. It is

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anticipated that this witness will have information regarding the facts and
procedure associated with the termination of Plaintiff’s employment.
Dkt. 93-1, at 12.
The Court’s Case Management Order mandated that all discovery be completed by
July 30, 2017 (Dkt. 15, at 3), but the Court later granted an extension to the discovery
deadline until September 8, 2017, for the deposition of Sergio Soto (Dkt. 18). Vasquez
strategically chose not to depose Martin prior to July 30, 2017.
On December 6, 2019, five months before trial was set, Idaho Falls supplemented
its disclosure regarding Martin. Its supplement noted that Martin’s job title had changed
from City of Idaho Falls Parks and Recreation Superintendent to Assistant Superintendent
for Sandcreek Golf Course, and that Martin was still employed by the Idaho Falls in his
new position. Dkt. 93-1, at 5. Idaho Falls stated in its supplement, “It is anticipated that
this witness will have information regarding the facts and procedure associated with the
termination of Plaintiff’s employment.” Id.
On an undisclosed date in April 2020, Vasquez’s counsel heard that Martin had been
demoted for misconduct, possibly for sexual harassment. Vasquez’s counsel has not
disclosed his source and acknowledged any information he heard was hearsay and
inadmissible at trial.
On April 29, 2020, Vasquez emailed Judge Wilson via his law clerk, asking how
Judge Wilson would “handle witnesses whose testimony will be used solely for
impeachment . . . .” Dkt. 91-1, at 8. Judge Wilson requested clarification as to whether
Vasquez was asking how the Judge would handle rebuttal witnesses. Vasquez responded

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that he was principally asking about impeachment witnesses, “who could be called in the
party’s case in chief or on rebuttal.” Id. at 7. Judge Wilson ultimately instructed Vasquez
to “[f]ile a motion regarding your new discovery issues and include whatever relief you are
requesting.” Dkt. 97-1, at 5.
On April 30, 2020, the jury trial set for May 18, 2020, was continued to August 10,
2020, due to COVID-19. Dkt. 88.
On May 14, 2020, without permission from the Court to modify the scheduling
order, Vasquez served “Plaintiff’s Fourth Set of Discovery Requests” on Idaho Falls. In it,
he requested information regarding Martin’s change of job title from Idaho Falls Parks and
Recreation Superintendent to Assistant Superintendent for Sandcreek Golf Course, every
disciplinary action or adverse employment action taken against Martin from January 1,
2007 to the present, and any supporting documents.
On May 18, 2020, Vasquez filed a motion requesting sanctions, or, in the
alternative, a motion to compel and/or reopen discovery on a limited basis. Dkt. 18. He
asserted his motion was in response to Judge Wilson’s instruction to file a motion
concerning his new discovery issues.
The Court denied Vasquez’s request to compel responses to “Plaintiff’s Third Set
of Interrogatories and Request for Production,” which was served on Idaho Falls on June
30, 2017, because Vasquez had waited years after the close of discovery and after the
dispositive motions deadline had passed to file his motion to compel. However, the Court
held that it would conduct an in camera review of Idaho Falls’ response to “Plaintiff’s
Fourth Set of Discovery Requests,” prior to compelling Idaho Falls to produce the
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information. The Court has now conducted its review.1
III.

DISCUSSION

Rule 26(a)(1)(A)(ii) requires a party to, “without awaiting a discovery request,
provide to the other parties . . . a copy—or a description by category and location—of all
documents, electronically stored information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). “The rule
does not require affirmative production of documents.” BWP Media USA Inc. v. Urbanity,
LLC, 696 F. App’x 795, 796 (9th Cir. 2017).
Upon review, Martin was reassigned in 2018, three years after Vasquez was
terminated and over two years after the Complaint was filed.2 The requested information
does not relate to stated testimony Idaho Falls asserts Martin may witness to at trial (i.e.,
“the facts and procedure associated with the termination of Plaintiff’s employment”). As
Idaho Falls does not intend to use information relating to “Plaintiff’s Fourth Set of
Discovery Requests” to support its claims or defenses, it was not required affirmatively
produce either a description of the documents or the actual documents now requested by
Vasquez.
Nor was Idaho Falls required to supplement any prior disclosure with the new

1

The Court found Vasquez’s motion to compel responses to “Plaintiff’s Fourth Set of Discovery Requests,”
was timely. Vasquez moved to compel on May 18, 2020, based on hearsay he heard in late April 2020 that
Idaho Falls demoted Martin for misconduct, possibly for sexual harassment.
2

The Court saw no evidence in its in camera review to suggest that Martin was reassigned due to sexual
harassment, either alleged or actual.

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information regarding Martin. Vasquez chose not to depose Martin or to seek documents
related to him during the discovery period. Vasquez contends that whether “Martin had
actually been demoted for misconduct, possibly even for sexual harassment. . . . bears
heavily upon Plaintiff’s pretext case and whether the defendant followed its progressive
disciplinary policy with Martin, a Caucasian decisionmaker who had received Plaintiff’s
complaints of racial harassment but refused to do anything about it, only to fire Plaintiff a
month later and then destroy evidence of his complicity.” Dkt. 93-1, at 5. However, to the
extent information requested by Vasquez in his first three sets of interrogatories and
requests for production might have been tangentially related to Martin, Vazquez did not
move to compel that material during the discovery period. As Vasquez never pursued
Martin’s personnel file from January 1, 2007 to the present (or related information), during
the original discovery period, he is not entitled to have it supplemented now, mere weeks
before trial. 3
Instead, as his counsel stated in his email to Judge Wilson, Vasquez sought
information concerning Martin in connection with impeaching witnesses. After reviewing
Idaho Falls’ proposed responses to “Plaintiff’s Fourth Set of Discovery Requests,” the
Court holds that the evidence could only be admitted for the purpose of impeaching a
witness. Accordingly, Idaho Falls is not required to respond to “Plaintiff’s Fourth Set of
Discovery Requests” at all under Rule 26’s protection of documents used solely for

3

To the extent there may be newly relevant material in his personnel file relating to events occurring after
the discovery period closed, the potentially relevant evidence would be precluded from discovery under
Federal Rule of Evidence 407.

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impeachment. Fed. R. Civ. P. 26(a)(1)(A)(ii); see also IceMOS Tech. Corp. v. Omron
Corp., No. CV-17-02575-PHX-JAT, 2020 WL 1905736, at *2 (D. Ariz. Apr. 17, 2020)
(“Under Rule 26(a)(1)(A), a party need not disclose an individual or information that the
party will use ‘solely for impeachment,’ that is, solely to attack a witness’s credibility.”).
IV.

ORDER

IT IS HEREBY ORDERED:
1. Discovery remains CLOSED in this case.
2. Idaho Falls need not respond to Plaintiff’s Fourth Set of Discovery Request.

DATED: July 8, 2020

_________________________
David C. Nye
Chief U.S. District Court Judge

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