Pickett et al v. Nevada Board of Parole Commissioners et al
Filing
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ORDER Granting in part and Denying in part 44 Plaintiff's Motion for Sanctions re Discovery. Amended/Supplemental Joint Pretrial Order due by 12/15/2012. Signed by Magistrate Judge Cam Ferenbach on 09/19/2012. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CARY PICKETT,
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Plaintiff,
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v.
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NEVADA BOARD OF PAROLE
COMMISSIONERS, et al.,
Defendant.
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2:09-cv-01695-PMP -VCF
ORDER
(Motion For Sanctions #44)
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Before the court are plaintiff Cary Pickett’s Motion for Sanctions Regarding Discovery. (#44).
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Defendants filed an Opposition (#48), and plaintiff filed a Reply (#49). The court held a hearing on
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September 19, 2012.
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Motion For Sanctions
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A.
Discovery History
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On October 3, 2011, the court entered the parties’ Revised Joint Discovery Plan and Scheduling
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Order (#25). Pursuant to the discovery plan, the parties’ initial disclosures were due on October 7,
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2011, the discovery cut-off date was February 29, 2012, and dispositive motion were due on March 30,
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2012. Id. Plaintiff served defendants with his initial disclosures on October 5, 2011. (#30).
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Defendants did not serve plaintiff with their initial disclosures. Id. On November 16, 2011, plaintiff
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served defendants with requests for admissions, requests for production of documents, and
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interrogatories. Id. On December 19, 2011, defendants served plaintiff with their responses to the
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requests for admissions. Id. On December 20, 2011, defendants requested an extension of time to
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respond to the production of documents and interrogatories until January 3, 2012, which plaintiff
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granted. (#33-2). No responses were received on January 3, 2012. (#30).
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After granting defendants several extensions, plaintiff’s counsel informed defense counsel that
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if responses were not received by February 3, 2012, plaintiff would be moving to compel and for
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sanctions. Id. No discovery responses were received. (#30). In February of 2012, plaintiff filed two
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motions to compel, asserting that despite plaintiff’s cooperation, persistence, and granting of multiple
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extensions for defendants to respond to the discovery requests, defendants have failed to provide
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plaintiff with any responses. (#28 and #30). Plaintiff also asserted that defendants should be sanctioned
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under Rule 37 for their behavior. Id. On February 28, 2012, plaintiff filed a motion to extend time
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regarding discovery. (#31). Defendants opposed the motion to compel, and asserted that the plaintiff’s
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requests “sought a wide breath of information,” and were “profoundly overbroad.” (#32).
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The court held a hearing on the pending motions (#28, #30, and #31) on April 19, 2012. (#38).
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On the same day, the court entered an order granting in part and denying in part plaintiff’s motion to
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compel (#30), and ordering defendants to “serve plaintiff with initial disclosures pursuant to Rule
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26(a)(1) on or before April 26, 2012,” and to “serve plaintiff with complete responses, without
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objection, to plaintiff’s requests for production of documents and interrogatories excluding Interrogatory
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No. 7., on or before May 3, 2012.” (#39).
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The court also granted plaintiff’s request for sanctions, and ordered defendants to pay $1,000
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in sanctions within fourteen days from April 19, 2012. Id. The court stated that “[f]ailure to timely
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serve initial disclosures or discovery responses without objection will result in further sanctions.” Id.
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The court granted plaintiff’s motion to extend discovery (#31), and held that discovery was closed for
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defendants because “defendants have not participated in discovery,” and that no dispositive motions
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may be filed. Id. Plaintiff was permitted to conduct six (6) depositions on or before June 1, 2012, and
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the Joint Pretrial Order deadline was set for July 2, 2012. Id.
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On May 9, 2012, plaintiff filed a notice of taking depositions of David Bartlett and John
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Freeman on May 30, 2012, and of David Smith on May 31, 2012. (#40). On May 22, 2012, plaintiff
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filed a notice of taking depositions of Lt. John DelVillan on May 31, 2012, and of Commissioner
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Maurice Silva and Commissioner Michael Keeler on June 1, 2012. (#41). On July 10, 2012, the parties
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filed a proposed pretrial order (#43), which the court signed on July 17, 2012 (#46). On July 12, 2012,
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plaintiff filed the instant motion for sanctions. (#44). Defendants filed an opposition on July 27, 2012
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(#48), and plaintiff filed a reply on August 6, 2012 (#49).
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On August 14, 2012, the court issued an order scheduling a settlement conference for January
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8, 2013. (#50). On August 17, 2012, the court issued a minute order scheduling a hearing on the
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motion for sanctions. (#51).
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B.
Request for Sanctions- Default Judgment
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Relevant Facts
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Plaintiff asserts that defendants did not produce witness John Freeman1 for his deposition on
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June 1, 2012 at 1:00 p.m., despite the fact that the plaintiff noticed the deposition on May 22, 2012
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(#41). (#44 Exhibit 2, Certificate of Non-Appearance). Plaintiff alleges that no efforts were made on
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the part of defendants to subsequently produce the witness. Id. During the deposition of DelVillan,
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plaintiff learned of a “critical witness regarding the events and circumstances of this case: Sergeant
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Dennis Brown.” Id. Plaintiff asserts that Sergeant Brown was the parole board representative
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presenting the case against plaintiff at both of the Parole Board Hearings at issue, yet defendants never
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disclosed him. Id. DelVillan testified during the deposition that Sergeant Brown “would have probably
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the most knowledge of what was presented and what went on.” Id (Exhibit 3). Sergeant Brown has not
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been disclosed as a witness. Id.
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Plaintiff asserts that he also learned during the depositions of DelVillan and David Smith that
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Parole Board Hearings had been recorded or would have been recorded. Id (Exhibits 3 and 4). Smith
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testified that he was unsure if the recordings had been destroyed. Id (Exhibit 4). Plaintiff also learned
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during depositions that signed versions of some documents had not been produced by defendants, such
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Plaintiff asserts in the motion that Keller did not appear for his deposition, but the certificate of nonappearance is for John Freeman (#44 Exhibit 2) and later in the motion plaintiff refers to the non-appearance of Freeman
(#44).
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as a signed version of the July 17, 2006, Violation Report (Exhibits 3 and 6, deposition transcript of
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Bartlett and DelVillan).
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On June 1, 2012, plaintiff’s counsel contacted defense counsel by telephone to discuss (1)
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defendants’ failure to disclose Sergeant Brown as a witness, (2) defendants’ failure to produce signed
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Parol and Probation records, (3) defendants’ failure to produce recordings of parole hearings, and (4)
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Freeman’s non-appearance. (#44 Exhibit 7). Defense counsel responded on June 6, 2012, and informed
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counsel that he located two recordings, but that defendants no longer had copies of the signed Parole
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and Probation records. (#44 Exhibit 8). Defense counsel stated that defendants had produced CDs of
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the hearing recordings, but plaintiff’s counsel never received the CD. Id.
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Plaintiff’s counsel sent a letter regarding the conversation on June 13, 2012 (#44 Exhibit 7), but
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defense counsel responded on June 14, 2012, stating that it had not failed to produce documents (#44
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Exhibit 9). Defense counsel also stated that plaintiff did not receive the recordings because they were
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sent to the wrong address, but that the recordings had been sent to the correct address on June 8, 2012.
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(#44 Exhibit 9). Plaintiff had not received any recordings as of the date of filing the motion. (#44
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Exhibit 10).
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In defense counsel’s letter, he also stated that Mr. Freeman is neither employed by the state nor
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represented by counsel, and that counsel “instructed him to attend and that is the full extend of the
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Nevada Attorney General’s Office’s obligation.” (#44 Exhibit 9). Defense counsel also stated that they
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would not give out Mr. Freeman’s address because of the concern of publishing a peace officer’s home
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address.2 Id. With regard to witness Sergeant Brown, defense counsel stated that they discovered that
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he was a potential witness at the same time plaintiff did, and defendants’ “duty to disclose is no greater
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than [plaintiff’s].” Id. Defense counsel stated that plaintiff “actually attended the[] hearings” where
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Sergeant Brown was, and that plaintiff has as much of a duty to disclose him as defendants. Id. On July
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Defense counsel Samuel R. Kern represented during the hearing that the Attorney General’s Office would
accept service of a deposition subpoena on behalf of Mr. Freeman.
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9, 2012, defense counsel informed plaintiff that the videos could be picked up at defense counsel’s
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office. (#44 Exhibit 11). Plaintiff asserts that the videos were not playable. Id.
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Relevant Law
Plaintiff asks this court to sanction the defendants in the form of default judgment under Federal
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Rule of Civil Procedure 37.
Rule 37(b)(2)(A) states that “[i]f a party or a party's officer, director, or
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managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to
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provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action
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is pending may issue further just orders. They may include the following: (I) directing that the matters
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embraced in the order or other designated facts be taken as established for purposes of the action, as the
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prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated
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claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole
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or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or
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proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii)
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treating as contempt of court the failure to obey any order except an order to submit to a physical or
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mental examination.”
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The Ninth Circuit has enumerated a five-part test to determine whether sanctions under Rule
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37(b)(2)(A)(vi) are appropriate: “(1) the public’s interest in expeditious resolution of litigation; (2) the
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court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.”
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Conn. Gen. Life Ins. v. New Images of Beverly Hills, 482. F.3d 1091, 1096 (9th Cir. 2007) (citing
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Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) (citations omitted); Valley Eng’rs Inc. v. Elec.
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Eng’g Co., 158 F.3d 1051, 1057 (9th Cir.1998) (citation omitted); Eitel v. McCool, 782 F.2d 1470,
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1471-72 (9th Cir. 1986) (identifying similar factors to be considered before granting default judgment
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under Rule 55(b)).
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3.
Plaintiff’s Argument
a. Public’s Interest In Expeditious Resolution
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Plaintiff asserts that the matter has been pending since August 31, 2009, and that despite several
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requests, defendants did not provide initial disclosures or responses to written discovery until after the
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court ordered so. (#44). Plaintiff also asserts that even though the court ordered production, defendants
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“still failed and refused to produce critical documents (and may have in fact destroyed them), ha[ve]
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failed and refused to disclose critical witnesses, and ha[ve] failed and refused to produce witnesses for
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deposition.” Id. Plaintiff argues that this behavior has continuously delayed the litigation and the
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expeditious resolution of the case, and that this factor weighs in favor of sanctions. Id.
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b. Court’s Need To Manage Docket
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Defendants’ behavior of avoiding discovery has forced plaintiff to bring the issues to the court’s
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attention twice, thereby “unnecessarily clogg[ing] the court’s docket.” (#44). Plaintiff asserts that
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“[s]evere sanctions are warranted when “a [party's] noncompliance has caused the action to come to a
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halt, thereby allowing the [party], rather than the court, to control the pace of the docket.” Allen v. Bayer
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Corp. (In re: Phenylpropanolamine (PPA) Prods. Liab. Litig.), 460 F.3d 1217, 1234 (9th Cir. 2006)
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(citations omitted). Plaintiff argues that defendants’ actions have caused the action to come to a halt
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and that defendants are essentially managing the docket, not the court. (#44). Therefore, plaintiff
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asserts, the court’s need to manage its docket weighs in favor of dispositive sanctions. Id.
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c. Risk of Prejudice
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Plaintiff asserts that “defendants engaged in month-long strategy to prevent production of
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documents and identification of witnesses,” and that this is considered sufficient prejudice to plaintiff.
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(#44)(citing Allen, 460 F.3d at 1227 (“Failing to produce documents as ordered is considered sufficient
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prejudice.”)(citations omitted)). Plaintiff also asserts that “prejudice is presumed from an unreasonable
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delay, and the burden to show actual prejudice shifts to the party seeking the sanction only after the
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responding party has given a nonfrivolous excuse for the delay.” Id; citing Hernandez v. City of El
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Monte, 138 F.3d 393, 400-01 (9th Cir.1998).
d. Public Policy Favoring Disposition on the Merits
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Plaintiff asserts that the entry of default would, of course, prevent disposition of the case on its
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merits, but that the “severity of these sanctions must be balanced against [d]efendants’ deliberate pattern
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of obstruction of discovery to prevent [p]laintiff from obtaining evidence.” (#44).
e. Less Drastic Sanctions
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Factors that indicate whether a court has considered alternatives include, inter alia, whether the
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court implemented alternative methods of sanctioning or curing the malfeasance before ordering
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dismissal. Allen, 460 F.3d at 1228-29, quoting Malone v. U.S. Postal Service, 833 F.2d 128, 132 (9th
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Cir. 1987). Plaintiff argues that since the court has already sanctioned defendants in the form of
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monetary sanctions for their discovery violations and defendants still refuse to provide discovery, it is
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clear that less drastic sanctions will not be successful and default judgment is appropriate.
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3.
Defendants’ Arguments
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Defendants assert that since the court granted plaintiff’s motion to compel on April 19, 2012,
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defendants have provided initial disclosures, responded to discovery requests, and made three
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supplemental disclosures, which included recordings of the Parole Board Hearings. (#48). Defendants
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argue that the discovery issues mentioned by the plaintiff are either “not within the [defendants’]
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control, or had been resolved before [p]laintiff’s [m]otion was filed.” Id.
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"Dismissal is a harsh penalty and, therefore, it should only be imposed in extreme
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circumstances." Hernandez, 138 F.3d at 399. "Only willfulness, bad faith, and fault justify terminating
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sanctions," and "[t]he most critical factor to be considered in case-dispositive sanctions is whether a
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party's discovery violations make it impossible for a court to be confident that the parties will ever have
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access to the true facts." Conn. Gen. Life Ins., 482. F.3d 1091, 1096-1097. Defendants argue that the
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Ninth Circuit’s five-part test weighs against dismissal, because the matter will not be delayed, as trial
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is set for February 12, 2013, everything the defendants have has been provided, the defendants are not
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clogging the docket, there is no prejudice to plaintiff, the facts that remain in controversy are very
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limited, and less drastic sanctions, if any are necessary, are available. (#48).
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a. Expeditious Resolution and Manage Docket
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Defendants assert that the action has not been pending since August 2009, and that service was
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not perfected until April 7, 2010. (#48). Defendants have complied with the court’s order on the
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motion to compel, and have made every effort to comply with plaintiff’s discovery requests. Id.
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Defendants simply overlooked Sergeant Brown’s involvement due to the illegible signature, and “will
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disclose Mr. Brown as a [defendant] witness if plaintiff so desires and will make Mr. Brown available
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for deposition.” Id. Defendants assert that the authenticity of a single document without a signature
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is not in dispute, and that defendants could not control Mr. Freeman’s appearance at the deposition. Id.
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The defendants assert that there are “fairly simple solutions” to the issues and that defendants
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are willing to work with plaintiff to resolve any issues to the best of their ability. Id. Defendants state
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that there are seven months before trial, and only one possible deposition is needed. Id. The first two
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factors weigh against dispositive sanctions. Id.
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b. Prejudice
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Defendants argue that the plaintiff has failed to demonstrate any real prejudice, as none of the
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issues asserted by plaintiff either impair the plaintiff’s ability to go to trial or threaten to interfere with
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the rightful decision of the case. (#48)(citing Malone v. United States Postal Serv., 833 F.2d 128, 131
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(9th Cir. 1987)). Defendants assert that (1) the limited additional discovery that may be necessary, the
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deposition of Sergeant Brown, can easily be scheduled, (2) remaining issues of fact are not ones that
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discovery will clarify, and (3) plaintiff has mis-characterized facts and plaintiff is fully capable of
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preparing for trial. Id. This factor weighs against dispositive sanctions. Id
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c. Public Policy
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Defendants state that this factor clearly weighs against dismissal and that plaintiff even admits
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this fact. (#48). Defendants argue that default judgment is not a decision on the merits, and that the
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public policy favoring disposition on the merits is “particularly important in civil rights cases.” Id
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(citing Hernandez, 138 F.3d at 399-400)(citing Eldridge v. Block, 83 F.2d 1132, 1137 (9th Cir. 1987).
d. Less Drastic Sanctions
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Defendants assert that it is plaintiff that has foreclosed the possibility of equitably resolving the
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issues presented, and that sanctions should not be imposed against defendants. (#48). Defendants
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reiterate that the deposition of Sergeant Brown can be scheduled and that they do not have control of
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Mr. Freeman. Id. The defendants state that, “[a]s a side note,” since the recordings of the Parole Board
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Hearings were produced well before the plaintiff’s motion but after plaintiff had deposed defense
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witnesses, defendants offered on June 6, 2012, to draft a motion requesting discovery be opened in order
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to allow plaintiff to depose witnesses regarding the information derived from the recording.” (#48
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Exhibit G). The defendants argue that there have never been any intentional withholding of information
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or evidence or bath faith by defendants, and that they have been trying to work with plaintiff to resolve
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any issues. Id.
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C.
Discussion
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The trial in this matter is not set until February 12, 2013 (#46), and the discovery issues that
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remain are few (#44, #48, and #49). After reviewing the discovery history in this matter, the court finds
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that there is not sufficient culpable intent on the part of the defendants to warrant default judgment.
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Hernandez, 138 F.3d at 399; Conn. Gen. Life Ins., 482. F.3d at 1096-1097. The court recognizes,
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however, that as defendants’ discovery abuses have interfered with the expeditious resolution of the case
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and hindered plaintiff’s ability to discover all the facts of the case, sanctions are appropriate.
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In determining whether to impose dispositive sanctions, the court must weigh several factors,
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including “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage
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its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring
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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Conn. Gen. Life
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Ins., 482. F.3d at 1096.
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While the first and second factors weigh towards dispositive sanctions, as the action has been
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pending in this court since August 31, 2009 (#1), and defendants have caused unnecessary delays during
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discovery (#30 and #44), the court’s inquiry does not stop there. Id. If dispositive sanctions are not
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imposed, the court finds that there are means, as discussed below, to ensure that plaintiff is not
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prejudiced and that all the facts of the case are discovered at no additional cost to the plaintiff. Id. The
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third factor can be resolved to weigh against dispositive sanctions. Id. As all parties agree, dispositive
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sanctions foreclose the possibility of the disposition of the action in its merits, and the fourth factor
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relating to public policy weighs against imposing such sanctions. Id. With regard to the availability
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of less drastic sanctions, the plaintiff correctly points out that the court has already imposed monetary
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sanctions and has forbid defendants from filing dispositive motions as punishment for their discovery
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abuses. (#39). These sanctions, however, are not the extent of the sanctions available to the court. See
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Fed. R. Civ. P. 37(b)(2)(A).
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In weighing the public policy favoring disposition of cases on their merits and the risk of
prejudice to the plaintiff, the parties must proceed as follows:
(1)
sanctions.
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On or before October 3, 2012, defendants must pay plaintiff $2,000 in monetary
(2)
On or before December 5, 2012,
(a)
Plaintiff may conduct two Rule 30(b)(6) depositions of custodians of records that
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were allegedly destroyed. The purpose of the depositions is to examine the
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custodians to establish what, if any, documents are missing from the plaintiff’s
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Parole and Probation file and to explore defendants’ assertion that the unsigned
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documents at issue are in fact identical to the signed, but destroyed or missing,
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copies. Defendants will bear all costs of the these depositions.
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(b)
Plaintiff may conduct three depositions, consisting of two hours of examination
by the plaintiff, relating to new issues, if any, in light of the recordings of the
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Parole and Probation Hearings. Defendants will bear all costs of these
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depositions.
(c)
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Plaintiff may take the deposition of Mr. Freeman and Sgt. Brown. Plaintiff may
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serve the deposition subpoena for Mr. Freeman on the Attorney General’s
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Office. Defendants must cooperate with plaintiff to ensure the deponents are
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available and appear for their depositions.
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(3)
On or before December 15, 2012, the parties must file an amended/supplemental Joint
Pre-Trial Order.
Accordingly, and for good cause shown,
IT IS ORDERED that plaintiff Cary Pickett’s Motion for Sanctions Regarding Discovery (#44)
is GRANTED in part and DENIED in part, as discussed above.
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IT IS THEREFORE ORDERED that the parties must proceed as outlined above.
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DATED this 19th day of September, 2012.
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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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