Cortez Burlingame et al v. Galveston County et al

Filing 61

ORDER entered. Plaintiffs' request to conduct a deposition outside the parameters of the discovery deadline is DENIED [Dkt. 60]. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JACQUELINE CORTEZBURLINGAME, ET AL.,
Plaintiffs.
VS.
GALVESTON COUNTY, ET AL.,
Defendants.

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December 09, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18–CV–00183

ORDER
Jorge Cortez (“Cortez”) died while he was an inmate at the Galveston County Jail.
His estate and several family members (collectively, “Plaintiffs”) have brought this lawsuit
against Galveston County and several medical providers. The gravamen of the claim is
that Defendants’ policies and procedures were deficient, leading to delayed care and
Cortez’s ultimate death.
BACKGROUND
I issued a Scheduling Order on October 23, 2018, which provided for a discovery
deadline of September 20, 2019. See Dkt. 16. On September 6, 2019, two weeks before
the discovery deadline, Plaintiffs requested an extension of the discovery deadline to midNovember 2019. See Dkt. 28. Defendants agreed with this request, and I issued an oral
order on September 17, 2019, moving the discovery deadline to November 15, 2019. The
discovery deadline moved yet again when, on October 31, 2019, Judge Jeffrey V. Brown
signed an order extending the discovery deadline to November 22, 2019. See Dkt. 35.

On December 2, 2019, 10 days after the end of the discovery period, Plaintiffs filed
a request for a pre-motion discovery conference, asking for the court’s intervention on a
number of discovery-related issues. See Dkt. 54. On December 6, 2019, Plaintiffs filed a
supplemental pre-motion request. See Dkt. 60. In that supplemental filing, Plaintiffs
informed me that they had resolved all outstanding discovery issues with one exception—
Plaintiffs wanted Galveston County to produce all videos depicting Cortez while he was in
Galveston County Jail from April 7, 2017, until his release from custody. In the event
Galveston County failed to produce the requested video footage, Plaintiffs asked for the
opportunity to seek a spoliation instruction.
I held an oral hearing on the afternoon of December 6, 2019, to address this
discovery issue. In the hearing, Galveston County explained that it has turned over all
videos depicting Cortez in its possession, custody, and control. Galveston County is not,
its counsel argued, withholding any videos depicting Cortez. In response, Plaintiffs
expressed disbelief that the nine videos provided by Galveston County in connection with
this lawsuit represent all the available videos depicting CortezCortez from the time frame
in dispute. During the December 6, 2019 phone conference, Plaintiffs requested the
opportunity to take a short deposition of the individual who reviewed the Galveston County
Jail videos and selected the nine that were ultimately produced. Through this deposition,
Plaintiffs hope to develop evidence that Galveston County has either destroyed relevant
footage or improperly withheld such footage. I have carefully reviewed the case file and
it is clear that the first time Plaintiffs requested to take a deposition of someone associated
with Galveston County concerning the existence of videotapes depicting Cortez was during
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the December 6, 2019 pre-motion conference—a full two weeks after the discovery
deadline had expired.
DISCUSSION
I could have easily issued an oral ruling during the pre-motion conference denying
Plaintiffs’ request, but I decided I needed to provide the parties—as well as future litigants
who will appear in my courtroom—a clear, unmistakable written explanation as to when I
will allow discovery to proceed after the discovery deadline contained in a scheduling order
has expired.
The legal landscape is well-established in this area. District courts have the
unquestioned authority to control and expedite the discovery process through a scheduling
order. See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990); FED. R. CIV. P.
16(b). “Scheduling orders and their enforcement are regarded as essential in ensuring that
cases proceed to trial in a just, efficient, and certain manner.” Hernandez v. Mario’s Auto
Sales, Inc., 617 F. Supp. 2d 488, 493 (S.D. Tex. 2009). Each scheduling order I issue
contains a discovery deadline and the parties are expected to conduct the needed discovery
before the deadline expires. I will never set a discovery deadline that fails to give both
sides sufficient time to pursue the discovery they need to adequately prepare for trial.
Federal Rule of Civil Procedure 16(b)(4) provides that deadlines in a scheduling
order may only be modified “for good cause and with the judge’s consent.” The Fifth
Circuit has explained that “[t]he good cause standard requires the ‘party seeking relief to
show that the deadlines cannot reasonably be met despite the diligence of the party needing
the extension.’” S&W Enters., LLC v. S. Tr. Bank of Ala., N.A., 315 F.3d 533, 535 (5th
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Cir. 2003) (quoting 6A ARTHUR R. MILLER ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 1522.1 (2d. ed. 1990)). A district court’s ruling on whether to modify a scheduling order
is afforded great deference, especially where the facts of the case suggest a lack of diligence
on the part of the party seeking the extension. See Bilbe v. Belsom, 530 F.3d 314, 317 (5th
Cir. 2008).
In this case, Plaintiffs have failed to show good cause for extending the discovery
deadline again. Judge Brown and I already granted several extensions to the initial 11month long discovery period, giving the parties almost 13 months from the initial
scheduling conference to conduct discovery.1 Diligence requires the parties to actively
pursue the necessary discovery in a case. Plaintiffs exemplified a lack of diligence when
they failed to provide any explanation as to why they did not seek the desired deposition
until weeks after the discovery deadline expired.
To be clear, I am not opposed to extending the discovery deadline when presented
with facts indicating that the deadline cannot reasonably be met despite the diligence of the
party needing the extension. I am “acutely aware of the many extenuating and sometimes
unforeseen circumstances that may arise in the lives of litigants and their attorneys.”
Rashid v. Delta State Univ., 306 F.R.D. 530, 535 (S.D. Miss. 2015). All I ask—and all the

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Upon further reflection, Judge Brown and I arguably should not have granted the previous
requests to extend the discovery deadline. Since those requests were agreed to by all parties and
did not impact the trial date, we accommodated the parties and moved the discovery deadline
despite a failure by the litigants to establish good cause. The present situation is much different.
Unlike the previous extensions, Plaintiffs have now requested the discovery deadline be extended
several weeks after it already expired. Galveston County has also voiced its objection to moving
the discovery deadline to allow the requested deposition.
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Federal Rules of Civil Procedure require—is that a party establish good cause before I
consent to moving the discovery deadline. Because good cause is notably absent in this
case, Plaintiffs’ request to conduct a deposition outside the parameters of the discovery
deadline is DENIED.
SIGNED in Galveston, Texas, this ___ day of December, 2019.

_____________________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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