Lan v. University of Texas at San Antonio et al

Filing 85

ORDER DENYING 71 Motion to Compel; DENYING 75 Motion for Discovery; GRANTING 77 Motion for Protective Order; DENYING 79 Motion for Discovery; GRANTING 82 Motion for Extension of Time to File. Signed by Judge Elizabeth S. Chestney. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
XIAORONG LAN,
Plaintiff,
vs.
UNIVERSITY OF TEXAS AT SAN
ANTONIO, DR. JUAN MANUEL
SANCHEZ, ASSOCIATE DEAN,
CARLOS ALVAREZ COLLEGE OF
BUSINESS; AND DR. HARRISON LIU,
PHD ADVISOR, CARLOS ALVAREZ
COLLEGE OF BUSINESS,
Defendants.

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SA-22-CV-00769-FB

ORDER
Before the Court in the above-styled cause of action are the following discovery and
other case-management motions: Plaintiff’s Second Motion to Compel Production of Documents
Responsive to Plaintiff’s First Request of Documents [#71], Plaintiff’s Motion to Request
Subpoena Deposition [#75], Defendant University of Texas San Antonio’s Motion for Protective
Order [#77], Plaintiff’s Motion to Reopen Discovery and Request Subpoena Deposition [#79],
and the parties’ Agreed Motion to Extend Mediation Deadline [#82]. For the reasons that
follow, the Court will deny Plaintiff’s discovery motions [#71, #75, #79], grant Defendant’s
motion for a protective order [#77], and grant the parties’ agreed motion regarding the mediation
deadline [#82].
I. Plaintiff’s Discovery Motions [#71, #75, #79]
Plaintiff has filed three discovery motions. Pursuant to the Scheduling Order entered on
May 31, 2023 [#55], discovery closed on October 6, 2023. Motion #71 was filed on October 8,
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2023, and Motions #75 and #79 were filed on October 16, 2023. Local Rule CV-16(e) provides
that “[a]bsent exceptional circumstances, no motions relating to discovery . . . shall be filed after
the expiration of the discovery deadline, unless they are filed within 14 days after the discovery
deadline and pertain to conduct occurring during the final 7 days of discovery.” All three of
Plaintiff’s motions were filed after the close of discovery but within 14 days of the expiration of
the discovery deadline. However, only Motion #71 arguably pertains to conduct occurring in the
final seven days of discovery.
Motion #71 concerns Request for Production (“RFP”) #3, which was served on June 26,
2023. RFP #3 asks for “copies of any email or other communication between PhD Committee
members describing or referring to the PhD comprehensive Exam in accounting in 2021,
including, but not limited to, the arrangement of exam graders, each grader’s response to the
arrangement, the assignment of grading and submission of grades and feedback to PhD
Committee.”

UTSA’s response to Plaintiff’s motion [#76] states that it provided initial

discovery responses on September 1, 2023, and supplemental productions to RFP #3 on
September 22, 2023, and October 6, 2023. Plaintiff argues the supplemental production on
October 6, 2023, was incomplete and requests an order compelling UTSA to search for and
produce additional documents responsive to RFP #3.
To be entitled to an order compelling a party to initiate an additional search or discovery
effort, a party must point to a “specific or material deficiency in the other party’s production” or
otherwise “make a showing, including through the documents that have been produced, that
allows the Court to make a reasonable deduction that other documents may exist or did exist and
have been destroyed” or must “point to the existence of additional responsive material.” Baker
v. Walters, 652 F. Supp. 3d 768, at 786 (N.D. Tex. 2023) (internal quotations and citations

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omitted); see also Freedman v. Weatherford Int’l Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL
4547039, at *2 (S.D.N.Y. Sept. 12, 2014) (“In certain circumstances where a party makes some
showing that a producing party’s production has been incomplete, a court may order discovery
designed to test the sufficiency of that party’s discovery efforts in order to capture additional
relevant material.”). Here, Plaintiff simply argues that the October 6 supplemental production is
incomplete because it contains only a few communications between Ph.D. committee members.
This is insufficient to satisfy Plaintiff’s burden to make a showing from which this Court can
reasonably deduce that responsive documents have been withheld from Plaintiff.
UTSA maintains it has provided Plaintiff with all responsive documents and has already
produced 5,000 pages of documents to Plaintiff during the exchange of discovery in this case.
UTSA has attached to its response examples of produced communications between members of
the Ph.D. Committee regarding Plaintiff’s second Comprehensive Exam, which are directly
responsive to RFP #3. (Ex. A [#76], at 7–14.) Despite UTSA’s belief that its production is
complete, its response to Plaintiff’s motion [#76] indicates that it has voluntarily initiated an
additional search to ensure completeness. UTSA has informed Plaintiff that the search will be
complete by October 20, 2023.

The record reflects UTSA made this third supplemental

production and provided additional e-mail communications responsive to RFP #3. The Court
will not require UTSA to make further supplementation.
Motions #75 and #79 will also be denied. These motions do not pertain to conduct
occurring during the last seven days of discovery. Motion #75 is a request for leave to depose
Dr. Jeff Boone and Dr. Cheryl Linthicum. Motion #79 is a request for the reopening of
discovery to allow for these depositions. Plaintiff believes these individuals have knowledge

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regarding RFP #3. Plaintiff could have timely noticed the depositions of Dr. Boone and Dr.
Linthicum within the discovery period.
Moreover, Plaintiff has not established good cause for extending the discovery deadline
under the governing standard. Once a scheduling order’s deadline has passed, that scheduling
order may be modified “only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4). A party is required “to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.” Filgueira v. U.S. Bank Nat. Ass’n, 734 F.3d 420,
422 (5th Cir. 2013) (quoting Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir.
2008)). There are four relevant factors to consider when determining whether there is good case
to modify a scheduling order under Rule 16(b)(4): (1) the explanation for the failure to timely
comply with the scheduling order; (2) the importance of the modification; (3) potential prejudice
in allowing the modification; and (4) the availability of a continuance to cure such prejudice. Id.
Plaintiff has not adequately explained her reasons for failing to comply with the scheduling order
and deposing Dr. Boone and Dr. Linthicum within the discovery period. Additionally, the
deadline to file dispositive motions has now also expired, and pending before the Court are
cross-motions for summary judgment filed by Plaintiff and UTSA. Extending the discovery
deadline at this late juncture would result in significant prejudice to the parties. The Court will
deny the motions.
II. UTSA’s Motion for a Protective Order [#77]
UTSA asks the Court to protect it from any further discovery because discovery has
closed, and Plaintiff did not request an extension of the discovery deadline prior to its expiration.
Instead, Plaintiff served untimely discovery—interrogatories—on October 7, 2023. The Court
will grant the motion. As previously stated, the discovery period closed on October 6, 2023.

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Pursuant to this Court’s Local Rules, “[w]ritten discovery is not timely unless the response to
that discovery would be due before the discovery deadline.” W.D. Tex. Loc. R. CV-16(e).
Plaintiff served the interrogatories on October 6, 2023, and thus the responses would have been
due on November 6, 2023. Under Local Rule CV-16, this discovery is therefore untimely.
UTSA need not respond to untimely discovery. The discovery period is closed.
III. Parties’ Joint Motion to Extend Mediation Deadline [#82]
The parties have moved to waive the mediation deadline in this case. According to their
motion, the parties have agreed that mediation will not be fruitful, as Plaintiff has definitively
expressed her unwillingness to settle. The Court will grant the motion and vacate the mediation
deadline. If any of Plaintiff’s claims survive the parties’ pending dispositive motions, the Court
will impose a new mediation deadline prior to trial.
Thus, in accordance with the foregoing:
IT IS HEREBY ORDERED that Plaintiff’s Second Motion to Compel Production of
Documents Responsive to Plaintiff’s First Request of Documents [#71], Plaintiff’s Motion to
Request Subpoena Deposition [#75] and Plaintiff’s Motion to Reopen Discovery and Request
Subpoena Deposition [#79] are DENIED.
IT IS FURTHER ORDERED that Defendant University of Texas San Antonio’s
Motion for Protective Order [#77] is GRANTED.
IT IS FURTHER ORDERED that Defendant University of Texas San Antonio need not
respond to Plaintiff’s untimely Interrogatories, Motion to Request Subpoena Deposition, or any
further discovery requests Plaintiff may attempt to serve in this matter.
IT IS FURTHER ORDERED that the parties’ Agreed Motion to Extend Mediation
Deadline [#82] is GRANTED.

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IT IS FINALLY ORDERED that the parties’ mediation deadline is hereby VACATED
until further order of the Court.
SIGNED this 13th day of November, 2023.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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