Navajo Nation Human Rights Commission et al v. San Juan County et al

Filing 153

MEMORANDUM DECISION AND ORDER denying 116 Motion to Compel and Request for Extension of Fact Discovery. Signed by Magistrate Judge Brooke C. Wells on 3/29/2017. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
NAVAJO NATION HUMAN RIGHTS
COMMISSION; PEGGY PHILLIPS; MARK
MARYBOY; WILFRED JONES; TERRY
WHITEHAT; BETTY BILLIE FARLEY;
WILLIE SKOW; and MABEL SKOW,

MEMORANDUM DECISION AND ORDER
DENYING MOTION TO COMPEL AND
REQUEST FOR EXTENSION OF FACT
DISCOVERY
Case No. 2:16-cv-00154 JNP

Plaintiffs,
v.

District Judge Jill Parrish

SAN JUAN COUNTY; JOHN DAVID
NIELSON, in his official capacity as San Juan
County Clerk; and PHIL LYMAN, BRUCE
ADAMS, and REBECCA BENALLY, in their
official capacities as San Juan County
Commissioners,

Magistrate Judge Brooke Wells

Defendants.

Pending before the undersigned is Plaintiffs’ Motion to Compel and Request For
Extension of Fact Discovery. 1 The court heard argument on the motion March 28, 2017.
Plaintiffs were represented by John Mejia and Leah Farrell. Defendants were represented by
Jesse Trentadue. Having heard argument and after further consideration of the parties’ briefing,
the undersigned finds Plaintiffs failed to comply with the Discovery Rules and the discovery they
seek is not within a reasonable reading of their request. The motion therefore is denied.
BACKGROUND
This case centers on Defendants decision in 2014 to close polling places and change to a
mail-only voting system. 2 Plaintiffs contend that the alleged closure of polling places and the
1
2

Docket no. 116.

A review of the parties’ documents in this case indicates there is some dispute whether the new voter system was
mail-only or also included polling locations. This dispute is not material to the outcome of the instant motion.

adoption of mail-only voting “unreasonably hindered the ability of Navajo citizens in San Juan
County to participate effectively in the political process on equal terms with white voters in the
2014 general election.” Plaintiffs allege that the mail-only system “fails to provide adequate oral
assistance to limited English proficient Native American voters” and that “Navajo residents of
San Juan County are required to travel, on average, more than twice as far to vote in person in
comparison to white residents of San Juan County.” Allegedly this new mail-only voting system
also diverts limited resources to educating Navajo voters about the new system rather than using
these resources for more valuable endeavors.
ANALYSIS
i.

The court will deny Plaintiffs’ Motion to Compel and deny the request to extend
discovery
Plaintiffs’ move the court to have Defendants “fully comply with their obligation to

thoroughly search all records within their control so as to produce responsive documents” 3 to
Plaintiffs’ First Set of Requests for Production. Specifically Plaintiffs point to Request for
Production No. 1 that states:
All documents and communications concerning your claim that “[f]or the 2016
and future election cycles, in-person voting or polls will be available at four
locations within San Juan County: Monticello, Montezuma Creek, Oljato and
Navajo Mountain, Utah” including, but not limited to:
1. Decision-making process to open three additional polling locations for
the 2016 election cycle;
2. Dates and hours that each polling place will be open for the primary,
general, and other elections in 2016 and beyond; and
3. Number of staff at each location. 4

3

Mtn p. 2, docket no. 116.

4

Mtn. Ex. A p. 5-6.

2

In response to this request Defendants stated: “After a diligent and thorough review, San
Juan County knows of no other documents responsive documents. San Juan County reserves the
right to supplement its response to this Request.”
During the deposition of Defendant John Nielson, the San Juan County Clerk, Mr.
Nielson was asked about his review of documents to prepare for the deposition. Mr. Nielson
responded that he reviewed the declarations and did not gather any documents or do any key
word searches. These answers, according to Plaintiffs, provide a basis to compel a search of
documents and extend discovery.
Plaintiffs argue Mr. Nielson should have searched for files and searched the computers.
Further, “Defendants failed to produce the budget for the County, invoices, checks, or receipts,
related to the costs of running the 2016 primary or general election” that fall within their Request
for Production No. 1. Additionally, Defendant Rebecca Benally’s failure to review her journal
containing complaints regarding the election process is another example of Defendants’ failure to
comply with Request for Production No. 1.
The court is not persuaded by these arguments. Budgets, journal entries, checks and
invoices do not automatically fall within a reasonable reading of Request for Production No. 1.
And, contrary to Plaintiffs’ counsel’s arguments, even in the context of this case it is not entirely
clear that such items fall within this request for production.
In addition, there are serious procedural problems with the way Plaintiffs sought
production of these missing items. Plaintiffs failed to comply with Federal Rule 37 and Local
Rule 37-1 because there is no statement that they conferred in good faith about this discovery.

3

Indeed there could not have been such a statement. After the close of business on Friday
September 30th Plaintiffs sent an email asking whether Defendants would agree to produce
additional documents and extend the fact discovery deadline. 5 Plaintiffs required a response by
8:00 AM on Monday morning. Defendants responded around 5:50 AM Monday morning asking
what information Plaintiffs were seeking and offered to follow up with their clients. Instead of
entering into a dialogue about what documents Plaintiffs were seeking, later that day at 5:25 PM
Plaintiffs stated they were “forced to file a motion to compel and a motion for an extension of the
discovery deadline.” 6
Such a cursory exchange, without at least some hint of cooperation, does not comply with
the discovery rules or the Short Form Discovery Motion Procedure that has been in place in this
case since June 2016. 7 Plaintiffs agree that they did not meet the technical requirement of the
rules but still argue they complied with the rule. The record undermines this assertion.
Finally, the court notes there are competing motions for summary judgment and partial
summary judgment. 8 But, Plaintiffs have not moved under Rule 56(d) for any type of extension
because “it cannot present facts essential to justify its opposition.”9 Thus, it appears Plaintiffs do
not place much value on this missing discovery that was allegedly subsumed within their request.

5

See op. Ex. 1, docket no. 120.

6

Id.

7

Docket text order, docket no. 81.

8

Docket no. 141, docket no. 144.

9

Fed. R. Civ. P. 56(d).

4

ORDER
For the reasons set forth above the undersigned DENIES Plaintiffs’ Motion to Compel
and Request For Extension of Fact Discovery. 10

DATED this 29 March 2017.

Brooke C. Wells
United States Magistrate Judge

10

Docket no. 116.

5