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

Filing 77

MEMORANDUM DECISION granting 54 Motion to Expedite Discovery. Signed by Magistrate Judge Brooke C. Wells on 5/31/16. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
NAVAJO NATION HUMAN RIGHTS
COMMISSION, et al.,

MEMORANDUM DECISION AND ORDER
GRANTING MOTION TO EXPEDITE
DISCOVERY

Plaintiffs,
v.
Case No. 2:16-cv-00154 JNP
SAN JUAN COUNTY; JOHN DAVID
NIELSON, et al.,
Defendants.

District Judge Jill Parrish
Magistrate Judge Brooke Wells

Plaintiffs Navajo Nation Human Rights Commission, Peggy Phillips, Mark Markboy,
Wilfred Jones, Terry Whitehat, Betty Billie Farley, Willie Skow, and Mabel Skow (collectively
Plaintiffs), move the court under Rules 26 and 34 of the Federal Rules of Civil Procedure, 1 for an
Order allowing Plaintiffs to conduct certain limited discovery on an expedited basis. 2 After
careful consideration of the record and the briefs, the court has determined that oral argument is
unnecessary and decides this case based upon the parties’ submissions. 3 As set forth below the
court GRANTS the motion with additional requirements.
BACKGROUND
This case concerns voting rights in San Juan County, Utah. San Juan County “is one of
the largest counties in the United States” consisting of approximately 8,000 square miles, making

1

Fed. R. Civ. P. 26; Fed. R. Civ. P. 34.

2

Docket no. 54. The court

3

DUCivR. 7-1(f).

it roughly twice the size of Connecticut. 4 This creates some challenges in administering certain
public services such as voting.
Plaintiffs filed a complaint for declaratory and injunctive relief seeking inter alia, to
enjoin Defendants San Juan County, the county clerk and three county commissioners in their
official capacities, from alleged ongoing violations of the Voting Rights Act and the United
States Constitution. Plaintiffs are specifically seeking a “ruling form this court that San Juan
County’s vote-by-mail procedures violate Section 2 and 203 of the Voting Rights Act, as well as
the Fourteenth Amendment of the United States Constitution.” 5 Plaintiffs “intend to file a
motion for preliminary injunction prior to the June 28, 2016 primary elections.” 6 The intent of
that motion, according to Plaintiffs, is to request that the court order Defendants “open polling
locations equally accessible to both Navajo and white voters, and requiring that Defendants
provide language assistance to limited English-proficient Navajo speakers.” 7 Plaintiffs argue
such a motion is necessary because in 2014 Defendants moved to a mail-only voting system that
allegedly illegally discriminates against Navajos.
In 2015 the United States Department of Justice (DOJ) spent “almost a week reviewing
the County’s vote-by-mail procedures for compliance with both the Voting Rights Act and the
Fourteenth Amendment, and expressed no concerns.” 8 Defendants point out the positive impact
the vote-by-mail system has had in San Juan County. For example, during the 2014 elections
voter participation in precincts with a heavy concentration of Navajo voters went from 25%
during the 2012 elections, which used only in-person voting at polls, to 54% with a vote-by-mail
4

Op. p. 3, docket no. 65.

5

Op. p. 4, docket no. 65.

6

Mtn. p. 2, docket no. 54.

7

Id. at p. 3.

8

Op. p. 5.

2

system. Despite these positives, Defendants note that during the 2016 election cycle some
additional measures will be taken. These include: (1) the opening of three additional polling
locations all located on the Navajo Reservation to ensure that no voter in the County is more than
a one-hour drive from an in-person voting location; (2) the availability of Navajo-language
voting assistance at each of the polling locations; (3) a Navajo-language explanation of the voteby-mail system, including a translation of the ballot, on the County’s elections page as well as at
each polling location; (4) the attendance at Navajo Chapter meetings by Mr. Edward Tapaha, the
County’s Navajo Liason/Elections Coordinator, who will explain in the Navajo language the
voting system and answer any questions; and (5) Navajo-language radio announcements about
the election, the vote-by-mail process and in-person voting locations.
In support of Defendants’ factual background and the new measures that will be taken
during the 2016 voting cycle, Defendants provide a signed declaration from Mr. John David
Nielson who is the San Juan County Clerk/Auditor. 9 Plaintiffs contest Mr. Nielson’s declaration
asserting it is filled with inaccuracies and seek to test Defendants’ assertions regarding the plans
for the 2016 voting cycle.
DISCUSSION
Plaintiffs seek expedited discovery in support of a putative motion for preliminary
injunction that will likely be filed in the near future. Plaintiffs argue that they have tried to
obtain evidence documenting Defendants’ decisions and procedures for the 2016 elections, but
have not received anything substantive. Moreover, time is of the essence here because it
concerns the June 28, 2016 primary elections as well as the later general election. Plaintiffs seek
expedited discovery on the following:

9

Docket no. 62.

3

(1) Documents relating to Defendants’ 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”;
(2) Documents relating to Defendants’ claim that “for the 2016 and future election
cycles, Navajo language assistance will be available at all four polling places” and
detailing the dates and hours the polling places will be open, the exact location of
the polling places, the number of staff and voting machines at each location, the
number of Navajo interpreters at each location, and the County’s plans for
recruiting and training interpreters and other polling place staff;
(3) The County’s plans to “provid[e] Navajo language ballots in audio form at the
four polling places within San Juan County and on the County’s website”;
(4) The County’s plans for educating the public about the new polling places,
including the dates and frequency of any announcements made on local radio and
any visits by the County Clerk’s staff to chapter houses to explain the change; and
(5) Deposition testimony from a person most knowledgeable regarding
Defendants’ decision to make available, for 2016 and future elections cycles, four
polling locations in San Juan County and Defendants’ plans to provide Navajo
language assistance at those locations. 10
In opposition, Defendants argue that Plaintiffs have not made the necessary showing for
expedited discovery. Defendants further assert that the information sought by Plaintiffs has
already been provided via e-mail, in Defendants’ Answer and Counterclaim and in the
Declaration of Mr. Nielson.
Generally a party “may not seek discovery from any source” prior to a Rule 26(f)
discovery conference. 11 Rule 26(d) of the Federal Rules of Civil Procedure, however, grants the
trial court discretion to modify the normal time limitations that apply under the discovery rules
where good cause is shown. 12 “[A] party seeking expedited discovery in advance of a Rule 26(f)
conference has the burden of showing good cause for the requested departure from usual

10

Mtn. p. 4.

11

Fed. R. Civ. P. 26(d).

12

Id.

4

discovery procedures.” 13 The good cause standard may be met when a party seeks a preliminary
injunction 14 or in cases where a party has asserted claims of infringement or unfair
competition. 15 Expedited discovery is also often very critical in cases involving unknown
defendants. 16
As noted in a case from this district, Sara Lee Corp. v. Sycamore Family Bakery Inc., 17
Rule 34 of the Federal Rules permits the court to grant a party access to tangible items,
documents, and electronically stored information that is relevant to an action. Thus, it appears
the procedural rules allow the court to “grant discovery based upon good cause shown without an
actual pending motion for preliminary injunction.” 18 Whether or not there is a pending motion
for preliminary injunction however is not dispositive because in every case, the court has
discretion in the interests of justice, to prevent excessive or burdensome discovery. 19 Moreover,
courts often consider other factors besides whether there is a pending motion for preliminary
injunction. For example, under the resonableness test courts have also considered the breadth of
the discovery requests, the purpose for the requesting expedited discovery, the burden on the

13

Qwest Comms. Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D.Colo. 2003).

14

See, e.g., Ellsworth Associates, Inc. v. United States, 917 F.Supp. 841, 844 (D.D.C.1996); Revlon Consumer
Products Corp. v. Jennifer Leather Broadway, Inc., 858 F.Supp. 1268, 1269 (S.D.N.Y.1994).
15

Energetics Systems Corp. v. Advanced Cerametrics, Inc., 1996 WL 130991, *2 (E.D.Pa.1996).

16

See, e.g., Quad Int’l, Inc. v. Does 1-6, 2013 WL 142865 (E.D.Cal. 2013); Diabolic Video Prods., Inc. v. Does 12099, 2011 WL 3100404 (N.D. Cal. 2011) ; 1524948 Alberta Ltd. v. John Doe 1-50, 2010 WL 3743907 D.Utah
2010).
17

2009 WL 1765294 (D.Utah 2009).

18

Id. at *1.

19

Fed. R. Civ. P. 26(b)(2). See also Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 187 (1st
Cir.1989) (noting the trial court's power to deal with the problem of over-discovery); Otis Clapp & Son, Inc. v.
Filmore Vitamin Co., 754 F.2d 738, 743 (7th Cir.1985) (recognizing that district court judges are given broad
discretion to supervise the discovery process, and their decisions are subject to review only for abuse of discretion).

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defendants to comply with the requests and how far in advance of the typical discovery process
the requests are made. 20
Here, Plaintiffs argue good cause exists because “Defendants allege that they have
adopted and will be implementing measures for the 2016 and future election cycles that go to the
heart of the remedies sought by Plaintiffs in the Complaint.” 21 The court has carefully
considered the allegations in Plaintiffs’ Complaint as well as the factors considered in other cases
and finds that Plaintiffs have established good cause for expedited discovery in advance of a
Rule 26(f) conference. But, this does not end the inquiry based upon the particular facts of this
case.
Defendants have provided what they deem to be adequate responses to Plaintiffs
questions concerning election procedures via e-mail, in their Answer and Counterclaim and in
the Declaration of Mr. Nielson. In considering those responses the court believes they implicate
the principles of proportionality and cost-shifting that has become more prevalent in the recent
amendments to the Rules. Rule 26(b)(1) as recently amended provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable. 22

20

See In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 143 (D.D.C. 2005); Sunflower Electric Power Corp. v.
Kathleen Sebelius, et al., 2009 WL 774340 (D.Kan. 2009).

21

Mtn. p. 11.

22

Fed. R. Civ. P. 26(b)(1).

6

Now considerations of both relevance and proportionality govern the scope of
discovery. 23 Relevance is “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on” any party's claim or defense. 24 And
information “need not be admissible in evidence to be discoverable.” 25 But, the amendment
deleted the “reasonably calculated to lead to the discovery of admissible evidence” phrase
because it was often misused to define the scope of discovery and had the potential to “swallow
any other limitation.” 26
Proportionality considerations are not new as they have been part of the Federal Rules
since 1983. 27 The 1983 Committee Note stated that the new provisions were added “to deal with
the problem of over-discovery” and to help prevent redundant or disproportionate discovery by
giving courts authority to reduce amounts of discovery. 28 There is no distinctive difference with
the rule change in the parties’ responsibilities when a discovery dispute now arises. 29 When the
discovery sought appears relevant, the party resisting discovery has the burden to establish the
lack of relevancy by demonstrating the requested discovery (1) does not come within the scope
of relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that
the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of
broad disclosure. In contrast, when the relevancy of the discovery request is not readily apparent

23

See id. advisory committee's note to 2015 amendment (“Information is discoverable under revised Rule 26(b)(1) if
it is relevant to any party’s claim or defense and is proportional to the needs of the case.”).

24

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

25

Fed. R. Civ. P. 26(b)(1).

26

See id. advisory committee's note to 2015 amendment.

27

Id.

28

Id.

29

Id.

7

on its face, the party seeking the discovery has the burden to show the relevancy of the request.
And relevancy determinations are generally made on a case-by-case basis. 30
In the instant dispute the parties make no mention of proportionality in their briefing on
the motion. Under the amended rule and the aforementioned principles, however, the court has
an obligation to limit the frequency or extent of discovery if it determines that: (i) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity to obtain the information by discovery in this action; or (iii) the proposed
discovery is outside the scope permitted by the rule. 31
Here each of the requests seeks essentially duplicative discovery from Defendants that is
available from other sources such as in e-mail responses or via the Declaration of Mr. Nielson.
As such, based on principles of proportionality and the general principles behind the power of a
court to shift discovery costs under Rule 26(b)(2), 32 the court will order that Plaintiffs pay for
any expedited discovery they seek in this motion. This will better balance the competing
interests of the parties, address concerns about the impact and role of discovery on the civil
justice system and more closely approach the intent of the Federal Discovery Rules as
manifested by recent amendments.

30

Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate 2003, 2010 WL 4340457 *3 (D.Kan. 2010).

31

Fed. R. Civ. P. 26(b)(2)(C).

32

For e.g., see Thornton v. Morgan Stanley Smith Barney, LLC, 2013 WL 1890706 *1 (N.D. Oklahoma 2013)
(nothing the authority of a court to condition the discovery of certain items by “requiring the party seeking the
discovery to pay some or all of the costs.”); Fiber Optic Designs, Inc. v. New England Pottery, LLC, 262 F.R.D.
586, 587 (D. Colo. 2009) (noting the “role and impact of discovery on the civil justice system” and how costshifting may help the complex problem); Semsroth v. City of Wichita, 239 F.R.D. 630, 637-38 (D.Kansas 2006)
(setting forth factors to use when considering cost-shifting in the electronic discovery context); Bills v. Kennecott
Corp., 108 F.R.D. 459, 462 (D.Utah 1985) (noting how cost-shifting may evntually become obsolete with
advancements in computer technology).

8

ORDER
For good cause shown the court GRANTS Plaintiffs’ Motion for Expedited Discovery.
The court FURTHER ORDERS that the cost of the expedited discovery sought in this motion is
to be borne by Plaintiffs.
IT IS SO ORDERED.

DATED this 31 May 2016.

Brooke C. Wells
United States Magistrate Judge

9