Johnson v. City and County of San Francisco

Northern District of California, cand-4:2015-cv-03011

ORDER by Judge Kandis A. Westmore regarding {{65}} 10/5/16 Joint Discovery Letter Brief. (kawlc1, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DOLORES JOHNSON, 7 Case No. 4:15-cv-03011-KAW Plaintiff, 8 ORDER REGARDING 10/5/16 JOINT v. DISCOVERY LETTER 9 CITY AND COUNTY OF SAN Re: Dkt. No. 65 10 FRANCISCO, 11 Defendant. 12 Northern District of California United States District Court 13 On October 5, 2016, the parties filed a joint letter to determine whether they may rely on 14 documents produced after the June 17, 2016 non-expert discovery cutoff at summary judgment 15 and, if necessary, at trial. (Joint Letter, Dkt. No. 65 at 1.) Both parties produced documents after 16 the cutoff date, but Plaintiff contends that she is prejudiced by Defendant's supplemental 17 production. (Joint Letter at 1, 3-4.) 18 Specifically, Plaintiff contends that she is severely prejudiced, because she would have 19 explored the documents at the witness depositions, and would have deposed newly discovered 20 witnesses, including three interview panelists. (Joint letter at 3-4.) Defendant argues that 21 documents were a supplemental disclosure, as required by Rule 26, and are harmless, because the 22 supplementation was not a surprise. (Joint Letter at 2.) 23 The fact discovery cutoff precludes propounding discovery or noticing depositions after 24 the deadline. It does not preclude supplementing discovery responses. See Learning Tech. 25 Partners v. Univ. of the Incarnate Word, 2016 WL 344881, at *1 (N.D. Cal. Jan. 28, 2016); see 26 also Evenflow Plumbing Co. v. Pac. Bell Directory, 2005 WL 954469, at *2 (N.D. Cal. Apr. 26, 27 2005). Indeed, the parties have an ongoing obligation to supplement under Rule 26. Fed. R. Civ. 28 P. 26(e)(1). To find otherwise, would extinguish a party's obligation to produce discoverable 1 information or responsive documents identified after the cutoff date and contravene the very 2 purpose of Rule 26(e)'s affirmative requirement to supplement. 3 Accordingly, the parties may rely on documents produced after the non-expert cutoff at 4 summary judgment.1 If Plaintiff believes that she needs the testimony of the newly disclosed 5 witnesses to either oppose the City's motion for summary judgment or for the purposes of trial, 6 she is GRANTED leave to take those depositions. 7 Furthermore, the Court would also entertain extending the briefing schedule for the motion 8 for summary judgment, pursuant to a stipulation by the parties, to permit those depositions to go 9 forward prior to Plaintiff's opposition, as well as possibly continuing the February 21, 2017 trial 10 date, in order to render any supplemental production harmless. 11 Finally, to the extent that Plaintiff's operative complaint contains new claims and/or 12 allegations, Defendant is entitled to re-open her deposition only as to those new claims and Northern District of California United States District Court 13 allegations. 14 IT IS SO ORDERED. 15 Dated: October 14, 2016 __________________________________ 16 KANDIS A. WESTMORE 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 1 Whether or not documents may be relied on at trial should be the subject of motions in limine. 2