2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAREY L. JOHNSON, Case No.: 18cv2178-BEN (MSB)

12 Plaintiff,

ORDER GRANTING IN PART JOINT

13 v. MOTION FOR 30-DAY EXTENSION OF

CERTAIN CASE MANAGEMENT

14 UNITED STATES OF AMERICA, et al.,

DEADLINES [ECF NO. 71]

15 Defendants. 16 17 Pending before the Court is the parties’ “Renewed Joint Motion for 30-Day 18 Extension of Certain Case Management Deadlines,” filed August 13, 2020. (ECF No. 71.) 19 In their motion, the parties ask to continue the deadlines for fact and expert discovery, 20 expert designations and discovery, and the filing of pretrial motions by approximately 30 21 days. (Id. at 2.) 22 The parties explain that this case is complicated insofar as Plaintiff’s Second 23 Amended Complaint involves six different incidents on five different dates and “possibly 24 twenty (20) fact witnesses who will need to be deposed.” (Id. at 2-3.) The parties claim 25 they have diligently pursued discovery despite the challenges presented by the COVID- 26 19 pandemic, with Defendants serving Requests for Production (“RFPs”) on December 27 12, 2019, and “additional written discovery on August 3, 2020; Plaintiff serving extensive 2 counsel has spent considerable time coordinating representation and service of the 3 various individual defendants named in the Second Amended Complaint and litigating a 4 successful motion to dismiss the Bivens claims against them. (Id. at 3.) 5 In addition to the discovery background in this case, the parties identify several 6 current issues that necessitate the requested continuance. Currently, Defendant 7 believes the responses to its most recent written discovery are needed before 8 Defendant can take the depositions of Plaintiff and unidentified “certain related 9 witnesses.” (Id. at 5.) This appear to also be related to the parties’ current dispute 10 regarding medical records and a Rule 35 examination Defendant seeks from Plaintiff, 11 the pendency of which is impacting “the ability to provide experts with all necessary 12 material.” (Id. at 5-6.) Plaintiff’s expert’s daughter has recently passed away, which 13 Plaintiff believes necessitates more time for the expert’s bereavement, review of the 14 case materials, and report preparation. (Id.) Finally, Plaintiff’s counsel is scheduled to 15 be in trials from October 5-23 and November 2-13, which will “severely limit [his] 16 availability to schedule and complete the remaining fact witness and expert depositions 17 within the time frame currently set by the scheduling order.” (Id. at 6.) For the reasons 18 explained more fully below, the Court GRANTS the motion in part. 19 I. LEGAL STANDARD 20 A scheduling order “may be modified only for good cause and with the judge’s 21 consent.” Fed. R. Civ. P. 16(b)(4). This good cause standard “primarily considers the 22 diligence of the party seeking the amendment. The district court may modify the 23 pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party 24 seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 25 Cir. 1992) (citing Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment) and 26 collecting cases). “If that party was not diligent, the inquiry should end.” Id. 27 / / / 2 As this Court previously noted, the parties were initially ordered to meet and 3 confer pursuant to Rule 26(f) no later than May 22, 2019, after which the parties were 4 able to begin general discovery. (See ECF No. 9 at 3); Fed. R. Civ. P. 26(d)(1). After 5 holding two settlement conferences, (see ECF Nos. 12, 21), the Court issued a 6 scheduling order on August 19, 2019. (ECF No. 22.) Independent of the Covid-19 7 pandemic, the Court granted two separate requests to modify the scheduling order as of 8 March 12, 2020. (See ECF Nos. 36, 40.) Most recently, on April 7, 2020, in consideration 9 of the difficulties presented by the COVID-19 pandemic, the Court again continued dates 10 in the scheduling order by two to three months. (ECF No. 48.) 11 Considering this background with the information included in the parties’ joint 12 motion, the parties have not diligently pursued discovery in this case. As to any delay 13 caused by the dispute regarding discovery of Plaintiff’s medical records and the Rule 35 14 examination, it is evident to the Court that Defendant appears to be seeking discovery 15 that is central to his case less than two months before the parties are required to make 16 their expert disclosures, and over a year after discovery opened in this case. None of 17 the factual or procedural complexities of this case changed the relevance of discovery 18 into Plaintiff’s medical condition and mental health, nor prevented Defendants from 19 requesting such records during the first fourteen months after discovery opened. To 20 the extent that any delay is caused by disputes about Plaintiff’s medical and mental 21 health records, the lateness of those disputes was completely avoidable, and the parties 22 have not explained how it is the result of anything but Defendant’s delayed request. 23 Turning to Plaintiff, he did not serve written discovery until April 30, 2020, almost 24 one year after discovery opened and approximately eight months after the Court issued 25 the initial scheduling order. (See ECF No. 71 at 4; ECF No. 9 at 3; ECF No. 22.) The 26 parties have offered no justification in their motion for this lengthy delay. After Plaintiff 27 filed his Second Amended Complaint on November 6, 2019, (ECF No. 29), more than 2 depositions would proceed during a pandemic. 3 While the Court is sensitive to the difficulty presented by scheduling so many 4 depositions, it appears to the Court that being able to conduct these depositions via 5 Zoom will simplify the process and reduce the need to coordinate travel. The parties do 6 not appear to have scheduled any of the additional depositions and certainly have not 7 identified them for the Court, but merely asserted that there are “possibly” twenty, 8 without specifying whether this includes the six who have already been deposed. (See 9 ECF No. 71 at 2-3.) If Plaintiff’s counsel’s scheduled trials proceed, two other attorneys 10 have appeared for Plaintiff in this litigation who can assist with depositions. While 11 Plaintiff’s expert may need additional time, Plaintiff appears to be speculating on that 12 matter, rather than determining whether his expert will be able to proceed and when. 13 Considering the foregoing and after consultation with Judge Benitez’s chambers, 14 the Court does not find good cause to grant the parties’ requested continuance in its 15 entirety. However, the Court does find good cause to GRANT the motion in part. 16 III. CONCLUSION 17 The Court finds good cause to GRANT the joint motion in part as follows: 18 1. The deadline for completion of fact discovery is extended to 19 December 3, 2020; 20 2. The deadline for designating rebuttal experts is extended to 21 October 26, 2020; 22 3. The deadline for disclosures under Rule 26(a)(2)(A) is extended to 23 October 12, 2020; 24 4. The deadline for disclosures under Rule 26(a)(2)(D) and Rule 26(e) is 25 extended to October 26, 2020; 26 5. The deadline for completion of expert discovery is extended to 27 December 3, 2020; and 1 6. The deadline for filing pretrial motions remains as previously set, 2 || December 17, 2020. 3 IT IS SO ORDERED. 4 Dated: August 17, 2020 _ 2 FZ — 6 Honorable Michael S. Berg United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28