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Western Alliance Bank v. Jefferson

United States District Court, D. Arizona

November 13, 2016

Western Alliance Bank, Plaintiff,
v.
Richard Jefferson, Defendant. Richard Jefferson, Counter-claimant,
v.
Western Alliance Bank, Counter-defendant. Richard Jefferson, Third-party plaintiff,
v.
Theodore Kritza & Michelle Lee Kritza, Third-party defendants.

          ORDER AND OPINION [RE: MOTIONS AT DOCKETS 313, 316, AND 322]

          JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT

         I. MOTIONS PRESENTED

         Before the court are three motions. First, at docket 313 plaintiff Richard Jefferson (“Jefferson”) and non-party the United States of America move pursuant to the Privacy Act and Rule 26(c) for a Privacy Act order and a protective order to permit the release of records that include information subject to the Privacy Act. Defendants Theodore Kritza and Michelle Lee Kritza (collectively, “Kritza”) oppose at docket 315. The United States replies at docket 320.

         Second, at docket 316 Kritza moves pursuant to Rules 16(f) and 45 to quash Jefferson's subpoena to the FBI. Jefferson opposes at docket 321. Kritza replies at docket 324.

         And third, at docket 322 Jefferson moves pursuant to Rule 16(b)(4) for an order modifying the Scheduling and Planning Order to reopen discovery into the FBI's criminal investigation of Kritza. Kritza opposes at docket 323. Jefferson replies at docket 325.

         Oral argument was requested on Kritza's motion at docket 316 and Jefferson's motion at docket 322, but oral argument would not assist the court.

         II. BACKGROUND

         After the close of discovery, Jefferson issued a subpoena to the FBI requesting production of 21 categories of documents that pertain to a criminal investigation relevant to this case.[1] The FBI agreed to produce documents responsive to some, but not all, of Jefferson's requests.[2] Because the responsive information “had been obtained pursuant to an ongoing criminal investigation and was acquired pursuant to Grand Jury subpoenas, ” the FBI sought and obtained an order from the judge presiding over the Grand Jury permitting their disclosure.[3]

         III. DISCUSSION

         Jefferson's present motions seek an order extending the discovery deadline to allow limited discovery into the FBI's criminal investigation of Kritza, a Privacy Act order, and a protective order. Kritza opposes these requests because discovery has already closed. Rule 16(b) provides that a pretrial scheduling order may be modified “for good cause and with the judge's consent.”[4] As the court discussed in its order at docket 183, the court's inquiry focuses on the moving party's diligence. Based on the circumstances set out in Jefferson's motion papers, the court finds that Jefferson has demonstrated adequate diligence, and good cause exists to modify the scheduling order to permit discovery into the FBI's responses to Jefferson's subpoena.

         IV. CONCLUSION

         Based on the preceding discussion, the motions at docket 313 and 322 are GRANTED; the motion at docket 316 is DENIED. The Scheduling Order is hereby modified for the limited purpose of allowing the parties 60 days from the date the FBI produces the records to conduct limited discovery regarding the records produced by the FBI.

         IT IS FURTHER ORDERED that the United States is authorized to disclose the documents and information sought by the subpoena as described in the motion at docket 313 as follows:

         1. The United States is authorized to release to the parties in this action, and the parties in this action are authorized to disclose and use, documents and information protected by the Privacy Act, 5 U.S.C. § 552a, without obtaining the prior consent of the individuals to whom such ...


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