United States District Court, D. Arizona
ORDER
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
At
issue is Plaintiff Joseph Brousseau's Response (Doc. 38)
to the Order to Show Cause (Doc. 36), to which Defendant
State of Arizona filed a Response (Doc. 41).
On May
21, 2018, the day Plaintiff filed his Complaint (Doc. 1), the
Court entered a Notice (Doc. 4) informing the parties of
their obligation to comply with District of Arizona General
Order 17-08 (as amended October 13, 2017) as part of the
Court's participation in the Mandatory Initial Discovery
Pilot (MIDP). On August 21, 2018, Defendant filed its Answer
(Doc. 19) to Plaintiff's Amended Complaint (Doc. 17),
triggering the parties' obligations to provide mandatory
initial responses under the MIDP by September 20, 2018. (Gen.
Order 17-08 ¶ A(6).) On that date, Defendant met the
requirement of filing its Notice of Service of Responses to
MIDP on the docket (Doc. 21), but Plaintiff did not. In
Defendant's Rule[1] 26(f) Proposed Case Management Plan (Doc.
23), which Plaintiff failed to jointly complete as required
by the Court (Doc. 20), Defendant informed the Court that
Plaintiff had still failed to serve his MIDP responses as of
October 2, 2018 (Doc. 23 at 6).
At the
October 9, 2018, Rule 16 Scheduling Conference (Doc. 27), the
Court noted Plaintiff's failure to serve sufficient MIDP
responses, to which Plaintiff's counsel responded that
she would serve the responses by October 12, 2018. More than
two weeks after that date, when Plaintiff still had not
served the required MIDP responses, Defendant filed a Motion
for an Order to Show Cause (Doc. 29). In response,
Plaintiff's counsel took “complete responsibility
for the delay in serving Defendant with the [MIDP]
responses.” (Doc. 32 at 2.) Plaintiff's counsel,
Ms. Foley, stated that she was the only attorney in the
office until recently, she “faced two deaths in the
family, a minor car accident and an unrelated health issue,
” and her office moved to a new location, causing a
temporary shutdown. (Doc. 32 at 2.) In his reply, Defendant
reported that as of November 15, 2018- two months after the
MIDP responses were due-Plaintiff still had not served
satisfactory responses. (Doc. 35 at 5.) On November 21, 2018,
the Court granted Defendant's Motion and ordered
Plaintiff to file a brief “providing the reasons the
Court should not enter sanctions for failure to timely comply
with his discovery obligations and addressing the
deficiencies identified by Defendant” by December 3,
2018 (Doc. 36).
General
Order 17-08 specifically states that “Rule 37(b)(2)
shall apply to mandatory discovery responses required by this
order.” (Gen. Order 17-08 ¶ A(11).) That Rule
provides for sanctions if a party fails to obey a discovery
order and states that the Court “must order the
disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(A), (C).
In its
brief on the Court's Order to Show Cause, Plaintiff's
counsel contends her failure to timely serve the MIDP
responses was due to “excusable neglect” under
Rule 60(b)(1) but does not make any argument that her failure
was “substantially justified” under the
applicable standard, Rule 37(b)(2)(C). (Doc. 38 at 2.)
Specifically, Plaintiff's counsel contends without
applicable legal citation that Defendant was not prejudiced
by the delay in Plaintiff's MIDP responses, that the
deficiencies identified by Defendant on November 15, 2018,
were regarding form rather than substance, that the reasons
for the delay are understandable, and that Plaintiff's
counsel did not act in bad faith. (Doc. 38 at 3-5.)
That is
not how the MIDP works. The document implementing the MIDP in
this District, the “Mandatory Initial Discovery
Users' Manual for the District of Arizona, ” states
repeatedly that the disclosures required under the MIDP
differ significantly from those required under the Federal
Rules of Civil Procedure, that the Court requires strict
compliance with the MIDP disclosure obligations, and that the
Court will strictly enforce the disclosure deadlines set
forth in General Order 17-08. For example, the Users'
Manual provides:
MIDP courts will vigorously enforce the requirement to
provide mandatory initial discovery responses through the
imposition of sanctions if appropriate under the Federal
Rules of Civil Procedure. (¶ A(2)(h).)
The MIDP is designed to have very few exceptions. Courts
should not excuse parties from their obligation to provide
timely discovery responses under the MIDP. (¶ B(2).)
The General Order is framed as court-ordered discovery that
is designed to accelerate the disclosure of relevant
information that would be produced later in the litigation in
response to traditional discovery requests. The requirement
that all responses include information relevant to the claims
and defenses, rather than being limited to information the
party intends to use in support of its claims or defenses, is
a significant change from Rule 26(a). (¶ C(1)(d)(1).)
[Disclosed information] must provide sufficient detail to be
meaningful and must not be evasive or incomplete. At the same
time, the disclosures need not be so detailed that they would
impose on the responding party disproportionate burden or
expense, considering the needs of the case. There is no
formula for deciding where the line must be drawn. Rules 1
and 26(b)(1) provide the Court and the parties with the
performance standard, but the facts unique to each case will
control the scope of disclosures. Parties that follow the
“Golden Rule” should have no difficulty making
reasonableness determinations that are consistent with Rule 1
and Rule 26(b)(1) and the aims of the MIDP. (¶ D(6).)
General
Order 17-08 also provides that the mandatory initial
disclosure deadline “may be deferred, one time, for 30
days if the parties jointly certify to the Court that they
are seeking to settle the case and have a good faith belief
that it will be resolved within 30 days of the due date of
their responses, and the Court approves the deferral.”
(Gen. Order 17-08 ¶ A(6).)
Here,
Plaintiff's counsel fell short of meeting the mandatory
initial disclosure obligations under the MIDP in every
aspect. Plaintiff did not file a motion with the Court
requesting a 30-day extension to the disclosure deadline as
provided for by the General Order, [2] nor did substantial
justification, such as good faith settlement negotiations
with Defendant, exist for an extension to the
deadline.[3] Even if Plaintiff had properly obtained an
extension to the disclosure deadline, Plaintiff filed the
first disclosure even arguably sufficient under the MIDP on
October 31, 2018-well past 30 days beyond the deadline
provided in General Order 17-08. And even if prejudice to
Defendant were the principal inquiry, the Court disagrees
that Defendant was not prejudiced by Plaintiff's delay.
On the contrary, Plaintiff's failure to provide timely
disclosures including, for example, the facts relevant to and
legal theories underlying each claim (Gen. Order ¶
B(4)), caused a day-for-day delay in Defendant's
preparation of its case. Moreover, one of the main goals of
the MIDP is to promote the “just, speedy, and
inexpensive determination of every action” under Rule
1, and that goal is thwarted by allowing late initial
disclosures.
Finally,
the Court also agrees with Defendant that Plaintiff's
latest initial disclosures are not fully satisfactory. With
regard to providing the facts relevant to each claim,
Plaintiff's disclosure lacks sufficient detail-a flaw
characterized by Plaintiff's repeated use of the passive
tense in the disclosure. For example, Plaintiff states he
“frequently endured derogatory comments and hostility
when the topic of Orthodoxy was raised.” (Doc. 35-1,
Pl.'s Initial Disclosure Statement Pursuant to MIDP at 6
(Oct. 31, 2018); see also Doc. 38-1, Pl.'s Supp.
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