I didn’t see the significance of this at the time, but it was clarified on Wednesday, when the plaintiffs filed an ex parte (that is, without the on-the-record participation of the defendants) application to amend the scheduling order to continue dates by 30 days. This is an unusual procedure and it seems it must be justified by the existence of exigent circumstances. In this case the first of these is that on Monday the 11th, after the discovery hearing, Elizabeth Fitzgerald had a medical emergency and will be on leave at least through the end of January. At the very least this requires the rescheduling of a bunch of depositions, and is probably why Ronald Whitaker joined the case. Note also that the plaintiffs asked for and received the City of LA’s support of the application and that the CCEA did not oppose it.
Elizabeth Fitzgerald’s illness is only one of the reasons supporting plaintiffs’ request for an extension. The others all have to do with what’s turned out to be a lengthy, drawn-out, painful, inch-by-inch discovery process. It seems that any optimism over the pace of document production, both by the City and by the CCEA, was unwarranted, and I’m guessing it won’t even be complete by February 19, but we shall see, shan’t we? There are some more specific details after the break if you’re interested.
The next justification for delay given by Catherine Sweetser, writing for the plaintiffs, is more discovery recalcitrance:
Good cause [to extend the discovery deadline] also exists because the Defendants have still failed to produce critical documents in this case, despite indicating that such documents exist and that the parties will produce them. These documents include email communications between the parties, LAPD policies related to BID officers, complaints against the City, and documentary evidence of CCEA’s practice of taking unattended property. Delays by Defendants and unavailability of Defense counsel, not any lack of diligence on the part of Plaintiffs, has caused the inability to complete discovery within the discovery cut-off.
The discussion of this in the application yields a window into what happened at the discovery hearing on Monday. At first it appeared to me that the issues had been settled by discussion. I’m an utter amateur, though, which leaves me vulnerable to missing every possible subtext. Wednesday’s filing gives a much more nuanced view of what happened on Monday:
In November 2015, Plaintiffs moved to compel the production of highly relevant documents, including emails between the City and CCEA on issues germane to this case. Plaintiff had sought these documents since July 2015. See Joint Stipulation RE: Plaintiffs’ Motion to Compel, Dkt. # 60. The documents sought included emails from the City, none of which were produced by the City. Instead, in October 2015, the City Attorney took the position that it was impossible to obtain any emails sent from or received by the City that were responsive to Plaintiffs’ request until January 2016 because of technical difficulties. See Sweetser Decl. Ex. D. At the hearing on the Motion on January 11, 2016, after the Court indicated it would likely grant the motion in its entirety, the City then agreed to produce all documents responsive to Plaintiffs’ requests, including the emails. However, the City indicated that it would be unable to do so until January 21, 2016 at the earliest, and as a result, the Court ordered the production by January 21, 2016, after the current discovery cut-off.
The minutes from the hearing have a brief description, essentially stating that the parties conferred and the City of LA agreed to hand over the requested documents by January 21. What we learn here is that Judge Gutierrez put them under the gun by stating that he would likely grant the plaintiffs’ motions. It seemed mysterious to me that they’d get into court and settle so easily, but that’s obviously one of the subtexts amateurs will miss.
Finally, the plaintiffs refrained from filing a motion to compel discovery against the CCEA. At the time I took this as an indication that the CCEA was cooperating with discovery so that it wasn’t necessary to move against them. Again, this turns out to have been wrong. In fact, it now seems that the plaintiffs refrained from including the CCEA in the motion based solely on a (not yet fulfilled) promise that they’d have the documents ready, which, it now turns out, they have not done:
Similarly, CCEA has also not completed its production of highly critical documents that were requested in July 2015. Plaintiffs requested the production of documents that evidence CCEA taking homeless peoples’ unattended property and their cooperation with LAPD. These documents include logs of all property that was taken, and when it was returned to individuals; photos of all property that was discarded by CCEA; and email communications between CCEA and the City. Defendants agreed in November 2015 to produce all available documents going back five years.
On December 10, after Defendant allowed inspection but not the scanning of some responsive documents and still failed to produce emails, photos and other critical documents, Plaintiffs were ready to proceed with a motion to compel against CCEA. In response, CCEA assured Plaintiffs they would have all documents by December 18 and requested that Plaintiffs refrain from filing the motion.
As of January 12, 2016, despite significant ongoing meet and confer efforts, Plaintiffs have still not received many business records that CCEA promised to produce, including photos of unattended property during significant periods of time, and warehouse logs. The PMK on document retention testified that it was CCEA’s policy to print out important emails. To date, Defendants have not produced any emails found in hard copy, and although they have indicated that they will search for them, have not indicated when the production will be complete. Defendants have not refused to produce any of these documents; instead, the documents continue to trickle in. As of January 12, 2016, they have represented that they continue to look for these documents, and on January 4, 2016, produced over 2 GB of additional photos and responsive documents.
Plaintiffs have proceeded with discovery in the interim and have taken a number of depositions without the benefit of these documents; however, the lengthy delay and the fact that the production still is not complete constitutes good cause to move the deadlines to give Plaintiffs a chance to receive and digest the documents from CCEA before completing the Person Most Knowledgeable Deposition for CCEA.
And finally, a number of City employees who are key witnesses are also on medical leave and thus unavailable for depositions. So that’s what’s going on with that!
Image of homeless person’s bed is via Wikimedia on the usual terms.