United States District Court, W.D. Washington, Seattle
ORDER ON PLAINTIFF'S MOTION FOR DISCOVERY DEFAULT
OR TO COMPEL DISCOVERY RESPONSES
S. Lasnik United States District Judge.
matter comes before the Court on plaintiff's
“Motion for Discovery Default or to Compel
Discovery.” Dkt. # 22. Plaintiff seeks an order
compelling defendants to produce several thousand emails that
defendants mentioned in response to plaintiff's
interrogatories. Having reviewed the memoranda, declarations,
and exhibits submitted by the parties, the Court finds as
lawsuit, plaintiff sues her former employer, the Washington
State Ferries (WSF), as well as various other WSF employees,
for several alleged violations of her constitutional rights,
harassment, and retaliation. Plaintiff seeks an order
requiring defendants to produce all emails in their
possession “related to” plaintiff herself, as
well as all emails “related to” six comparator
employees. Defendants have indicated that they are willing to
produce emails generated by running searches for the seven
names in question, but ask plaintiff to provide additional
search terms so that they might limit the total number of
responsive emails to those that are relevant to this case.
Moreover, defendants have by now produced an additional batch
of emails “related to” plaintiff herself. Dkt. #
28 at 7. Plaintiff still seeks production of the
“comparator” emails, as well as emails
“related to” plaintiff from the email accounts of
other WSF employees, and argues that defendants'
unwillingness to produce all responsive emails is evidence of
You don't need a weatherman To know which way the wind
- Bob Dylan Subterranean Homesick Blues ©
Columbia Records 1965
winds that have blown this discovery dispute into this
courtroom are a product of an outrageous posture by
plaintiff's lawyer (seeking a default judgment of $900,
000 for a minor discovery dispute where the primary cause is
his own failure to communicate with opposing counsel) and an
overly restricted response perspective by the State's
lawyer, who must have a better idea of what relevant
documents plaintiff is entitled to even without the benefit
of agreed “search terms.” The Court is extremely
disappointed in the fact that this motion was filed, and the
parties must do a better job of meeting face-to-face and
working through future problems related to discovery.
the Federal Rules of Civil Procedure, parties may generally
obtain discovery regarding any non-privileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case. Information need not be admissible
at trial to be discoverable. Fed.R.Civ.P. 26(b)(1). During
discovery, parties must, without awaiting a discovery
request, provide to the other parties a set of initial
disclosures, including copies or descriptions of all
documents, electronically stored information, and tangible
things that the disclosing party has in its possession or
control and that the disclosing party may use to support its
claims or defenses, Fed.R.Civ.P. 26(a)(1)(A)(ii).
Additionally, a party may request the production of certain
documents in the other party's control; the party served
with such requests for production must comply within 30 days.
Fed.R.Civ.P. 34(b)(2)(A). The party seeking discovery may
move for an order compelling disclosure or discovery after
good-faith attempts to obtain compliance without court action
have been unsuccessful. Fed.R.Civ.P. 37(a)(1).
plaintiff requests entry of default against the defendants as
a discovery sanction, the Court concludes that default would
be a disproportionately harsh penalty in the context of this
relatively minor discovery dispute, where - contrary to
plaintiff's hyperbolic assertions - there does not appear
to be any evidence of willfulness or bad faith. See Fair
Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.
2002) (“In the Ninth Circuit, [default] sanctions are
appropriate only in ‘extreme circumstances' and
where the violation is ‘due to willfulness, bad faith,
or fault of the party.'” (citations omitted)).
the dispute here appears to result from the parties'
failure to cooperate. Plaintiff's attorney was wrong to
resist defendants' good-faith effort to provide relevant
discovery by refusing the request for additional search
terms. Such resistance ultimately creates more work for
everyone, including the Court. In addition, the State knows
enough about the allegations here to figure out what
plaintiff needs: any emails from or to any of the WSF
defendants mentioning the plaintiff, plus anything mentioning
the comparator employees in the context of their refusing
work assignments or showing a lack of mechanical aptitude
during their probationary periods.
of the foregoing reasons, plaintiffs' motion to compel
discovery responses (Dkt. # 22) is GRANTED in part. The
parties are directed to meet and confer to establish
additional search terms that will assist defendants in
narrowing the universe of responsive emails to those that are
truly relevant to this litigation. This conference shall take
place no later than seven days from the date of this order.
Once additional search terms have been designated, defendants
shall produce the narrowed batch of responsive emails no
later than Friday, June 16, 2017. To the extent ...