United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
A. TORRES, UNITED STATES MAGISTRATE JUDGE.
the Court is "Plaintiffs Motion to Compel Production of
Documents Requested in the Plaintiffs 1st Set of Requests for
Production of Documents and to Postpone Deadline to Join
Additional Parties," (ECF No. 39), filed by Plaintiff
Wei-ping Zeng. Defendants have filed a response in
opposition. (ECF No. 42). Plaintiff filed a reply, (ECF No.
45), and subsequently filed an amended reply. (ECF No.
Defendants were granted leave to, and thereafter did, file a
sur-reply. (ECF Nos. 50 & 51). On August 7, 2019, the
motion was referred to this Court for determination, pursuant
to the District Court's Standing Order on Civil Cases, 28
U.S.C. § 636, and Local Rule CV-72. (ECF No. 46). For
the reasons set forth below, the motion is DENIED IN
PART and DEFERRED IN PART.
employment discrimination suit, Plaintiff claims that he was
wrongfully terminated from his employment at Texas Tech
University Health Science Center at El Paso
("TTUHSCEP"). (ECF No. 11, at 14). Plaintiff
brought six counts variously against Defendants TTUHSCEP,
Peter Rotwein, Richard A. Lange, and Beverley Court: (1)
employment discrimination based on race and/or national
origin; (2) abridging right to due process to deprivation of
property interest; (3) abridging right to due process to
deprivation of liberty interest; (4) defamation; (5) tortious
interference with prospective employment; and (6) destruction
of evidence to evade legal liability. Id. at 2-3,
filed a motion to dismiss, (ECF No. 18), which the District
Court granted in part and denied in part. (ECF No. 40). On
July 29, 2019, the District Court dismissed all of the claims
against Defendants except for "Plaintiffs Title VII [of
the Civil Rights Act] claim, [Texas Commission on Human
Rights Act] claim, and [42 U.S.C.] § 1981 claim against
Defendants Rotwein and Lange in their individual
capacities." Id. at 22. Plaintiff was also
provided leave to amend his complaint to "allege
additional facts that would give rise to a property or
liberty due process claim, defamation, or tortious
interference claim." Id. Plaintiffs deadline to
file any such amendment is August 30, 2019, which is the
deadline in the Court's Scheduling Order for the
Plaintiff to amend his Complaint. Id. (citing ECF
prior to the District Court's order on Defendants'
motion to dismiss, Plaintiff filed the instant
"Plaintiffs Motion to Compel Production of Documents
Requested in the Plaintiffs 1st Set of Requests for
Production of Documents and to Postpone Deadline to Join
Additional Parties" (the "Motion"). (ECF No.
39). In the Motion, Plaintiff requests that the court issue
an order for the Defendants to produce documents that it had
twice requested from the Defendants. Id. at 1-6.
Plaintiff also seeks a modification of the Scheduling Order
to allow Plaintiff to move to join additional defendants
until September 9, 2019, which is the date Plaintiff believes
to be the deadline to file a motion to amend the Complaint.
Id. at 7-8. Plaintiff states this is necessary
because Defendants have not responded to his request for
information related to his spoliation claim in Count VI of
his Amended Complaint. Id.
August 2, 2019, Defendants filed a response stating that they
served Plaintiff with "their First Amended Objections
and Responses to the First Requests and corresponding
supplemental production" on the same day as filing their
response, claiming that Plaintiff had "narrowed his
requests and clarified definitions for undefined terms"
in his Motion. (ECF No. 42, at 1-2). They, thus, claim that
they have "fully responded to Plaintiffs discovery
requests in good faith." Id. at 2. Defendants
oppose the extension of the deadline to join additional
parties arguing that Plaintiff has received the requested
information well in advance of the current deadline.
Id. at 3.
amended reply, filed on August 8, 2019, Plaintiff claims that
Defendants' supplemental responses were
"insufficient and evasive" and continues to seek an
order compelling production of the requested documents. (ECF
No. 48). In their sur-reply, Defendants argue that the motion
to extend the deadline to join additional parties should be
denied because the information at issue in Plaintiffs Motion
"does not speak to, and has no bearing on, Plaintiffs
joinder of additional parties to this action." (ECF No.
50-1 at 2). Defendants also assert that they have
"timely responded to, and produced relevant documents
responsive to, Plaintiffs discovery requests as of August 8,
2019." Id. at 1.
LAW AND ANALYSIS
Motion to Compel Production of Documents
party fails to make a disclosure or fails to cooperate in
discovery, a party may move for an order compelling such
disclosure or discovery and must give notice to other parties
and all affected persons. Fed.R.Civ.P. 37(a)(1). "The
motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort
to obtain it without court action." Id.
"[E]vasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer, or
respond." Fed.R.Civ.P. 37(a)(4).
has brought the instant Motion asserting that Defendants have
not fully responded to his "1st Set of Requests for
Production of Documents," served on May 29, 2019, nor to
his request for supplemental responses on July 13, 2019. (ECF
No. 39, at 1-2). He attached a certificate stating that he
attempted to resolve this dispute with Defendants.
Id. at 9. With Defendants' response, they
indicated that on the same day as filing the response they
provided supplemental answers to the discovery matters at
issue in this Motion. (ECF No. 42, at 1). They also asserted
that, in his Motion, Plaintiff "narrowed his requests
and clarified definitions for undefined terms in response to
objections asserted by Defendants." Id.
August 8, 2019, Plaintiff filed an amended reply stating that
he received supplemental responses as to some but not all
requests, and that the responses to each request were still
deficient. (ECF No. 48). On August 9, 2019, Defendants filed
for leave to file a sur-reply in which they state that on
August 7, 2019, they served Plaintiff with their "Second
Amended Response, which addresses the issues raised by
Plaintiffs Response and supplements Defendants'
production with documents requested by Plaintiff." (ECF
appears to the Court that the parties are attempting to
resolve this discovery dispute while simultaneously briefing
the Court on the instant Motion. Furthermore, the Court is
cognizant of the timing of the District Court's ruling on
Defendants' Motion to Dismiss, in which it dismissed some
of Plaintiffs claims. Because of the evolving nature of this
discovery dispute and the dismissal of some of the claims in
this suit, the Court is of the opinion that it is in the
interest of judicial economy for the Court to refrain from
ruling on the disputed issues until the parties have had the
opportunity to confer as to the status of the dispute.
Therefore, the Court will order the parties to confer on
these disputes within seven (7) days of the date of this
order, to attempt to resolve these issues without Court
order. Within seven (7) days thereafter, Plaintiff shall file
a supplemental ...