United States District Court, S.D. Texas, Galveston Division
JACQUELINE CORTEZ-BURLINGAME, ET AL., Plaintiffs.
GALVESTON COUNTY, ET AL., Defendants.
M. EDISON, UNITED STATES MAGISTRATE JUDGE
Cortez (“Cortez”) died while he was an inmate at
the Galveston County Jail. His estate and several family
members (collectively, “Plaintiffs”) have brought
this lawsuit against Galveston County and several medical
providers. The gravamen of the claim is that Defendants'
policies and procedures were deficient, leading to delayed
care and Cortez's ultimate death.
issued a Scheduling Order on October 23, 2018, which provided
for a discovery deadline of September 20, 2019. See
Dkt. 16. On September 6, 2019, two weeks before the discovery
deadline, Plaintiffs requested an extension of the discovery
deadline to mid-November 2019. See Dkt. 28.
Defendants agreed with this request, and I issued an oral
order on September 17, 2019, moving the discovery deadline to
November 15, 2019. The discovery deadline moved yet again
when, on October 31, 2019, Judge Jeffrey V. Brown signed an
order extending the discovery deadline to November 22, 2019.
See Dkt. 35.
December 2, 2019, 10 days after the end of the discovery
period, Plaintiffs filed a request for a pre-motion discovery
conference, asking for the court's intervention on a
number of discovery-related issues. See Dkt. 54. On
December 6, 2019, Plaintiffs filed a supplemental pre-motion
request. See Dkt. 60. In that supplemental filing,
Plaintiffs informed me that they had resolved all outstanding
discovery issues with one exception- Plaintiffs wanted
Galveston County to produce all videos depicting Cortez while
he was in Galveston County Jail from April 7, 2017, until his
release from custody. In the event Galveston County failed to
produce the requested video footage, Plaintiffs asked for the
opportunity to seek a spoliation instruction.
an oral hearing on the afternoon of December 6, 2019, to
address this discovery issue. In the hearing, Galveston
County explained that it has turned over all videos depicting
Cortez in its possession, custody, and control. Galveston
County is not, its counsel argued, withholding any videos
depicting Cortez. In response, Plaintiffs expressed disbelief
that the nine videos provided by Galveston County in
connection with this lawsuit represent all the available
videos depicting CortezCortez from the time frame in dispute.
During the December 6, 2019 phone conference, Plaintiffs
requested the opportunity to take a short deposition of the
individual who reviewed the Galveston County Jail videos and
selected the nine that were ultimately produced. Through this
deposition, Plaintiffs hope to develop evidence that
Galveston County has either destroyed relevant footage or
improperly withheld such footage. I have carefully reviewed
the case file and it is clear that the first time Plaintiffs
requested to take a deposition of someone associated with
Galveston County concerning the existence of videotapes
depicting Cortez was during the December 6, 2019 pre-motion
conference-a full two weeks after the discovery deadline had
have easily issued an oral ruling during the pre-motion
conference denying Plaintiffs' request, but I decided I
needed to provide the parties-as well as future litigants who
will appear in my courtroom-a clear, unmistakable written
explanation as to when I will allow discovery to proceed
after the discovery deadline contained in a scheduling order
legal landscape is well-established in this area. District
courts have the unquestioned authority to control and
expedite the discovery process through a scheduling order.
See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th
Cir. 1990); Fed.R.Civ.P. 16(b). “Scheduling orders and
their enforcement are regarded as essential in ensuring that
cases proceed to trial in a just, efficient, and certain
manner.” Hernandez v. Mario's Auto Sales,
Inc., 617 F.Supp.2d 488, 493 (S.D. Tex. 2009). Each
scheduling order I issue contains a discovery deadline and
the parties are expected to conduct the needed discovery
before the deadline expires. I will never set a discovery
deadline that fails to give both sides sufficient time to
pursue the discovery they need to adequately prepare for
Rule of Civil Procedure 16(b)(4) provides that deadlines in a
scheduling order may only be modified “for good cause
and with the judge's consent.” The Fifth Circuit
has explained that “[t]he good cause standard requires
the ‘party seeking relief to show that the deadlines
cannot reasonably be met despite the diligence of the party
needing the extension.'” S&W Enters., LLC
v. S. Tr. Bank of Ala., N.A., 315 F.3d 533, 535 (5th
Cir. 2003) (quoting 6A Arthur R. Miller et al., Federal
Practice and Procedure § 1522.1 (2d. ed. 1990)). A
district court's ruling on whether to modify a scheduling
order is afforded great deference, especially where the facts
of the case suggest a lack of diligence on the part of the
party seeking the extension. See Bilbe v. Belsom,
530 F.3d 314, 317 (5th Cir. 2008).
case, Plaintiffs have failed to show good cause for extending
the discovery deadline again. Judge Brown and I already
granted several extensions to the initial 11-month long
discovery period, giving the parties almost 13 months from
the initial scheduling conference to conduct
discovery. Diligence requires the parties to actively
pursue the necessary discovery in a case. Plaintiffs
exemplified a lack of diligence when they failed to provide
any explanation as to why they did not seek the desired
deposition until weeks after the discovery deadline expired.
clear, I am not opposed to extending the discovery deadline
when presented with facts indicating that the deadline cannot
reasonably be met despite the diligence of the party needing
the extension. I am “acutely aware of the many
extenuating and sometimes unforeseen circumstances that may
arise in the lives of litigants and their attorneys.”
Rashid v. Delta State Univ., 306 F.R.D. 530, 535
(S.D.Miss. 2015). All I ask-and all the Federal Rules of
Civil Procedure require-is that a party establish good cause
before I consent to moving the discovery deadline. Because
good cause is notably absent in this case, Plaintiffs'
request to conduct a deposition outside the parameters of the
discovery deadline is DENIED.