Zane Hardin worked at Wal-Mart in California. Mr. Hardin became unhappy with Wal-Mart back in 2008, and sued them in California state court for age discrimination, retaliation, ect. As these kinds of cases are wont to do, his suit was removed to federal court, and was subject to a series of motions to dismiss, for summary judgment, and the like, over the span of several years.
Getting to the discovery aspects of the case, the initial scheduling order opened discovery on September 2, 2008. After a good deal of activity in the case (and several extensions of time), non-expert discovery was scheduled to close on February 3, 2012. Then,
On January 13, 2012, Plaintiff served Wal-Mart with Request for Production (“RFP”) No. 6. RFP 6 asked Wal-Mart to produce over eleven categories of email correspondence and electronic data spanning the ten-year history of Hardin’s employment. Further detailed in this request was Plaintiff’s first attempt to seek statistical data from Wal-Mart regarding its employees at Hardin’s Wal-Mart location as well as its other stores. Although the RFP contained a proof of service of December 31, 2011, it was initially and improperly served at an incorrect address. It was then properly served on January 13, 2012, twenty-one days before the discovery cutoff.
Wal-Mart didn’t like this discovery request for obvious reasons- sifting through ten years of email at the last minute is not an easy or inexpensive thing to do, in most cases. Hardin moved to compel, and the court had a telephone conference (albeit on-the-record) with the parties’ respective counsel regarding the request, and
denied Plaintiff’s motion to compel Wal-Mart’s emails in its entirety as untimely, unreasonably burdensome, and costly. Judge McAuliffe stated that throughout the discovery period, Plaintiff was well aware that Wal-Mart had not produced any emails. It was incumbent on Plaintiff, much earlier in discovery, to request vast amounts of emails from Defendant. The Court explained that the parties have had an ample amount of time to conduct electronic discovery and the request to do so was not pursued diligently.
Then, later on, Hardin again tried to again compel the discovery of Wal-Mart’s emails and statistical data. You can probably guess that these efforts failed – Magistrate Judge Barbara A. McAuliffe of the Eastern District of California denied this second motion to compel and held that
as previously ruled by the Court, there is no indication that Plaintiff sought timely discovery of Wal-Mart’s emails and the resulting statistical data . . . [e]ven if the Court construes the motion as a motion to reopen discovery, the motion must be denied. Plaintiff cannot show due diligence in seeking the discovery at issue. Two motions for summary judgment have been filed, and a third summary judgment motion is currently pending before the district court. Plaintiff had over a year to seek discovery on statistical data, but instead Plaintiff waited until the eve of the already extended discovery cut-off to request this information. Further compounding matters is the nature of Plaintiff’s discovery request. Plaintiff is seeking to compel emails that should have been anticipated from the inception of this action. Plaintiff’s failure to make such a basic discovery request until three weeks before the discovery deadline is the antithesis of diligence.
(emphasis added) The lesson? Simple. Make sure to ask for what you need early on in discovery, or you might not be able to get it later. The full opinion is available here.