United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION FOR DISCOVERY
AND DENYING AS MOOT DEFENDANTS' MOTION TO QUASH
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion for
Leave to Take Discovery, filed on October 19, 2017. [Doc.
66]. Defendants responded on November 2, 2017. [Doc. 71].
Plaintiff replied on November 5, 2017. [Doc. 72]. Also before
the Court is Defendants' Motion to Quash Subpoena, or
Alternatively, Motion for Protective Order, and for
Sanctions, filed on October 20, 2017. [Doc. 67]. Plaintiff
responded on October 22, 2017. [Doc. 68]. Defendants replied
on November 6, 2017. [Doc. 74]. The Court has considered the
briefing, the relevant portions of the record, and the
relevant law. Being otherwise fully advised in the premises,
the Court finds that Plaintiff's motion is not well-taken
and will be DENIED. Defendants' motion to quash will be
DENIED as moot.
remand from the Tenth Circuit, the Honorable Robert A.
Junell, United States District Judge, granted Plaintiff leave
to file an amended complaint. [Doc. 50]. Consistent with the
Tenth Circuit's mandate, Judge Junell granted Plaintiff
(1) to amend her privacy claim under 42 U.S.C. § 1983
and cure the deficiencies noted in the Tenth Circuit's
Order and Judgment dated June 8, 2017; (2) to name [the New
Mexico General Services Department (“GSD”)] as a
defendant in this action; (3) to add a [Whistleblower
Protection Act (“WPA”)] claim against GSD in
addition to Plaintiff's WPA claim against Edwynn Burckle,
in his official capacity as Secretary of the General Services
Department; and (4) to add discrimination claims under New
Mexico's Fair Pay for Women Act (“FPWA”) and
the federal Equal Pay Act (“EPA”) against GSD.
Plaintiff shall not include any
other previously-dismissed claims in her Amended Complaint,
except as specified by this Order.
Id. at 1-2. Plaintiff filed an amended complaint on
September 5, 2017. [Doc. 53]. She filed a second amended
complaint on September 13, 2017. [Doc. 54]. Defendants have
moved to strike her amended complaints, arguing they exceed
the scope of the Tenth Circuit's order. [Doc. 56].
Plaintiff subsequently filed a motion for leave to amend
nunc pro tunc. [Doc. 59]. Plaintiff has since filed
two additional motions for leave to amend. [Docs. 76, 77].
Defendants' motion to strike and Plaintiff's motions
for leave to amend are currently pending.
filing her amended complaints and first motion for leave to
amend, Plaintiff filed the instant motion requesting leave to
conduct early discovery. [Doc. 66]. Plaintiff requests leave
to subpoena records from a third party, CaringBridge, an
organization that allows people to create personalized
webpages to share updates on their illnesses or medical
conditions. Plaintiff asserts that counsel for
Defendants used a “fake account” to access
Plaintiff's CaringBridge site to view the medical
information she had shared there. Id. at 1.
Plaintiff alleges that opposing counsel's accessing her
site was in “criminal and civil violation of [the
Stored Communications Act (“SCA”), 18 U.S.C.
§ 2701].” Id. She seeks to obtain from
CaringBridge “[s]erver and network logs”
pertaining to the account used to access her site and
“[a]ny email logs which may provide number of
notifications sent to this email address, what date those
notifications were sent, and what information they may have
contained.” [Doc. 65]. Plaintiff acknowledges that
discovery has not yet been opened in this case because the
parties have not conferred pursuant to Fed.R.Civ.P. 26(d),
(f). Plaintiff argues that she should be permitted to proceed
with discovery nonetheless because there is good cause for
conducting the early discovery. [Doc. 66] at 3-4. She argues
that good cause exists because CaringBridge could, at any
time, delete the electronic data she seeks. Id.
response, Defendants point out that Plaintiff seeks discovery
pertaining to alleged violations of the Stored Communications
Act, but she does not allege violations of the SCA in her
amended complaints. [Doc. 71] at 4-5. Moreover, Defendants
suggest that the applicable statute of limitations would bar
Plaintiff from alleging SCA claims. Defendants further
contend that any attempt by Plaintiff to assert SCA claims
would be unavailing because “access to
[Plaintiff's] webpage was not restricted and was
legitimately initiated in response to Ms. Burke's sharing
of the website link with her then-coworkers . . . .”
Id. Defendants argue that Plaintiff otherwise fails
to show good cause for early discovery, particularly given
the procedural posture of this case. Id. at 6-8.
to Fed.R.Civ.P. 26(d), “[a] party may not seek
discovery from any source before the parties have conferred
as required by Rule 26(f), except . . . when authorized by
these rules, by stipulation, or by court order.” The
Court may permit early discovery in advance of a Rule 26(f)
conference on a showing of good cause for the requested
departure from usual discovery procedures. See Charles
Schwab & Co. v. Portfolio, LLC, 2008 WL 11322135, at
*1 (D.N.M. June 26, 2008) (unpublished) (citing Yokohama
Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612,
614 (D. Ariz. 2001)); Qwest Commc'ns Int'l, Inc.
v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D.
Colo. 2003). The party seeking to conduct early discovery
bears the burden of establishing good cause. Qwest
Commc'ns Int'l, 213 F.R.D. at 419.
is no initial scheduling order in this case, and the parties
have not conferred as required by Rule 26(f) to open
discovery. Therefore, Plaintiff is entitled to early
discovery only if she shows good cause. The Court finds that
she has failed to show good cause for the discovery she seeks
and will deny her motion.
initial matter, the records Plaintiff seeks to obtain through
this third-party subpoena pertain to alleged violations of
the SCA committed by Defendants and their counsel. As
Defendants point out, however, Plaintiff's amended
complaints do not allege violation of the SCA. See
[Docs. 53, 54]. Plaintiff herself acknowledges that she seeks
the requested discovery to “learn more about the scope
of this violation” in order to “inform [her]
choices about potential future claims.” [Doc. 66] at 4.
The Court has the authority “to confine discovery to
the claims and defenses asserted in the pleadings.”
Dorato v. Smith, 163 F.Supp.3d 837, 867 (D.N.M.
2015). Parties “have no entitlement to discovery to
develop new claims or defenses that are not already
identified in the pleadings.” Id. It is true
that, after the completion of briefing on the instant motion
seeking early discovery, Plaintiff filed a second motion to
amend to include claims for violation of the SCA.
See [Docs. 76, 77]. But the SCA claims Plaintiff
wishes to add are not presently operative, and the existence
of the pending motion to amend does not otherwise entitle
Plaintiff to conduct early discovery. In fact, the pending
motion to strike Plaintiff's amended complaints and the
motions to amend make premature discovery particularly
inappropriate at this juncture.
Plaintiff's concern that the requested records could be
destroyed is purely speculative. Plaintiff asserts that
CaringBridge could delete, at any moment, the stored
electronic data she seeks. She notes that “[r]etention
schedules of electronic data . . . var[y] widely” and
that such information “is not always stored for long
periods of time” as a result of the storage costs.
[Doc. 66] at 3. As Defendants point out, CaringBridge's
information “for as long as [the] account is active or
as needed to provide . . . services” and as required to
comply with “legal obligations, resolve disputes, and
enforce [its] agreements.” [Doc. 71-2] at 2. Plaintiff
posits that this language “likely” does not apply
to the server logs she seeks and that it does not guarantee
that the information “will be retained
indefinitely.” [Doc. 72] at 14. Her speculation,
however, does not establish good cause for diverting from the
usual discovery practice contemplated by Fed.R.Civ.P. 26.
See Falcon Indus., Inc. v. Combat Optical, Inc.,
12-cv-0679 JCH/ACT, [Doc. 19] at *5 (D.N.M. Sept. 26, ...