Brewer v. United States Postal Service

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL MCCOOK BREWER,
Plaintiff,
v.
LOUIS DEJOY, POSTMASTER
GENERAL, UNITED STATES POSTAL
SERVICE,
Defendant.
Case No. 3:18-cv-00170-TMB
ORDER ON MOTION TO COMPEL DISCOVERY [DKT. 49]
The matter comes before the Court on Plaintiff Daniel McCook Brewer’s
“Motion to Compel Production of Discovery Material (the “Motion”).1 Defendant
Louis Dejoy, Postmaster, United States Post Office (“Defendant” or “USPS”),
opposes the Motion.2 Mr. Brewer filed a Reply in support of his Motion.3 The matter
is fully briefed and ready for decision, and the Court finds the matter suitable for
disposition without oral argument. For the reasons discussed below, Mr. Brewer’s
Motion to Compel Discovery at Docket 49 is DENIED.
Procedural History
On July 23, 2018, Mr. Brewer filed a Complaint against Defendant alleging
violations of the “Civil Rights Act, FMLA, HIPAA, and statutes against lies in
1 Dkt. 49 (Motion).
2 Dkt. 50 (Opposition).
3 Dkt. 53 (Reply).
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Government documents, fraud, Aiding/Abetting felons, sedition, Dereliction of
duty, Discrimination, Moral Repugnance, Malignment.”4 It appears Mr. Brewer was
terminated 	from 	USPS 	in 	November 	2013, 	and 	he 	lodged 	administrative
complaints with USPS, the Office of Workers’ Compensation Programs (“OWCP”),
the Equal Employment Opportunity Commission (“EEOC”), and the Office of
Federal 	Operations 	(“OFO”) 	for 	employment 	discrimination 	and 	workers’
compensation regarding whether his absence from work qualified under the Family
and Medical Leave Act (“FLMA”) or whether his injury qualified for workers’
compensation.5 The record indicates that his claims were dismissed by a Final
Agency Decision finding of no discrimination.6
Upon screening the Complaint under 28 U.S.C. § 1915(e)(2), the Court
issued 	an 	Order 	to 	Show 	Cause.7 	The 	Court 	advised 	Mr. 	Brewer 	that
42 U.S.C. § 2000e, i.e. Title VII, is the exclusive remedy for his employment
discrimination claims and that his case would be reviewed solely under federal
discrimination law.8 The Court emphasized that a plaintiff generally cannot sue the
federal 	government 	unless 	the 	government 	has 	expressly 	waived 	sovereign
4 Dkt. 1 at 3 (Complaint); see also Dkts. 11 (Order Denying Motion for Appointment of
Volunteer Counsel); 43 (Order Denying Joinder).
5 Dkts. 1-2; 1-3; 1-4; 1-5; 1-6; 1-7; 1-8; 1-9; 1-10 (Exhibits).
6 Dkt. 1-9 at 1.
7 Dkt. 7 (Order to Show Cause).
8 Id. at 3.
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immunity.9 	Based 	on 	Mr. 	Brewer’s 	list 	of 	claims, 	only 	his 	employment
discrimination 	claim 	could 	proceed 	because 	the 	relevant 	statute,
28 U.S.C. § 2000e-16(c), offers an express waiver of sovereign immunity.10
Defendant filed an answer on February 19, 2019, and asserted, among other
things, that Mr. Brewer failed to state a claim upon which relief can be granted and
asked that the Court dismiss the Complaint and enter judgment in its favor.11
On February 28, 2019, the Court entered an initial case Scheduling and
Planning Order, which was subsequently adjusted multiple times after the Court
granted extensions stemming in part from safety and logistical challenges caused
by the COVID-19 pandemic.12 An updated Scheduling and Planning Order was
entered on September 25, 2020.13 The Scheduling and Planning Order stated
unequivocally that:
(1) Fact discovery shall be completed on or before January 26, 2021;
(2) Expert 	witness 	discovery 	(including 	depositions) 	shall 	be
completed by February 25, 2021; and
(3) Absent good cause, [the] date for completion of all discovery
should be no later than February 25, 2021.14
9 See id. n.8 & 9; see also United States v. Dalm, 494 U.S. 596, 608 (1990); Chadd v.
United States, 794 F.3d 1104, 1108 (9th Cir. 2015).
10 Dkt. 7 at 3.
11 Dkt. 13 (Answer).
12 See Dkts. 14 (Initial Case Scheduling & Planning Order); 16, 22, 25, 29 (Motions for
Extension of Time); 18, 30 (Orders Granting Extension).
13 Dkt. 44 (Updated Scheduling & Planning Order).
14 Id. at 4–5
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The Court denied without prejudice a subsequent joint request for an extension of
time seeking, among other things, to extend the close of discovery until March 5,
2021.15
Motion to Compel Discovery
On March 12, 2021, Mr. Brewer filed a Motion to Compel Discovery.16 In his
Motion, Mr. Brewer asks the Court to compel Defendant to produce all documents
and correspondence relating to Mr. Brewer and his case.17 He contends that his
requests for production of discovery materials were timely made, before the
February 25, 2021, close of discovery date, and that defense counsel delayed in
responding to Mr. Brewer’s requests.18 Mr. Brewer acknowledges that he was told
by defense counsel that Defendant “had produced all materials regarding this
case” to Mr. Brewer and attaches email correspondence to that effect.19
Defendant opposes the Motion to Compel, arguing that: (1) the Motion is
untimely, and (2) the Motion is unnecessary because Defendant already produced
everything in its possession.20 First, Defendant notes that although Mr. Brewer’s
discovery request was not received until February 19, 2021—after the January 26,
2021, close of fact discovery—Defendant nevertheless provided Mr. Brewer with
15 Dkt. 48 (Order Denying Extension) (“The parties provide no explanation or justification
for the requested delay and have not made a showing of good cause.”).
16 Dkt. 49.
17 Id. at 2–5.
18 See id. at 1–4.
19 Id. at 2, 6–9.
20 Dkt. 50 at 2–3.
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a copy of Mr. Brewer’s deposition.21 Additionally, Defendant states it notified
Mr. Brewer that “all discoverable materials in Defendant’s possession relating to
this case, totaling 814 pages, had already been provided to [Mr. Brewer].”22
Defendant also argues that even if the Court considered the Motion to be
timely filed, Mr. Brewer’s “request that the Court compel Defendant to produce
‘everything’ in Defendant’s possession and ‘all discovery material’ still does not
demonstrate any deficiency in the materials produced by Defendant to date.”23
Defendant contends that because it already produced all discovery materials in
this case, and Mr. Brewer failed to “‘describe with reasonable particularity each
item or category of items’ he is seeking that has not already been produced,”
Mr. Brewer’s Motion must be denied.24
In reply, Mr. Brewer contends that his Motion is timely made because he
made it known in his previously-filed documents and in his deposition that he
“require[d] all documents [Defendant] has about [Mr. Brewer], to [Mr. Brewer], and
whether to [Mr. Brewer] originally or not.”25 Mr. Brewer notes that the Scheduling
and Planning Order states the “date for completion of all Discovery shall be no
later than February 25, 2021,” and argues that the Scheduling and Planning Order
is confusing and misleading, in part because the Order distinguishes between the
21 Id. at 2.
22 Id.
23 Id. at 2–3 (quoting Dkt. 49 at 2).
24 Id. at 3 (alteration omitted) (quoting Fed. R. Civ. P. 34(b)(1)(A)).
25 Dkt. 53 at 1.
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close of fact discovery and the close of all discovery.26 Accordingly, Mr. Brewer
states he anticipated Defendant “might have some [d]epositions held almost up to
that date of Feb[ruary] 25, 2021” and knew he needed to “request all [d]iscovery
material if [Defendant] had not yet produced it,” including all depositions.”27 Mr.
Brewer also argues that defense counsel did not allow him sufficient time to review,
ask questions, or provide input regarding the Scheduling and Planning Order.28
Mr. 	Brewer 	argues 	he, 	rather 	than 	Defendant, 	should 	be 	allowed 	to
determine “what is an[d] what is not relevant to this case” and “what is and what is
not evidence of [d]iscrimination against [Mr. Brewer].”29 Mr. Brewer argues his
request for “ all discovery material’” is not deficient.30 Mr. Brewer specifically states
that he requires from Defendant his “TACS”31 for the period he worked as a
“Casual Letter Carrier in Wasilla[.]”32
Mr. Brewer attaches various exhibits to his Reply, including (1) “pages from
an 	8-22-14 	investigative 	file 	compiled 	by 	USPS 	in 	the 	[Equal 	Employment
opportunity Commission (“EEOC”)] process”; (2) email correspondence between
26 Id. at 2, 4–5 (emphasis in original and added).
27 Id.
28 Id. at 2–3, 5–6.
29 Id. at 3, 10.
30 Id. at 11–12.
31 TACS appears to stand for “Time and Attendance Collection System,” a system used
by USPS “to capture the number of workhours employees spend working in various
Postal Service operations.” See United States Postal Service: Office of Inspector General,
https://www.uspsoig.gov/document/timecard-
administration#:~:text=The%20Postal%20Service%20uses%20the,badge%20reader%2
0at%20the%20facility (last visited July 30, 2021).
32 Dkt. 53 at 3–4.
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Mr. Brewer and defense counsel; and (3) an EEOC decision from the New York
District 	Office, 	seemingly 	including 	Mr. 	Brewer 	in 	a 	class 	action 	against
Defendant.33
Statement of Law
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) defines the scope of
discovery as follows:
Parties 	may 	obtain 	discovery 	regarding 	any
nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether 	the 	burden 	or 	expense 	of 	the 	proposed
discovery outweighs its likely benefit. Information within
this 	scope 	of 	discovery 	need 	not 	be 	admissible 	in
evidence to be discoverable.
Relevant evidence is defined as evidence having “any tendency to make a
fact more or less probable than it would be without the evidence” and “the fact is
of consequence in determining the action.”34 “[E]ven if evidence is discoverable
and relevant under Rules 34, 33, and 26,” “discovery must be ‘proportional to the
33 Dkts. 53-1; 53-2; 53-3 (Exhibits).
34 Fed. R. Evid. 401; Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978);
Basargin v. State Farm Mut. Auto. Ins. Co., No. 3:16-cv-00031, 2017 WL 8677339, at *1
(D. Alaska Feb. 21, 2017).
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needs of the case.’”35 Further, although vested with broad discretion to permit or
deny discovery,36 a court must limit discovery if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).37
If a party fails to make disclosures or cooperate in discovery, and if after the
parties have met and conferred in good faith in an attempt to resolve the dispute,
a 	requesting 	party 	may 	move 	to 	compel 	discovery.38 	Specifically, 	under
Rule 37(a)(3), a party may move to compel discovery if another party “fails to make
a disclosure required by Rule 26(a)[.]”39 The party seeking to compel discovery
has the burden to show that the discovery sought is relevant,40 whereas the party
opposing discovery has the burden of showing such discovery is not warranted.41
35 Basargin, No. 3:16-cv-00031, 2017 WL 8677339, at *1 (quoting Fed. R. Civ. P. 26(b)(1))
(other quotation marks and citations omitted).
36 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (internal quotation marks and
alterations omitted); see also Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,
1047 n.16 (9th Cir. 2016).
37 Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii) (emphasis added).
38 Fed. R. Civ. P. 37(a)(1); D. Alaska L. Civ. R. 37.1.
39 Fed. R. Civ. P. 37(b)(2)(A)(v).
40 La. Pac. Corp. v. Money Mkt. 1 Inst. Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012)
(citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)).
41 Id. (citing DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002)).
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Additionally, 	“[a] 	party 	may 	not 	unduly 	delay 	in 	moving
to compel discovery.”42 “Untimeliness is sufficient ground, standing alone, to deny
a discovery motion.”43
Discussion
After consideration of the record and the Parties’ filings, Mr. Brewer’s Motion
to Compel Discovery is DENIED.
The 	Court 	first 	addresses 	Mr. 	Brewer’s 	confusion 	regarding 	discovery
deadlines in the Scheduling and Planning Order. The Court notes that discovery
typically has two separate phases: “fact discovery” and “expert discovery.” Fact
discovery is the initial period during discovery in which the parties “[i]nspect[] [their]
opponent’s materials or obtain[] or access[] data or information”; fact discovery “is
explicitly 	governed 	by Federal 	Rule 	of 	Civil 	Procedure 	34.”44 	By
contrast, expert discovery is the period of time during which the parties exchange
information about experts, and specifically refers to “the disclosures, information
and depositions referred to in Federal 	Rule of Civil Procedure 26(a)(2) and
(b)(4).”45
42 V5 Tech. v. Switch, Ltd., 332 F.R.D. 356, 360 (D. Nev. 2019).
43 KST Data, Inc. v. DXC Tech. Co., 344 F. Supp. 3d 1132, 1136 n.1 (C.D. Cal.
2018) (citation and internal quotation marks omitted).
44 Finjan, LLC v. Qualys Inc., No. 18-cv-07229-YGR (TSH), 2020 WL 6581836, at *1 (N.D.
Cal. Nov. 10, 2020).
45 Id.
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Here, the Scheduling and Planning Order states that: “Fact discovery shall
be completed on or before January 26, 2021”; Expert witness discovery . . . shall
be completed by February 25, 2021”; and “all discovery should be [completed] no
later than February 25, 2021.”46 The Parties do not dispute that Mr. Brewer did not
provide Defendant with notice of his present discovery request until after the close
of fact discovery and did not file his Motion to Compel with the Court until March 12,
2021.47 Accordingly, Mr. Brewer’s Motion is untimely.
Even though his request is untimely, the Court considers Mr. Brewer’s
Motion. Defendant represents to the Court that it notified Mr. Brewer that “all
discoverable materials in Defendant’s possession relating to this case, totaling 814
pages, had already been provided to [Mr. Brewer].”48 Defendant then provided
Mr. Brewer 	with 	a 	copy 	of 	his 	deposition 	transcript.49 	Although 	Mr. 	Brewer
contends that Defendant is withholding discovery materials, Mr. Brewer confirms
Defendant’s account with attached email correspondence.50 Further, Mr. Brewer
does not point to any specific materials that he is entitled to in this action that
Defendant has failed to produce.51 Bare allegations that Defendant is obligated to
46 Dkt. 44 at 4–5
47 See Dkts. 50 at 2; 53 at 2–3; see also Dkt. 49. Although Mr. Brewer contends his
request was timely because he “made it known in previous[ly] filed documents” and at his
deposition that he required “all documents the USPS has” about him and his case, Dkt.
53 at 1, such statements are insufficient to have alerted Defendant to the present dispute.
48 Dkt. 50 at 2.
49 Id.
50 See Dkt. 49 at 6–8.
51 See id.; see also Dkt. 44 at 3–4 (noting in the Scheduling and Planning Order the Court
noted “[t]he subjects on which discovery may be needed” include: “a. Whether Defendant
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turn over “everything” or “all paperwork, emails, notes, [or] correspondence”52
about Mr. Brewer and has failed to do so will not suffice to show Defendant has
not complied with specific obligations for production under the Rules.
Pro se complaints and filings are held to less stringent standards than formal
pleadings drafted by lawyers.53 Nevertheless, pro se litigants remain obligated
conform their filings to Local and Federal Civil Rules of Procedure.54 Even liberally
construing Mr. Brewer’s pro se Motion, Mr. Brewer has not carried his burden to
show Defendant failed to comply with its discovery obligations.55 If it turns out that
Defendant has, in fact, failed to produce all discovery, Mr. Brewer may make
another motion.
discriminated against Plaintiff as a result of his disability. b. Whether Plaintiff is disabled
within the meaning of applicable laws. c. Whether Defendant has legitimate non-
discriminatory reasons for its actions. d. Whether Plaintiff’s claims are barred, in whole or
in part, because the alleged disclosure, if any, fell within exceptions to the Privacy Act.
e. Whether Plaintiff failed to exhaust his administrative remedies. f. Whether Plaintiff’s
claims are barred by the applicable limitations period. g. The amount of Plaintiff’s
damages, if any. h. Whether Defendant proximately caused Plaintiff’s damages”).
52 See Dkt. 49 at 2, 6.
53 See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642–43 (9th Cir. 2018).
54 See Fed. R. Civ. P. 8; Fed. R. Civ. P. 11; see also King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other
litigants.”), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896, 925
(9th Cir. 2012); D. Alaska L. Civ. R. 1.1(a)(3) Scope and Purpose (“All parties, including
self-represented parties, must comply with these Local Rules and the Federal Rules of
Civil Procedure. References in these rules to “counsel” or “attorneys” also refer to self-
represented parties.”).
55 See La. Pac. Corp, 285 F.R.D. at 485; Soto, 162 F.R.D. at 610.
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Accordingly, Mr. Brewer’s Motion to Compel Discovery at Docket 49 is
DENIED.
IT IS SO ORDERED.
DATED at Anchorage, Alaska this 2nd day of August, 2021.
/s/
Timothy M. Burgess
United States District Judge
Timothy M. Burgess
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