UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) IVY BROWN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 10-2250 (PLF) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION AND ORDER

On October 16, 2020, plaintiffs filed a Motion for One Additional Fact

Deposition, Related Document Discovery, and a Corresponding Extension of the Discovery

Schedule (“Motion for Discovery”) [Dkt. No. 350]. On October 30, 2020, the District of

Columbia filed its Opposition to plaintiffs’ Motion for Discovery (“Opp. Disc.”) [Dkt. No. 356].

On October 26, 2020, plaintiffs filed a Motion to Extend the Deadline for Their Expert Reports

and/or to Schedule a Status Conference at the Court’s Earliest Convenience (“Motion to

Extend”) [Dkt. No. 351]. Simultaneously, they filed a Motion to Expedite Consideration of their

Motion to Extend (“Motion to Expedite”) [Dkt. No. 352]. This Court granted plaintiffs’ Motion

to Expedite and set a briefing schedule. See Order of October 27, 2020 [Dkt. No. 353]. On

October 29, 2020, the District filed its Opposition to plaintiffs’ Motion to Extend (“Opp.

Extend”) [Dkt. No. 354]. Plaintiffs filed their Reply in Support of Their Motion to Extend

(“Reply”) [Dkt. No. 355] on October 30, 2020.

Because the plaintiffs’ Motion for Discovery and Motion to Extend each ask for

amendments to the amended scheduling order issued on July 13, 2020 [Dkt. No. 341], the Court will address both pending discovery motions in this memorandum opinion. For the reasons that

follow, the Court will deny plaintiffs’ Motion for Discovery and will grant in part and deny in

part plaintiffs’ Motion to Extend.

I. BACKGROUND

Plaintiffs are a class of physically-disabled individuals who have been living in

nursing facilities but who seek to transition to community-based care. In this action, plaintiffs

allege that the District of Columbia has failed to provide adequate services to assist class

members in transitioning to community-based care, which has caused them to remain in nursing

facilities in violation of the integration mandate of Title II of the Americans with Disabilities

Act,

et seq., and Section 504 of the Rehabilitation Act,

et

seq. See Fourth Amended Complaint [Dkt. No. 162] ¶ 3. After a nine-day bench trial, Judge

Ellen Segal Huvelle, who presided over this case prior to her retirement, found that plaintiffs had

not shown the “existence of a concrete, systemic failure that entitles them to class-wide relief.”

Brown v. District of Columbia,

(D.D.C. 2017). She therefore entered

judgment for the District of Columbia. See

Plaintiffs appealed and the court of appeals reversed. It held that by requiring

plaintiffs to establish a “‘concrete, systemic deficiency’ in the District’s transition services,” the

district court had “require[d] plaintiffs to meet a burden they should not have been made to

shoulder.” Brown v. District of Columbia,

(D.C. Cir. 2019). The court of

appeals therefore remanded for a new trial. See

(laying out remand instructions).

The main issue on remand is whether the District can establish that plaintiffs’ requested

accommodations are unreasonable.

. The District may establish that in one of two

ways. First, the District could show that it has an adequate so-called “Olmstead Plan” in place.

2 If it cannot do that, the District could “establish that each of the four provisions of plaintiffs’

requested injunction would be so costly as to require an unreasonable transfer of the District's

limited resources from other disabled individuals.”

.

II. LEGAL STANDARD

Reopening discovery requires a showing of good cause. See In re Rail Freight

Fuel Surcharge Antitrust Litig.,

(D.D.C. 2015). “Courts generally consider

six factors when determining whether to reopen discovery: ‘(1) whether trial is

imminent; (2) whether the request is opposed; (3) whether the non-moving party would be

prejudiced; (4) whether the moving party was diligent in obtaining discovery within the

guidelines established by the court; (5) the foreseeability of the need for additional discovery in

light of the time allotted by the district court; and (6) the likelihood that the discovery will lead to

relevant evidence.’”

(quoting Watt v. All Clear Bus. Sols., LLC,

(D.D.C. 2012)). The question of whether to reopen discovery is “committed to the sound

discretion of the trial court.” Watt v. All Clear Bus. Sols., LLC,

(citation

omitted).

Similarly, scheduling orders “may be modified only for good cause and with the

judge’s consent.” FED. R. CIV. P. 16(b). What constitutes good cause varies based on the

circumstances of the case. See 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY

KANE, FEDERAL PRACTICE & PROCEDURE § 1522.2 (3d ed. 2010). Generally, however, “[t]he

good cause standard requires the ‘party seeking relief to show that the deadlines cannot

reasonably be met despite [its] diligence.’” Capitol Sprinkler Inspection, Inc. v. Guest Servs.,

Inc.,

(D.C. Cir. 2011) (citation omitted). Even “if the moving party

establishes that [it] acted diligently, [it] must also show that there is a lack of prejudice to the

3 opposing party.” Breen v. Chao, Civil Action No. 05-0654,

, at *4 (D.D.C.

Mar. 21, 2019) (quoting Lovely-Coley v. District of Columbia,

(D.D.C. 2017)).

III. DISCUSSION

A. Motion for Additional Discovery

Plaintiffs seek leave to conduct one additional fact deposition, a deposition of

Jennifer Reed, Director of the D.C. Office of Budget and Performance Management, see Motion

for Discovery at 4, and request production of documents related to that deposition, see

.

They state that the deposition and related documents will help them “to learn about the facts

relevant to the District’s fundamental alteration defense.”

. Plaintiffs aver that the

deposition will impose only a modest burden on the District.

. Finally, they request an

amended scheduling order to reflect the additional time they will need to review the documents

and conduct the deposition. See

.

The District responds that plaintiffs have failed to show good cause to reopen fact

discovery. See Opp. Disc. at 5. Plaintiffs, it asserts, cannot articulate what useful information

they would glean from deposing Director Reed at this time.

. The District also argues

that a deposition of Director Reed would impose a large burden because she is currently

directing the District’s budget-planning process for 2021.

. Finally, the District points

out that these same arguments were made before and rejected by Judge Huvelle as recently as

July of this year.

.

The Court will not reopen discovery at this time. Of the factors courts consider

when deciding a motion to reopen discovery, only one weighs in favor of plaintiffs: the trial is

not imminent. See In re Rail Freight Fuel Surcharge Antitrust Litig.,

.

4 Conversely, the motion is opposed, and the District maintains that it would be prejudiced by the

time it would require to gather the requested documents, as well as the time the deposition would

take away from the deponent’s other responsibilities. See

In addition, plaintiffs were not

diligent in seeking leave to conduct an additional deposition. Indeed, they have known since

July that they wished to depose Director Reed, and they even had Judge Huvelle’s permission to

take Director Reed’s deposition as one of their five allotted depositions. See July 13, 2020

Hearing Transcript [Dkt. No. 346] at 39. They chose not to do so.

A deposition of Director Reed is also unlikely to lead to relevant evidence. See In

re Rail Freight Fuel Surcharge Antitrust Litig.,

. Plaintiffs state that they

need the deposition to learn facts the District will use to present its fundamental alteration

defense. But as Judge Huvelle noted, “until the District puts on their fundamental alteration

defense, [plaintiffs don’t] know enough to even depose” Director Reed. See July 13, 2020

Hearing Transcript at 38-39. In other words, she said, it would be a “waste of time” for plaintiffs

to depose Director Reed regarding budgetary decision-making until they know whether the

District’s fundamental alteration defense will include arguments about inequitable distribution of

the budget. See

. Judge Huvelle suggested that after the District presents its

defense at trial, plaintiffs could ask for a continuance in order to depose Director Reed if they

had good cause to do so. See

. She also noted that plaintiffs already have information

about the District’s budget and budgetary priorities, as that information is publicly available. See

. For these reasons, Judge Huvelle held plaintiffs’ request for documents relating to

Director Reed “in abeyance.” July 13, 2020 Scheduling Order at 2. The Court finds that it is

appropriate to continue to hold that request in abeyance at this time.

5 Finally, plaintiffs do not argue that circumstances have changed such that the

Court’s decisions in July merit reconsideration. The Court acknowledges that the accelerated

discovery schedule was due in part to Judge Huvelle’s imminent retirement. Nonetheless, the

Court is not declining to reopen discovery because of a desire to strictly adhere to discovery

limits set by Judge Huvelle. Rather, the Court finds that plaintiffs have not established what

benefit would accrue from reopening fact discovery at this late date for the purpose of deposing

Director Reed. Because plaintiffs have failed to show good cause, the Court denies their Motion

for Discovery.

B. Motion to Extend Deadline for Expert Reports

Plaintiffs also move for a forty-five-day extension of time to file their expert

reports. See Motion to Extend at 9. They state that good cause exists for the extension because

recent fact depositions revealed the existence of documents that are relevant to the issues on

remand, including documents not previously produced that concern the adequacy of the

District’s Olmstead Plan and whether the requested accommodations would “fundamentally

alter” the District’s provision of services. See

. Plaintiffs contend that these

documents should have been produced by the District before now because they are responsive to

plaintiffs’ October 2019 document requests. See

. Plaintiffs state that much of the

information is “central to this case” and necessary for the experts to complete their reports.

. They argue that they could not have foreseen that the District would not have timely

produced the documents. See Reply at 6.

The District responds that plaintiffs have always known they would have only two

weeks between the end of depositions and submission of expert reports. See Opp. Extend at 3.

It points out that documents relevant to a party’s case often come to light during depositions and

6 argues that plaintiffs’ failure to take this into account shows a lack of diligence. See

.

The District ultimately characterizes this motion as “but one more attempt to extend discovery

and further delay the resolution of this case.”

.

The Court concludes that plaintiffs have shown good cause to extend the deadline

for their expert reports. See FED. R. CIV. P. 16(b). The documents that plaintiffs now seek are

plainly responsive to their October 2019 document requests. See Plaintiffs’ Second Request for

Production of Documents [Dkt. No. 351-1]. The requested extension therefore is necessary in

part because the District failed to fully comply with those requests and to supplement its

document productions by September 8, 2020, as ordered by the Court. See July 13, 2020

Scheduling Order [Dkt. No. 341] at 3. Further, while it is true that parties often discover the

existence of relevant documents during depositions, the Court cannot reasonably agree that a

party should anticipate that opposing counsel will be derelict in its responsibility to supplement

disclosures.

The District offers no evidence to supports its claim that plaintiffs have not been

diligent in their attempts to meet the Court’s deadlines. See Capitol Sprinkler Inspection, Inc. v.

Guest Servs., Inc.,

. As soon as plaintiffs learned about the additional

documents, they requested them from the District. Plaintiffs also did not fail to anticipate the

need for more time between depositions and expert reports. Instead, they requested thirty days.

See Joint Status Report of July 8, 2020 [Dkt. No. 340] at 6. Although Judge Huvelle did not, at

that time, believe thirty days would be necessary, this Court is now convinced that more time

should be given to plaintiffs – at least in part because of the District’s failure to timely

supplement document productions.

7 The Court further concludes that an extension of time would not prejudice the

District. See Breen v. Chao,

, at *4. Indeed, the District has not argued that it

would be prejudiced in any real sense by the proposed extension. See generally Opp. Extend.

To the extent that the District argues that it is prejudiced by what it characterizes as a litany of

extension requests, the Court finds that argument unconvincing. While this case was originally

filed almost ten years ago, the court of appeals only issued its remand opinion in July 2019. See

Brown v. District of Columbia,

. Since then, both parties have sought extensions

of time to complete discovery. See July 13, 2020 Hearing Transcript at 44 (stating that the

District “agreed to produce an expert back in the end of April, beginning of May” and therefore

requiring it to “give an expert report by August 28th”).

Finally, this case is distinguishable from cases where courts have denied motions

to amend scheduling orders. Those denials generally occur where the moving party has

exercised far less diligence than plaintiffs have shown in this case. See, e.g., Artis v. Yellen,

(D.D.C. 2014) (declining to allow the submission of an additional expert report eight

months after the deadline); Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,

(denying a motion to file a supplement to expert disclosures where party noticed depositions

the same day the disclosures were due, thus precluding the expert’s ability to incorporate

information gained from those depositions); cf. Cumis Ins. Soc’y, Inc. v. Clark,

(D.D.C. 2018) (finding good cause to amend the scheduling order, despite party’s failure to

participate actively in litigation, because party was concurrently involved in criminal and

administrative proceedings and imprisoned during the pendency of the case).

The Court finds that a forty-five-day extension is not necessary for plaintiffs to

complete document review and incorporate that information into their expert reports; thirty days

8 should suffice. The Court will therefore allow two weeks for the District to comply with

plaintiffs’ document requests and fully supplement plaintiffs’ October 2019 document requests.

Plaintiffs will have two weeks from the date the District fulfills its discovery obligations to

submit their expert reports. Accordingly, it is hereby

ORDERED that plaintiffs’ Motion [Dkt. No. 350] for Discovery with respect to

Director Reed is DENIED; it is

FURTHER ORDERED that plaintiffs’ Motion [Dkt. No. 351] to Extend is

GRANTED in part and DENIED in part; and it is

FURTHER ORDERED that the Scheduling Order of July 13, 2020, is amended as

follows:

(1) The District shall produce all documents requested by plaintiffs on or before

November 17, 2020.

(2) Plaintiffs shall submit their expert reports on or before December 1, 2020.

(3) The District shall take plaintiffs’ experts’ depositions on or before December

15, 2020.

SO ORDERED.

/s/ ________________________ PAUL L. FRIEDMAN United States District Judge

DATE: November 3, 2020

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