Weiss v. Perez

Background

Elizabeth Weiss moved for permission to take discovery on an expedited basis before the discovery conference normally required by Federal Rule of Civil Procedure 26(f). The defendants, identified as San Jose State administrators, opposed the motion. Weiss’s lawsuit concerns access to Native American remains that were scheduled for repatriation in June 2022, and she had also filed a motion for a preliminary injunction.

Weiss sought three depositions—from Walt Jacobs, Roberto Gonzales, and Charlotte Sunseri—and materials responsive to five document requests. She described the discovery as narrow and specific.

Legal standard

Federal Rule of Civil Procedure 26(d) generally bars a party from seeking discovery before the Rule 26(f) conference. Courts in the Ninth Circuit generally apply a “good cause” standard when deciding whether to allow discovery before that conference. Relevant considerations include whether a preliminary injunction is pending, the breadth and purpose of the requests, the burden on the responding parties, and how far the request comes before the normal discovery schedule.

The parties’ arguments

The defendants argued that discovery should not proceed until the court ruled on their motion to dismiss, which they said should be granted without permission to amend. They also argued that Weiss’s claimed irreparable injury was caused by her own delay in seeking relief. Finally, they argued that the requested discovery would be unduly burdensome and expensive given the short time before the preliminary-injunction hearing.

Court’s analysis

The court did not reach the defendants’ first two arguments because it agreed that the requested discovery was too burdensome in the circumstances. The court stated that the defendants could not reasonably be expected to search for, collect, and review a potentially expansive set of documents and other media while also preparing for three depositions within a few weeks.

The court further explained that, even if the discovery were completed, Weiss would need to withdraw her already-filed preliminary-injunction motion and submit a revised motion incorporating the new evidence and arguments. The court noted that new evidence could not be cited in a reply brief. In the court’s view, this process could not be completed before the June 2022 repatriation and could not occur on the expedited schedule the court had approved.

Disposition

The court denied Weiss’s motion for expedited discovery. The order addressed the timing and burden of discovery; it did not decide the underlying claims or the defendants’ motion to dismiss.