The U.S. Court of Appeals for the Fifth Circuit felt “déjà vu all over again” when, for the third time in recent years, it reversed after entertaining appeals from the District Court for the Southern District of Texas involving similar discovery orders.
In Bailey v. KS Mgmt. Servs., L.L.C., 35 F.4th 397 (5th Cir. 2022), the plaintiff initiated a lawsuit against the defendant for age discrimination. The district court quickly entered an order setting the date for a Rule 26(f) conference but ordered that “no interrogatories, requests for admission, or depositions . . . be done without court approval.” The district court next entered an “Order for Disclosure,” requiring the parties to furnish certain information to one another. The Fifth Circuit described the order as “purport[ing] to create a one-size-fits-all system of rough justice; [which] both recognizes that particular requirements might be inapplicable and threatens to crush discovery efforts that run afoul of the district court’s expectations.”
The district court then held the Rule 26(f) conference and permitted the defendant to move for summary judgment but declined to authorize any discovery other than what was compelled by the order for disclosure. The defendant quickly moved for summary judgment and the plaintiff filed an unopposed motion to extend the time for the plaintiff to respond. The plaintiff noted that she needed to do discovery but had so far been barred by the district court. The district court denied the plaintiff’s motion.
The plaintiff then filed a Rule 56(d) motion to defer consideration of the defendant’s summary-judgment motion and allow time for the plaintiff to take discovery. The district court did not rule on the 56(d) motion and instead entered a discovery order that in relevant part ordered that there would be no further discovery until the plaintiff was deposed by a certain date, and that the court would consider other discovery requests, only after the plaintiff’s deposition.
The defendant decided not to depose the plaintiff. The plaintiff then requested permission to depose three witnesses to gather evidence to respond to the defendant’s motion for summary judgment. The district court denied the plaintiff’s request without explanation and ordered the plaintiff to respond to the defendant’s pending summary-judgment motion. Ultimately, the district court granted summary judgment for the defendant and entered final judgment, which the plaintiff timely appealed.
The Fifth Circuit reviewed the district court’s denial of the plaintiff’s Rule 56(d) motion for abuse of discretion, explaining that the movant must show (1) that additional discovery will create a genuine issue of material fact, and (2) that she diligently pursued discovery. The Fifth Circuit found that the plaintiff successfully showed both elements.
Notably, the Fifth Circuit found that the discovery sought by the plaintiff, which the district court did not allow, was the sort of specific evidence likely to create a material fact issue. In addition, the Fifth Circuit found that from the start of the litigation, the plaintiff sought discovery as soon as the opportunity arose. Moreover, the plaintiff described to the district court the discovery she sought and why she sought it, which was denied without explanation.
The Fifth Circuit explained that in other cases, it had found a lack of diligence when the movant failed to conduct discovery during a period in which it was permitted. On the contrary, here there was “no discovery period at all” and the plaintiff “had no opportunity to conduct discovery absent court approval.”
The Fifth Circuit concluded its opinion acknowledging that this was the third time that similar discovery orders had been reversed out of the Southern District of Texas. However, the Fifth Circuit opined that it “trust[s] that the district court will heed the Federal Rules and the mandates of [its] precedent.”
Overall, attorneys should actively conduct meaningful discovery within the time limits set by the court. Attorneys must also advocate to protect their client’s discovery rights if wrongfully restricted.
