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(Cite as: 2005 WL 552537 (E.D.Cal.))


United States District Court,

E.D. California.

Roselind QUAIR and Charlotte Berna, Petitioners,


Dena BEGA, et al., Respondents.

No. CV F 02 5891 REC DLB.

March 7, 2005.

Dennis Grady Chappabitty, Dennis G. Chappabitty Law Offices, Sacramento, CA, Joanne Leah Castella , A. Robert Rhoan, Jr. , Bingham McCutchen LLP, Patrick Romero Guillory, Paul Aaron Harris , San Francisco, CA, for Petitioner.

Val William Saldana , Kirsten O'Brien Zumwalt, Laurie L. Quigley,  Lang, Richert & Patch, Fresno, CA, Conly J. Schulte , Law Offices of Conly J. Schulte, Omaha, NE, John M. Peebles , Monteau and Peebles, Sacramento, CA, for Respondent.




BECK , Magistrate J.

(Document 138)

On February 8, 2005, Respondents filed the instant motion for a protective order to stay and/or limit the scope of discovery pending the resolution of their motion for summary judgment. The motion was heard on March 4, 2005, before the Honorable Dennis L. Beck. Laurie L. Quigley and Kirsten Zumwalt appeared on behalf of Respondents. Robert Rhoan, Anne H. Nguyen, Patrick Guillory and Leah Castella appeared on behalf of Petitioners.


This action arises out of the June 1, 2000, disenrollment and banishment of Petitioners Roselind Quair and Charlotte Berna ("Petitioners") from the Santa Rosa Rancheria Tachi-Yokut Tribe ("Tribe"). On February 3, 2003, Petitioners, pursuant to Section 1303 of the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., ("ICRA"), filed amended petitions for writ of habeas corpus. Petitioners allege that because the proceedings which resulted in their disenrollment as members of the Tribe and banishment from the Tribe's Rancheria were in violation of their rights guaranteed under ICRA, these actions constituted an unlawful detention and restraint of liberty.

On July 26, 2004, the Honorable Robert E. Coyle denied in part and granted in part the parties' cross-motions for summary judgment. Pursuant to the order, the issues remaining in this action are: (1) whether Petitioners were denied due process; and (2) whether Petitioners were denied a fair trial.

In August 2004, Petitioners filed a motion to reopen discovery. A hearing was held on September 24, 2004, before the Honorable Dennis L. Beck. Judge Beck deferred ruling on the motion pending the outcome of a re-hearing held by the Tribe on Petitioners' disenrollment and banishment. A re-hearing was held on October 1, 2004, and the Tribe again voted to disenroll and banish Petitioners.

On October 29, 2004, Judge Beck held a scheduling conference to consider Petitioners' request to re-open discovery. On December 22, 2004, Judge Beck issued an Amended Scheduling Order allowing the re-opening of discovery. Specifically, each side was permitted to take 15 depositions, and propound 20 interrogatories, 15 requests for admission, and 15 requests for documents.

After the issuance of the December order, Petitioners filed an action in Kings County Superior Court based on the same set of facts as the instant action. Exhibit B, attached to Declaration of Laurie L. Quigley in Support of Motion ("Quigley Dec.")

Petitioners have noticed 13 depositions scheduled to begin on March 9, 2005. Petitioners have also subpoenaed documents to be brought to individual depositions, propounded interrogatories, requests for production of documents and requests for admissions.

Respondents filed the instant motion on February 8, 2005, and argue that good cause exists to stay discovery and/or limit discovery pending this Court's decision on Respondents' motion for summary judgment. Respondents' motion for summary judgment was filed on February 15, 2005, and is set for hearing on April 4, 2005.

Petitioners filed their opposition on February 18, 2005, and argue that Respondents failed to demonstrate good cause for staying discovery and that a stay is not warranted in this situation.

Respondents filed their reply on February 25, 2005.

On March 1, 2005, the parties filed a joint statement regarding the discovery dispute. The arguments raised are the same as those raised in the motion, opposition and reply. On March 3, 2005, Respondents requested that the Court withdraw its memorandum of points and authorities in support of their motion and explained that they would resubmit their legal authorities in their joint statement pursuant to Local Rule 37-251.


A. Legal Standard

A district court enjoys broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988) . Pursuant to Federal Rule of Civil Procedure 26(c) , upon a showing of good cause, the district court may issue any protective order "which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ..." To obtain a protective order, the moving party bears the burden of showing "good cause" by demonstrating harm or prejudice that will result from the discovery. Rivera v. Nibco, Inc., 364 F.3d 1057, 1063 (9th Cir.2004) . The moving party must demonstrate a "particular and specific need for the protective order, as opposed to making stereotyped or conclusory statements." Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D.Cal.1990) .

This Court applies a two-pronged analysis in deciding whether to grant a protective order staying discovery before pending motions can be heard. Lowery v. Fed. Aviation Admin., 1994 WL 912632, *3 (E.D.Cal.1994) ; see also Pacific Lumber Co. v. Nat. Union Fire Ins. Co., 220 F.R.D. 349, 351 (N.D.Cal.2003) . First, the pending motion must be potentially dispositive of the entire case, or at least dispositive on the issue for which discovery is directed. Magistrate judges have broad discretion to stay discovery pending decisions on dispositive motions, including motions for summary judgment. Lowery, at *3 (citing Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1560 (11th Cir.1985) ). For example, a court may stay discovery when it is convinced that a plaintiff is unable to state a claim for relief. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.1981) . Second, the court must determine whether the pending dispositive motion can be decided absent additional discovery. Lowery, at *3; Pacific Lumber Co., 220 F.R.D. at 352 . If both questions can be answered in the affirmative, a protective order may issue. Id. However, denying a protective order is particularly appropriate if a stay of discovery could preclude either party from fully preparing for the pending dispositive motion. Id.

B. The Parties' Arguments

Respondents request a protective order to stay and/or limit discovery pending a decision on their motion for summary judgment. Their motion for summary judgment is based on two grounds: (1) Respondents are immune from suit because the Tribe's sovereign immunity extends to Respondents, who have been sued in their official capacity; and (2) The due process issues remaining in the petition have been rendered moot by the October 1, 2004, re-hearing.

Respondents argue that good cause exists because the depositions, with production of documents, will be very time intensive and burdensome. Respondents point to the "laundry list" of criteria that the person most knowledgeable must be able to testify to, including the Tribe's organizational structure, record keeping policies, finances (including revenue flowing from the Palace Indian Gaming Center), and benefits and privileges flowing from tribal membership. Exhibit A, attached to Quigley Dec. Petitioners have also subpoenaed all documents relating to these topics, and Respondents argue that the expense and burden of collecting documents relating to the Tribe's finances alone is "staggering, and clearly highlights the logic in staying the discovery process ..." Motion, at 5. Respondents also contend that the scope of discovery goes far beyond the issues before the Court and believe that Petitioners are using this Court to obtain discovery for their state court action.

In opposition, Petitioners argue that Respondents have failed to meet their burden of showing good cause because their argument is based on speculation. Specifically, Petitioners argue that Respondents have not shown how each discovery request is burdensome, do not identify specific and particular facts that demonstrate the harm that will flow from each and every request, and merely argue in a conclusory fashion.

Next, Petitioners attack Respondents' motion for summary judgment. They contend that the motion, if granted, will not dispose of the entire case, or any issues at which discovery is directed, because the Court has disposed of these issues in asserting jurisdiction. Petitioners contend that Judge Coyle's July 26, 2004, finding as to subject matter jurisdiction determined that Congress granted a limited waiver of Tribal sovereign immunity to allow Petitioners to seek a writ of habeas corpus in federal court to test the legality of Tribal detention under ICRA.

As to the issue of mootness, Petitioners concede that if summary judgment is granted on this basis, it may moot certain elements of Petitioners' claims. However, Petitioners argue that they need to conduct discovery to gather facts that will be essential to their opposition to summary judgment.

C. Analysis

A stay of discovery pending determination of Respondents' motion for summary judgment is not warranted in this case. Respondents' motion for summary judgment will not likely be dispositive of the case. It appears that Respondents' argument as to sovereign immunity may already have been answered when Judge Coyle determined that this Court had subject matter jurisdiction based on a petition for writ of habeas corpus. Indeed, Respondents recognized during the hearing that the two issues were very similar and explained to the Court that this motion was related more to the mootness issue raised in their motion for summary judgment. Moreover, as part of Petitioners' due process claim involves a question as to whether the Tribal Council is able to afford these Petitioners due process, discovery on this issue would be necessary to oppose Respondents' motion.

There was also confusion as to the scope of this Court's order reopening discovery, leading to Respondents' alternate request that this Court limit the scope of discovery to the October 1, 2004, re-hearing. Respondents believe that this Court's December 22, 2004, Amended Scheduling Order allowing the re-opening of discovery was limited to issues surrounding the October 1, 2004, re-hearing. However, this is not the case. The Court intentionally placed no limits on the scope of discovery, except for the number of depositions, etc.

Although the issue of the breadth of Petitioners' discovery requests is not before the Court, the parties discussed the issue at the hearing. It appears that in light of the limited due process issues, Petitioners' discovery requests can be narrowed. For example, a request to produce all of the Tribe's financial records is rather broad, given that Petitioners likely only need information regarding the Petitioners' and other members' per capita distribution, and how this distribution is calculated. In any event, the parties agreed that they would meet and confer in an attempt to narrow the discovery requests and better frame the issues regarding Petitioners' due process claims.

Accordingly, Respondents' motion for a protective order to stay and/or limit the scope of discovery is DENIED.