*1 On June 10, 2022, the Court appointed a guardian ad litem (GAL)—Bruce Wolf—to represent minor Plaintiff A.L. Dkt. 161. The Court directed Wolf to file a status report on or before June 30, 2022 identifying who he has retained as counsel for A.L. Id. The Court also directed counsel for A.L. to file a motion to reopen discovery on or before June 30, 2022 if Wolf found additional discovery necessary. On June 30, 2022, Wolf filed a status report and counsel filed the Motion of Plaintiff A.L. and Bruce Wolf, his Guardian Ad Litem, for Limited Discovery (“Motion for Limited Discovery”). Dkts. 165, 166. On July 11, 2022, Defendants filed a joint response in opposition (Dkt. 169), and on July 15, 2022 Plaintiffs filed a reply (Dkt. 171).

After considering the relevant record, the Motion for Limited Discovery (Dkt. 165) is granted.

Further, as the Court is allowing additional discovery, the pending Motion Pursuant to Federal Rule Civil Procedure 37(e) for Sanctions Against Defendants Walker and Snohomish County and its VGAL Program for Spoliation of Evidence (“Motion for Sanctions”) (Dkt. 128) and the Motions for Summary Judgment (Dkts. 86, 88, 91) are denied without prejudice with the right to refile.

I. Motion for Limited Discovery

In the Motion for Limited Discovery, Wolf[1] seeks to reopen the discovery period to conduct limited discovery. Dkt. 165. Specifically, Wolf requests a court order allowing Plaintiffs’ counsel to issue a subpoena duces tecum to Jamie French Bialek (Bialek), the former foster mother for Plaintiff A.H. Id. Wolf states communications between Bialek and the Snohomish County Volunteer Guardian Ad Litem (“VGAL”) Program that were deleted by VGAL personnel may continue to exist electronically in the possession of Bialek. Dkt. 166, Wolf Dec. at 3. Depending on information revealed during the electronic retrieval process, Wolf may seek the Court's permission to take the deposition of Bialek and “potential other depositions depending on what the electronic discovery retrieval process reveals.” Id. Counsel states this limited discovery is necessary to allow this Court to resolve the pending Motion for Sanctions and the Motions for Summary Judgment. Dkt. 165.

Pursuant to Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be modified for good cause and with the judge's consent. See also Local Civil Rule (“LCR”) 16(b)(6); Fed.R.Civ.P. 6(b)(1)(A). “[R]equests for extensions of time made before the applicable deadline has passed should normally be granted in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse party.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (internal quotations and alterations omitted). However, if a motion for an extension is made after a deadline, the Court may not extend time absent a showing of excusable neglect. Fed.R.Civ.P. 6(b)(1)(B). To determine whether neglect is excusable, the Supreme Court has stated that the test “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993).

*2 In this case, the discovery period has closed and, thus, Wolf must show excusable neglect to reopen discovery. First, the Court invited a motion to reopen discovery because Wolf was appointed to represent A.L. after the discovery period closed. See Dkt. 161. Second, due to Wolf's appointment as A.L.’s GAL on June 10, 2022, the Court found it was necessary to re-set the trial date. Dkt. 163. Any of the parties could have brought this representational deficiency to the Court's attention at any time including before the discovery deadline. On this basis, the Court finds excusable neglect.

Defendants contend that even if the Court finds good cause, the motion should be denied because further delay in this case would prejudice them. Dkt. 169 at 3. The Court notes the pending summary judgment motions have been re-noted and stricken several times due, in part, to Plaintiff's post-discovery motions. Dkts. 117, 163. However, as noted above, Defendants share responsibility for not bringing the representational deficiency to the Court's attention before the discovery deadline and before the dispositive motions deadline. Thus, while the Court is reluctant to further delay consideration of the motions for summary judgement, the interests of justice require the Court to reopen the discovery period for the limited purpose requested by A.L. Also, any prejudice to Defendants in allowing Wolf to conduct limited discovery does not outweigh Plaintiffs’ interests in completing discovery to ensure A.L. has been able to fairly litigate this case.

Finally, Wolf's request is narrowly tailored to obtain relevant and potentially spoiled evidence, and to potentially seek this Court's approval to depose A.H.’s former foster mother and others “depending on what the electronic discovery retrieval process reveals.” Dkt. 165 at 12; Dkt. 166 at 3. The Court also notes Plaintiffs’ motion withdraws their previously expressed intent to potentially seek future leave to conduct additional discovery. Id. at 3.

In sum, the Court has considered all relevant circumstances surrounding Wolf's request to reopen the discovery period and finds, for the above stated reasons, Plaintiffs have shown excusable neglect. Therefore, the Motion for Limited Discovery (Dkt. 165) is granted. The discovery period is re-opened from the date of this Order through September 30, 2022 for the limited purpose of executing the subpoena duces tecum on Bialek and requesting and completing (if leave is granted by this Court) any depositions related directly thereto.

The clerk of court is directed to issue to Jamie French Bialek the Fed. R. Civ. P. 45 subpoena duces tecum located at Docket Entry 165-1. Plaintiffs’ counsel is responsible for ensuring the subpoena duces tecum is properly served.

II. Motions for Sanctions and Summary Judgment

The Court finds the potential new discovery may impact the Motion for Sanctions and the Motions for Summary Judgment. Therefore, the Motion for Sanctions (Dkt. 128) and the Motions for Summary Judgment (Dkts. 86, 88, 91) are denied without prejudice with the right to refile. See Fed. R. Civ. P. 56(d) (when a nonmovant cannot present facts essential to justify its opposition, the court may defer or deny the motion).[2]

*3 The parties are not required to refile evidence previously filed in this case. However, the Court intends to consider only the evidence cited to in any motions for summary judgment; thus, the parties must, in any subsequent motion for summary judgment, specifically cite to the evidence on which they rely. See Fed. R. Civ. P. 56(c)(3) (“[t]he court need consider only the cited materials ...”). The parties may not refile any motion for summary judgment or request for sanctions until after the discovery period has closed.

III. Conclusion

For the above stated reasons, the Motion for Limited Discovery (Dkt. 165) is granted, the Motion for Sanctions (Dkt. 128) and the Motions for Summary Judgment (Dkts. 86, 88, 91) are denied without prejudice with the right to re-file.

The discovery period is reopened from the date of this Order through September 30, 2022 for the limited purpose of executing the subpoena duces tecum on Bialek and requesting and completing any additional depositions. All discovery, including any potential deposition, must be completed by September 30, 2022. Thus, the Court directs the parties to schedule all potential deposition while awaiting Court approval. No additional extensions will be granted absent a showing of extraordinary circumstances. Further, dispositive motions may not be refiled until after the close of discovery. The Court will issue a separate amended scheduling order.

Directions to the Clerk. The Court previously removed the Motions for Summary Judgment from the Court's calendar, therefore the Clerk is directed to re-open those Motions for Summary Judgment (Dkts. 86, 88, 91) and indicate they are denied without prejudice. The Clerk is also directed to issue the subpoena duces tecum located at Docket Entry 165-1.