The Volokh Conspiracy

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Such Discovery Behavior Is Downright … Satanic


From Judge Angel [sic] Kelley's order today in The Satanic Temple, Inc. v. City of Boston (D. Mass.):

Following a status conference regarding the parties' dispute on the status of discovery, the Court resolves it with an order that discovery is officially closed. "The [C]ourt has broad power to control discovery." "In particular, courts have discretion to tailor discovery to the circumstances of the case at hand and to adjust the timing of discovery."

Plaintiff, The Satanic Temple, Inc. ("TST") filed this case against the City of Boston ("the City") on January 20, 2021, challenging the constitutionality of the City's legislative prayer selection process. Fact discovery was set to close on October 26, 2022. Initially, the parties contemplated 15 depositions per side to accommodate the 13 city councilors.

At the outset of discovery, TST sought to depose on Election Day, then-City Councilor Michelle Wu, who was a candidate in the Boston mayoral race, rather than the other city councilors named in the complaint. The Court granted the City's emergency motion to quash the subpoena for Election Day, November 2, 2021, entered a protective order, and awarded attorney's fees, due to TST's politically motivated publicity stunts to harass then-Councilor Wu, on one of the most important days of her career.

In that same order, the Court set expectations that the parties would "diligently engag[e] in discovery" and that TST would "dispense with [its] impermissible antics and abusive tactics." Since that order, TST has conducted only two depositions: former City Councilor Anissa Essaibi-George and the 30(b)(6) designee, Christine O'Donnell[. D]espite the fact that the City identified other 30(b)(6) deponents, including chiefs of staff for Mayor Wu, Councilor Flynn, Councilor Baker, and Councilor Flaherty, as early as July 2022[,] Plaintiff did not take their depositions.

In September 2022, TST filed multiple unsolicited status reports for unknown reasons. To the extent that TST reached an impasse with the City on any discovery issue, it never filed a motion to compel discovery. Instead of conducting discovery or filing a motion to compel discovery before the discovery deadline, TST filed a motion for the Court to reconsider its decision on the City's motion to dismiss on the one-year anniversary of that decision. TST also filed motions for the Court to recuse itself and to reconsider its protective order.

TST then filed a motion to extend discovery, which it stated could be completed in thirty days by November 25, 2022. The Court granted the motion to extend the discovery deadline to November 25, 2022, as requested. During that time, TST did not conduct any of the remaining 30(b)(6) depositions. TST also filed a motion for sanctions, but did not ask for the Court's intervention through a motion to compel discovery.

In this Court's Standing Order regarding General Motion Practice, publicly available on the District of Massachusetts' website, the Court advises litigants, "[e]xcept for good cause shown, discovery motions must be filed no later than the close of fact discovery." TST did not file a motion to extend fact discovery beyond the November 25, 2022 deadline, yet states in its status report that fact discovery is outstanding, including several 30(b)(6) depositions. The Court twice noted on the docket that fact discovery closed on November 25, 2022. TST did not file a motion to extend discovery, motion to compel discovery after these orders were entered, a motion for reconsideration of these orders, nor a motion for clarification.

Federal Rule of Civil Procedure 16(b)(4) provides that courts may modify a schedule only for "good cause." "To show good cause, a party must demonstrate the deadline in the scheduling order may not reasonably be met, despite the diligence of the party seeking the extension." Since the Court has already granted TST an extension, and Plaintiff fails to show it acted with diligence to complete discovery within the deadline set, the Court declines to allow discovery to continue. As previously stated, discovery closed on November 25, 2022.

TST did not preserve the outstanding discovery disputes with a properly filed motion to compel and has not acted diligently in pursuit of discovery. TST chose to expend judicial resources on a multitude of other motions, rather than conduct available discovery within the deadlines. This case is now two years old and shall move forward.

The parties advised the Court that they intend to file cross-motions for summary judgment. The parties shall file their respective motions for summary judgment by May 1, 2023. The parties' oppositions are due by May 22, 2023, and the parties' replies are due by June 5, 2023. The Court directs the parties to the Court's Standing Order regarding General Motion Practice, located on the Court's website.

They don't call him the Prince of Litigation Shenanigans for nothing.