The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER ON DISCOVERY FOR DEFAMATION CLAIM
Before the Court is a dispute concerning Plaintiff Willnerd's request for discovery of e-mail communications made after Willnerd's termination -- Request for Production No. 48. The Court conducted an informal discovery conference with the parties on October 27, 2010. Following an inquiry regarding the potential volume of responses to the request, conducted by Defendant Sybase at the Court's request, the Court ordered an expedited briefing schedule to address remaining disputes concerning discovery for Willnerd's defamation claim. See Order, Dkt. 72. Willnerd and Sybase filed simultaneous opening then reply briefs (Dkts. 74, 75, 79, 80), plus attachments, which the Court has reviewed. The Court now issues the following order.
In Willnerd's First Amended Complaint (Dkt. 26), he asserted for the first time, a claim for defamation. The Court recently granted Sybase's Motion to Dismiss the defamation claim (Dkt. 27), but granted Willnerd's Motion for Leave to Amend the claim (Dkt. 40). See Order, Dkt. 71. The Court's decision was premised on its understanding that recently, or soon to be completed discovery had yielded or would soon yield the information needed to provide the detail necessary to allow Willnerd to amend his defamation claim.
1. Discovery For Willnerd's Amended Defamation Claim Will Be Limited To Requests Already Made When Willnerd Filed His Request For Leave To Amend the Defamation Claim
Willnerd has indicated he may seek to conduct further depositions once documents responsive to Request No. 48 have been received and reviewed. See Pl.'s Reply Statement, Dkt. 80 at 7-8. The Court now clarifies that, in granting Willnerd leave to amend his defamation claim, the Court did not intend to throw open the doors to begin discovery on the claim anew. To the contrary, the Court believes that the circumstances warrant tight restrictions on the scope of discovery pertaining to the defamation claim.
Under the U.S. Supreme Court decisions in Twombly and Iqbal, a plaintiff must state a plausible, not merely a probable claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). Without referencing Twombly or Iqbal, the Ninth Circuit has recently affirmed its position that dismissal is improper unless it is clear a complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)(issued 2 months after Iqbal). However, Harris must be viewed through the lens of Twombly and Iqbal. A plaintiff must, at the time he seeks to amend his complaint, be able to state a plausible claim.
In Willnerd's reply in support of motion to amend, filed October 7, 2010, Willnerd references requests for documents regarding his defamation claim, to which Sybase had thus far refused to respond.*fn1 Willnerd Reply, Dkt. 56 at 2, n. 1. Willnerd contends -- albeit vaguely -- that evidence supporting his defamation claim will be revealed in Sybase's responses. Thus, arguably, but for Sybase's refusal to provide discovery requested when Willnerd filed his motion to amend, Willnerd could have amended his complaint to state a plausible claim for defamation. The Court was persuaded, though by only the narrowest of margins, that responses to Request No. 48 might support Willnerd's defamation claim so as to survive dismissal.
Before Willnerd will be required to file his amended complaint, the Court will permit discovery on this one request, made before Willnerd filed his motion for leave to amend his defamation claim on August 26, 2010. Any requests for discovery regarding the defamation claim made after August 26, 2010 will be denied. Requests conceived after this date bear too tenuous a connection to be allowed. Such requests would smack of the "ever-shifting target" and "fishing expedition" that defendants legitimately oppose, and which provided the target of the Supreme Court's decisions in Iqbal and Twombly.
Although it appears that Sybase's pro hac vice counsel in San Francisco did not receive Willnerd's request until August 2010, due to error by Willnerd's counsel, there is no dispute that Sybase's local counsel received service of the requests, by facsimile transmission, in May 2010. Certainly, Sybase has been aware of Willnerd's request for these documents since Willnerd's motion to amend the complaint was filed. Sybase cannot claim surprise. By refusing to provide even partial responses to the request, Sybase took a calculated risk that it may later be required to respond; had limited discovery been provided and proved fruitless, the Court may have denied, and indeed Willnerd may have withdrawn, the request for leave to amend.
Sybase argues that discovery should only occur after the claim is properly pleaded. The Court recognizes a certain orderliness to this proposed sequence. However, in order to most efficiently advance the case at this late stage in litigation, the Court finds that allowing discovery prior to the deadline for Willnerd's amended complaint is appropriate. Sybase is not prejudiced, as it will have the opportunity to file a motion to dismiss the complaint, if an amended complaint is filed. By directing discovery to proceed, Willnerd may determine -- based on the discovery provided -- that he will not file an amended complaint, thus circumventing the need for Sybase to move to dismiss it.
3. Scope of Responses to Willnerd's Request for Communications Since His Termination
At issue here, is Willnerd's discovery request for e-mail communications by and to Sybase employees since July 18, 2008 (when Willnerd was terminated), that Willnerd asserts will support his defamation claim. Willnerd indicates that his amended defamation claim will allege that defamatory statements were published by Sybase employees to other Sybase employees. Willnerd Statement, Dkt. 74 at 5. In its order granting Willnerd leave to amend the defamation claim, the Court noted that evidence of express malice may defeat the common interest privilege, which might otherwise apply to protect Sybase from liability for defamatory statements to and from employees of Sybase. Order, Dkt. 71 at 9-10, citing Barlow v. Int'l Harvester Co., 522 P.2d 1102, 1112-13 (Idaho 1974). The Court also noted that, to the extent the alleged defamatory statements constitute the expression of opinion, new allegations in an amended claim could assert that the publishers of defamatory statements falsely implied they were privy to facts unknown to the receivers of the publication. Id. at 11, citing Weimer v. Rankin, 790 P.2d 347, 352 (Idaho 1990). Accordingly, the Court is willing to permit parameters for a search of ...