                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           March 22, 2006
                               FOR THE TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                            Clerk of Court

    SCOTT WHATCOTT,

                Plaintiff-Appellant,

    v.                                                    No. 05-4045
                                                   (D.C. No. 2:01-CV-490-DB)
    CITY OF PROVO,                                          (D. Utah)
    a municipal corporation,

                Defendant-Appellee.


                               ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.



         Plaintiff-appellant Scott Whatcott appeals the district court’s order

dismissing his action with prejudice because he “refused to comply with the

Court’s orders compelling discovery and willfully refused to cooperate in the




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
discovery process and the prosecution of this case.” R. Vol. VI, Doc. 110 at 10.

Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

      In 1999, plaintiff was convicted by a jury and sentenced to serve ten days in

jail for violating defendant City of Provo’s telephone harassment ordinance. The

Utah Court of Appeals eventually ruled that the ordinance under which plaintiff

had been prosecuted was unconstitutional. Plaintiff’s conviction was therefore

expunged.

      Sometime later, after plaintiff had completed his second year of law school,

he accepted a position as a summer associate with the Los Angeles law firm of

Kirkland & Ellis. When the opinion of the Utah Court of Appeals, which

contained unflattering information about plaintiff, came to the attention of the

firm’s management, plaintiff was given a check for approximately $10,000 (the

amount he would have earned had he completed the summer employment) and

was told to leave the firm. In the fall, plaintiff returned to law school and

graduated the following spring.

      Plaintiff brought this suit under 42 U.S.C. § 1983 alleging defendant

had violated his rights guaranteed by the First and Fourteenth Amendments.

The district court granted partial summary judgment to plaintiff on the issue of

liability. This case involves the course of events as the parties prepared to litigate

the issue of damages.


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      Along with claims for damages resulting from his dismissal from Kirkland

& Ellis, nominal damages for the constitutional violation, and damages relating to

lost wages for the time he was in jail, plaintiff’s complaint also claimed long-term

damages due to his alleged inability to earn income as a lawyer. Because of this

latter element, defendant attempted to discover, inter alia, whether plaintiff had

ever applied for and passed a bar exam, whether he was a member of any state’s

bar, whether he had sought employment with any law firm, and whether plaintiff

had any other criminal history other than the now-expunged harassment

conviction.

      Over the course of two years, defendant propounded three sets of

interrogatories and document requests, many of which were objected to by

plaintiff. The district court eventually issued two orders compelling plaintiff to

respond to discovery and to pay defendant’s attorney fees associated with the

motions to compel but refused to dismiss the action. Plaintiff ignored both

orders. After getting no response to its third set of discovery, defendant filed its

third motion to compel or, in the alternative, to dismiss the action. This time, the

district court granted the motion to dismiss as a sanction for plaintiff’s willful

failure to obey court orders, his willful refusal to cooperate in the discovery

process, and for failure to prosecute. We review a dismissal for failure to comply




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with court orders and failure to prosecute for abuse of discretion. Jones v.

Thompson, 996 F.2d 261, 264 (10th Cir. 1993).

      Plaintiff argues that the district court erred by giving effect to an unwritten

discovery stipulation, that it abused its discretion by failing to consider applicable

legal standards surrounding the dismissal sanction, and that the district court was

required to recuse. We disagree with all of these contentions.

      Plaintiff maintains that, because the parties had not entered into any written

discovery stipulation pursuant to Fed. R. Civ. P. 29, it was error for the district

court to re-open discovery after it had granted summary judgment to plaintiff on

the issue of liability. Plaintiff mischaracterizes the course of events. In an effort

to reign in legal costs, the two attorneys originally involved in this matter

informally agreed early on that they would try the issue of liability first before

going to the expense of the discovery required to maintain and defend the

damages claims. Plaintiff was present in court when this arrangement was

explained by defense counsel and did not dispute that characterization of the

parties’ strategy. R. Vol. VII at 24. The parties did not stipulate to extended

discovery; they merely agreed to an informal bifurcation of the case. After ruling

in favor of plaintiff on liability, the court, over plaintiff’s objection, granted the

parties additional time in which to conduct discovery on the damages issues. This

grant of time was well within the district court’s discretion to manage its docket


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and to avoid an unnecessary burden to itself and defendant. See Mulvaney v.

Rivair Flying Serv., Inc. (In re Baker), 744 F.2d 1438, 1441 (10th Cir. 1984).

Reopening discovery, therefore, was not an abuse of discretion. See Smith v.

United States, 834 F.2d 166, 169 (10th Cir. 1987).

      Plaintiff asserts that defendant’s second set of interrogatories was untimely.

Plaintiff, however, wrongly cites cases involving EEOC decisions which have no

bearing on this matter. “Service by mail is complete on mailing.” Fed. R. Civ. P.

5(b)(2)(B).

      We reject plaintiff’s contention that defendant’s second set of discovery

requests was overly broad. In his complaint, plaintiff alleged that, because of his

arrest and conviction under defendant’s unconstitutional ordinance, he had

suffered long-term economic damage. His complaint asked for damages for lost

wages, R. Vol. I, Doc. 1 at 5, as well as general, special and punitive damages,

id. at 8. Faced with such a general claim, defendant’s second set of

interrogatories attempted to learn whether plaintiff had applied for and taken

any bar exam and the details of his attempts to find employment as an attorney.

See R. Vol. II, Doc. 73, Ex. B. at 4-8. All documents supporting the answers to

the interrogatories were also requested. Id. at 9-17. These interrogatories and

accompanying requests for documents were pertinent and relevant to plaintiff’s

claims for damages. Because plaintiff does not maintain that he is unable


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to “readily identify the documents requested . . . [or] that it would be unduly

difficult to determine which documents fall within the scope of the

request . . . [plaintiff’s] objections based on overbreadth are without merit.” Gen.

Elec. Capital Corp. v. Lear Corp., 215 F.R.D. 637, 641 (D. Kan. 2003).

      Plaintiff argues that defendant’s request for records concerning his

application to take a state bar exam requires him to produce privileged

documents. Plaintiff, however, has waived whatever privilege attached to those

documents by bringing a lawsuit in which his employability as an attorney is

central to the determination of damages. See Anderson v. Nixon, 444 F. Supp.

1195, 1200 (D.D.C. 1978) (holding that “[w]here the interests of a newsman in

preserving the anonymity of his sources clash with his responsibilities as a

plaintiff, and where the information sought to be protected goes to the heart of the

defense, the privilege must give way”).

      Plaintiff’s contention that defendant violated the duty to meet and confer

about discovery disputes as provided in Fed. R. Civ. P. 37(a)(2)(A) is similarly

without merit. The rule requires that a party who files a motion to compel

discovery certify that it has “in good faith conferred or attempted to confer with

the party not making the disclosure in an effort to secure the disclosure without

court action.” Fed. R. Civ. P. 37(a)(2)(A). After reviewing defendant’s first

motion to compel, which contains the required certification, R. Vol. I, Doc. 47


                                          -6-
at 1, we find no basis upon which to assign error in the district court’s handling

of this matter. The affidavits of plaintiff and his counsel regarding this matter do

not demonstrate that the district court was clearly erroneous in choosing to

believe the certification supplied by defendant. Cf. United States v. Long,

176 F.3d 1304, 1307 (10th Cir. 1999) (criminal case) (reviewing district court’s

factual findings for clear error and attributing the credibility of witnesses, the

weight to be given evidence, and the reasonable inferences drawn from the

evidence to the province of the district court).

      Plaintiff’s final argument, that the district court should have sua sponte

recused, is not well taken. We have reviewed the comments identified by plaintiff

for indications of bias and find those remarks fail to support the conclusion that

the judge’s “impartiality might reasonably be questioned.” See 28 U.S.C. §

455(a).

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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