Opinion
Case No. 1:14-cv-00108-JLT (PC)
12-09-2015
MICHAEL NEIL JACOBSEN, Plaintiff, v. PEOPLE OF THE STATE OF CALIFORNIA, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
(Doc. 53)
30-DAY DEADLINE
In this action, Plaintiff is proceeding on claims of: (1) excessive force and deliberate indifference to his serious medical needs in violation of the Eight Amendment, violation of Plaintiff's right of access to the courts, and retaliation in violation of the First Amendment against Sergeant Diaz; (2) excessive force in violation of the Eight Amendment and retaliation in violation of the First Amendment against Officer Barahas; and (3) deliberate indifference to his serious medical needs in violation of the Eight Amendment against Nurse Monica. (Doc. 17.)
On September 17, 2015, Plaintiff filed a motion to compel Defendants Diaz and Barahas ("Defendants") to produce for inspection and copying a number of items in response to Plaintiff's requests for production. (Doc. 53.) Defendants filed an opposition (Doc. 58) to which Plaintiff replied (Doc. 63). The motion is deemed submitted. L.R. 230(l). Plaintiff's motion is GRANTED IN PART and DENIED IN PART as delineated herein below.
Plaintiff has not moved to compel further responses from Defendant Nurse Monica Choe.
I. Motion to Compel Production of Documents
Federal Rule of Civil Procedure 34 empowers a party to serve on any other party a request to produce "any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a). Documents are in the "possession, custody, or control" of the served party if "the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand." In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995). Accordingly, a party may be required to produce documents turned over to an agent, such as its attorney or insurer. E.g., Henderson v. Zurn Indus., 131 F.R.D. 560, 567 (S.D. Ind.1990). Further, the responding party has a duty to supplement any responses if the information sought is later obtained, or the response provided needs correction. Fed. R. Civ. P. 26(e).
If Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden, in a motion to compel, to demonstrate why the objection is not justified. In general, Plaintiff must inform the Court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the Court why the information sought is relevant, and why Defendants' objections are not justified.
Plaintiff's motion to compel is deficient as it merely identifies the documents/items which he desires be produced, without submitting either his original requests or Defendants' responses/objections to each verbatim. Plaintiff merely states categories of documents/items that he desires be produced and generally states that the responding production was deficient and/or his disagreement with Defendants' reasons for their lack of production. (Doc. 53.)
Plaintiff's motion does not address which discovery requests, in which set of his requests for production, are the subject of his motion to compel; nor does he inform the Court why the information sought is relevant and why Defendants' objections are not justified. However, Defendants have addressed each of the seven categories of items which Plaintiff seeks they be compelled to produce. (Doc. 58.) In the interest of conserving the Court's limited resources, and given both Defendants' opposing efforts and the extent of discovery apparently being conducted in this case, the Court opts to reach the merits of Plaintiff's motion to compel, rather than deny the motion without prejudice to refiling. Defendants shall serve on Plaintiff copies of any responsive documents ordered produced herein within 30 days from the date of service of this order.
II. Limit of 25 Requests for Production
As a preliminary matter, Defendants raise an argument that Plaintiff exceeded the limit to 25 requests for production imposed by the Discovery and Scheduling Order(s) in this action. (Doc. 58, 1:23-3:5.) Defendants argue that every subpart of each of Plaintiff's written contacts regarding his requests for production should be counted as individual requests for production. To this end, they argue that Plaintiff has propounded 41 requests for production in 6 numbered and unnumbered sets. (Id., at 1:26-2:3.) However, when the documents that Defendants characterize as individual sets of requests for production are scrutinized, it is clear that a number of the subparts in Plaintiff's documents address and clarify various of his prior requests in an attempt to obtain the correct/responsive documents/items.
Specifically, Plaintiff's first set of requests for production, dated December 14, 2014, contains ten requests (id., at p. 18); Plaintiff's letter of February 18, 2015, though titled "2nd informal request for production of documents," is Plaintiff's lay attempt to meet and confer to clarify his requests in order to obtain full production in response to requests #1, #10, and #4 in Set #1 (id., at pp. 28-29); Plaintiff's letter of April 14, 2014 advised why he was having difficulty responding to Defendants' propounded production requests and, at the very end, further clarified his requests #1 and #10 in Set #1 and ended with one new request for production (id., at p. 41); Plaintiff propounded his second set of requests for production on May 14, 2015 and it contained 5 new requests for production (id., at pp. 45-46); Plaintiff's correspondence of May 25, 2015 contained 4 new requests for production (id., at pp. 48-49); and as to Plaintiff's correspondence of July 9, 2015 -- (1) addressed deficiencies in Defendants' production in response to his #2 request for production in Set #2 (id., at p. 56), (2) contained 3 new requests (subparts (B), (C), and (D) to question #2 were new while #1 pertains to request #2 of Set #2, subpart (A) of #2 pertains to #4 of Set #1, and subpart (E) clarified a request mentioned in his February 18th letter which related back to #4 of Set #1 (id., at pp. 56-57), (3) addressed Defendants' objections in response to his #2 request for production in Set #3 (id., at pp. 57-58), (4) addressed deficiencies in Defendants' production in response to his #3 request for production in Set #3 (id., at p. 58), request #10 from Set #1 (id., at p. 59, (1)), request #1 from Set 1 (id., at p. 59 (2)), contained 2 new requests (id., at p. 59 (3) which should be broken into 2 individual requests), and addressed request #5 of Set #1 (id., at p. 61).
This process of discovery is convoluted evolution, but, once unwound, it is apparent that Plaintiff has served 25 individual requests for production -- not 41 as asserted by Defendants. Though Plaintiff's efforts to meet and confer to clarify his requests for production were far from perfect, they do not count as wholly new requests. Thus, Plaintiff has not exceeded the number of requests for production allowed in this case. (See Docs. 24, 34, 43, 62.) Accordingly, all of Defendants' objections that Plaintiff has exceeded the number of requests for production allowed in this case are OVERRULED. However, because Plaintiff has served 25 requests for production on these Defendants, he may not serve any further requests.
III. Plaintiff's Requests for Production
Plaintiff's motion is addressed by the 7 general categories of requests for production which Plaintiff he raises.
Plaintiff's Request:
Medical record and the medical request being responded to by Nurse Monica. (April 25th 2014). (Doc. 53, 1:19-25.)
Argument: Plaintiff asserts that this was not included in the exhibit sent to him on February 5, 2015 in response to his request for "all medical records from F.C.J. until I was transferred." (Id.) Defendants responded to request #1 of Plaintiff's Set #1 request by indicating that a copy of his medical chart maintained at the Fresno County Jail would be produced. (Doc. 58, p. 22.) In his reply, Plaintiff argues that these records should have been produced as part of his medical record which he requested in Set #1. The request for medical care that Plaintiff submitted upon which Nurse Monica saw him should logically be part of Plaintiff's complete medical chart maintained at the Fresno County Jail that Defendants supposedly produced. However, even if such is not the practice at the Fresno County Jail, Plaintiff's subsequent request for "any and all documents relating to the 4/25/14 visit [Nurse Monica] pulled me out for, including the medical slip" clearly requested these materials and, as previously discussed, was within the 25 requests that Plaintiff was allowed to propound.
Ruling: Plaintiff's requests relating to Nurse Monica in his July 9th correspondence do not exceed the 25 limit. Thus, Plaintiff's motion to compel further production from Defendants Diaz and Barahas as to the medical record, his request to which Nurse Monica responded on April 25, 2014, and all documents relating to that visit is GRANTED.
Plaintiff's Request:
A copy of the letter that officers took to my sentencing judge (Judge Vogt) one week before my sentencing date telling him that I had wrote it. (April 25, 2014).
Argument: In his motion, Plaintiff merely lists this as a request for which he seeks to compel further production. (Doc. 53, pp. 1-2.) This is #7 in Set #1 to which Defendants objected as vague as to the identity of the officer and that it sought documents contained in files maintained by the Fresno County Superior Court. (Doc. 58, p. 24.) Defendants argue that they are not in possession, custody, or control of any such document. (Id., 3:21-4:5.) Plaintiff replied that "another F.C.J. Officer told" him that any such contact has to be documented, but that there is nothing in their computer documenting it, and that a copy of the letter should also have been retained by the Fresno County Jail. (Doc. 63, p. 3.) However, Plaintiff's assertion that someone told him this is insufficient to prove that Defendants are not producing an item within their possession, custody, or control.
Ruling: Defendants are only required to produce items within their possession, custody, or control. Fed. R. Civ. P. 34. Defendants are not required to obtain an item from a non-party in response to Plaintiff's request for production. Plaintiff's motion to compel further production from Defendants as to the letter which his sentencing judge (Judge Vogt) relied on is DENIED.
Plaintiff's Request:
The videos taken from the 2 assaults of 12/25/13 and 3/11/14 which both occurred on main jail 4th floor of the F.C.J. in the exact same spot, right in front of a camera.
Argument: In his motion, Plaintiff merely lists this as a request for which he seeks to compel further production. (Doc. 53, p. 2.) Plaintiff requested these videos in #10 of Set #1. (Doc. 58, p. 18.) Defendants' initial response indicated they were unaware of the existence of any such videos, but that discovery was continuing. (Id., at pp. 24-25.) When Plaintiff followed up that he wanted copies of the videos (id., at p. 28), Defendants responded that the videos were not available for production (id., at p. 32). Thus, Plaintiff followed up again and this time inquired as to how he could view the videos since they could not be produced. (Id., at p. 41.) Defense counsel's responding correspondence indicated that he was not aware of any video from those dates that "can be produced." (Id., at p. 43.) Plaintiff thereafter attempted one last time to obtain and/or view the videos from these two incidents (id., at p. 59) to which Defendants responded that they had conducted a reasonably diligent investigation with a result that they were not aware of the existence of any video from the incidents described in this request (id., at p. 68).
Ruling: Though belabored and belated in coming, Defendants conducted the diligent investigation that was required to confirm that video from the incidents that Plaintiff seeks do not exist. Defendants cannot be compelled to produce that which does not exist. Thus, Plaintiff's motion to compel production of videos from the assaults that occurred on 12.25.13 and 3/11/14 is DENIED.
The Court is at a loss to understand why, if the videos didn't exist, why, at the outset, Defendants did not state this in clear terms. --------
Plaintiff's Request:
All photographs that should have been included in the jail incident reports of his injuries on 12/25/13, 1/27/14, and 3/11/14. Photos were taken on all 3 dates, yet only 3 of 6 taken on 12/25/14 were produced and none were produced from the incidents on 1/27/14 and 3/11/14.
Argument: In his motion, Plaintiff merely lists this as a request for which he seeks to compel further production. (Doc. 53, p. 2.) Plaintiff requested a copy of his medical record in #1 of Set #1 which he clarified should have included photographs taken in the medical clinic when he received treatment for his injuries from the incidents. (Doc. 58, at pp. 18, 28.) Defense counsel responded by indicating that he was producing the photographs Plaintiff sought. (Id., at p. 32.) However, Plaintiff followed up and indicated that he had not been provided the photos from the 12/25/13 and 3/11/14 incidents (id., at p. 41) to which defense counsel responded he had produced all photos that the jail had provided to him (id., at p. 43). When new defense counsel came on the case, Plaintiff again attempted to obtain full production of the photos of his injury, to which Defendants responded that Plaintiff had exceeded the 25 requests allowed. (Id., at pp. 59, 68.)
Ruling: Indicating that counsel has provided all items that a client's employer gave them, and thereafter refusing to respond does not indicate a reasonably diligent investigation has been conducted and that all discoverable items have been produced. Plaintiff's motion to compel Defendants to produce all photographs taken of his injuries sustained in the incidents that occurred on 12/25/13, 1/27/14, and 3/11/14 would be granted. However, Defendants indicate in their opposition that they withdraw their objection as mistakenly made and provided Plaintiff with all photographs taken from the 12/25/13, 1/27/13, and 3/11/14 incidents on the date they filed their opposition. However, in his reply, while Plaintiff acknowledges receipt of a few photographs after he filed his motion to compel, he recalls more photographs being taken of him than the 9 that were produced. Specifically, from the 12/25/13 incident, Plaintiff recalls two more photographs of his right eye and one of a boot print on his back from being kicked that have not been produced. Thus, Plaintiff's motion to compel production of photographs of his injuries from these three incidents is GRANTED. Defendants are ordered to conduct a diligent investigation to locate any and all photographs that have not been produced to Plaintiff. If their investigation is fruitless, they are to produce a declaration delineating their efforts to locate the photographs.
Plaintiff's Request:
The F.C.J. officers policies for the following: (a) when asked to speak to a supervisor; (b) the proper or designated location to conduct a rule violation hearing; (c) the policy for preservation of video of incidents or crimes committed in the F.C.J; (d) the policy for when an inmate complains to officers of injuries or serious medical conditions; (e) the policy for when an officer speaks to a judge on behalf of an inmate.
Argument & Ruling: In his motion, Plaintiff merely lists this as a request for which he seeks to compel further production. (Doc. 53, p. 2.) Defendants accurately responded to the above as five separate requests because they seek five different policies. (Doc. 58, 5:12-7:9, pp. 64-69.)
As to Plaintiff's request for the policy regarding when someone asked to speak to a supervisor, Defendants initially responded that, following a reasonably diligent investigation, they had not located any documents responsive to this request. (Doc. 58, p. 65.) In their opposition, Defendants reassert that they do not have any such documents in their possession, custody, or control. (Id., at 5:19-26.) Plaintiff fails to show what about Defendants' response is inaccurate or insufficient. Defendants cannot be compelled to produce that which they do not have in their possession, custody, or control. Plaintiff's motion to compel production of a policy responsive to this request is DENIED.
As to Plaintiff's request for the policy on the proper or designated location to conduct a rule violation hearing, Defendants produced the Fresno County Jail Inmate Discipline policy (E-230) which they represent is the only document located which is responsive to Plaintiff's request. (Id., at 5:27-6:7.) Plaintiff fails to show what about Defendants' response is inaccurate or insufficient. Defendants cannot be compelled to produce more than that which they have in their possession, custody, or control. Plaintiff's motion to compel production of a policy responsive to this request is DENIED.
As to Plaintiff's request for the policy reagrding preservation of video of incidents or crimes committed in the F.C.J., Defendants responded that they conducted a reasonably diligent investigation and did not locate any documents edifying a policy responsive to this request. (Id., at 6:8-15.) Plaintiff fails to show what about Defendants' response is inaccurate or insufficient. Defendants cannot be compelled to produce that which they do not have in their possession, custody, or control. Plaintiff's motion to compel production of a policy responsive to this request is DENIED.
As to Plaintiff's request for the policy for when an inmate complains to officers of injuries or serious medical conditions, Defendants responded by producing a copy of the Fresno County Jail Medical Health Services Policy. (Id., at 6:16-25.) Plaintiff fails to show what about Defendants' response is inaccurate or insufficient. Defendants cannot be compelled to produce that which they do not have in their possession, custody, or control. Plaintiff's motion to compel production of a policy responsive to this request is DENIED.
As to Plaintiff's request for the policy pertaining to instances when an officer speaks to a judge on behalf of an inmate, Defendants objected that Plaintiff had exceeded the 25 requests that he is allowed to make of them in this case and that it was duplicative of a prior request. (Id., at 6:26-7:9.) Defendants have not shown that they conducted a reasonably diligent investigation which came up fruitless, nor have they shown that no such policy exists. Thus, Plaintiff's motion to compel production of a policy responsive to this request is GRANTED.
Plaintiff's Request:
Work records of Nurse Monica (credentials and dates of employment) at the F.C.J. Nurse Monica is the 3rd Defendant. Provide full name.
Argument & Ruling: In his motion, Plaintiff merely lists this as a request for which he seeks to compel further production. (Doc. 53, p. 2.) Defendants responded that Plaintiff had exceeded the 25 requests for production that he was allowed in this action. (Doc. 58, 7:10-23.) While, as discussed above, this objection has been OVERRULED, in his reply, Plaintiff essentially withdrew this part of the motion indicating that, since Nurse Monica has appeared in this action, he will attempt to obtain the documents he desires via her attorney of record. (Doc. 63, p. 7.) Thus, the request is WITHDRAWN.
Plaintiff's Request:
Photographs of the correctional officers and nurses at Fresno County Jail.
Argument & Ruling: Plaintiff also withdrew this portion of his motion in his reply. (Doc. 63, p. 7.)
ORDER
Based upon the foregoing, the Court ORDERS:
(1) Plaintiff's motion to compel further production of documents, filed on September 17, 2015 (Doc. 53), is GRANTED and DENIED as discussed in detail in this order; and /// ///
(2) all further responses as ordered herein are to be served on Plaintiff within 30 days of the date of service of this order. IT IS SO ORDERED.
Dated: December 9 , 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE