The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Several motions are pending before this Court.
On July 10, 2008, Mr. Johnson filed a "Motion for Subpoena Duces Tecum and Order of Service by U.S. Marshal." (Doc. No. 87). In this motion, Mr. Johnson requests that the Court issue a subpoena ordering Defendant Dovey to provide plaintiff with a copy of an October 7, 2006 videotape from the CCI-IV Facility Yard, a February 2, 2007 videotape of a briefing of CCI prison officials, and a written transcription of that briefing. On July 25, 2008, Defendant Dovey filed "Responses to Plaintiff's Motion for Subpoena Duces Tecum." (Doc. No. 95). In the response, it is Defendant Dovey's contention that issuing the requested subpoena would be a futile act as Defendant Dovey is retired from the California Department of Corrections and Rehabilitation (CDCR) and does not have possession, custody or control of the documents Mr. Johnson seeks. Plaintiff's "Motion for Subpoena Duces Tecum and Request Order of Service by U.S. Marshal" (Doc. No. 87) is DENIED. Mr. Johnson should make a request for the materials he is seeking, to all appropriate Defendants, by way of a request for production of documents pursuant to Rule 34 of the Federal Rules of Civil Procedure. Rule 34 is one of the discovery tools available to litigants in the federal courts. Hill v. Eddie Bauer, 242 F.R.D. 556, 560 (C.D. Cal. 2007). It broadly provides that:
A party may serve on any other party a request . . . to produce and permit the requesting party or its representative to inspect, copy, test, or sample . . . any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form . . . [that are] in the responding party's possession, custody, or control.
Fed. R. Civ. P. 34(a). "Control is defined as the legal right to obtain documents upon demand." United States v. Int'l Union of Petroleum and Indus. Workers. AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). Thus, "[a] party responding to a Rule 34 production request . . . 'is under an affirmative duty to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.'" A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (quoting Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992)(citation omitted)).
If Mr. Johnson is dissatisfied with Defendants' response to his request, he may move to compel production. If Mr. Johnson is dissatisfied with Defendants' response to his request, he may move to compel production.
On July 25, 2008, the Defendants filed a "Response to Order to Show Cause" (Doc. No. 94) pursuant to the Court's Order to Show Cause entered on July 17, 2008 (Doc. No. 89). In the response, Defendants contend that they should not be sanctioned for failure to respond to Plaintiff's "Motion to Appoint Expert" (Doc. No. 77) due to the unavailability of defense counsel, among other reasons. Defendants' request that the Court not impose sanctions and request for leave to file their response to Plaintiff's "Motion to Appoint Expert" (Doc. No. 77) by August 4, 2008 are GRANTED.
On July 25, 2008, Defendants filed a "Motion to Modify the Scheduling Order." (Doc. No. 93). Good cause appearing, it is hereby ORDERED that Defendants' motion is GRANTED in part.
On July 28, 2008, Defendants filed a "Second Request for Extension of Time to Respond to Plaintiff's Interrogatories to Defendants Carrasco, Sullivan, and Gonzales, and Request for Production of Documents to Defendant Gonzales." (Doc. No. 96). This request is GRANTED. Defendants shall file their ...