Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action. Pending before the court are several discovery related motions filed by plaintiff as well as a request for an extension of time to oppose defendants' cross-motion for summary judgment. Also pending before the court is defendants' motion for a protective order.
PLAINTIFF'S MOTION FOR ADDITIONAL TIME TO CONDUCT DISCOVERY
First, plaintiff has filed a Rule 56(f) motion. Therein, plaintiff claims that the court should allow him to re-serve his April 1, 2008 and April 22, 2008 discovery requests on defendants. The court had previously found that plaintiff failed to timely serve defendants with his April 1, 2008 and April 22, 2008 requests, and therefore refused to compel defendants to serve responses to those requests. (Order filed July 2, 2008.) Plaintiff now asserts "excusable neglect" for his failure to timely propound his discovery requests and claims in conclusory fashion that defendants' responses to his discovery requests are necessary to allow him to prove elements of his claims.
Rule 56(f) of the Federal Rules of Civil Procedure provides: If a party opposing the motion [for summary judgment] shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
Fed. R. Civ. P. 56(f) (eff. Dec. 1, 2007). A party seeking denial or continuance of a summary judgment motion is required to file a motion requesting discovery under Rule 56(f). Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). The party must demonstrate that there are specific facts he hopes to discover that will raise an issue of material fact. Harris v. Duty Free Shoppers Ltd. Partnership, 940 F.2d 1272, 1276 (9th Cir. 1991); Carpenter v. Universal Star Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir. 1991). "The burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists." Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987). See also Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n.1 (9th Cir. 1986) (holding that the party opposing summary judgment "has the burden under Rule 56(f) to show what facts [he] hopes to discover to raise an issue of material fact"). "Denial of a Rule 56(f) application is proper where it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation." Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991).
Plaintiff filed his Rule 56(f) motion nearly three months before defendants filed a motion for summary judgment. Because it was not filed in opposition to a then-pending motion for summary judgment, it is not a proper motion brought pursuant to Rule 56(f). Accordingly, the court has construed plaintiff's motion as a motion to re-open discovery. Under the court's scheduling order, discovery closed in this case on May 30, 2008. In the absence of good cause, the court will not modify the scheduling order. See Fed. R. Civ. P. 16(f); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). As noted above, plaintiff claims "excusable neglect" with respect to his failure to timely propound his April 1, 2008 and April 22, 2008 discovery requests. Discovery was open for more than a year in this action. In that time, plaintiff served numerous discovery requests and motions to compel on defendants. Plaintiff's conduct during the course of discovery demonstrated that he was well aware of the rules governing the discovery process as well as the deadlines established in this case by the court. Accordingly, the court does not find good cause to modify the scheduling order and will deny plaintiff's motion to re-open discovery.*fn1
PLAINTIFF'S MOTION TO COMPEL
Plaintiff has also filed a motion to compel based on defendant Ingwerson's responses to his request for production of documents and things.*fn2 Plaintiff claims that there is no good-faith basis for defense counsel's objections. Plaintiff argues that he seeks documents that are not subject to any privilege and, even if they were, the defendants waived any privilege by failing to provide a privilege log and by making blanket, boilerplate objections. In opposition, defense counsel argues that plaintiff has not shown actual or substantial prejudice stemming from defendant's responses to his request for production of documents. In addition, counsel argues that his objections to plaintiff's discovery requests are proper because the requests are overbroad and burdensome and seek documents that do not exist or are not relevant. Counsel also argues that plaintiff is improperly seeking privileged documents that if produced would violate the privacy rights of staff and inmates. Finally, counsel argues that the defendant has submitted all relevant documents over which she has custody and control relating to plaintiff's requests. Plaintiff has filed a reply arguing that defense counsel's arguments are made in bad-faith. He claims that he will not be able to prove the elements of his case without the requested discovery and that defendants have misrepresented facts to evade discovery.
Plaintiff seeks to compel the following discovery:
Plaintiff's Request No. 2
Plaintiff requests production in "a binder, for the years 2001-2005, the actual complaints filed by any inmate at HDSP alleging racial discrimination, or excessive force by C/O Kissinger and Sergeant Peery." Defendant objected on the grounds that the request does not seek relevant information and is unlikely to lead to the discovery of admissible evidence; is overbroad and burdensome; and is a request to create a document that does not exist. Additionally, defendant ...