The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO COMPEL, GRANTING MOTIONS FOR MODIFICATION OF SCHEDULING ORDER, AND DENYING MOTION TO SUBSTITUTE PARTIES (Docs. 140, 157, 158, 159, 160, and 169) ORDER REQUIRING PARTIES TO SUBMIT STATUS REPORT WITHIN THIRTY DAYS, AND ORDERING DEFENDANTS TO SERVE DISCOVERY RESPONSES IDENTIFIED IN ORDER WITHIN FORTY-FIVE DAYS Deadline to Amend Pleadings: 06/01/09 Discovery Deadline: 07/01/09
Plaintiff Bryan E. Ransom is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 This action is proceeding on Plaintiff's amended complaint, filed on August 30, 2005. Pending before the Court are Plaintiff's three motions to compel, Plaintiff's motion for an extension of the discovery deadline, Plaintiff's motion for substitution of parties, and Plaintiff's motion for an extension of the amended pleadings deadline. (Docs. 140, 157-160, and 169.) Defendants filed oppositions to Plaintiff's three motions to compel, and Plaintiff filed a reply to the opposition to his second and third motions to compel. (Docs. 150, 175, and 177.)
I. First Motion to Compel
On June 12, 2008, Plaintiff filed a motion to compel further responses to select requests for the production of documents and interrogatories. After obtaining an extension of time, Defendants filed their opposition on August 15, 2008, and the motion has been deemed submitted. Local Rule 78-230(m).
"Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The responding party is obligated to respond to the interrogatories to the fullest extent possible, Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4). The responding party shall use common sense and reason. E.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D. Kan. Apr. 30, 2008). A responding party is not generally required to conduct extensive research in order to answer an interrogatory, but a reasonable effort to respond must be made. L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D. Cal. Sep. 21, 2007). 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)(A).
For document production requests, responding parties must produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a)(1). "Property is deemed within a party's 'possession, custody, or control' if the party has actual possession, custody, or control thereof or the legal right to obtain the property on demand." Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)).
If Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden on his 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.
In this instance, however, there are deficiencies with respect to Plaintiff's motion to compel and with Defendants' objections. Given these deficiencies and the extent of discovery conducting by the parties, and in the interest of conservation of the Court's resources, the Court opts to reach the merits of Plaintiff's motion to compel, to the extent it is able to do so, rather than deny the motion without prejudice to refiling. Because the discovery deadline shall be extended by this order, Plaintiff is not precluded from redrafting and serving amended discovery requests, as guided by this order.
A. Discovery Request Served on Defendant Arroyo
Plaintiff seeks to compel a further response to one of his requests for the production of documents, set one, served on Defendant Arroyo.
POD 4: "Please produce all other documents, items of evidence or sworn or unsworn statements or affidavits that relate to the allegations made in Plaintiff's complaint against you."
Ruling: Defendants object that the request seeks documents protected by attorney-client privilege and attorney work product, and that the only responsive non-privileged documents are in Plaintiff's central file and equally available to him. Defendants' bare objection on attorney-client privilege and attorney work product grounds falls well short of what is required to assert those privileges, and is overruled. Burlington N. & Santa Fe Ry. Co. v. United States Dist. Court for the Dist. of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005).
Plaintiff's request is overly broad and vague, however, and needs to be narrowed. For example, Plaintiff would be better served to seek any sworn statements separately from other documents, etc. Further, Plaintiff must limit his discovery requests to information relevant to his claims and within a reasonable time frame.
Plaintiff's motion is denied, without prejudice, subject to the following orders. Regarding photocopying costs, which Plaintiff asserts he is unable to afford, Plaintiff would ordinarily bear the burden of these costs. However, the Court has discretion to shift the costs to Defendants and will do so if the alternative would leave Plaintiff unable to obtain any documents from his file. It is not clear from Plaintiff's motion whether he is able to make copies and the prison will simply assess the costs against his trust account, regardless of the existence of available funds, or whether he must in fact have funds available to pay the costs in order to obtain the copies. If Plaintiff is allowed to make copies even if he has no available funds, and the costs are simply charged against his trust account, leading to or adding to a negative balance, the Court will not shift costs. The parties are required to clarify this issue via status report within thirty days.
Further, assuming the Court finds costs must be shifted to Defendants, the Court will not order them to produce an entire copy of Plaintiff's central file. Plaintiff's request is overly broad, as previously stated. Plaintiff is entitled to review his central file, and he must narrow his document production request to documents relevant to his First Amendment claim against Defendant Arroyo arising out of the alleged destruction of his personal property in retaliation for his obtainment of a restraining order relating to the property.
Accordingly, Plaintiff may review his central file, re-draft narrower and more specific requests, and re-serve the requests on Defendant Arroyo. Defendants' counsel is requested to contact the Litigation Office in order to facilitate Plaintiff's review of his file in the very near future.
B. Discovery Requests Served on Defendant Atkinson
Plaintiff seeks to compel further responses to his interrogatories, set one, and requests for the production of documents, set one, served on Defendant Atkinson.
ROG 18: "Referring your attention to Plaintiff's SATF-IV Endorsement Attached as Exhibit D; and the October 24, 2000 Memorandum: Appeal Response, Attached as Exhibit E, Please explain in as much detail as possible how it was determined that Plaintiff's placement and endorsement to a SNY was incorrect and why."
Ruling: Plaintiff's motion to compel is denied. Plaintiff is required to accept Defendant's response that he has no knowledge with which to answer the question, absent a showing to the contrary, which was not made in the motion to compel.
POD 4: "The complete indexed and compartmentalized contents of Plaintiff's C-file, including but not limited to disciplinary reports, incident report, evaluations, criminal justice information, and medical and mental health records."
Ruling: This request is overly broad in that it lacks limitation to documents relevant to Plaintiff's claim that Defendant endangered his safety by failing to include certain information in the written Departmental Review Board recommendation, and lacks any time period limitation. However, as with Arroyo POD 4, Defendant's bare assertion of official information privilege is insufficient, Johnson v. Runnels, No. CIV S-04-0776 LKK EFB P, 2009 WL 900755, *3 (E.D.Cal. Mar. 31, 2009), and the issue of whether Plaintiff has equal access to obtain copies of the documents requires further briefing by the parties, as addressed in the previous subsection.
Plaintiff's compel is denied, without prejudice. As with Arroyo POD 4, Plaintiff may review his central file, re-draft a narrow and more specific request(s), and re-serve it (them) on Defendant.
POD 5: "All instructions, training manuals, directives and example sheets on how to prepare a CSU/DRB referral."
Ruling: In their opposition, Defendants agreed to supplement their response and provide further documents in light of Plaintiff's clarification of what he seeks, set forth in his motion to compel. Accordingly, Plaintiff's motion to compel a further response to this request is denied as moot, without prejudice.
POD 6: "The complete contents of Plaintiff's CDC 114 and 114A while housed at SATF." Ruling: Defendant objects on the ground that the only documents responsive to this request are in Plaintiff's central file, and are equally available to Plaintiff. The Court will reserve its ruling on this request pending the parties' status reports on how the assessment of photocopying costs is handled for indigent prisoners.
POD 7: "Any and all administrative bulletins and memorandums generated throughout CDC by Director Cal Terhune or his successors regarding any special interests in the activities of the Islamic group/organization called the Five Percenters (5%)."
Ruling: Plaintiff's motion to compel is denied. Absent a showing by Plaintiff in his motion to compel that Defendant does in fact have the documents in his possession, custody, or control, which was not made, Plaintiff is required to accept Defendant's answer.
C. Discovery Requests Served on Defendant Case
Plaintiff seeks to compel further responses to his interrogatories, set one, and requests for the production of documents, set one, served on Defendant Case.
ROG 5: "Please describe in as much detail as possible whether Plaintiff had been endorsed by CSR or DRB for transfer at the time of the 2001 transpacking/transfer of his personal property."
ROG 6: "If not, please explain in as much detail as possible the complete circumstances as to why."
ROG 7: "Please state the name, affiliation, title, last known address, and last known telephone number of each person who has knowledge of any facts stated in your response to Interrogatories No. 5 and No. 6."
ROG 8: "Please identify each document as the term is defined in FRCP, Rule 34(a)(1), that evidence, mentions, or refers to any of the facts stated in your response to Interrogatories No. 5 and No. 6."
Ruling: Plaintiff's motion to compel is granted. Defendant's response that he "does not have knowledge sufficient to provide a meaningful response" suggests that he possesses the ability to answer this question to some extent. Defendant has forty-five days to respond to ROGs 5 through 8.
ROG 9: "Please describe in as much detail as possible the complete circumstances surrounding Plaintiff's person [sic] property being removed from his cell, transpacked/transferred, where it went and when it was returned to Plaintiff in 2001."
ROG 10: "Please state the name, affiliation, title, last known address, and last known telephone number of each person who has knowledge of any of the facts ...