The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND ELECTRONICALLY-STORED INFORMATION FROM DEFENDANTS DONALD LOWN AND JOHN MCGINNESS
Plaintiff's Motion to Compel Production of Documents and Electronically-Stored Information From Defendants Donald Lown and John McGinness [Do. No. 124] was set for hearing on May 15, 2009, Having taken the matter under submission on May 13, 2009, and having reviewed all papers submitted pertaining to this motion the Court, NOW FINDS AND RULES AS FOLLOWS:
Federal Rule of Civil Procedure 37 ("Rule 37") states that a party can "move for an order compelling disclosure or discovery." Fed. R. Civ. Pro. 37.
However, Rule 37 does not state a time limit for filing a motion to compel. See Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999). Generally, a motion to compel should be filed prior to discovery cut-off; however, courts have discretion to hear a motion to compel after discovery cut-off. Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001) (reviewing decision for abuse of discretion); Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1985) (finding that district court's refusal to permit further discovery is reviewed for an abuse of discretion).
Here, Plaintiff filed his Motion to Compel only two days after discovery cut-off. While, Plaintiff did wait until the end of discovery to issue his Rule 34 Request; Plaintiff is not entirely at fault for bringing this Motion after discovery cut-off. The facts show that after Plaintiff received the allegedly deficient discovery responses from McGinness and Lown, he immediately attempted to resolve the problem without involving the Court. Lastly, there are no dispositive motions pending and trial is not set until October 2009. Therefore, the Court will exercise its discretion and consider the merits of Plaintiff's Motion to Compel.
A. Plaintiff's Motion to Compel as to Defendant Lown
The Court DENIES Plaintiff's Motion to Compel as to Defendant Lown.
Rule 34 allows a party to request another party to produce, among other things, documents, electronically stored information, and other tangible things. However, it limits the production request to "items in the responding party's possession, custody, or control." Fed. R. Civ. Pro. 34(a)(1).
"Control is defined as the legal right to obtain documents on demand." FTC v. Braswell, 2005 U.S. Dist. LEXIS 42817 at *8 (C.D. Cal. Sept. 26, 2005) (citing United States v. International Union of Petroleum and Industrial Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). More specifically, in Lowe v. District of Columbia, 250 F.R.D. 36, 38 (D.D.C. 2008), the district court stated that, "[f]ormer employees of government agencies do not have 'possession, custody, or control' of documents held by their former employers." As a result, the court held that the former employee could not be required to produce the requested documents because they were not in his possession, custody, or control. Id.
At the time of Plaintiff's Rule 34 Request, Defendant Lown had not worked for the Yolo County Public Defender's Office for many months. (Joint Statement at 5, lns. 21-26; Exhibit A attached to Joint Statement.) Defendant Lown has stated in his response that he does not have any responsive documents or electronically stored information in his possession.
Plaintiff's argument about privilege is irrelevant. In Defendant Lown's first response to the Rule 34 Request, Defendant Lown did seem to indicate that he possessed some responsive documents, but was withholding them because they were privileged.
However, upon further clarification he has represented that he does not possess any documents. Thus, Defendant Lown is not required to produce the requested information because he does not have personal possession, custody, or control of the requested documents. Additionally, as a former employee of the Yolo County Public Defender's Office he neither has possession, custody, or control of documents held by his former employer, nor does he have the present ability to legally demand such documents.
Therefore, Plaintiff's request for this Court to order Defendant Lown to produce the ...