The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's July 7, 2009, motion to compel defendant Fry to provide further responses to interrogatories, requests for admissions and requests for production of documents. For the following reasons, the court orders that plaintiff's motion is granted in part and denied in part.
For the following reasons, the court reiterates that defendant Fry's objections to all at-issue discovery requests, save for valid privilege objections, are waived.
On June 12, 2009, the court issued an order addressing plaintiff's March 5, 2009, motion to compel and for sanctions. In this order, the court vacated the motion to compel as to defendant Fry because defendant Fry had served plaintiff with supplemental responses to discovery requests after the motion to compel was filed. The court granted plaintiff thirty days to file a renewed motion to compel as to defendant Fry. The court further ordered that all objections save for valid privilege objections had been waived as a sanction for counsel granting herself an extension of time to file the supplemental responses.
In opposition to the pending motion to compel, defendant Fry states that she did not supplement her responses to the request for production of documents. For that reason, defendant argues that the order finding objections waived save for valid privilege objections does not apply to her responses to the requests for production of documents.
In the declaration submitted in support of the opposition to plaintiff's earlier motion to compel, counsel stated:
6. Because I had difficulty establishing communication with Ms. Fry around the time period that her discovery responses were due on January 30, 2009 so that I could confirm their accuracy and obtain executed verifications, I served Ms. Fry's objections to Interrogatories, Requests for Admissions, and Request for Production of Documents to preserve the objections. I also wrote plaintiff on February 2, 2009, to explain, among other issues, that I had served Ms. Fry's objections to discovery so as not to waive them. This letter is attached to plaintiff's motion to compel as Exhibit 5. (CR 57 page 20-126.) On February 27, I personally saw Plaintiff for his deposition at Folsom State Prison, and I explained to him that I had served objections because Ms. Fry traveled frequently for work and that Defendant and I were not trying to be difficult or uncooperative. Plaintiff verbally stated his knowledge and understanding of this.
8. On March 2, 2009, Ms. Fry's supplemental objections and responses to Interrogatories (set 1) were served. Attached hereto as Exhibit A is a true and correct copy.
9. Because the number of requests in the Requests for Admissions (set 1), and the extensive time required for me to work with Ms. Fry on several occasions to prepare her responses during the time period she was available, I needed additional time to finalize her responses to the Requests for Admissions and obtain her executed verification, her supplemental objections and responses to the Requests for Admissions (set 1) were served on April 7. Attached hereto as Exhibit B is a true and correct copy of the supplemental responses.
Counsel's February 2, 2009, letter to plaintiff stated, in relevant part, On January 16, 2009, the Court granted my request for an extension of time to serve my clients' discovery responses, up to and including, January 30, 2009. The Court should have served you with a copy of this Order.
Please be advised that due to Defendant Fry's out-of-state travel for work, I served Defendant Fry's objections to your discovery requests on January 30, 2009, in order to preserve her objections and not inadvertently waive them. I am working with Defendant Fry to provide supplemental responses to your extensive discovery requests and will be serving them shortly.
Court file document 57, p. 21 of 126.
In the June 12, 2009, order, the court observed that on March 2, 2009, counsel served plaintiff with defendant Fry's supplemental responses to interrogatories and requests for admissions, but did not provide the court with a copy of defendant Fry's supplemental responses to the request for production of documents. The court then went on to find that counsel had waived all objections but valid privilege objections:
Defendants' counsel is advised that he does not have the authority to grant counsel unilateral extensions of discovery deadlines to seek a second extension of time to serve plaintiff with defendant Fry's discovery responses. All objections save for valid privileged objections have been waived. Because the supplemental responses were served after plaintiff filed his motion to compel, plaintiff is granted thirty days from the date of this order to file a supplemental motion to compel...
June 12, 2009, order, p. 10.
The court found that defendant had waived all objections but for valid privilege objections as a sanction for counsel granting herself an extension of time to respond to the discovery requests. Counsel's February 2, 2009, letter to plaintiff did not state that counsel did not require additional time to prepare a supplemental response to the request for production of documents. Rather, the letter stated that counsel intended to serve plaintiff with supplemental responses to his "extensive discovery requests." Based on this statement, counsel reserved the right to serve plaintiff with supplemental responses to his request for production of documents if she so chose.
The bottom line is that counsel granted herself a request for extension of time to serve plaintiff with supplemental responses to all of his discovery requests, including the request for production of documents. On this basis the court found all objections, but for valid privilege objections, waived. That counsel chose not to serve plaintiff with supplemental responses to the request for production of documents does not change the grounds on which the sanction was imposed.
To put plaintiff's motion in context, the court will describe the claims on which this action is proceeding. This action is proceeding on the original complaint filed December 29, 2006, as to defendants Hickison, Fry and Herrera.*fn1
Plaintiff alleges that on May 18 or 19, 2005, defendant Hickison made sexually inappropriate comments to him at his prison job. Plaintiff also alleges that defendant Hickison rubbed and touched his back. On May 24, 2005, defendant Hickison started yelling at inmate workers to get the carts out and take them to the building. Plaintiff told defendant's supervisor that this could not be done. Defendant Hickison told plaintiff that she would write him a chrono and give him an "A" day. She did not say that she was going to file a rules violation report against him.
On May 24, 2005, defendant Hickison was informed that plaintiff was going to file a staff complaint against her based on the sexual harassment. On May 25, 2005, defendant Hickison retaliated against plaintiff for his threat to file the staff complaint by dismissing him from his job and writing a false rules violation report. Plaintiff was later found not guilty of the rules violation report.
Plaintiff alleges that on June 20, 2005, defendants Fry and Herrera retaliated against plaintiff for pursuing his staff complaint against defendant Hickison by putting him in administrative segregation (ad seg). On August 12, 2005, defendant Fry retaliated against plaintiff again by placing a negative chrono in his C-file. Plaintiff was later transferred to a different prison.
As legal claims, plaintiff alleges that defendant Hickison violated his Eighth Amendment rights by sexually harassing him. Plaintiff also alleges that defendant retaliated against ...