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Meeks v. Parsons

September 18, 2009

GARY MEEKS, PLAINTIFF,
v.
JOHN PARSONS, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL DISCOVERY

(Doc. 93)

Plaintiff Gary Meeks has moved for an order to compel four non-parties, (1) the California Department of Corrections and Rehabilitation ("CDCR"), (2) the Custodian of Records for CDCR, (3) CDCR Secretary Matthew Cate, and (4) the Chief Medical Officer of CDCR, to respond more fully to four subpoenas served on November 26, 2008. CDCR first objected to the subpoenas on behalf of all four recipients on December 10, 2008. After protracted negotiations between plaintiff and CDCR failed to lead to the production of a single page of evidence, plaintiff moved to compel discovery on April 10, 2009. After agreeing to continue the motion hearing to July 14, 2009, plaintiff and CDCR continued negotiations and ultimately submitted a Joint Statement of Discovery Disagreements.

This court heard argument from plaintiff and CDCR on July 14, 2009, July 28, 2009, and August 17, 2009, and allowed time for plaintiff and CDCR to meet and confer at various points in the course of each hearing. Plaintiff and CDCR continued to "meet and confer" between the hearings, submitting a joint status report before each hearing. After plaintiff and CDCR advised the court at the August 17, 2009 hearing that further negotiations would not be productive, they submitted a joint proposed order on August 26, 2009. In light of the information and written materials submitted as discussed above, the court now enters this order.

I. Factual and Procedural Background

In this civil rights action pursuant to 42 U.S.C. § 1983, plaintiff alleges Eighth Amendment claims of deliberate indifference to serious medical need. While plaintiff was incarcerated at Centinela State Prison ("Centinela") on January 5, 2002, another inmate assaulted him in an exercise yard, inflicting severe facial trauma including multiple fractures. After initial examination by Centinela medical staff, plaintiff was transferred first to a local hospital, then to the plastic surgery service at the University of California, San Diego ("UCSD"). Following surgery and fixation of plaintiff's mouth fractures, the UCSD physicians projected four to six week's recovery in the prison infirmary, followed by dental care, restorative dental surgery, and revisionary maxillary, mandibular and facial surgeries.

When plaintiff returned to Centinela late on January 7, 2002, defendant John Parsons, a physician at Centinela, admitted him to the infirmary and entered orders for his care. Thereafter, defendant provided plaintiff's continuing medical care. On or about March 10, 2002, both parties became aware that plaintiff's injuries were not properly healing, causing severe pain and complications. Nonetheless, defendant failed to request funding for necessary surgery, to prescribe a liquid diet, and to prescribe adequate pain relief medication. Plaintiff was unable to sleep or eat and lost weight.

Although CDCR finally approved plaintiff's treatment referral on June 11, 2002, defendant refused to place a medical hold on plaintiff to allow him to remain at Centinela to take advantage of it. As a result, on June 19, 2002, plaintiff was transferred to the California Substance Abuse Treatment Facility ("SATF") before the authorized treatment was administered to him. Since the treatment referral was not transferable to SATF, further treatment of plaintiff's injuries was delayed until January 2003.

Plaintiff advances two theories of defendant's liability. First, when it became clear after plaintiff's initial surgery that further surgery would be necessary, defendant failed to ensure that plaintiff received timely care. Plaintiff received the necessary second surgery only after he had been transferred to SATF and after defendant was no longer treating him. Second, defendant was deliberately indifferent to plaintiff's medical needs when he permitted plaintiff's June 18, 2002 transfer to SATF even though defendant had the power to place a medical hold on plaintiff, block the transfer, and continue the ongoing treatment by Centinela's medical staff and community providers. Plaintiff contends that defendant was aware of the inadequacy of CDCR's medical facilities and knew that plaintiff would be unlikely to receive medical treatment for months after his transfer. Because defendant allowed plaintiff's transfer to proceed, plaintiff went to the "back of the line" at SATF, waiting months for the opportunity to see a doctor and begin progress toward a second authorization for his second surgery.

Plaintiff filed his complaint on November 26, 2003, against defendants Allison, DeGeus, Parsons, and Klarich for acting with deliberate indifference to plaintiff's medical and dental needs in violation of the Eighth Amendment. On December 2, 2005, the district court adopted Findings and Recommendations granting summary judgment to defendants. Plaintiff appealed to the Ninth Circuit on January 3, 2006. On July 9, 2008, the Ninth Circuit affirmed the summary judgment in favor of defendants Allison, DeGeus, and Klarich, but reversed and remanded as to defendant Parsons. Meeks v. Allison, 290 Fed. Appx. 4 (9th Cir. 2008). This court reopened discovery on November 20, 2008. Discovery was scheduled to conclude on September 14, 2009. Plaintiff and defendant have agreed to extend discovery as appropriate following the outcome of plaintiff's motion to compel.

II. The Scope of Discovery from a Non-Party

Federal Rule of Civil Procedure 34 governs discovery of designated documents, electronically stored information, and designated tangible things, subject to the provisions of F.R.Civ.P. 26(b). Fahey v. United States, 18 F.R.D. 231, 233 (S.D.N.Y. 1955). Federal Rule of Civil Procedure 26(b)(1) establishes the scope of discovery, stating in pertinent part:

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, under Rule 34, the test for admissibility is the relevance of the requested material or information. Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980); White v. Jaegerman, 51 F.R.D. 161, 162 (S.D.N.Y. 1970). See also Ceramic Corp. of Amer. v. Inka Maritime Corp., Inc., 163 F.R.D. 584 (C.D.Cal. 1995).

"'Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.'" Moon v. SCP Pool Corp., 232 F.R.D. 633, 635-36 (C.D.Cal. 2005), quoting Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D.Cal. 1998). Accordingly, Rule 26(b) is liberally interpreted to allow discovery of all information even though it may be inadmissible at trial. Moon, 232 F.R.D. at 635-36.

"The law [of discovery] begins with the presumption that the public is entitled to every person's evidence." Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389 (N.D.Cal. 1976). A nonparty may be compelled to produce documents and tangible things as provided in F.R.Civ.P. 45. F.R.Civ.P. 34 (c). Assuming that the subpoena is properly constituted and served, Rule 45 requires the subpoena's recipient to produced the requested information and materials, provided the issuing party "take[s] reasonable steps to avoid imposing undue burden or expense." F.R.Civ.P. 45(c)(1) and (d)(1). The recipient may object to all or part of the subpoena or move to quash or modify it. F.R.Civ.P. 45(c)(2) and (3).

Because a corporation is a distinct legal entity, a party cannot require another party who is an officer or director of a corporation to produce corporate documents other than those he has in his possession or those he has a legal right to obtain on demand. American Maplan Corp. v. Heilmayr, 203 F.R.D. 499, 501-02 (D.Kan. 2001). Instead, the requesting party must obtain the documents from the corporation by serving a subpoena pursuant to Rule 45. Id. at 502.

Federal Rule of Civil Procedure 45 governs subpoenas for the production of documents (subpoena duces tecum) with or without the taking of a deposition. When a discovery request takes the form of a third-party subpoena, the court may quash or modify a subpoena that "subjects a person to undue burden." F.R.Civ.P. 45(c)(3)(A)(iv).

"The fact that a party may disbelieve or disagree with a response to a discovery request.... is not a recognized ground for compelling discovery, absent some indication beyond mere suspicion that the response is incomplete or incorrect." Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind. 1992). But if there is reason to believe that the response is incomplete or incorrect, the court may require a certification that the respondent "ha[s] conducted a search for the information reasonably available to them through their agents, attorneys, or others subject to their control and has[] determined that the information requested either does not exist or that it has been produced." Id. at 224. "Ordinarily, a sworn statement that a party has no more documents in its possession, custody or control is sufficient to satisfy the party's obligation to respond to a request for production of documents." Id.

"[I]f the documents sought are known to have been in the party's possession, custody, or control, it would not suffice for that party to simply disavow their existence without adequately explaining the disposition of the documents. Without such an explanation, the requesting party would be unable to "'determine whether to search elsewhere, or whether the only existing copies were destroyed, *652 thus making further search futile.'" Superfilm of Amer., Inc. v. UCB Films, Inc., 219 F.R.D. 649, 651 (D. Kan. 2004), quoting Lone Star Steakhouse & Saloon, Inc. v. Liberty Mut. Ins. Group, 2003 WL 21659662 at *2-*3 (D.Kan. June 4, 2003).

III. Scope and Documentation of Recipients' Search for Materials Responsive to Plaintiff's Subpoenas

Despite this court's repeated admonitions at each of the three hearings of this matter, CDCR continues, it seems, to do no more than provide declarations that a few CDCR employees conducted perfunctory search of a few limited, yet undisclosed, locations. As a result of the extensive negotiations between the attorneys for plaintiff and CDCR, plaintiff has focused his subpoena requests, in some cases repeatedly, and has abandoned other requests. CDCR has produced a handful of miscellaneous general documents and an incomplete copy of plaintiff's unit health record.

CDCR asserts that it has retained none of the requested documents, such as plaintiff's inmate medical appeal requests, defendant's personnel records, records of internal complaints or lawsuits against defendant, medical holds placed on transferring inmates, communications with its physicians, correspondence referencing the Plata v. Schwarzenegger (Case No. C01-1351 (N.D.Cal. 2001)) line of cases, and internal studies and analyses of CDCR's health care system. CDCR asserts that, even if it had maintained such records, looking for them would be too expensive and burdensome. CDCR's position is not well taken.

"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." Gray, 148 F.R.D. at 223 (citation and internal quotation marks omitted). When the response is minimal and clearly omits materials from readily identifiable repositories likely to include some or all of the requested materials or information, the obvious conclusion is that the responding party has neither conducted a reasonable inquiry nor produced all documents within its possession, custody or control. A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D.Cal. 2006). Indeed, an earmark of a recipient's inadequate inquiry is the obvious absence of documents and other written materials that the recipient reasonably would be expected to have retained in the ordinary course of its business Ibid.

Responding simply that requested materials are "unknown" or "not maintained" is evasive and insufficient. Gray, 148 F.R.D. at 223. A recipient of a document production request "'cannot furnish only that information within his immediate knowledge or possession; he is under an affirmative duty to seek that information reasonably available to him from his employees, agents, or others subject to his control.'" Ibid., quoting 10A Federal Procedure, Law Ed. § 26:377 at 49 (1988).

A recipient that is a large or complex organization or that has received a lengthy or complex document request should be able to demonstrate a procedure for systematic compliance with the document request. National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 552 (N.D.Cal. 1987). "[A reasonable] inquiry would [require], at a minimum, a reasonable procedure to distribute discovery requests to all employees and agents..... potentially possessing responsive information, and to account for the collection and subsequent production of the information to plaintiffs." Id. at 556. In a large or complex organization, a discovery coordinator could be designated to distribute the discovery requests to the organization's various physical locations or departments, verify the sufficiency and veracity of each response, maintain appropriate records, and prepare a comprehensive response. Id. at 552. When appropriate, the discovery coordinator could appoint a subordinate coordinator for each department or location to oversee the search, verification and production to the discovery coordinator of responsive materials from his or her subdivision. Id. at 564. By means of an organized system of compliance, the recipient can demonstrate that it conducted a reasonable inquiry by providing plaintiff with declarations under oath detailing the nature of recipient's efforts to locate responsive documents, addressing each inquiry on a request-by-request basis. A. Farber, 234 F.R.D. at 190.

Similarly, when a recipient maintains that requested documents were purged in the ordinary course of business, it should provide declarations from the officers or employees who carried out the purges, attesting to the documents' destruction, the dates of destruction, and authority under which the purges were carried out. See, e.g., National Ass'n of Radiation Survivors, 115 F.R.D. at 546-47. A recipient's certification should include sufficient detail to demonstrate "that they have conducted a search for information reasonably available to them through their agents, attorneys, or others subject to their control and have determined that the information requested either does not exist or that it has been produced." Gray, 148 F.R.D. at 224.

Such coordinated and verified certifications are essential in this case. Although all concerned have adopted the shorthand of referring to the four subpoena recipients collectively as CDCR, plaintiff intentionally and ...


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