IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 2, 2009
BRIAN DAWE, INDIVIDUALLY AND D/B/A FLAT IRON MOUNTAIN ASSOCIATES; FLAT IRON MOUNTAIN ASSOCIATES, LLC, FORMERLY KNOWN AS FLAT IRON MOUNTAIN ASSOCIATES, A PARTNERSHIP, PLAINTIFFS,
CORRECTIONS USA, A CALIFORNIA CORPORATION; CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, A CALIFORNIA CORPORATION; JAMES BAIARDI, AN INDIVIDUAL; DONALD JOSEPH BAUMANN, AN INDIVIDUAL; DEFENDANTS.
ORDER AND CONSOLIDATED ACTIONS AND RELATED CLAIMS
On October 28, 2009, the court heard, on shortened time, defendants Corrections USA ("CUSA"), California Correctional Peace Officers Association ("CCPOA"), James Baiardi, and Donald Joseph Bauman's motion to compel further responses to special interrogatories from Brian Dawe and Gary Harkins; for further supplemental production of documents; and for sanctions, attorney's fees, and costs. Dckt. No. 235. Attorneys Phillip Mastagni and James Carr appeared on behalf of defendants; attorneys Daniel Baxter and Thomas Redmon appeared on behalf of Dawe and Harkins.
Defendants' motion surrounds Dawe and Harkins's responses to defendants' special interrogatories and document requests related to the American Correctional Officer Intelligence Network ("ACOIN") and American Correctional Officer ("ACO"), which is formally named American Correctional Officers Association, Inc. ("ACOAI").*fn1 Dckt. No. 238 at 4. Defendants contend that Dawe and Harkins have not fully responded to their discovery requests regarding those entities. Id. Defendants attach to their discovery statement a certificate of incorporation of ACOAI showing a date of incorporation of July 24, 2009 and listing Harkins as one of the initial directors, and a copy of materials from an ACO training conference listing Dawe's address at the bottom of the document. Dckt. 240, Exs. D, E. Defendants contend that these documents show that "both Dawe and Harkins have knowledge, information and access to documents relating to these entities, and they have not provided full and complete answers to the CUSA Special Interrogatories...." Dckt. No. 238 at 4. Defendants further argue that because of Dawe and Harkins's relationships to ACOAI, ACOAI's documents are deemed to be within their possession, custody, and/or control. Id. at 7.
However, Dawe and Harkins have each verified, under penalty of perjury, that they have responded truthfully to defendants' special interrogatories and supplied "as much factual information and as many specifications of legal contention as are presently known," and have produced all documents responsive to defendants' document requests that are within their possession, custody, or control. See generally Dckt. No. 240-2; Dckt. No. 239 at 5-6. In response to the special interrogatories, Dawe and Harkins state that Dawe "is the independently-contracted executive director of ACO" and that neither he, his wife, nor Flat Iron Mountain Associates "occupies any further relationship with ACO"; and that Harkins "is ACO's recording secretary and a member of ACO's Board of Directors." See Dckt. No. 240-2, Special Interrog. Nos. 10, 11. Both Dawe and Harkins state, however, that they "do not maintain the books and records of ACO, and thus are unable to provide full and complete responses" and that they "have been informed that ACO will turn over all pertinent documents and provide any pertinent information upon receipt of a duly-served subpoena" at the address provided in the special interrogatory responses. Id., Nos. 1, 12. Further, at the hearing, attorney Baxter confirmed that neither Dawe nor Harkins has possession, custody, or control of the documents at issue, and do not control the individuals who do have possession, custody, and control of those documents. Accordingly, other than defendants' theory that plaintiffs are being dishonest when making these assertions, defendants have not shown how plaintiffs' responses to their special interrogatories and/or document requests are unsatisfactory or incomplete.
Additionally, even though Mr. Baxter has offered to assist defendants in contacting counsel for ACO to subpoena the documents at issue, Dckt. No. 239 at 4-5, defendants have not explained why they have refused to either accept Mr. Baxter's offer or otherwise attempt to obtain the documents at issue via a third party subpoena.
Therefore, as stated on the record, defendants' motion to compel and request for sanctions, Dckt. No. 235, is denied.*fn2