The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS TO COMPEL
Plaintiff Richard A. Ochotorena ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed November 30, 2005, against Defendants Adams, Kalkis, Reynoso, Curtiss, Duncan, Fambrough, Lane, and Rodriquez ("Defendants").*fn1 Plaintiff alleges that on September 8, 2003, while incarcerated at the California Substance Abuse Treatment Facility, Defendants violated his Eighth Amendment rights when excessive force was used against him.
On November 10, 2008, Plaintiff filed a motion to compel further responses from Defendants Adams and Reynoso to Plaintiff's interrogatories, requests for admission, and requests for production of documents. On December 30, 2008, Plaintiff filed a motion to compel the production of documents from Defendant Kalkis. On July 6, 2009, the Court granted in part and denied in part Plaintiff's motions.
The following are presently pending before the Court. On July 24, 2009, Defendants filed a supplemental opposition to Plaintiff's motion to compel further response from Defendant Reynoso, pursuant to the Court's July 6, 2009 order. (Court Doc. 63.) On August 12, 2009, Plaintiff filed a reply to defendants' supplemental opposition. (Doc. 65.) On July 30, 2009, Plaintiff filed a motion to compel further response from Defendant Kalkis. (Doc. 64.) On September 28, 2009, Plaintiff filed a motion to compel further response from Defendant Adams. (Doc. 67.) Defendant Darrel G. Adams filed an opposition to the September 28, 2009 motion on November 19, 2009. (Doc. 71.) Plaintiff filed his reply on December 7, 2009. (Doc. 73.) The matter is deemed submitted pursuant to Local Rule 230(l). The Court will address each filing separately, as set forth below.
B. Defendant Reynoso's Supplemental Opposition and Plaintiff's Reply
Plaintiff had served Defendant Reynoso with requests for admissions that asked whether she was working on September 3, 2003 at the California Substance Abuse and Treatment Facility ("SATF"). (Doc. 62, p. 2.) Plaintiff had intended to ask whether Defendant Reynoso was working on September 8, 2003 at SATF. (Doc. 62, p. 2.) Defendant responded that, after conducting a review of all of the records in her possession, custody, and control, she does not have sufficient information to admit or deny the request. (Doc. 62, p. 9.) Plaintiff moved to compel a further response, which Defendant opposed. (Docs. 47, 49, 50.) On July 6, 2009, the Court found that Defendant Reynoso's responses may be adequate if she attempted to review prison payroll, personnel, or other records, before she responded to Plaintiff's request, and ordered Plaintiff to clarify her response. (Doc. 62, pp. 9, 13.) On July 30, 2009, pursuant to court order, Defendant Reynoso filed a supplemental opposition to Plaintiff's motion to compel. (Doc. 63.)
Defendant Reynoso attests that she does not possess any records that indicate whether she was working on either September 3 or 8, 2003. (Doc. 63, Exh. A ¶ 3.) Defendant thus contacted the prison litigation coordinator at SATF, who searched SATF's records to determine whether Defendant was working on those dates. (Doc. 63, Exh. A ¶ 3.) Defendant attests that the prison does not maintain time sheets or other personnel records that would establish the dates Defendant Reynoso worked, going back more than five years. (Doc. 63, Exh. A ¶ 3.) Defendant Reynoso declares that she is unaware of any records that indicate whether she was working at SATF (Doc. 63, Exh. A ¶ 3.) Defendants thus contend that Defendant Reynoso's responses are sufficient. Defendant also contends that Defendant does not have any reason to withhold this information, because Defendant Reynoso has maintained that she was not present on the day of the incident, and thus would have more of a pressing need to find this information than Plaintiff.
Plaintiff in his reply makes several contentions. First, Plaintiff contends that there is a contradiction between Defendant Reynoso's declaration and Plaintiff's prior request during the criminal proceeding against Plaintiff following the September 8, 2003 incident. Plaintiff at that time had requested Defendant Reynoso's time sheet for September 8, 2003, and was informed by the litigation coordinator at the time that Defendant Reynoso is not required to complete a time sheet. (Doc. 65, Exh. B, Decl. Of Dana Arline, Litigation Coordinator.) Second, Plaintiff's former private investigator in the criminal proceeding, Richard Martinez, declared that Defendant Reynoso is required to keep a time sheet. (Doc. 65, Exh. C, Decl. Of Richard Martinez ¶ 17.) Mr. Martinez declared that he is a retired correctional lieutenant and an expert in the area of analyzation of the use of force. (Doc. 65, Exh. C, ¶ 4.) Plaintiff contends that the Department operations manual requires Defendant Reynoso to keep a time sheet. (Doc. 65, Exh. D, Department Operations Manual § 51050.14.) Lastly, Plaintiff contends that sources other than the time sheet exist that would indicate whether Defendant Reynoso was present at the September 8, 2003 incident, including logbooks. Plaintiff requests that the Court review Defendant Reynoso's personnel file in camera to determine whether any documents exist that would indicate if she was present.
Defendant Reynoso attests that she is not in possession of her personnel records and thus would have no way of knowing whether or not she was present at the time of the incident. While Plaintiff presents evidence which suggests that time sheets did exist, this does not fully address the issue of whether Defendant Reynoso has sufficient knowledge as to her whereabouts on September 8, 2003 to respond to Plaintiff's discovery request. Even if the time sheets existed, Defendant Reynoso attests that after inquiry with the prison litigation coordinator, the time sheets are no longer available, and no other source of information exists that would indicate whether she was present on the day of the incident, which would presumably include logbooks. The Court will not require Defendant Reynoso to furnish a further response to Plaintiff's motion to compel. Defendant Reynoso's prior objections, coupled with the supplemental opposition, are a sufficient response. Based on the foregoing, Plaintiff's motion to compel further response from Defendant Reynoso is denied.
C. Plaintiff's July 30, 2009 Motion To Compel
On July 30, 2009, Plaintiff filed a motion to compel which contests the Court's July 7, 2009 order regarding Defendant Kalkis. (Doc. 64, Mot. To Compel.) Plaintiff had previously requested (1) CSATF and state prisons local operational procedure on photographing a crime scene in effect on September 8, 2003 and (2) CSATF and state prisons local operational procedure on crime scene preservation in effect on September 8, 2003. The Court had denied Plaintiff's motion to compel because Defendant Kalkis, after a reasonable inquiry, had no documents in his possession, custody, or control that were responsive to Plaintiff's requests. (Doc. 62, Court Order Re Mot. To Compel 11:19-12:20.)
Plaintiff now contends that these documents do exist pursuant to the Department of Corrections Operations Manual section 32010.15. Plaintiff contends that these documents are part of the training program for all CDCR employees and have thus been memorialized and maintained by the in-service training manager. (Doc. 64, Pl.'s Mot. To Compel 5:16-8:3.)
Upon further review, the Court finds that Defendant Kalkis's previous response is insufficient. Defendant Kalkis stated that, after a reasonable inquiry, he does not have possession, custody, or control over the requested documents. As stated in the Court's previous order, the Court cannot compel Defendant Kalkis to produce documents which he lacks possession, custody or control over. However, the Court finds that Defendant Kalkis did not provide a sufficient showing that he lacks possession, custody, or control over the requested documents.
In responding to discovery requests, Defendants must produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a). Actual possession, custody or control is not required, however. "A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). As this Court explained in Allen v. Woodford, 2007, U.S. Dist. LEXIS 11026, *4-6, 2007 WL 309945, *2 (E.D. Cal. Jan. 30, 2007) (internal citations and quotations omitted):
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. A party having actual possession of documents must allow discovery even if the documents belong to someone else; legal ownership of the documents is not determinative. Control need not be actual control; courts construe it broadly as the legal right to obtain documents upon demand. Legal right is evaluated in the context of the facts of each case. The determination of control is often fact specific. Central to each case is the relationship between the party and the person or entity having actual possession of the document. The requisite relationship is one where a party can order the person or entity in actual possession of the documents to release them. This position of control is usually the result of statute, affiliation or employment. Control may be established by the existence of a principal-agent relationship.
Here, Defendant attempts to avoid production by contending that he is not in possession, custody or control of the requested documents. The specific facts of this action, however, render such an objection unfounded. By virtue of their employment with non-party CDCR, individual Defendants are represented by the Attorney General's Office. It is this Court's experience that either individual defendants who are employed by CDCR and/or the Attorney General can generally obtain documents, such as the ones at issue here, from CDCR by requesting them. If this is the case, then, based on their relationship with CDCR, they have constructive control over the requested documents and the documents must be produced. See, eg., Mitchell v. Adams, 2009 U.S. Dist. LEXIS 24289, * 24-25, 2009 WL 674348, *9 (E.D. Cal. Mar. 6, 2009) (even though defendant warden was sued in his individual capacity, he had constructive control over requested documents because he had authority to obtain the requested documents from third party CDCR); see also Gray v. Faulkner, 148 F.R.D. 220, 223-224 (N.D. Ind.1992) (requiring certification that responding party "have conducted a search for the 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.")
If Defendant chooses to stand on this objection, he must provide factual support for the assertion that, in spite of his relationship to CDCR, he does not have possession, custody or control of the requested documents. Defendant should also be mindful of the fact that he will be precluded from using the requested documents, or any documents of this kind, as evidence in support of summary judgment, in opposition to any of Plaintiff's positions, and in any way during trial. Fed. R. Civ. P. 37(c)(1). Should Defendant stand on this objection and subsequently seek to use the requested documents or like documents, he must, at minimum, supplement his responses, and explain the method by which he obtained the documents. Most ...