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Evans v. Tilton

March 18, 2010

JOHNNY EARL EVANS, PLAINTIFF,
v.
JAMES E. TILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL FURTHER RESPONSE DUE WITHIN 30 DAYS

(Doc. 39)

Plaintiff Johnny Earl Evans ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation, 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 December 13, 2007, against Defendants S. Zamora and Ashraf Youssef ("Defendant") for violation of the Eighth Amendment. Plaintiff alleges that Defendants were deliberately indifferent to a serious medical need in treating Plaintiff's ruptured Achilles tendon. Pending before the Court is Plaintiff's motion to compel, filed August 26, 2009. (Doc. 39.) Defendants filed an opposition to the request on September 14, 2009. (Doc. 42.) The matter is deemed submitted pursuant to Local Rule 230(l).

I. August 26, 2009 Motion to Compel

Plaintiff filed a motion to compel further response from Defendants to Plaintiff's first and second set of Requests for Production of Documents and Plaintiff's first set of Interrogatories to Defendant Youssef . (Doc. 39.) On September 14, 2009, Defendants filed their opposition. In his motion, Plaintiff submitted his discovery requests as exhibits and placed asterisks next to certain requests for which Plaintiff seeks further response. Defendants only address the requests that are explicitly mentioned or marked in his exhibits.

A. First Set of Requests for Production of 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.

With this legal framework in mind, the Court turns to Plaintiff's requests for production in his motion to compel.

Request No. 3: "Any and all KVSP medical protocol for treating a diagnosed partially torn achilles tendon."

Response: Defendants object to this request on the grounds that it is overbroad and not reasonably calculated to lead to the discovery of admissible evidence. Defendants further object that this request is vague, ambiguous, and calls for speculation as to the phrases "medical protocol." Notwithstanding these objections and assuming such documents exist, Defendants have conducted a diligent search of their records and do not have possession or control of the documents requested.

Request No. 5: "Any and all KVSP medical protocol for x-raying a diagnosed partially torn achilles tendon."

Response: Defendants object to this request on the grounds that it is overbroad and not reasonably calculated to lead to the discovery of admissible evidence. Defendants further object that this request is vague, ambiguous, and calls for speculation as to the phrase "medical protocol." Notwithstanding these objections, Defendants have conducted a diligent search of their records and do not have possession or control of the documents requested. Defendants, further, do not believe that such documents exist.

Request No. 6: "Any and all KVSP medical protocol for performing a MRI scan on a diagnosed partially torn achilles."

Response: "Defendants object to this request on the grounds that it is overbroad and not reasonably calculated to lead to the discovery of admissible evidence. Defendants further object that this request is vague, ambiguous, and calls for speculation as to the phrases: "medical protocol" and "MRI scan". Notwithstanding these objections and assuming such documents exist, Defendants have conducted a diligent search of their records and do not have possession or control of the documents requested.

Request No. 8: "Any and all KVSP medical protocol for providing surgery for a partially torn achilles tendon."

Response: Defendants object to this request on the grounds that it is overbroad and not reasonably calculated to lead to the discovery of admissible evidence. Defendants further object that this request is vague, ambiguous, and calls for speculation as to the phrase "medical protocol". Notwithstanding these objections and assuming such documents exist, Defendants have conducted a diligent search of their records and do not have possession or control of the documents requested. Defendants, further, do not believe that such documents exist.

Plaintiff contends that on February 7, 2006, Dr. I. Patel opened a book entitled "Medical Practice and Protocol" and read from the book that "policy require [sic] the primary care provider to recommend the patient to be evaluate [sic] by an orthopedic specialist and a MRI scan was required to confirm the rupture in the tendon and surgery to repair the tendon." (Pl.'s Mot. To Compel ΒΆ 4.) Plaintiff contends that there must be a ...


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