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Crayton v. Rochester Medical Corp.

March 26, 2010


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


(Document 143)

On March 3, 2010, Plaintiff sent a letter requesting that the Court issue a subpoena. The Court construes Plaintiff's pleading as a Motion for a Subpoena Duces Tecum. Upon reviewing the subpoena, the request is DENIED.


Plaintiff is a wheelchair paralytic who is an inmate at Kern Valley State Prison. The matter arises from Plaintiff's allegations that he was injured when he used an Ultraflex Silicone Self-Adhering Male External Catheter manufactured by Defendant. In an Amended Complaint filed on September 10, 2008, Plaintiff alleges causes of action for strict products liability, negligent products liability, fraudulent misrepresentations, and breach of implied warranty of fitness. (Doc. 34).

A scheduling conference was held on March 27, 2009. (Doc. 50). On March 30, 2009, the Court issued a scheduling order requiring that non-expert discovery be completed no later than September 1, 2009. (Doc. 55). Pursuant to Defendant's ex parte request, on September 14, 2009, the Court issued an order extending the non-expert discovery deadline for Defendant until September 20, 2009. (Docs. 59, 62). On September 23, 2009, the Court also extended Plaintiff's non-expert discovery deadline until September 25, 2009. (Doc. 61, 64).

This case has an extensive history which includes several discovery disputes. As a result, the non-expert discovery deadline was extended for narrowly defined issues. On January 25, 2010, the Court issued an order expanding the non-expert discovery deadline to March 31, 2010, for the limited purpose of allowing the parties to utilize the appropriate discovery devices to obtain the catheter product and packaging. (Emphasis added). (Doc. 108, lines 17-27). Similarly, the Court also extended the non-expert discovery deadline for the limited purpose of allowing Plaintiff to obtain consumer complaint report logs from Defendant. (Emphasis added). (Doc. 109 & 139). No other extensions of the non-expert discovery deadline were granted.


In the subpoena request, Plaintiff requests numerous items including: 1) any and all boxes of his personal property, 2) names of employees and records showing when and which prison officials purchased the Ultraflex Silicone Self-Adhesive Male catheter from 2005 to 2006 and the name of the person who sold/supplied the product to the prison, 3) name of the chief custodian of inmate records at Kern Valley State Prison and a copy of Plaintiff's medical records, 4) the name of the "chief pharmacy person" who issued and ordered Ultraflex Silicone Self-Adhesive Male Catheters to inmates at Kern Valley State Prison during 2005 and 2006, and 5) prison employee records for Dr. Jonathan Akanno and Dr. Larry Dileo including inter alia, information regarding their qualifications, certifications, job evaluations, and employment at the prison. (Doc. 143).

A. Untimeliness

As a preliminary matter, Plaintiff's request for the subpoena is untimely. A subpoena for document production is a form of discovery that is subject to the Court's discovery deadline. See, Marvin Lumber & Cedar Co. v. PPG Indus. Inc., 177 FRD 443, 445 (D MN 1997); McNerry v. Archer Daniels Midland Co., 164 FRD 584, 588 (WD NY 1995). Here, all of Plaintiff's requests fall outside the limited parameters of the extended discovery deadline. Fed.R.Civ.P. 16(b)(2) and (3) require district courts to enter scheduling orders to establish deadlines for, among other things, "to file motions" and "to complete discovery." Modifications of the scheduling order requires a showing of good cause. Fed. R. Civ. P. 16(b)(4). "The schedule may be modified 'if it cannot be reasonably met despite the diligence of the party seeking the extension.'" Zivkovic v. Southern California Edison Co., 302 F. 3d 1080, 1087 (9th Cir. 2002) quoting Johnson v. Mammoth Recreations, Inc., 975 F. 2d 604, 607 (9th Cir. 1992).

In this case, Plaintiff did not move to amend the discovery deadline beyond the Court's order prior to expiration of the date, nor has he attempted to establish due diligence for such a request. This case is two and a half years old and the scheduling order setting the first discovery deadline in this case was issued on March 30, 2009, almost one year ago. (Doc. 55). Discovery has closed, except for the limited exceptions outlined above. (Doc. 92). Plaintiff has not made any good cause showing that extension of the discovery deadline is warranted, and the Court will not extend the deadline especially since the deadline expired several months ago. Therefore, the subpoena request is untimely and is DENIED.

B. The Requested Items

Request No. 1 Additionally, the items Plaintiff has requested are problematic. In his first request, Plaintiff requests any and all boxes of his confiscated personal property, case file records, evidence, work product and documents. While Plaintiff may argue that he needs his personal property to obtain the catheter, his request is overbroad as it includes all of his personal property. Plaintiff's ability to possess his property in his cell is subject to various restrictions deemed necessary by officials to maintain the safety and security of the institution, and may be dependent on Plaintiff's current housing situation or other factors. The Court is simply not equipped, particularly on the record before it, to consider the propriety of ...

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