The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action that proceeds on plaintiff's Second Amended Complaint against sole defendant Richard Tan, M.D., based on plaintiff's claim that defendant was deliberately indifferent to his medical needs. On February 16, 2010, at the request of both parties, this court extended the discovery deadline to June 11, 2010. (Dkt. No. 35.) Presently pending is plaintiff's motion to compel discovery and for sanctions, pursuant to Fed. R. Civ. P. 34 and 45. (Dkt. No. 36.) For the following reasons, the court denies plaintiff's motion.
Plaintiff seeks an order compelling defendant's responses to his production request served on defendant on January 5, 2010, and for sanctions. (Dkt. No. 36.) Defendant has filed an opposition to plaintiff's motion, and defendant's counsel has filed a supporting declaration. (Dkt. No. 37.)
Plaintiff's production request was served by mail on January 5, 2010. Defendant states that he, like plaintiff, sought an extension of the discovery deadline upon "realizing that the documents and information inmate Montano was seeking would take longer than what was expected." (Dkt. No. 37, at 2; see also Exh. 1.) On February 25, 2010, after the court had extended the deadline, defendant's counsel "wrote a meet and confer letter to inmate Montano advising him that the process to gather the information he was seeking was taking longer than expected and suggested a two-week extension." (Dkt. No. 37, at 3; see also Exh. 2.) The extension was in part required because the requested information required counsel to contact three different prison facilities. (Id.) Plaintiff responded on March 10, 2010 and, having already filed the instant motion on February 19, 2010, declined to agree to the requested extension.*fn1 (Id. at Exh. 3.) Thereafter, on March 12, 2010, plaintiff was personally served with defendant's verified responses to the production request, the same date defendant filed his opposition to the instant motion. (Id. at Exh. 4.)
Defendant has submitted a detailed memorandum explaining that he produced responsive documents that were both relevant and non-privileged, but declined to disclose documents protected by the official information privilege and the privacy rights of third parties. (Dkt. No. 37.) Plaintiff has not responded to this filing, apparently standing on the rationale of his motion that "having been sent a competent motion within the rules, the defendant was obligated to timely and properly respond within the time limitations specified within the Rules."*fn2
(Dkt. No. 36, at 2.) The court construes both the content of plaintiff's motion and the absence of his reply to mean that he no longer seeks to compel defendant's production, but only seeks sanctions for the delay in the production.
Plaintiff's reliance on Fed. R. Civ. P. 37 and 45 is misplaced. Pursuant to Fed. R. Civ. P. 37(b)(2)(C), a court may require a failing party to pay the other party's reasonable expenses unless the failure was substantially justified or other circumstances make an award of expenses unjust. The court finds defendant's failure timely to respond to plaintiff's production request to be substantially justified. While defendant's response was more than a month late, it was personally served only two days after plaintiff denied defendant's request to stipulate to an extension of time. By this time, the court had extended the discovery deadline, thus rendering de minimis any prejudice plaintiff may otherwise have experienced. Plaintiff also has sought and obtained extensions of filing deadlines, (see Dkt. Nos. 13 and 14, 17 and 18), and the court finds that defendant is entitled to the same deference. Thus, the court finds no basis for awarding sanctions.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to compel discovery and for ...