The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's motion to compel, filed on April 12, 2010, to which, pursuant to the court's order, filed on May 13, 2010, defendants filed an opposition on June 9, 2010, after which plaintiff filed a reply on July 6, 2010; and 2) plaintiff's motion to compel, filed on July 6, 2010, to which no response has been forthcoming. The court's review indicates that the second motion to compel is a duplicate of the first except that there are no exhibits attached and the date by plaintiff's signature has been changed. The second motion to compel will be stricken.
This gravamen of this action, now proceeding on the first amended complaint, filed on May 21, 2008,*fn1 is that defendants Correctional (Corr.) Captain T. Kopec and Corr. Sergeant A. Martin used excessive force in violation of the Eighth Amendment in a cell extraction of plaintiff at High Desert State Prison (HDSP) on December 20, 2001, for which plaintiff seeks compensatory and punitive damages. First Amended Complaint, pp. 1-5.
Plaintiff by his motion avers that defendants make virtually the same objections to each of his set one requests for production, that they claim not to have documents within their possession, custody or control, that they have failed to provide a privilege log for those documents they claim are privileged, that they are uncooperative in the discovery process and engage in manipulation and gamesmanship. Motion to Compel (MTC), pp. 2-3. Plaintiff does concede that all the documents he seeks are at High Desert State Prison and that "[t]echnically plaintiff should have served a subpoena on said prison." Id. at 3. Plaintiff avers that defendants failed to meet and confer after plaintiff sent a letter request to do so.*fn2 Id. at 3-4 & Exhibit (Ex.) C. Plaintiff without specifically identifying those requests for production for which he asks the court to compel production or further production asks the court to grant his motion to compel discovery responses and seeks unspecified sanctions. Id. at 4.
In opposition, defendants point out that plaintiff failed to identify the requests that are the subject of his motion and contend that they have produced or provided for inspection all documents withing their possession, custody or control. Opposition (Opp.), pp. 1-2, 4. Further, defendants maintain that plaintiff does not prove that defendants have possession, custody or control of additional responsive documents and that simply because the defendants are represented by the Attorney General's Office does not mean that the defendants, Kopec and Martin, no longer employed at HDSP, have possession, custody or control of CDCR or HDSP documents. Id. at 3-4. Defendants cite Clark v. Vega Wholesale Inc., 181 FRD 470, 472 (D. Nev. 1998) for the principle that a responding party is not in control of records that can only be obtained by another's permission. Id. at 4. Defendants point out that plaintiff concedes that the appropriate discovery tool would have been a subpoena and argue on that basis, too, the motion should be denied.
In reply,*fn3 plaintiff counters that, as a pro se litigant with access to only a limited law library, he has done his best in identifying the requests at issue. Reply, pp. 1-2. As he has attached the entire set one of the requests for production, the court is left to infer that the responses to all 36 requests are at issue. Plaintiff also contends that although CDCR*fn4 is not a party, as defendants are CDCR employees represented by the state attorney general's office, they should be able to request the documents sought and have access to them. Id. at 2. In support of this position, plaintiff quotes Soto v. City of Concord, 162 FRD 603, 619 (N.D. Cal. 1995) (citing Buckley v. Vidal, 50 FRD 271, 274 (S.D.N.Y. 1970)): "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."
The scope of discovery under Fed. R. Civ. P. 26(b)(1) is broad. Discovery may be obtained as to "any non-privileged matter that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Id. Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The court, however, may limit discovery if it "....is unreasonably cumulative or duplicative," or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery...."; or if the proposed discovery is overly burdensome. Fed. R. Civ. P. 26(b)(2)(C)(I), (ii) and (iii).
The reach of Fed. R. Civ. P. 34, which governs requests for production, "extends to all relevant documents, tangible things and entry upon designated land or other property." Clark v. Vega Wholesale Inc., supra, 181 FRD at 472-473, citing 8A C. Wright & A. Miller, Federal Practice and Procedure § 2206, at 381. Rule 34 does require that the party upon whom a request is served "be in possession, custody, or control of the requested item." Id., at 473, citing Estate of Young v. Holmes, 134 F.R.D. 291, 293 (D. Nev.1991).
In considering this motion to compel, the court is mindful that privileges are narrowly construed, because they impede the full and fair discovery of the truth, Eureka Financial Corp. v. Hartford Acc. and Indemnity Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991), and that the party asserting the privilege has the burden to establish its applicability is an ...