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Tater-Alexander v. Amerjan

November 10, 2010

MICHAEL TATER-ALEXANDER, PLAINTIFF,
v.
LONNIE R. AMERJAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING MOTION TO COMPEL (Docket No. 104)

Michael Tater-Alexander ("Plaintiff") initiated this action on May 12, 2008, asserting various claims resulting from treatment he received while seeking care at the Fresno Community Hospital and Medical Center in Clovis, California, on March 17-18, 2007. Plaintiff named Lonnie Amerjan, the City of Clovis, Tina Stirling, "Community Regional Medical Center,"*fn1 Dr. Thomas Mansfield, and Mary Jo Greene as defendants in this action.

During discovery, Plaintiff asserted that he used a cellular telephone to make calls to his friend, Jill Bedford Potter, during the course of the events on March 17-18, 2007, which gave rise to this litigation. During this phone contact, Plaintiff apparently discussed with Ms. Potter some of the relevant events in the litigation. Ms. Potter has likewise testified that she received at least two phone calls from Plaintiff during that time period. (Doc. 107.)

On June 10, 2010, Defendant Fresno Community Hospital and Medical Center ("FCH") propounded a Request for Production of Documents on Plaintiff seeking records associated with the cellular telephone from which Plaintiff claims he called Ms. Bedford on March 17-18, 2007.

On August 13, 2010, Plaintiff served a response to the request, indicating that he did not currently have the records, but he was seeking them from Verizon, his cellular telephone provider. The request and response are set forth as follows:

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6:

All cell phone records for your cell phone number which was and is (559) 908-7623, and for any other cell phone and number you used, documenting all calls made and received between noon on March 17, 2007, and noon on March 18, 2007, or documenting that no calls were made or received during that time. (During that time plaintiff claims to have been in pain and those to whom he spoke may have information which could lead to the discovery of admissible evidence or itself be relevant and admissible on that issue. In addition, plaintiff's friend and landlord, Jill Bedford Potter, has testified that the night of March 17-18, 2007, she received at least two calls from plaintiff which were made either to her cell phone number which was and is (559) 908-7715, or to her home number which was and is (559) 348-0351, and she provided plaintiff's cell phone number and advised that his service was and is through Verizon. The records will either confirm those calls [] or be evidence that those calls were not made.[)]

Rule 34(a) provides, in relevant part, that a party may serve on any other party a request to produce and to permit the inspection and copying of items within the responding party's "possession, custody or control." Even if Plaintiff no longer has his statements, they are available through his Verizon, his provider. The case of A. Farber and Partners, Inc. v. Garber, Cal. 2006, 2345 F.R.D. 186, is authority for the obligation of plaintiff to obtain and produce the records or, at a minimum, sign a consent to release them to defendant so defendant can expeditiously obtain these documents which plaintiff has the legal right to obtain on demand.

RESPONSE:

Currently, records responsive to this request are not in the custody, control or possession of responding party. Responding party has requested these records from Verizon but has not yet received the same from Verizon. However, at such time responding party receives the records responsive to this request, responding party will produce them.

On October 1, 2010, the parties met and conferred regarding the cellular telephone records because no records had been produced by Plaintiff at that time. On October 14, 2010, FCH filed a motion to compel production of the Verizon cellular telephone records. FCH's motion to compel seeks a Court order requiring Plaintiff to produce the records if he has them, or order Plaintiff to call Verizon on speaker phone in the presence of FCH's counsel, Mr. Johnson, order the records, and have them sent to Plaintiff and Mr. Johnson. FCH also requests the Court to order sanctions against Plaintiff and his counsel in the amount of $1,760.00, representing the reasonable attorneys' fees incurred in bringing the motion to compel.

On October 15, 2010, the parties appeared before the Court telephonically regarding the motion to compel. Plaintiff agreed that he would attempt to secure and produce the cellular telephone records by November 5, 2010.

On November 5, 2010, FCH's counsel, Carey Johnson, provided a declaration to the Court regarding the status of the parties' dispute. (Doc. 135.) According to Mr. Johnson, Plaintiff supplemented his response to FCH's ...


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