The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel*fn1
and in forma pauperis in this civil rights action filed
pursuant to 42 U.S.C. § 1983. The initial complaint was filed in
October 2007. The action now proceeds on the First Amended Complaint
filed November 26, 2008. (Dkt. No. 20.) On July 28, 2010, after
addressing a motion to dismiss and several
discovery matters, this court issued an Amended Discovery and
Scheduling Order that set, in pertinent part, a discovery deadline of
February 25, 2011, and a dispositive motion deadline of May 20, 2011.
(Dkt. No. 95.) Defendants have answered the First Amended Complaint.
(Dkt. No. 51, 117.)
Presently pending before the court are the following matters: (1) defendants' motion for protective order relative to plaintiff's allegedly excessive discovery requests and motions (Dkt. No. 103); and (2) plaintiff's motions to compel discovery and for sanctions (Dkt. Nos. 109, 111).
The First Amended Complaint ("FAC" or "complaint") alleges that plaintiff, who was transferred to California State Prison-Sacramento for mental health treatment, was there sexually harassed by correctional officer Brockett; that plaintiff was then solicited to participate, and did participate, in an administrative sting operation against Brockett that resulted in her dismissal; and that, allegedly as a result of plaintiff's participation in Brockett's dismissal, plaintiff was retaliated against by correctional staff, including by the denial of adequate mental health treatment. The amended complaint alleges causes of action for excessive force, retaliation, deliberate indifference to plaintiff's mental health needs, failure to investigate plaintiff's complaints of sexual misconduct and to protect him accordingly, and failure to provide adequate supervision of correctional and mental health staff. The court has already written extensively on this case, noting that it proceeds "on potentially, facially compelling facts." (Dkt. No. 93, at 14.) However, because of plaintiff's numerous filings, many frivolous, the undersigned admonished plaintiff in July 2010, "caution[ing] [him] that due consideration will be given to his future filings to determine whether plaintiff's access to the court should be restricted." (Dkt. No. 93, at 15.)*fn2
On September 14, 2010, all defendants but Brockett (who is separately represented) moved for a protective order pursuant to Federal Rule of Civil Procedure 26, which seeks to strike plaintiff's allegedly excessive discovery requests, impose sanctions to deter future similar conduct, and to establish appropriate limitations on plaintiff's further discovery requests. Defendants argue that plaintiff's discovery involves "excessive, oppressive, and unduly burdensome volumes of written discovery on defendants in this action in an attempt to harass and coerce Defendants into settlement in violation of [Federal Rule of Civil Procedure] 26." (Dkt. No. 103, at 1-2.)
Defendants have submitted 429 pages of exhibits demonstrating that, within a three-week period following the court's admonition, plaintiff served defendants with approximately 1550 discovery requests. (Defendants' Motion (Dkt. No. 103), at 3-5, and Defendants' Exhibits set forth in Dkt. Nos. 104-106.) Defendants state that contemporaneously plaintiff sent "several letters to defense counsel, threatening adverse publicity and attempting to persuade counsel that a compromise would be cheaper for defendants and would avoid the adverse publicity. In one of his letters, he made a settlement demand of 250,000 dollars." (Dkt. No. 103, at 5 (citations omitted).) Defendants state that defense counsel sent a meet and confer letter to plaintiff on August 31, 2010, but did not receive a timely response. (Id.) After defendants filed the instant motion, plaintiff sent letters to defendants asserting his right to propound the challenged discovery. (Defendants' Reply (Dkt. No. 114), at 2.) In his opposition, plaintiff asserts that the Federal Rules of Civil Procedure support the number of requests he has propounded, and that defendants' motion is untimely filed and an effort to delay or obstruct the discovery process in this case. (Dkt. No. 108.) In addition, plaintiff has filed a motion to compel these defendants' responses to the discovery at issue. (Dkt. No. 109.)
Plaintiff has filed a separate motion compelling further responses by defendant Brockett to plaintiff's Request for Production (Set One). (Dkt. No. 111.) Brockett timely responded to the Request and now opposes plaintiff's motion based on assertions of privilege. (Dkt. No. 113).
"Parties may obtain discovery regarding 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. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).
However, "[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(C)." (Id.) "On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C).
A protective order may be sought pursuant to subdivision (c) of Federal Rule of Civil Procedure 26. Pursuant thereto, "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters . . . ." Fed. R. Civ. P. 26(c)(1). "For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted." Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). "Good cause" exists when justice requires the protection of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense. Alexander v. F.B.I., 186 F.R.D. 60, 71 (Dist. D. C. 1998). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). The objections serving as the basis of a protective order should be "plain enough and specific enough" to permit the court to understand the factual underpinning of a party's objections. See Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981).
A. Timeliness of Defendants' Motion for Protective Order
Plaintiff contends that defendants' motion is a subterfuge for their failure to provide timely responses to plaintiff's discovery requests. The disputed requests were served commencing August 3, 2010, through August 16, 2010, and thus were timely propounded. (See Dkt. No. 93, at 6 ("[a]ll requests for discovery . . . shall be served not later than November 19, 2010").) Responses were due forty-five days after each request was served (Dkt. No. 92, at 5), therefore from September 17, 2010, through September 30, 2010, well within the February 25, 2011 discovery deadline (Dkt. No. 95). Defendants filed their motion for protective order on September 14, 2010, after ...