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Marcus Bovarie v. Arnold Schwarzenegger

February 22, 2011

MARCUS BOVARIE,
PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, GOVERNOR;
PRIVATE HEALTH CARE COMPANY, "COMPANY X";
MATTHEW CATES, SECRETARY OF CORRECTIONS;
JAMES E. TILTON, FORMER SECRETARY OF CORRECTIONS; MICHAEL SMELOSKY, WARDEN, CENTINELA STATE PRISON;
V.M. ALMAGER, FORMER WARDEN, CENTINELA PRISON;
G.J. GIURBINO, FORMER WARDEN, CENTINELA PRISON;
N. BARRERAS, M.D., L. CALDERON, HEALTH CARE MANAGER, CENTINELA PRISON;
D. KHATRI, M.D., SUMMER AYMAR, D.O.; MANAIG, R.N.; J. ROBINSON, R.N.; CANDI COOK, MEDICAL APPEALS ANALYST; TETTEH, M.D.; KO, M.D.; HODGE, N.P.; C. HAMMOND, STAFF SERVICES MANAGER I;
NAVAMANI, M.D.; DOES 1-20, DEFENDANTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL PRODUCTION OF DOCUMENTS

[Doc. No. 83]

INTRODUCTION

Marcus Bovarie (Plaintiff), a California prisoner proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 civil rights action complaining of deliberate indifference to his medical needs. Before the court is Plaintiff's Motion to Compel Discovery from various Defendants. [Docket No. 83.] On February 8, 2011, Defendants filed a timely Opposition to the Motion to Compel Discovery. [Docket No. 86.] Having considered the arguments of both sides, It Is Hereby Ordered that the Motion to Compel Discovery is Granted in Part and Denied in Part as follows.

DISCUSSION

A. Motion to Compel Documents from Defendant Navamani

At all relevant times, Defendant Navamani was employed as a medical doctor at Centinela Prison. First Amended Complaint ("FAC") ¶ 30. Plaintiff alleges Defendant Navamani examined him on January 25, 2008 in relation to Plaintiff's complaints of kidney and liver pain accompanied by fatigue and weakness. FAC ¶ 54. After examining Plaintiff, Defendant Navamani ordered a computerized tomography ("CT scan."). Id. Plaintiff also alleges that Defendant Navamani saw him again on March 5, 2008 and told him to wait for the CT scan. Id. at ¶ 55. Finally, Plaintiff alleges that Defendant Navamani saw him again on June 18, 2008, but merely stated that he would again order a CT scan. Id. at ¶ 56. Based on these interactions, Plaintiff alleges that Defendant Navamani was aware that Plaintiff had a serious medical condition and purposely and deliberately denied Plaintiff adequate medical care, with deliberate indifference to his needs. Id. at ¶ 169.

1. Interrogatory Numbers 6-10 and Requests for Production Numbers 2-3 Plaintiff seeks to compel further responses to Interrogatory Number six: "What, if any, facts underlie each defense you have raised in response to the First-Amended Complaint?" Baxter Decl. at p.

2. Defendant Navamani objected on the basis that the request was "overly broad, unduly burdensome because it calls upon the responding party to state every fact in support of numerous contentions contained in a pleading" and that the request was compound, containing multiple subparts and exceeding the allowable number of interrogatories under Civil Local Rule 33.1 and Rule 33(a) of the Federal Rules of Civil Procedure. Id.

The Court agrees that seeking every fact that underlies every affirmative defense is unduly burdensome. See e.g. Mancini v. Insurance Corp. of New York, 2009 WL 1765295 at * 3 (S.D. Cal. Jun 18, 2009); Bashkin v. San Diego County, 2011 WL 109229 at * 2 (S.D. Cal. Jan 13, 2011); Miles v. Shanghai Zhenhua Port of Machinery Co., LTS., 2009 WL 3837523 at * 1 (W.D. Wash. Nov 17, 2009).

Additionally, this interrogatory is compound and in violation of both Civil Local Rule 33.1 and Federal Rule of Civil Procedure 33. Civil Local Rule 33.1 states: "No party will serve on any other party interrogatories which, including discrete subparts, number more than twenty-five interrogatories without leave of court." Civ. L.R. 33.1(a). Federal Rule of Civil Procedure 33(a) states: "Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." Fed. R. Civ. P. 33(a).

Plaintiff argues that Interrogatory Number 6 is not compound merely because it "may prove difficult or lead to a long answer." (Mtn at 6.) Plaintiff is correct that an interrogatory is not objectionable merely because it may be difficult or require a long answer. Plaintiff is, however, incorrect in his assertion that Interrogatory Number 6 is not compound. Plaintiff does not ask a single question that requires a long answer. Instead, Plaintiff asks for facts about each of Defendants' affirmative defenses. An interrogatory that seeks a response as to multiple affirmative defenses is counted as a separate interrogatory for each affirmative defense. New Amsterdam Project Management Humanitarian Foundation v. Laughrin 2009 WL 102816 at *5-6 ( N.D. Cal., January 14, 2009); White v. Cinemark USA, Inc., 2005 WL 3881658 at *3-4 (E.D. Cal. Mar 28, 2005); cf. Safeco of America v. Rawston, 181 F.R.D. 441, 446 (C.D. Cal. 1998) (holding interrogatory that seeks facts about multiple requests for admissions should be counted as a separate interrogatory for each request.). Plaintiff's First Amended Complaint contains 179 paragraphs and Defendants' Answer contains 32 affirmative defenses. Docket Nos. 6, 61. Accordingly, this one interrogatory violates the limit on the number of interrogatories that can be propounded and the Motion to Compel a further response is denied.

Interrogatory Number 7 seeks identification of all the documents that support the facts stated in response to Interrogatory Number 6. As Interrogatory Number 6 is unduly burdensome and in excess of the number of interrogatories allowed, the motion is denied as to Interrogatory Number 7. Request for Production of Documents No. 2 sought all the documents identified in response to Interrogatory Number 7. Because the motion is denied as to Interrogatory Number 7, the motion is also denied as to Request for Production of Documents Number 2.

Interrogatory Number 8 requests: "Please state your contentions as to any matter in the First-Amended Complaint." Defendant Navamani objected again that the interrogatory was unduly burdensome and compound such that it exceeded the numerical limit on interrogatories. Baxter Decl. at p. 2. The interrogatory is even more burdensome than Interrogatory Number 6 and is equally in violation of the numerical limit. Accordingly, the motion is denied as to Interrogatory Number 8.

Interrogatory Number 9 asks: "What, if any, facts support the contentions you stated in your response to Interrogatory Number 8, above." Defendant again objected that the interrogatory was unduly burdensome and compound. Baxter Decl. at p. 3. As Interrogatory Number 8 has been found improper, the motion is denied as to Interrogatory Number 9.

Interrogatory Number 10 asks: "Please identify all documents you believe support the facts you provided in your response to Interrogatory Number 9, above." Defendant objected again on the grounds of burden and numerosity. As the motion has been denied as to Interrogatory Number 9, the motion is also denied as to Interrogatory Number 10. Similarly, because Request for Production of Documents Number 3 seeks all the documents identified in response to Interrogatory Number 10, the motion is also denied as to Request for Production of Documents Number 3.

2. Interrogatory Numbers 17-19, Request for Production of Documents Number 4 Interrogatory Number 17 asks: "Please identify all documents that record, prescribe, order, request or refer all CT scans you have ordered, while at Centinela State Prison, between the dates of 1/1/2004 and 1/1/2009." Baxter Decl at p. 3. Interrogatory Number 18 seeks identification of the documents that show the dates each of the CT scans referenced in Interrogatory Number 17 were actually provided. Request for Production of Documents Number 4 seeks all the documents identified in response to Interrogatory Number 17. Interrogatory Number 19 seeks identification of the persons responsible for providing CT scans once ordered by the doctor.

Defendant Navamani objected that the requests are unduly burdensome, that he is not the custodian of the records sought, and that providing the information would violate the other inmates' privacy rights. Additionally, Defendant argues that a party need not conduct extensive investigations or research in order to respond to interrogatories. General Cigar Co., Inc. v. Cohiba Caribbean's Finest, ., 2007 WL 983855 at * 3 (D. Nev., March 30, 2007). In deciding whether a request is unduly burdensome, a court must balance the burden to the responding party against the benefit to the party seeking the discovery. Thomas v. Cate, 715 F.Supp.2d 1012, 1032 (E.D. Cal. 2010).

In this case, Plaintiff needs to show that Defendants were deliberately indifferent to his serious medical needs. Plaintiff argues that the information sought is "very necessary and relevant to the instant case as Plaintiff waited seven months in severe pain for a CT Scan." (Mtn at 8-9). Plaintiff does not, however, explain how information relating to CT scans of other inmates is relevant to show that Defendants were deliberately indifferent to Plaintiff's medical needs. The facts and circumstances of each inmate's medical condition is different and, therefore, the length of time a different patient in a different situation waited for a CT scan would not be relevant to this case.

Additionally, Defendant Navamani does not have direct access to the records. Plaintiff argues that "it can be reasonably expected that Defendant Navamani could gain access to these records." (Mtn at 8.) While it may be reasonable to expect such access, Defendant Navamani has no such access. The California Code of Regulations defines access to prisoner's health records:

No case records file, unit health records, or component thereof shall be released to any agency or person outside the department, except for private attorneys hired to represent the department, the office of the attorney general, the Board of Parole Hearings, the Inspector General, and as provided by applicable federal and state law. Any outside person or entity that receives case records files or unit health records is subject to all legal and departmental standards for the integrity and confidentiality of those documents.

Cal.Code Regs. tit.xv, § 3370(e). Accordingly, Defendant Navamani lacks access to the requested documents.

This does not, however, end the inquiry. A party must not only produce documents and information it possesses, it must produce all information within its custody or control. "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." Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). This includes documents under the control of the party's attorney. Meeks v. Parsons, 2009 WL 3303718 (E.D. Cal. September 18, 2009)(involving a subpoena to the CDCR); Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000)(A "party must produce otherwise discoverable documents that are in his attorneys' possession, custody or control."); Gray v. Faulkner, 148 F.R.D. 220 (N.D. Ind. 1992)("Documents in the possession of a party's attorney (in this case the Attorney General of Indiana) may be considered to be within the control of the party for purposes of a Rule 34 production request. 10A Federal Procedure, Law Ed. § 26:380, p. 52 (1988).")

The Code of Regulations allows the Office of the Attorney General to obtain these records. The Office of the Attorney General is counsel for all Defendants. Accordingly, the documents and information sought are within the control of Defendants' attorney and therefore, within the control of Defendants. As one court explained:

By virtue of their employment with non-party CDCR, individual defendants are represented by the Attorney General's Office. It is this Court's experience that either individual defendants who are employed by CDCR and/or the Attorney General can generally obtain documents, such as the ones at issue here, from CDCR by requesting them. If this is the case, then, based on their relationship with CDCR, they have constructive control over the requested documents and the documents must be produced. Woodall v. California, 2010 WL 4316953at *5 (E.D. Cal. Oct. 22, 2010), citing Mitchell v. Adams, 2009 WL 674348 at *9 (E.D.Cal. Mar.6, 2009)(warden sued in individual capacity had constructive control over documents he could obtain from the CDCR); see also Ochotorena v. Adams, 2010 WL 1035774, *3 (E.D.Cal. Mar 19, 2010); Moody v. Finander, 2010 WL 3911462 (S.D. Cal. October 1, 2010)(requiring individual defendants to respond to document request for records in the custody of CDCR); Johnson v. Vord, 2008 WL 3892106 (E.D. Cal. August 21, 2008).

Defendants next object that the search through all the records would be unduly burdensome because Defendant Navamani would have to look through five years of medical records of an unknown number of inmates to determine whether a CT scan was ordered. Defense Counsel, Doug Baxter, submitted a declaration stating that the short time frame allowed for opposition to this motion prevented him from obtaining a declaration from the custodian of records at the CDCR. Baxter Decl. ¶ 13. Attorney Baxter states that he is familiar with the burden associated with records searches at prisons. Attorney Baxter estimates that hundreds of hours of work would be necessary to locate records of inmates for whom CT scans were ordered. Baxter Decl. ¶ 15.

In light of Plaintiff's failure to explain the relevance of the records sought, and the fact that Defendant lacks direct access to the records, no detailed account of the burden of identifying the records is needed at this time and the Motion to Compel is denied as to Interrogatory Numbers 17-19.

3. Interrogatory Number 23 and Request for Production Number 5 Interrogatory Number 23 asks: ""Please list by log number all inmate appeals of a medical nature that have been filed by inmates of the California Dept. of Corrections and Rehabilitation in regard to your actions or inaction." Request for Production of Documents Number 5 seeks the documents identified in response to Interrogatory Number 23. Defendant objected that the request was unduly burdensome, he is not the custodian of records, and divulging the information sought would violate the inmates' right to privacy. Baxter Decl. at 4.

As discussed above, Defendant does have sufficient control over the documents and information. The objection as to privacy is more complicated. Plaintiff dismisses the objection, claiming that he would not use the documents for any purpose other than to show a pattern of deliberate indifference on the part of Defendant Navamani. This argument does not adequately address the privacy concerns of other inmates who may have filed appeals against Defendant Navamani. In order to determine whether the privacy rights outweigh the need for the information courts in the Ninth Circuit examine and balance the five factors set forth in Pagano v. Oroville Hospital, 145 F.R.D. 683, 695-98 (E.D. Cal. 1993):

(1) the probable encroachment of the individual's privacy right . . . and the magnitude of the encroachment; (2) whether the encroachment of the privacy right would impact an area that has traditionally been off limits for most regulation; (3) whether the desired information is available from other sources with less encroachment of the privacy right; (4) the extent to which the exercise of the individual's privacy rights impinge on the rights of others; and (5) whether the interests of society at large encourage a need for the proposed encroachment.

Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D. Cal. 1995)(citing Pagano v. Oroville Hospital, 145 F.R.D. ...


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