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Harvey Herring Iii v. Mike Clark

June 13, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge



Harvey Herring, III ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on January 19, 2005. (Doc. 1.)*fn1 This action proceeds against Defendants Correctional Officer ("C/O") Mike Clark, Sergeant ("Sgt.") Jack L. Hill, C/O Roger Lowder, C/O Alejandro Ramirez, C/O Kenneth J. Jiminez, C/O John Wheeler, Sgt. Kevin Curtiss, C/O Ernesto Diaz, and C/O M. D. McAlister ("Defendants")*fn2 for use of excessive physical force in violation of the Eighth Amendment and assault and battery*fn3 based on an incident which occurred on July 30, 2003 at California Substance Abuse Treatment Facility ("SATF"). (Id.)

On September 7, 2007 and October 18, 2007, Plaintiff filed requests for a subpoena duces tecum to issue on his behalf. (Docs. 62, 63.) On January 8, 2008, these requests were denied with leave to submit a new request providing further information. (Doc. 65.) On May 20, 2008, Plaintiff renewed his request and provided further information. (Doc. 72.) This request was granted and, on October 14, 2008, a subpoena duces tecum ("the SDT") issued to third party, SATF Warden Ken Clark ("Warden Clark"). (Docs. 83, 85.) The SDT commanded production of documents for Plaintiff's inspection at the California State Prison, Sacramento, on December 8, 2008 at 10:00 a.m. (Doc. 85-2.) On December 5, 2008, non-party California Department of Corrections and Rehabilitation ("CDCR") filed a motion to quash the SDT (Doc. 87.) On December 5, 2008, Defendants Hill, Lowder, Ramirez, Jiminez, Wheeler, Curtiss, Diaz, McAlister, and Rodriguez filed objections to the SDT. (Doc. 88.) On December 10, 2008, Defendant Clark joined CDCR's motion to quash. (Doc. 89.) On January 9, 2009, Plaintiff filed an opposition to the motion, CDCR filed a reply on January 16, 2009. (Docs. 94, 95.) The motion to quash and objections are now before this Court.

II. Discovery via Federal Rule of Civil Procedure 45

Federal Rule of Civil Procedure*fn4 34 governs discovery of designated documents, electronically stored information, and designated tangible things subject to the provisions of Rule 26(b). Meeks v. Parsons, 2009 WL 3003718, *2 (E.D. Cal. 2009) (citing Fahey v. United States, 18 F.R.D. 231, 233 (S.D.N.Y. 1955). Rule 26(b)(1) establishes the scope of discovery, stating in pertinent part:

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 books, documents, or other tangible things and the identity and location of persons having knowledge 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 trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, under Rule 34, the test for admissibility is the relevance of the requested material or information. Id., (citing Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir.1980); White v. Jaegerman, 51 F.R.D. 161, 162 (S.D. N.Y. 1970); Ceramic Corp. of Amer. v. Inka Maritime Corp., Inc., 163 F.R.D. 584 (C.D. Cal. 1995)).

"The law [of discovery] begins with the presumption that the public is entitled to every person's evidence." Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389 (N.D. Cal. 1976). A nonparty may be compelled to produce documents and tangible things via Rule 45 subpoena. Fed. R. Civ. P. 34(c). Assuming that a subpoena is properly constituted and served, Rule 45 requires the subpoena's recipient to produce the requested information and materials, provided the issuing party "take[s] reasonable steps to avoid imposing undue burden or expense." Fed. R. Civ. P. 45(c)(1) and (d)(1). The recipient may object to all or part of a subpoena, or move to quash or modify it. Fed. R. Civ. P. 45(c)(2) and (3).


CDCR and Defendant Clark seek to quash the SDT on the grounds that it: (1) is procedurally deficient for lack of a proof of service and was served on Warden Clark rather than the custodian of records (Doc. 87, Mot. to Quash, pp. 5:14-6:6); (2) is facially overbroad and compliance would cause an undue burden on CDCR (id., at pp. 6:7-6:14); (3) the information sought is protected by the official information privilege (id., at pp. 7:7-8:18); (4) release of the information sought would violate individual privacy rights (id., at pp. 10:3-10:19); (5) the information sought is privileged under the California Constitution, the California Evidence Code, the California Government Code, the California Penal Code, and section 3321 of Title 15 of the California Code of Regulations (id., at pp. 8:19-12:2); (6) any documents released should be submitted for an in camera review (id., at pp. 9:18-10:2); and (7) a protective order should issue as to any document(s) ultimately released. (id., at pp. 12:3-12:16). Defendants' objections raise some*fn5 of the same issues such that analysis of an issue herein is applicable to both the motion to quash and the objections.

A. Procedural Deficiencies

CDCR argues that the SDT is procedurally deficient because it fails to include an executed proof of service and purports to serve the Warden of SATF instead of the true custodian of the records sought. Defendants argue that while they did receive notice of the SDT from the Court's CM/ECF posting, this did not relieve Plaintiff of his duty to serve the parties and the copy on CM/ECF lacked an executed proof of service.

1. Proof of Service

CDCR argues that the SDT is deficient because it was not accompanied by a proof of service showing compliance with the notice requirements of Rule 45(b) and Local Rule 250.5.*fn6

Rule 45 governs subpoenas duces tecum for the production of documents. "If a subpoena commands the production of documents . . . before trial, then before it is served, a notice must be served on each party." Fed. R. Civ. P. 45(b)(1). A subpoena duces tecum directed to a party or non-party must be served on all parties to the action and on the non-party. L.R. 250.5. "Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served." Fed. R. Civ. P. 45(b)(4). "The purpose of such notice is to afford other parties an opportunity to object to the production or inspection or to serve a demand for additional documents or things." Fed. R. Civ. P. 45, Advisory Committee Notes, 1991.

CDCR argues that they cannot determine if the parties were properly served because the proof of service attached to the SDT was blank. They also argue that any production of documents by CDCR may potentially injure a party's opportunity to object. Plaintiff responds in his opposition that the SDT should not be quashed for failure to serve an executed proof of service because he followed the Court's instructions when submitting information required for issuance of the SDT, and the Court directed the Clerk to serve a copy of the SDT on all parties. In reply, CDCR again argues that only a blank proof of service form accompanied the SDT and that Plaintiff's opposition should be disregarded because it was filed fourteen days after the deadline to file any such opposition.

With regard to CDCR's claim that the opposition was filed late, Local Rule 230(l), which governs motions in prisoner cases, provides in part:

Opposition, if any, to the granting of the motion shall be served and filed by the responding party not more than twenty-one (21),days after the date of service of [a] motion. . . . The moving party may, not more than seven (7) days after the opposition is served, serve and file a reply to the opposition.

L.R. 230(l).

CDCR's motion to quash was filed and served on December 5, 2008. (Doc. 87.) Therefore, under Local Rule 230(l), Plaintiff's opposition was due twenty-one (21) days later, on December 26, 2008. Plaintiff placed his opposition with prison staff for mailing*fn7 on January 6, 2009. (Doc. 94.) Clearly Plaintiff's opposition was untimely. However, CDCR's reply was also untimely as Plaintiff's opposition was served on January 6, 2009, resulting in a deadline of January 18, 2009, for CDCR to file and serve a reply. Although CDCR's reply was timely filed, a copy was not served on Plaintiff until one day after the deadline. (Docs. 95, 96.) It would be inapposite to grant CDCR's request to ...

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