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Anthony Gaston v. Terronez

June 21, 2011

ANTHONY GASTON,
PLAINTIFF,
v.
TERRONEZ,
DEFENDANT.



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

ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (ECF. No. 35, 40)

I. Procedural History

Plaintiff Anthony Gaston ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the First Amended Complaint, filed May 4, 2009, against Defendant Terronez for violations of the Eighth Amendment and Americans With Disabilities Act. On February 24, 2011, an Order issued partially granting Plaintiff's Motion to Compel. (ECF No. 38.) On March 8, 2011, Plaintiff filed an Objection to the denial of his second, third and fourth Request for Production of Documents because he did sufficiently argue the relevance of the documents in his reply . (ECF No. 40.) Since this case has been reassigned the Court will grant Plaintiff's Request for Reconsideration.

II. Complaint Allegations

Plaintiff alleges that he is a disabled inmate and has a permanent order for diapers. On April 4, 2007, Defendant Terronez refused to provide Plaintiff with his weekly order of diapers because she thought the order had expired. Due to Defendant's failure to provide him with his diapers, Plaintiff had to live in his own feces from April 4 through 11, 2007.

III. Legal Standard

"Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . . 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). For document production requests, responding parties must produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a)(1). "Property is deemed within a party's 'possession, custody, or control' if the party has actual possession, custody, or control thereof or the legal right to obtain the property on demand." Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)); accord Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 719206, at *4 (S.D.Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1 (E.D.Cal. Mar. 19, 2010).

If Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden on his motion to compel to demonstrate why the objection is not justified. In general, Plaintiff must inform the Court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the Court why the information sought is relevant and why Defendants' objections are not meritorious.

IV. Request for Production of Documents, Set Two

Plaintiff's Request for Production states:

Please produce a copy of any documents that defendant relied on to believe that Plaintiff's order for diapers expired on April 10, 2007. Defendants response states:

Objection. This request is compound, vague, ambiguous, calls for speculation, is violative of the attorney-client and/or work product protections, over breadth, not relevant, nor likely to lead to the discovery of relevant admissible evidence. It also violates the privacy interests of third parties, the Official Information Privilege and HIPPA and is unduly burdensome. Subject to and without waiving these objections, defendant responds as follows: Cannot respond to this Request as phrased.

Plaintiff's argument: Plaintiff is alleging that Defendant Terronez' denial of his request for medical supplies was deliberately indifferent. The existence of any documents responsive to this request are relevant to the claims in this action and should be in Plaintiff's medical file.

Defendant's objection: Defendant makes the same objection to all Plaintiff's requests for production. The documents that are requested are protected by the Official Information Privilege. This requires that Plaintiff make a threshold showing of need that is more than just speculative. Once Plaintiff ...


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