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Pcpatrick Kunkel v. N. Dill

September 6, 2011

PCPATRICK KUNKEL,
PLAINTIFF,
v.
N. DILL, ET AL.,
DEFENDANTS.



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

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (ECF Nos. 109, 116, 117, 118) ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A MOTION TO COMPEL (ECF No. 119, 120) ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SIXTY DAY EXTENSION OF TIME(ECF No. 121)

I. Procedural History

Plaintiff Patrick Kunkel ("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 Plaintiff's First Amended Complaint, filed October 8, 2009, against Defendants Garcia, Mendoza, Araich, Mackey, Robaina, Dileo, Dill, Pfeiffer, Ali, and Zamora for the violation of Plaintiff's rights under the Eighth Amendment. Plaintiff filed a Motion to Compel on June 3, 2011. (ECF No. 109.) On June 21, 2011, Defendants filed an Opposition and Plaintiff filed a Reply on June 6, 2011. (ECF Nos. 116, 117, 118.) Plaintiff filed a Motion for Leave to File a Motion to Compel because Defendants refuse to meet and confer on August 1, 2011, and Defendants filed an Opposition onAugust 18, 2011. (ECF Nos. 119, 120.) On August 24, 2011, Plaintiff filed a Motion for an Extension of Time. (ECF No. 121.)

II. 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).

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.

Under Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them." Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472 (D.Nev., 1998) quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev., 1991). A party is deemed to have control of documents when it has a legal right to obtain the documents. Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1 (E.D.Cal. Mar. 19, 2010). The relationship between the party and the person or entity having control of the documents is central to the inquiry of whether the party has control. Clark, 181 F.R.D. at 472. The special relationship that allows the party to command release of the documents usually exists under statute, affiliation or employment. Id.

A. Plaintiff's Motion to Compel

Plaintiff propounded requests for production of documents and brings this motion seeking an order to compel Defendants to produce documents responsive to three of his requests for production.

Plaintiff's Seventh Request for Production of Documents, POD No. 7 states:

(KVSP) medical Appeal Tips book located in clinic's [sic]. It's a 3-ring binder located in medical that staff use to answer appeals.

Plaintiff requests this book because it is his contention (KVSP) illegally denied his medical appeals.

Defendants' response states:

Objection. Asked and answered. Plaintiff's Request for Production of Documents, Set Three.

Defendants' response to POD, Set Three states:

Objection. Compound, and vague as to "tips," deals with," and "book in the medical office." Without waiving the objections, responding parties hereby produce California Code of Regulations, Title 15, §§ 3084.7 and 3085, and CDCR Department Operations Manual §§ 54100.32. Defendants'supplemental response states:

Objection. Compound, and vague as to "tips," deals with," and "book in the medical office." There is a document entitled "Appeals Tips" but it is protected by the attorney-client privilege and ...


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