UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 20, 2011
CHRIS CHRONES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
Plaintiff Keith Zavala ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is 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 amended complaint, filed May 24, 2010, against Defendants Chris Chrones, S. Kays, D. Smith, C. Martin, and Soto. Pending before the Court is Plaintiff's amended motion to compel, filed May 23, 2011.*fn1 Doc. 65. Defendants filed their opposition on June 9, 2011. Doc. 66. Plaintiff filed his reply on June 22, 2011. Doc. 67. The matter is submitted pursuant to Local Rule 230(l).
I. Production Of Documents
In responding to discovery requests, Defendants must produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a). Actual possession, custody or control is not required, however. "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, 620 (N.D. Cal. 1995).
Plaintiff contends that Defendants have more documents in their possession, custody, or control than were produced. Plaintiff moves for the production of the following documents:
1. All written statements, originals or copies, identifiable as reports about the incident on September 15, 2007, on and of Facility B Kern Valley State Prison, made by prison and civilian employees of the Department of Corrections and prisoner witnesses, and other departments or outside agencies.
2. List of all prisoners housed in A.S.U. #1 and A.S.U. B1 from July 15, 2007 through January 1, 2008.
3. List of all employees working on Facility B, including A.S.U. #1 (South) and A.S.U. B1, at the time of the incident of September 15, 2007, and three months prior.
Pl.'s Mot. Compel 1-6, Doc. 65. Plaintiff has now submitted his arguments as to why Defendants' responses were deficient.
A. Request For Production No. 1
Plaintiff contends that Defendants or Defendants' counsel has control of additional documents. Mot. Compel 2:11-27. Plaintiff contends, for example, that Defendant Soto informed him of 1) an internal memorandum regarding Plaintiff's safety concerns, and 2) communications with the California Inspector General's office about Defendant Martin. Id. at 3:18-4:1. Plaintiff further contends that Defendants should produce documents in support of their answers, which deny many of Plaintiff's allegations regarding the September 15, 2007 incident. Id. at 4:3-16.
Defendants contend that they have discovered Rules Violation Reports ("RVR") and related documents for inmates Prescott and Reyes, who apparently were involved in the attack on Plaintiff at issue. Defs.' Opp'n 3:8-18. Defendants contend that any other documents related to the incident are in the control of the Kern County district attorney's office, Kern County Superior Court, or Kern County grand jury, and that Plaintiff should obtain such documents through subpoena. Id.
Plaintiff contends that he has not received the RVR for inmate Reyes. Pl.'s Reply 2. Plaintiff also contends that there are interdepartmental communications, including internal affairs investigations and confidential reports generated after the alleged incident. Id.
Defendants' counsel declares that he has turned over all documents in CDCR's possession or control regarding the attack on Plaintiff. The Court finds that Defendants' additional responses to Plaintiff's discovery requests are sufficient. The Court reminds Defendants that they are under a continuing obligation to turn over any additional documents that they later discover which are responsive to Plaintiff's request. Fed. R. Civ. P. 37(c). For example, if the memorandum concerning Plaintiff's safety concerns and communications with the Inspector General's office concerning Defendant Martin, as mentioned in Plaintiff's motion to compel, are in Defendants' possession, custody, or control, Defendants and their counsel have an obligation to supplement their responses.
Plaintiff also contends that Defendants have documents that support their alleged argument that Plaintiff caused his own injury. Pl.'s Mot. Compel 4:3-16. Defendants' answer merely denies Plaintiff's allegations in paragraphs 12 through 15 of the second amended complaint. Defs.' Answer, Doc. 27; Doc. 59. There is no indication in the record that any particular document or other evidence supporting their answer exists. If such documents do exist, are in the possession, custody, or control of Defendants, and are responsive to Plaintiff's discovery requests, Defendants are required to supplement their response.
Accordingly, Plaintiff's motion to compel further responses to Plaintiff's request for production of documents No. 1 is denied.
B. Requests Nos. 2 and 3
Plaintiff contends that a list of all prisoners housed in ASU (administrative segregation unit)No. 1 and B1, from July 1, 2007 through January 1, 2008, is necessary for Plaintiff's action, as there may be relevant witnesses to statements made by Defendant Martin that formed the basis of the alleged assault on Plaintiff. Pl.'s Mot. Compel 4:21-5:5. Plaintiff contends that a list of employees working on facility B, including ASU No. 1 and ASU B1, from September 15, 2007 to three months prior, is necessary to determine what staff were aware of the attack that would happen to Plaintiff. Id. at 5:11-25.
Defendants contend that Plaintiff has the list of names of relevant witnesses, as seen on the RVRs provided to Plaintiff regarding the incident at issue. Defs.' Opp'n 3:19-4:5. Defendants contend that to produce the lists over a period of three to six months would become attenuated and overly burdensome. Id. Defendants contend that Plaintiff's requests amount to a fishing expedition. Id. Plaintiff contends that this expedition is necessary because of the nature of the suit. Pl.'s Reply 3.
Though the Court is aware of the nature of Plaintiff's claims, Plaintiff's requests are unduly burdensome and not reasonably calculated to lead to the production of admissible evidence. Defendants' counsel attests that in communicating with CDCR, he learned that to create such a list would be extremely burdensome and time-consuming because of the time period, movement of inmates, and three shifts of employees. Defs.' Opp'n, Richard B. Price Decl. ¶ 6. Defendants' counsel attests that a list would have to be created to respond to a court order compelling further response. Id. The Federal Rules of Civil Procedure governing the production of documents does not govern the creation of documents that are not currently in existence, electronically stored or otherwise.
Plaintiff is not left without means of discovering the identities of potential witnesses relevant to this action. Plaintiff, for example, is aware of at least one inmate witness, and has been or will be provided RVRs which contain information as to other potential witnesses, inmates or prison staff. Plaintiff's requests for production of documents Nos. 2 and 3, however, are overly burdensome.
II. Conclusion And Order
Based on the foregoing, it is HEREBY ORDERED that Plaintiff's motion to compel, filed May 23, 2011, is denied.
IT IS SO ORDERED.