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Lamont Shepard v. James E. Tilton

November 10, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


(DOC. 25)


I. Background

Plaintiff Lamont Shepard ("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 complaint, filed January 6, 2010, against Defendants L. A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz, and A. Trevino for violation of the Eighth Amendment. Pending before the Court is Plaintiff's motion to compel, filed August 17, 2011. Doc. 25. On August 26, 2011, Defendants filed their opposition. Doc. 26. On September 6, 2011, Plaintiff filed his opposition, construed as a reply. Doc. 29. The matter is submitted pursuant to Local Rule 230(l).*fn1

II. Motion To Compel

Plaintiff initially moved to compel responses to his first set of interrogatories, requests for admissions, and requests for production of documents. Pl.'s Mot. Compel 2-3, Doc. 25. Plaintiff also requests sanctions. Id. Defendants contend that they received extensions of time to respond to Plaintiff's discovery requests. July 6, 2011 Order Granting Extension Of Time, Doc. 22; August 12, 2011 Order Granting Extension Of Time, Doc. 24. Defendants submit proofs of service for all the responses. Defs.' Opp'n, Ex. A. Defendants' responses appear timely. Defendants thus will not be sanctioned pursuant to Federal Rule of Civil Procedure 37.

Plaintiff concedes the timeliness of Defendants' responses. Pl.'s Reply 1, Doc. 29. Plaintiff moves to compel further responses to Requests Nos. 4, 5, 10, 11, and 12. Defendants' supplemental opposition addresses each.

A. Legal Standard

In responding to discovery requests, Defendants must produce documents or other tangible things 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). As this Court explained in Allen v. Woodford, 2007, U.S. Dist. LEXIS 11026, *4-6, 2007 WL 309945, *2 (E.D. Cal. Jan. 30, 2007) (internal citations and quotations omitted):

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. A party having actual possession of documents must allow discovery even if the documents belong to someone else; legal ownership of the documents is not determinative. Control need not be actual control; courts construe it broadly as the legal right to obtain documents upon demand. Legal right is evaluated in the context of the facts of each case. The determination of control is often fact specific. Central to each case is the relationship between the party and the person or entity having actual possession of the document. The requisite relationship is one where a party can order the person or entity in actual possession of the documents to release them. This position of control is usually the result of statute, affiliation or employment. Control may be established by the existence of a principal-agent relationship.

Such documents also include documents under the control of the party's attorney. Meeks v. Parson, 2009 U.S. Dist. LEXIS 90283, 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 product otherwise discoverable documents that are in his attorneys' possession, custody or control."); Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ill. 1992); see also Cal. Code Regs. tit. 15, § 3370(e) ("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.").

B. Requests For Production

Request No. 4: Any tape, recording, or photo's [sic] of plaintiff on August 4, or 5, 2009. Response: Responding party objects to this request on the grounds that it lacks foundation. Without waiving any objection, responding parties have no responsive documents in their possession, custody, or control other than the photographs produced in Attachments A and D. Plaintiff cannot posses [sic] in his cell a video cassette or DVD of the use-of-force interview conducted by Sergeant Cruz on August 5, 2009, but upon request to defense counsel, ...

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