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Artay Scruggs v. S. Vance

November 22, 2011

ARTAY SCRUGGS, PLAINTIFF,
v.
S. VANCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND REVISED SCHEDULING ORDER

Plaintiff, currently housed at Atascadero State Hospital, is proceeding through counsel*fn1 with a civil rights complaint pursuant to 42 U.S.C. § 1983. Pending before this court are two motions: (1) plaintiff's motion to compel the nonparty California Department of Corrections and Rehabilitation ("CDCR") to comply with a subpoena duces tecum, and for sanctions, noticed for hearing on December 1, 2011; and (2) nonparty CDCR's motion to continue the hearing on plaintiff's motion to compel and for sanctions.

Plaintiff's Motion to Compel

In the November 11, 2011 motion to compel, counsel describes difficulties plaintiff has allegedly encountered in obtaining responsive and legible documents sought by an August 25, 2011 subpoena duces tecum. Specifically, plaintiff alleges the CDCR, during the last two months, has:

(1) objected to the Subpoena well after the compliance deadline;

(2) asserted that it has no obligation to search its "sub-institutions," a position which it subsequently retracted; (3) asserted that it does not have certain responsive documents, which turned out to be untrue; (4) sent the files containing responsive documents to the Defendants instead of implementing a search in response to the Subpoena; and (5) admitted that it did not know what documents it had previously produced; and (6) finally admitted as recently as November 3, 2011, that it failed to conduct a search for all relevant documents and intentionally excluded categories of relevant documents from its production. (Dkt. No. 144 at 2.) Plaintiff seeks an award of $4,500.00 in monetary sanctions against nonparty CDCR based on the CDCR's alleged "unreasonable failure to produce the documents requested by the Court's August 23*fn2 Order." (Dkt. No. 144 at 3.) Plaintiff also seeks evidentiary sanctions against defendants based on their alleged "collu[sion] with CDCR to coordinate its woefully inadequate and delayed response to the Subpoena." (Id.) Plaintiff alleges the CDCR sent the original documents to defendants, who: simultaneously feigned ignorance of CDCR's failure to comply with the Subpoena and, while in possession of documents being sought from CDCR and apparently preventing them from being produced to Plaintiff, Defendants attempted to use the CDCR's failure as an excuse to delay Defendants' depositions until CDCR actually produced all responsive documents.

(Dkt. No. 144 at 3-4.) Finally, plaintiff's counsel provided initial notice of plaintiff's intent to file a motion to compel on October 4, 2011, after which plaintiff's counsel attempted to resolve the discovery dispute both verbally and in writing. (Dkt. No. 144 at 4.)

CDCR's Motion for Continuance

In the November 21, 2011 motion, the CDCR seeks an extension of time in which to file the joint statement required by Local Rule 251, and a continuance of the December 1, 2011 hearing on the motion to compel to December 8, 2011. Nonparty CDCR provided a declaration of counsel, who avers the following:

1. CDCR counsel was retained on October 6, 2011. (Dkt. No. 146 at 6.)

2. Since October 6, 2011, CDCR counsel states he has been working diligently with plaintiff's counsel in an attempt to rectify any issues with those documents. (Id.) Counsel states that as of November 17, 2011, plaintiff's counsel was "in possession of all documents responsive to the subpoena duces tecum,*fn3 a majority of those documents he had from the September 15, 2011 production by Case Records." (Id.)

3. On November 3, 2011, CDCR counsel learned for the first time that plaintiff may be filing a motion to compel. CDCR counsel indicated to plaintiff's counsel that they had been working together to resolve issues and that a motion to compel was unnecessary and a waste of money and time. Plaintiff's counsel gave notice of the motion to compel after business hours on November 10, 2011, the evening before the Veteran's Day holiday. (Dkt. No. 146 at 6.)

4. On November 11, 2011, CDCR counsel emailed plaintiff's counsel and requested that if the motion to compel was not taken off calendar, that the hearing on the motion to compel be continued for a week or two so that a proper joint stipulation could be completed. (Dkt. No. 146 at 7, 10.)

5. CDCR counsel notified plaintiff's counsel on November 15 that CDCR counsel "would be overnighting documents to his office resolving any outstanding issues" and requested that the motion to compel be ...


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