The opinion of the court was delivered by: Judge Sabraw
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR DISCOVERY-RELATED RELIEF [ECF NO. 110]
Vallery's Motion for Discovery-Related Relief was filed nunc pro tunc to October 28, 2011 [ECF No. 110]. Plaintiff seeks an order directing the Defendants to (1) disclose missing pages from the produced documents, (2) conduct a more diligent document search, and (3) search for the correct classes of documents. Vallery also seeks an order requiring any CDCR employee to (1) file a declaration identifying policies regarding the destruction of the documents sought and (2) file a declaration establishing whether any documents were destroyed; Plaintiff requests that the person who conducted the searches document the steps taken in doing so. (Mot. Disc. Related Relief 2-3, ECF No. 110.) The Plaintiff also moves the Court for an "independent judicial determination of whether Defendants' document searches and reviews were diligent." (Id. at 3.)
On November 18, 2011, Defendants' Opposition to Plaintiff's Motion for Discovery-Related Relief was filed, along with the Declaration of John P. Walters and eight exhibits in support [ECF No. 115]. There, the Defendants argue that the Motion should be denied because it is based, in part, on Vallery's misunderstanding of the exhibits and Court orders, and because Defendants properly complied with the Court orders and discovery requests. (Defs.' Opp'n 2, ECF No. 115.)
The Court has considered the arguments raised in Vallery's Motion and Defendants' Opposition. The Court GRANTS in part and DENIES in part Plaintiff's Motion for Discovery-Related Relief [ECF No. 110].
In response to a request for production of documents under Rule 34 of the Federal Rules of Civil Procedure, a party is to produce all responsive documents in the party's "possession, custody, or control." Fed. R. Civ. P. 34(a)(1). A party may be required to produce a document that is in the possession of a nonparty entity if the party has the legal right to obtain the document. Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). The term "control" is broadly construed, and it includes the legal right of the responding party to obtain documents from other sources upon demand. Id. (quotation and citations omitted);
7 James Wm. Moore, et al., Moore's Federal Practice, § 34.14[b], at 34-75 (3d ed. 2011) (footnote omitted).
"[W]hen a response to a production of documents is not a production or an objection, but an answer, the party must answer under oath." 7 James Wm. Moore, et al., Moore's Federal Practice, § 34.13[a], at 34-57 (footnote omitted); see id. § 34.14[a], at 34-73 (footnote omitted); see also Schwartz v. Marketing Publ'g Co., 153 F.R.D. 16, 21 (D. Conn. 1994) (citing cases establishing that the absence of possession, custody, or control of documents that have been requested must be sworn to by the responding party).
A. Order Directing Further Responses
Based on the documents produced by Defendants, the Court finds that Vallery's arguments are without merit. The employee history summary provided to Vallery is complete; Plaintiff mistakes fax pagination with the number of pages in the document. Although Vallery believes the inmate appeal log is incomplete, his suspicion is insufficient to refute Defendants' assertion that the document is complete. The Plaintiff's request for an order directing Defendants to disclose missing pages from Exhibits A and D is DENIED.
The Plaintiff's Motion seeking an order instructing Defendants to conduct a more diligent ...