The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner, presently housed at Atascadero State Hospital ("ASH"), and proceeding through counsel. Plaintiff's motion to compel discovery and for sanctions came on for hearing December 8, 2011. Joanna H. Kim and Brian M. Rothschild appeared for plaintiff. Edgar R. Nield appeared for nonparty California Department of Corrections and Rehabilitation ("CDCR"). Grant Lien, Deputy Attorney General, appeared for defendants.
I. Plaintiff's First Amended Complaint
Plaintiff claims that while he was housed at California State Prison - Sacramento, located in Folsom, California, defendants Claborne, Nelson and Vance violated plaintiff's Eighth Amendment rights by failing to protect plaintiff from an inmate who was known to have a mental illness. (Dkt. No. 26 at 10-11.) Plaintiff seeks actual and punitive damages.
II. Prior Court Orders re Discovery
On August 4, 2011, the court partially granted plaintiff's motion to reopen discovery, and ordered plaintiff to notice defendants' depositions as soon as practicable, but that the depositions were to be completed on or before November 1, 2011. (Dkt. No. 134 at 4.) The parties were warned that the "court is not inclined to grant any further extensions for either party." (Id. (emphasis added).) On August 24, 2011, the court granted in part plaintiff's request to conduct limited additional discovery. (Dkt. No. 140.) The court granted plaintiff's request to subpoena certain documents from the CDCR, and reminded the parties of their obligations concerning discovery. Specifically, the court stated: defendants' counsel is reminded that plaintiff's counsel is entitled to all documents defendants have to support their case. Fed. R. Civ. P. 26(a)(1)(A)(i) & (ii). The parties are under a continuing obligation to supplement discovery disclosures. Fed. R. Civ. P. 26(a)(1)(E). Both counsel are instructed to cooperate in the exchange of discovery so this stale case may be resolved expeditiously. Finally, defendants identified the documents intended to be offered as exhibits at trial in their pretrial statement, which are clearly set forth in the court's June 27, 2011 order. (Dkt. No. 126 at 8.) Therefore, plaintiff's application to request the production of documents set forth in plaintiff's exhibit A is granted. (Dkt. No. 137-1.) Within 14 days of the date of this order, defendants shall produce to plaintiff's counsel copies of all documents intended to be offered by defendants as exhibits at trial identified in their pretrial statement. (Dkt. No. 140 at 2 (emphasis added).) Despite this court order, two days later, in response to plaintiff counsel's request for a discovery conference, defendants' counsel sent an email on August 26, 2011, stating:
Since this case started out as a pro se inmate case, Rule 26 discovery rules do not apply. Thus, the documents identified in Defendants' previously-filed pretrial statement - and that we are currently in possession of [-] are what will be produced within the court-ordered deadline. Since discovery is continuing, it is possible that Defendants will identify additional documents to be used at trial and we will of course identify and/or produce those as required by the Federal Rules of Civil Procedure, Eastern District Local rules, and Court orders. It should be noted that Defendants have not yet identified with any definitiveness what documents Defendants will use as exhibits at trial and the Court did not order us to produce such documents.
To be clear, now that both parties are represented by counsel, Rule 26 of the Federal Rules of Civil Procedure does apply to this action. Given the age of this case, counsel for all parties are directed to cooperate in discovery.
III. Efforts to Obtain Subpoenaed Documents
As early as 2008, plaintiff, no longer incarcerated in state prison but housed at ASH, and proceeding without counsel, attempted to obtain copies of documents held in plaintiff's central file. (Dkt. No. 149-1 at 12.) On June 23, 2008, defendants responded to plaintiff's pro se request for production of documents from plaintiff's central file, stating: under title 15, section 3370(c), Plaintiff can request a review of his central file. Plaintiff should address his request to the Litigation Office, CSP-LAC, 44750 60th Street W, Lancaster, CA 93536, which is where these records are currently stored while Plaintiff is at Atascadero State Hospital. (Dkt. No. 149-1 at 13.)
On August 26, 2011, at 10:17 a.m., the subpoena at issue herein was personally served on Cindy Scholl, Staff Services Analyst, at 300 Prison Road, Folsom, California 95630. (Dkt. No. 149-1 at 26.) The subpoena was addressed to the Custodian of Records for CDCR. (Id.) The subpoena provided for production of documents on September 16, 2011, at 10:00 a.m., and sought the following documents:
1. All documents (including but not limited to CDC 634 incident packages, reports, notes, memoranda, or interview summaries or transcripts) in Your possession, custody, or control relating to any incidents or occurrences between (i) the date Robinson [footnote omitted] was first housed at CSP-Sac or September 1, 2003, whichever is earlier, and (ii) May 20, 2004 (but in no event more than three years prior to (ii)) of Robinson's involvement in incidents of violence, confrontations (including violent and non-violent confrontations), altercations, or arguments.
2. All documents including but not limited to CDC 634 incident packages, reports, notes, memoranda, or interview summaries or transcripts) in Your possession, custody, or control relating to complaints by other inmates, or by Your employees, staff, professionals, guards, or other personnel, relating to violence, propensity for violence, or threats of violence by Robinson between (i) the date Robinson was first housed at CSP-Sac or September 1, 2003, whichever is earlier, and (ii) May 20, 2004, (but in no event more than three years prior to (ii)) while Robinson was incarcerated.
3. All documents in Your possession, custody, or control (including but not limited to CDC 634 incident packages, reports, notes, memoranda, or interview summaries or transcripts) relating to any incidents or occurrences between September 1, 2003, and May 20, 2004, while Scruggs was incarcerated of Scruggs' involvement in violence, confrontations (including violent and non-violent confrontations), altercations, arguments, or similar incidents, including all CDC 634 incident packages or similar documents.
4. All documents in Your possession, custody, or control (including but not limited to CDC 634 incident packages, reports, notes, memoranda, or interview summaries or transcripts) relating to complaints by other inmates, by employees, staff, professionals, guards, or other personnel, relating to violence, propensity for violence, or threats of violence by Scruggs between September 1, 2003, and May 20, 2004, while Scruggs was incarcerated.
5. All documents in Your possession, custody or control relating to determination of cell or housing status of Robinson between (i) the date Robinson was first housed at CSP-Sac or September 1, 2003, whichever is earlier, and (ii) May 20, 2004, (but in no event more than three years prior to (ii)) while Robinson was incarcerated, including minutes of any meetings of the Institutions and Classifications Committee, Interdisciplinary Treatment Team, or any similar entity.
6. All documents in Your possession, custody or control relating to determination of cell or housing status of Scruggs between September 1, 2003, and May 20, 2004, while Scruggs was incarcerated, including minutes of any meetings of the Institutions and Classification Committee, Interdisciplinary Treatment Team, or any similar entity.
7. All documents in Your possession, custody or control relating to any and all procedures governing the response to inmate-on-inmate violence and threats of inmate-on-inmate violence that were in effect in May of 2004 at CSP-Sac.
(Dkt. No. 149-1 at 23-24.)
On September 1, 2011, counsel for plaintiff spoke with Jason Hurtado, counsel for CDCR, to inquire about the production. (Dkt. No. 149-1 at 3.) Plaintiff's counsel sent Mr. Hurtado a copy of this court's August 24, 2011 order. (Dkt. No. 149-1 at 30.) During this conversation, Mr. Hurtado informed plaintiff's counsel that service of the subpoena duces tecum was improper pursuant to policies and procedures of the CDCR. (Dkt. No. 149-5 at 2.) Despite the alleged improper service, Mr. Hurtado set about locating the central files of plaintiff and inmate Robinson. (Id.)
On September 14, 2011, plaintiff's counsel again called CDCR counsel, Mr. Hurtado, who informed plaintiff's counsel that the litigation office did not have access to the inmate files, and that despite Mr. Hurtado's efforts, Mr. Hurtado was unable to locate them. (Dkt. No. 149-1 at 3, 149-5 at 2.) Mr. Hurtado suggested that plaintiff's central file may have been transferred to ASH with plaintiff. (Id.)
Accordingly, on September 15, 2011, plaintiff's counsel contacted ASH requesting access to plaintiff's prison files, but was told that the Department of Mental Health, which controls ASH, does not maintain or have access to patients' prior prison files. (Dkt. No. 149-1 at 4.) On September 29, 2011, plaintiff's counsel confirmed that no prison records (except certain medical records) for plaintiff were housed at the Department of Mental Health. (Dkt. No. 149-1 at 4.)
Significantly, later on September 14, 2011, Mr. Hurtado received correspondence from legal analyst Angie Brodbeck of the office of the Attorney General, who told Mr. Hurtado that both files were now located at case records headquarters in the possession of case analyst Paula Sholberg. (Dkt. No. 149-5 at 3.) Mr. Hurtado declares that it is his understanding that Marilyn Ouye, Correctional Case Records Administrator assisted Sholberg in producing certain non-confidential documents relating to both inmate Robinson and plaintiff to plaintiff's counsel on or about September 14, 2011. (Id.) However, despite CDCR counsel having received information that what he told plaintiff's counsel earlier that day concerning the location of the files was incorrect, Mr. Hurtado apparently made no effort to inform plaintiff's counsel that the files had been located.
On September 16, 2011, plaintiff's counsel received approximately 110 pages of documents from CDCR, of which 11 pages related to plaintiff. (Dkt. No. 149-1 at 4.) At least 31 pages of the production were copied in a manner so as to cut off or render portions of the documents unreadable. (Id.) The documents referred to 112 digital photos relating to inmate Robinson's assault on plaintiff, but no photographs were included in the production. (Id.)
On September 28, 2011, plaintiff's counsel emailed CDCR counsel, Mr. Hurtado, noting that CDCR produced only 11 documents relating to plaintiff, and asked Mr. Hurtado to confirm that those documents were the "only documents or records in the CDCR's possession, custody, and control responsive to requests 3, 4 and 6 of the subpoena." (Dkt. No. 149-1 at 4.) The September 28 email listed the 11 documents by name. (Dkt. No. 149-1 at 32.)
On September 30, 2011, Hurtado emailed plaintiff's counsel, stating: The CDCR has provided documents responsive to the subpoena issued by your office and pursuant to the language of Magistrate Judge Kendall Newman's, August 23, 2011 order. Should you have any further questions pertaining to the Scruggs case, please direct them to Deputy Attorney General Michelle Angus. (Dkt. No. 149-1 at 34.)*fn1
On October 4, 2011, at 5:33 p.m., plaintiff's counsel emailed Mr. Hurtado, with a copy directed to defendants' counsel, DAG Michelle Angus, informing Mr. Hurtado that it was still not clear that the CDCR had fully complied with the subpoena and court order, and asked him to consider the email as a meet and confer communication for purposes of Local Rule 251(b). (Dkt. No. 149-1 at 37.) Plaintiff's counsel reiterated his disbelief that there were only 11 documents related to plaintiff that were responsive to the subpoena, and pointed out certain deficiencies in the production. (Id.) Finally, plaintiff's counsel advised Mr. Hurtado that defendants' depositions were set for October 12, 2011, and counsel needed the documents no later than October 7, and asked Mr. Hurtado to call at his "earliest convenience to discuss these matters." (Dkt. No. 149-1 at 38.)
After receiving the October 4 email, Mr. Hurtado determined that the matter "would best be handled by outside contract counsel," and contacted the Nield Law Group. (Dkt. No. 149-5 at 3.) On October 6, 2011, the law firm Nield Law Group was retained to represent nonparty CDCR. (Dkt. No. 149-4 at 2.)
On October 6, 2011, forty-five days after the subpoena was personally served, plaintiff's counsel received a phone call from Gabrielle Nield, informing him of her representation of CDCR, and advising that the "subpoena was overly broad and contained requests for confidential information which CDCR would not produce." (Dkt. No. 149-1 at 5.) Plaintiff's counsel advised her of the court's August 24 order, and Ms. Nield requested a copy. (Id.) Later that day, Ms. Nield sent plaintiff's counsel an email, claiming that there was an issue related to proper service of the subpoena, and stated her office "would like to narrow and discuss the documents that you are requesting in that subpoena." (Dkt. No. 149-1 at 41.) Ms. Nield advised that there were no CDC 634 incident packages, but they would determine if any such non-confidential documents existed related to request #1, redact third party names, and produce them. (Id.) She also stated that "[t]he production of any of the documents requested would be subject to a Protective Order which [her] office will prepare." (Id.) Ms. Nield noted that the court's protective order related only to inmate Robinson's documents. (Id.)
On October 6, 2011, plaintiff's counsel emailed Ms. Nield, informing her that the court approved the subpoena, which mirrored the order, that he was willing to discuss a protective order, and noting that the CDCR had not timely objected to the subpoena, but produced only a "very limited set of documents." (Dkt. No. 149-1 at 43.) Plaintiff's counsel wrote:
We then tried to ascertain whether the CDC had produced all responsive documents. We could not receive a straight answer from CDC's counsel for several weeks. CDC's counsel first claimed he had no obligation to search for certain documents, then claimed Scruggs' file was not in the CDC's control, then claimed that the CDC did produce responsive documents, and finally referred us to Defendants' counsel for reasons that we do not understand. Only now, after you became involved, have we learned that not all responsive documents have been produced.
Defendants' depositions are scheduled for Wednesday-Friday of next week. We have spent significant time preparing for those depositions. It now sounds like we will not receive the CDC's production before the depositions take place. (Dkt. No. 149-1 at 43.) Plaintiff's counsel stated that in light of the impending depositions, he could not allow the late request for a protective order to slow down the production process, would have to file a motion to compel, and had already initiated the meet-and-confer process with Mr. Hurtado. (Id.)
Plaintiff's counsel declares that on October 7, 2011, he spoke with Ms. Nield who "indicated that the production had been completed in September and that [she] was unaware of any deficiencies in the production." (Dkt. No. 149-1 at 6.) Plaintiff's counsel informed her that he previously notified Mr. Hurtado of the deficiencies. (Id.) That same day, at 3:28 p.m., plaintiff's counsel emailed Ms. Nield a copy of the October 4 email to Mr. Hurtado, and noted a new omission in the production had come to light: no documents or reports generated from CDCR electronic files were produced. (Dkt. No. 149-1 at 46.) Plaintiff's counsel asked Ms. Nield to notify him by October 8 whether the production defects could be remedied prior to the depositions. (Id.)
In response, on October 7 at 3:33 p.m., Ms. Nield emailed that she was not in possession of the central files, but that CDCR case records headquarters had them. (Dkt. No. 149-1 at 51.) She stated she would "review [his] email and attachments and see if any other documents exist that are not confidential and are responsive to the subpoena." (Id.) Later that day, at 3:43 p.m., Ms. Nield responded to plaintiff's request for digital photos, stating: "I do not believe they have capabilities to do that. Photocopies will be produced." (Dkt. No. 149-1 at 57.)
Earlier on October 7, 2011, at 1:37 p.m., defendants' counsel Angus emailed plaintiff's counsel, indicating she had become aware that there was "some question" as to whether CDCR had satisfied the subpoena:
Given this, I would like to know what your position is. I am not willing to produce Defendants for their depositions next week if you believe that CDCR has not produced all documents [in] its possession, custody, or control that it was obligated to produce under the court order and subpoenas if there is any potential that you will require Defendants' depositions to be continued until after a date that CDCR has complied with the subpoenas (or the Court issues an order on any dispute concerning compliance). In other words, I have significant concerns that you will require Defendants to appear for their depositions on two separate occasions. Please advise me [of] your position. (Dkt. No. 149-1 at 60.) At 4:47 p.m., plaintiff's counsel responded to defendants' counsel Angus by email, stating the depositions were already postponed or rescheduled based on her scheduling issues, and that in view of the court's scheduling order, plaintiff was in no position to postpone them further. (Dkt. No. 149-1 at 62.) ...