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Artay Scruggs v. S. Vance

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 19, 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

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.

(Dkt. No. 149-1 at 27.)

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.) Plaintiff's counsel refused to agree to defendants' preconditions concerning whether the depositions could not be continued if the CDCR produced documents after the depositions, and stated he expected defendants to appear for depositions as noticed. (Id.)

On October 10, 2011, defendants' counsel Angus emailed plaintiff's counsel: I appreciate your position, but you have not yet informed me of what your position is with respect to CDCR's compliance with the subpoenas. Moreover, there are still two weeks left in which to take the Defendants' depositions if it is your position that CDCR has not yet fully complied. To be clear, Defendants' depositions will not be continued on the basis that additional documents are needed from CDCR; we will proceed with the depositions as noted, but they will need to be concluded on those days.

(Dkt. No. 149-1 at 62.)

On October 10, 2011, Ms. Nield sent plaintiff's counsel "91 photographs arranged 12 per letter sized page and scanned at low resolution." (Dkt. No. 149-1 at 7.) Submitted with the photographs was a declaration by Paula Sholberg, Special Assistant to the Chief, Correctional Case Records Services for the CDCR, attesting to her preparation and production of documents to plaintiff's counsel on September 14, 2011, and providing corrected and legible copies of documents previously produced. (Dkt. No. 149-1 at 66.) Ms. Sholberg declared that there were no additional documents responsive to items 5 and 6 of the subpoena relating to cell or housing status. (Id.) On October 11, 2011, Ms. Nield sent plaintiff's counsel:

(1) electronically generated reports showing the bed numbers occupied by [plaintiff and inmate Robinson], which did not contain any cellmate name information for either inmate; and (2) clean copies of two pages of the poorly-reproduced documents (out of a total of thirty-one pages). (Dkt. No. 149-1 at 7.)

Defendants were deposed on October 12 and 13, 2011. (Dkt. No. 149-1 at 7.) Defendant Nelson testified that he reviewed "a lot of documents" in preparation for the deposition, estimating about "150 pages," including "classification chronos, 837 Incident Reports, which would include the medical clearances." (Dkt. No. 149-1 at 85.) While discussing the factors that come into play in making cell assignments, defendant Nelson testified that he could access inmate central files, and on occasion did, but could not recall whether he accessed central files in connection with bed moves unless it was needed by the lieutenant. (Dkt. No. 149-1 at 91.) Defendant Nelson testified that no one asked him to collect and retain documents pertaining to this lawsuit. (Dkt. No. 149-1 at 100.)

On October 25, 2011, at 2:56 p.m., plaintiff's counsel emailed Ms. Nield, attaching copies of the documents that were defectively copied, requested their re-production, and providing a list of representative potential documents responsive to the subpoena that had not yet been produced. (Dkt. No. 149-1 at 118.) On October 26, 2011, at 3:53 p.m., Ms. Nield responded, acknowledging receipt of the documents improperly copied, but noting that the redactions included would remain, and stating that further redactions were in order as the last names of third parties were not redacted as they should have been. (Dkt. No. 149-1 at 120.) Ms. Nield confirmed that she asked for cleaner and darker copies of most of them. (Id.) She added:

Concerning the cell information, rosters etc. your requests are vague and ambiguous and outside the scope of your subpoena.

However, since we were not involved in the initial production, we will re-visit your requests and see if any additional housing, or cell information exists that is not confidential. We will need some time to gather any additional information.

In the interim, I do need the protective order that we forwarded to you a few weeks back signed and returned. (Dkt. No. 149-1 at 120.) On October 28, 2011, at 2:23 p.m., Ms. Nield emailed plaintiff's counsel and provided the declaration of C. Pesci and the production from the Distributed Data Processing System ("DDPS") Unit of the inmate housing bed/cell history for inmate Robinson, redacting the name of the third party inmate. (Dkt. No. 149-1 at 123.) She stated no additional documents exist at DDPS relating to the housing of Scruggs or Robinson. (Id.) Ms. Nield noted her understanding that plaintiff's counsel had the same document for plaintiff. (Id.) Ms. Nield noted they were attempting to determine if there were any CDC-154 or other classification documents relating to housing for both plaintiff and inmate Robinson. (Id.) Finally, Ms. Nield stated they had requested cleaner copies of the allegedly defective copies previously provided, but there would be some delay as the central files were being transferred back to the institutions. (Id.)

On November 1, 2011, plaintiff's counsel responded to Ms. Nield, inquiring "what is DDPS?" and Are you stating that no additional documents -- "confidential" or "non-confidential" -- relating to the housing of Scruggs or Robinson, their dangerousness, their enemies, violence, gang or disruptive group affiliation or disassociation or debriefing, incidents involving any of the foregoing exist within CDCR? Or is DDPS some sub-unit of CDCR?

(Dkt. No. 149-1 at 125.)

On November 4, 2011, Ms. Nield emailed plaintiff's counsel and "confirmed that the central files for [plaintiff] and inmate Lorenzo Robinson are at CSP-LAC in Lancaster." (Dkt. No. 149-4 at 9.) She confirmed that plaintiff's counsel indicated he had plaintiff's de- briefing report, which Ms. Nield contends is a confidential document. (Id.) Ms. Nield stated they were reviewing the central files to determine if confidential documents exist and, if so, would request that the confidential documents be forwarded to Ms. Nield who would then "entertain a conference with the Court to determine if the Court will conduct an in camera review" to avoid the expense and delay of a motion to quash. (Id.)*fn2 Ms. Nield continued:

On behalf of the CDCR, we can not produce confidential documents without a court order and the court's determination if the documents are relevant and outweighs the significant safety and security issues that release of such information can cause. Without an in camera review, the court is unable to make that determination. Without an Order from the Court and notice to third parties, the CDCR can not release any confidential information.

(Dkt. No. 149-4 at 9.) Ms. Nield reiterated that the CDC 154 no longer exists for 2003-04 because their retention period is one year, and they were reviewing inmate Robinson's files to see if there were any classification committee meeting documents. (Id.) Ms. Nield stated she would produce any non-confidential documents, if any exist, within the next week, and that if confidential documents exist, would "then determine if the Court will entertain a court conference call related to same and possible in camera review." (Id.)

On November 10, 2011, at 6:45 p.m., plaintiff's counsel emailed Ms. Nield, and informed her that the dispute concerning production of documents pursuant to the subpoena continued, and that plaintiff was filing a motion to compel and for sanctions. (Dkt. No. 149-4 at 12.) On November 14, 2011, at 10:51 a.m., Ms. Nield responded by email, expressing surprise over the filing of a motion in light of their diligence in getting the documents to plaintiff. (Id.) Ms. Nield confirmed that she received the documents on November 10, and was planning to discuss them with plaintiff's counsel on November 14, 2011. (Id.) Ms. Nield also stated she had the non-confidential documents re-copied and produced to plaintiff's counsel. (Id.)

On November 14, 2011, at 8:04 p.m., plaintiff's counsel emailed Ms. Nield, reminding her the subpoena was served in August of 2011, and that plaintiff's counsel had spent many hours meeting and conferring with CDCR counsel in an effort to obtain compliance with the subpoena. (Dkt. No. 149-4 at 15.) Plaintiff's counsel promised to treat confidentially documents produced, and to stipulate to a separate protective order. In light of CDCR's refusal to release certain unidentified documents deemed "confidential," plaintiff's counsel stated he had no choice but to file a motion to compel. (Id.)

On November 15, 2011, at 5:48 p.m., Ms. Nield emailed plaintiff's counsel, reiterating the history of their efforts to comply with the subpoena, and contending that their continuing efforts do not demonstrate a course of action designed to prevent plaintiff from gaining access to responsive documents, or show that CDCR was acting in bad faith. (Dkt. No. 149-4 at 14.) Ms. Nield stated her office was preparing to overnight the non-confidential documents from the central files of plaintiff and inmate Robinson, with third party names redacted, but would not produce any confidential document without a court order. (Id.)

On November 16, 2011, Ms. Nield sent, via overnight mail, non-confidential documents for inmates Scruggs and Robinson, along with a proposed protective order. (Dkt. No. 149-4 at 18.) She recommended counsel contact the court to request an in camera review of the confidential documents. (Id.)*fn3

On November 18, 2011, Ms. Nield emailed plaintiff's counsel, with a copy directed to DAG Grant Lien, asking plaintiff's counsel to advise if he was taking the motion to compel off calendar, but if not, seeking a week or two continuance of the motion to compel to allow CDCR sufficient time to prepare the joint stipulation. (Dkt. No. 149-4 at 21.) On November 21, 2011, Ms. Nield informed plaintiff's counsel she would seek an ex parte continuance in light of plaintiff's counsel's failure to respond to the November 18 email. (Dkt. No. 149-4 at 23.) Ms. Nield also informed plaintiff's counsel that any CDC 154 or EOP rosters, if any did exist, are purged within one year and three year[s,] respectively. All documents responsive have been produced. We have relayed our position on any documents deemed confidential in prior communications with you.

(Id.)

In a November 21, 2011, letter to plaintiff's counsel, Deputy Attorney General Grant Lien set forth plaintiff's counsel's questions, and Lien's responses, as follows, in pertinent part:

4) Whether at the time Defendants were preparing for their depositions [] and at a time Defendants were aware of our complaints about CDCR's non-compliance they were in possession of documents obtained from the CDCR, as the CDCR told us.

CDCR granted permission for Defendants to review the central files of Robinson and Scruggs at CDCR headquarters to refresh their recollections before their depositions. Only Defendant Vance reviewed a central file (Robinson's). The other documents that Defendants reviewed were provided by our office. Again, this question is of no consequence because the subpoena was directed to CDCR.

(Dkt. No. 149-3 at 5.)*fn4 5) If the answer to #4 is yes, how Defendants can claim that such documents were not in their custody and control when Defendants physically had possession of the documents.

Defendants did not have possession, custody, or control of the central files. "Control is defined as the legal right to obtain documents upon demand." United States v. International Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989.) A part is not in "control" of records obtainable only with the permission of another. Clark v. Vega Wholesale Inc., 181 FRD 470, 472 (D. Nev. 1998). Plaintiff would have the burden of showing that Defendants had such control. Steele Software Systems Corp. v. Dat Quick Info. Systems, Inc., 237 FRD 561, 564 (D Md. 2006); Norman v. Young, 422 F.2d 470, 472-73 (10th Cir. 1970). In any event, this question is of no consequence because Plaintiff directed the subpoena to CDCR. (Dkt. No. 149-3 at 5.)

6) If the answer to #4 is yes, how Defendants could simultaneously possess such documents, which they knew had not been produced to Plaintiff because of our complaints about that issue, and still profess ignorance of the CDCR's non-compliance and in fact threaten to cancel Defendants' depositions because of its ignorance.

I do not know what you are asking with this question. Our office never forced you to take Defendants' depositions without all responsive documents. Our office was simply unwilling to allow you to use CDCR's alleged non-compliance to depose our clients twice. Our office even offered to continue the depositions until after the discovery dispute was resolved but you refused. Had you made this proposal or sought a continuance of the trial, our office would have been amenable to it. Again, this question is of no consequence because your client directed the subpoena to CDCR.

(Dkt. No. 149-3 at 5.) CDCR counsel Jason Hurtado declares that: at no time did [he] discuss the document subpoena propounded by [plaintiff's counsel] with anybody at the AG's office, including Deputy Attorney General Michelle Angus, or any other attorney representing the CDCR employee defendants. There was no effort, collusion or conspiracy to withhold documentation from [plaintiff's counsel] either in conjunction with the Attorney General's office, or as to the CDCR acting on its own behalf. The only communication [he] had with the Attorney General's office with respect to the document production was in the form of correspondence [he] received from legal analyst Angie Brodbeck, indicating that both of the files at issue were now located at case records at headquarters.

(Dkt. No. 149-5 at 4.)

Deputy Attorneys General Michelle Angus and Grant Lien provided declarations stating that "[n]either defendants nor I had any involvement with CDCR's document production," (dkt. nos. 149-2 at 1; 149-3 at 1), and "[n]either defendants nor I have ever withheld or destroyed any evidence."

IV. Analysis

A. Motion to Compel Compliance*fn5

Discovery is permissible against nonparties. Fed. R. Civ. P. 45. A Rule 45 subpoena is the only discovery method by which information may be obtained from a nonparty. Rule 45 subpoenas permit discovery from nonparties equivalent to discovery from parties under Rule 34. (See Adv. Comm. Note on 1991 Amendment to Fed. R. Civ. P. 45.)

A nonparty served with the subpoena duces tecum may make objections to the subpoena duces tecum within 14 days after service or before the time for compliance, if less than 14 days. Fed. R. Civ. P. 45(c)(2)(B). "Only the [nonparty] can prevent disclosure by objection. The party to whom the subpoenaed records pertain cannot simply object. Rather, a protective order or motion to quash the subpoena is required." Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, ¶ 11:422 (2002); see also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n.5 (9th Cir. 1983) ("Once the person subpoenaed objects to the subpoena . . . the provisions of Rule 45(d) come into play. Then the party seeking discovery must obtain a court order directing compliance.").

Generally, failure to serve timely objections waives all grounds for objection. The Second Circuit held:

Rule 45(c)(2)(B)[ ] require[s] the recipient of a subpoena to raise all objections at once, rather than in staggered batches, so that discovery does not become a "game." We . . . believe that [Rule 45](d)(2) contains additional requirements for a claim of privilege not alternative ones. While we are mindful that "the investment of time necessary to review all responsive documents for privileged material . . . does not lend itself to the limited fourteen (14) day time period . . .," a person responding to a subpoena should at least assert any privileges within the 14 days provided in Rule 45(c)(2)(B). A full privilege log may follow "within a reasonable time," or if more time is needed an extension may be sought from the trial court.

In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir. 1998) (citations omitted); see Millenium Holding Group, Inc. v. Sutura, Inc., 2007 WL 121567, *3 (D. Nev. Jan. 11, 2007) ("if Millenium wished to prevent disclosure, a motion for a protective order or to quash the subpoena would be required."). Thus, a nonparty's failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objection has been waived. In re DG Acquisition Corp., 151 F.3d at 81 (privilege against self-incrimination waived by delay); Creative Gifts, Inc. v. UFO, 183 F.R.D. 568, 570 (D. N.M. 1998) ("By failing to object within the time permitted by the Federal Rules, [the nonparty] has waived the right to object. See Wang v. Hsu, 919 F.2d 130 (10th Cir. 1990).").

However, in "unusual circumstances and for good cause," the failure to timely act will not bar consideration of objections to a Rule 45 subpoena. McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). "Courts have found unusual circumstances where: (1) the subpoena is overbroad on its face and exceeds the bounds of fair discovery; (2) the subpoenaed witness is a non-party acting in good faith; and (3) counsel for the witness and counsel for the subpoenaing party were in contact concerning the witness' compliance prior to the time the witness challenged the legal basis for the subpoena." Id.

Under Rule 26(c), the court may sua sponte issue a protective order for good cause shown. McCoy, 211 F.R.D. at 385 (citation omitted).

Here, the CDCR failed to timely and fully respond to the subpoena or provide plaintiff's counsel with timely written notice that some of the documents responsive to the subpoena were considered confidential. Fed. R. Civ. P. 45(c)(2)(B). The instant subpoena was served on August 26, 2011, and provided for responses on September 16, 2011. Therefore, the written objections were due on or before September 9, 2011. The record reflects that Mr. Hurtado did not file written objections as to the alleged confidential nature of certain documents being withheld. Ms. Nield was retained after the 14 day deadline ran, but no such written objection was contained in her October 6, 2011 email to plaintiff's counsel.

The court does not find good cause to excuse CDCR's untimely objection because the subpoena was not overbroad or outside the bounds of fair discovery. To the contrary, the subpoena sought relevant information. Indeed, the court authorized discovery of the documents sought prior to service of the subpoena by the August 24, 2011 order, which narrowed the scope of the documents sought, and the order was provided to CDCR counsel on September 1, 2011. Despite being aware that the court previously authorized the discovery of the documents sought, and that the court was concerned about keeping this 2006 case on track for trial, and that plaintiff's counsel needed the documents prior to the defendants' depositions,*fn6 nonparty CDCR chose to not file a timely written objection, either to the court or to plaintiff's counsel, and opted not to seek timely court intervention by filing a motion to quash, motion for protective order, or request for in camera review. Rather, CDCR counsel simply encouraged plaintiff's counsel to seek a court conference for possible in camera review. Nonparty CDCR counsel claims:

The only reason [the in camera review] request has not yet been made to the Court to this point has been the ongoing efforts counsel for the CDCR has been undertaking to assure that the plaintiff has obtained all of the non-confidential documents he is seeking and that they are of the quality he is seeking.

(Dkt. No. 149 at 21.) At the hearing, CDCR counsel stated he was going to file a motion (apparently for an in camera review), but such motion was delayed as he was required to respond to the instant motion. However, plaintiff's motion to compel was not filed until November 11, 2011. By November 11th, two and a half months had passed since the subpoena was served on August 26, 2011. Just because the CDCR chose to send the case out to contract counsel did not mean the objection period for the subpoena started anew.

In light of this record, CDCR's position does not fall squarely into the second or third McCoy exceptions. First, the CDCR did not timely challenge the legal basis for the subpoena, or seek court intervention as to the alleged confidential documents. Rather, the CDCR opted to produce certain non-confidential documents, many in illegible form. Second, after the case was referred to outside counsel, Ms. Nield untimely raised the confidentiality issue in a phone conversation, and failed to provide a privilege log of the alleged confidential documents withheld, even though Ms. Nield claimed there were only "a few" such documents. Third, the CDCR gave plaintiff's counsel conflicting information as to the location of the central files and as to the nature of the responses that would be provided. Fourth, it does not appear the CDCR made reasonable efforts to get responsive documents to plaintiff's counsel prior to the defendants' depositions, even though the depositions were scheduled long after the September 16, 2011 responsive deadline set forth in the subpoena. Fifth, the fact that the defendants personally, as well as the deputy attorney general, had access to the central files of plaintiff and inmate Robinson prior to the depositions, at the same time CDCR counsel was allegedly looking for the central files, is disconcerting, at best. The record demonstrates that someone at CDCR sent the central files to case record headquarters. (Dkt. No. 149-5 at 2.) Thus, it appears that any "unusual circumstances" of locating the central files was one of CDCR's own making.

For all of the above reasons, the court finds no good cause exists to excuse nonparty CDCR's untimely objection or late production of documents. Accordingly, plaintiff's motion to compel production of all documents responsive to the subpoena duces tecum is partially granted, as follows:

1. Counsel for CDCR shall turn over to plaintiff's counsel, without redaction, all documents withheld as confidential, that are responsive to the subpoena, no later than December 10, 2011.*fn7 Those documents are subject to an attorney's eyes only protective order, and may be used solely for the instant litigation.

2. Within seven days from December 8, 2011, nonparty CDCR shall produce the photographs in digital format or in 8 x 10 color photographs (no more than 1 per page) to counsel for plaintiff.

3. Counsel for CDCR and counsel for defendants are directed to communicate and work together to ensure that

(a) counsel for plaintiff has received all discovery in this action, including (i) all documents sought by subpoena, but, in addition,

(ii) any documents defendants personally reviewed prior to their depositions, either in the central files of plaintiff or inmate Robinson, or held in the office of the Deputy Attorney General in preparing the defendants for their depositions that are relevant to the claims in this action; and

(b) an exhaustive search for documents responsive to the subpoena has been completed, and that, to the extent CDCR contends certain responsive documents were destroyed, that a search took place to ensure the documents were actually destroyed and not simply stored, and that, in the event the documents were produced in duplicate or triplicate, other sources for those documents were exhausted as well.

4. Within fourteen days from December 8, 2011, nonparty CDCR shall file a declaration, under oath and if true, that a diligent search has been made and that all confidential and non-confidential documents produced in response to the subpoena served on August 26, 2011, are all of the physical and electronic documents in its possession, custody or control, responsive to the subpoena. The declaration shall specifically address what efforts were made to find documents, if any document retention policy affected CDCR's ability to produce documents, and whether any litigation hold was placed on any of the documents requested. If documents requested were destroyed, the declaration shall set forth the specific document, when the document destruction occurred, and append a copy of the CDCR document retention policy governing the destruction.

5. Within fourteen days from December 8, 2011, counsel for defendants shall file a declaration, under oath, confirming he has communicated with counsel for CDCR, and that all documents received through discovery, identified for use at trial, and sought by subpoena, have been provided to counsel for plaintiff. The declaration shall specifically address what efforts were made to find documents, any document retention policy that affected CDCR's ability to produce documents, and whether any litigation hold was placed on any of the documents requested. If documents requested were destroyed, the declaration shall set forth when the destruction occurred.

6. Within fourteen days from December 8, 2011, each defendant personally shall file a declaration attesting that all responsive, non-privileged documents in his possession have been produced to plaintiff's counsel.

7. Within twenty-eight days from December 8, 2011, counsel for plaintiff shall notify counsel for defendants regarding whether the depositions of any defendant needs to be continued, and, if so, identify the specific issue or issues. To the extent the parties agree on the scope of any continued deposition, the expenses of such deposition shall be worked out between counsel for defendants and counsel for CDCR. If defendants and the nonparty cannot agree, they shall seek court intervention.

B. Request for Civil Contempt Sanctions against Nonparty CDCR

Plaintiff asks the court to sanction CDCR for its failure to adequately respond to the subpoena, correctly noting this court has authority to hold the CDCR in contempt for failing, without adequate excuse, to obey the subpoena. Fed. R. Civ. P. 45(e). But plaintiff seeks an order imposing $4500.00 in monetary sanctions relying on two cases*fn8 that address sanctions for a party's failure to comply with discovery. The Ninth Circuit has found:

The only authority in the Federal Rules of Civil Procedure for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum is Rule 45[e]*fn9 . [footnote omitted] Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975).

Pennwalt Corp., 708 F.2d at 494.*fn10 Rule 37 of the Federal Rules of Civil Procedure is not applicable. Pennwalt Corp., 708 F.2d at 494.

A subpoena shall "command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person." Fed. R. Civ. P. 45(a)(1)(iii). The issuing court may hold a person in contempt for failing to obey a subpoena. Fed. R. Civ. P. 45(e). "Even though subpoenas are issued by attorneys, they are issued on behalf of the Court and should be treated as orders of the Court." Higginbotham v. KCS Int'l, Inc., 202 F.R.D. 444, 455 (D. Md. 2001) (citing Advisory Committee Notes to Rule 45(a) 1991 amend. ["Although the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is nevertheless an act of defiance of a court order and exposes the defiant witness to contempt sanctions"] ); Halawani v. Wolfenbarger, 2008 WL 5188813, *7 (E.D. Mich. Dec. 10, 2008) (same).)*fn11

The sanction of civil contempt is designed to force the contemnors to comply with an order of the court and thus to affect discovery. Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 207 (1999). Courts have the inherent power to enforce their orders through civil contempt. See Spallone v. United States, 493 U.S. 265, 276 (1990) ("courts have inherent power to enforce compliance with their lawful orders through civil contempt," citing Shillitani v. United States, 384 U.S. 364, 370 (1966).) Civil contempt is characterized by the court's desire to compel obedience with a court order, or to compensate the contemnor's adversary for the injuries which result from the non-compliance. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). A district court has wide latitude in determining whether there has been a contemptuous defiance of one of its orders. Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). "Intent is irrelevant to a finding of civil contempt and, therefore, good faith is not a defense." Id., at 856, citations omitted. The failure of a responding party to file a responsive pleading to an order to show cause why a contempt citation should not issue may warrant a finding that the applicant's allegations are uncontested as a matter of law. See Rogers v. Webster, 776 F.2d 607, 611 (9th Cir. 1985).

"In this circuit a civil contempt proceeding is 'a trial within the meaning of Fed. R. Civ. P. 43(a) rather than a hearing on a motion within the meaning of Fed. R. Civ. P. 43(e)[;] . . . the issues may not be tried on the basis of affidavits.'" Pennwalt Corp., 708 F.2d at 495, quoting Hoffman v. Beer Drivers & Salesman's Local Union No. 888, 536 F.2d 1268, 1277 (9th Cir. 1976). However, where the affidavits offered in support of a finding of contempt are uncontroverted, a full evidentiary hearing is not essential to due process and the trial court may treat the facts set forth in the uncontroverted affidavits as true. See Peterson v. Highland Music, 140 F.3d 1313, 1324 (9th Cir. 1998) ("A trial court may in a contempt proceeding narrow the issues by requiring that affidavits on file be controverted by counter-affidavits and may thereafter treat as true the facts set forth in uncontroverted affidavits."). Without an issue of material fact, the district court is only required to give notice and an opportunity to be heard. See United States v. Ayres, 166 F.3d 991, 996 (9th Cir. 1999).*fn12

Thus, plaintiff's motion for civil contempt sanctions for failure to timely and fully comply with the subpoena duces tecum directed to a nonparty, as supported by this court's August 24, 2011 order, is taken under submission. Within 45 days from December 8, 2011, the CDCR shall show cause why a contempt citation should not be issued against the CDCR, including an order to reimburse plaintiff's counsel for their reasonable attorney's fees and costs incurred in bringing the instant motion to compel. As explained at the hearing, this may include the filing of various declarations from CDCR employees involved in responding to the subpoena. Inasmuch as it is unclear whether there is an issue of material fact, the court will refrain from setting the order to show cause for hearing pending receipt and review of CDCR's declaration or declarations.

C. Plaintiff's Motion for Sanctions Against Defendants

Plaintiff also seeks evidentiary sanctions against defendants. The court is not convinced that defendants' counsel is blameless in failing to have responsive documents timely produced in this matter. In the joint stipulation, plaintiff's counsel states that "[i]n response to discovery, Defendants refused to produce these files, claiming that they do not have 'custody and control' of these files, 'cannot produce them,' and instead that Plaintiff should direct such discovery to the CDCR." (Dkt. No. 149 at 3.) In his declaration, plaintiff's counsel declares that in response to a request for production of documents from plaintiff's central files, defendants responded:

Plaintiff should address his request to the Litigation Officer, 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 2, 13.)*fn13 In an August 26, 2011 email, counsel for defendants informed plaintiff's counsel that defendants would produce only "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." (Dkt. No. 149-1 at 27, emphasis in original.) Once plaintiff's counsel filed the motion to compel compliance, defendants' counsel took the position that defendants had no obligation to respond or assist plaintiff in obtaining the discovery responses. Yet, it is curious that CDCR counsel informed plaintiff's counsel that any further questions should be directed to Deputy Attorney General Michelle Angus. (Dkt. No. 149-1 at 34.)

Moreover, on August 24, 2011, the court reminded defendants' counsel that "plaintiff's counsel is entitled to all documents defendants have to support their case," and both counsel were specifically "instructed to cooperate in the exchange of discovery so this stale case may be resolved expeditiously." (Dkt. No. 140 at 2.) On August 5, 2011, the parties were advised that the "court is not inclined to grant any further extensions for either party." (Dkt. No. 134 at 4.)

Despite defendants' counsel's claim that the central files were not in defendants' custody or control, the central files were moved to the case records headquarters at the request of someone from the office of the Attorney General. (Dkt. No. 149-5 at 2.) Mr. Hurtado declares that "the Attorney General's Office did not notify our office that these files had been transferred, and therefore it took some time to track them down." (Dkt. No. 149-5 at 2-3.) CDCR counsel states that "[d]efense counsel from the AG's office did review the C-files of the individuals at issue, and apparently copied documentation they felt was pertinent to the defense of their clients." (Dkt. No. 149 at 26.) But defendants' counsel's only response was that counsel wouldn't produce the defendants for deposition if plaintiff anticipated requiring more deposition testimony after receiving the documents, and suggested the depositions be delayed, contrary to the court's express order that the depositions take place no later than November 1, 2011, or the court's prior order reflecting its unwillingness to grant further extensions.

Defendants contend the court has no authority to seek sanctions from defendants because the subpoena was not directed to them. However, the court does have inherent authority to sanction attorneys for abuse of the judicial process. Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980) ("The power of a court over members of its bar is at least as great as its authority over litigants.")

Therefore, plaintiff's request for evidentiary sanctions against defendants is also taken under submission. The court will address the request once the declarations required by this order are filed.

D. CDCR's Motion for Sanctions Against Plaintiff

Nonparty CDCR requests plaintiff be ordered to pay the CDCR $5,040.00 in "monetary sanctions" for "the frivolous and unwarranted nature of the plaintiff's motion to compel." (Dkt. No. 149 at 36.) However, plaintiff's motion to compel is not frivolous, and, as set forth above, was necessary due to the actions and inactions of the nonparty CDCR. Accordingly, the court finds CDCR's motion for sanctions unwarranted, and the motion is denied.

V. Conclusion

Accordingly, IT IS HEREBY ORDERED that:

A. Plaintiff's November 11, 2011 motion to compel (dkt. no. 144) is partially granted.

1. Counsel for CDCR shall turn over to plaintiff's counsel, without redaction, all documents withheld as confidential, that are responsive to the subpoena, no later than December 10, 2011. Those documents are subject to an attorney's eyes only protective order, and are to be used solely for the instant litigation.

2. Within seven days from December 8, 2011, nonparty CDCR shall also produce the photographs in digital form or in 8 x 10 color photographs (no more than one per page) to counsel for plaintiff.

3. Counsel for CDCR and counsel for defendants are directed to communicate and work together to ensure that

(a) counsel for plaintiff has received all discovery in this action, including (i) all documents sought by subpoena, but, in addition, (ii) any documents relevant to the claims or defenses in this litigation defendants personally reviewed prior to their depositions, either in the central files of plaintiff or inmate Robinson, or held in the office of the Deputy Attorney General preparing the defendants for their depositions; and

(b) an exhaustive search for documents responsive to the subpoena has been completed, and that, to the extent CDCR contends certain responsive documents were destroyed, that a search took place to ensure the documents were actually destroyed and not simply stored, and that, in the event the documents were produced in duplicate or triplicate, other sources for those documents were exhausted as well.

4. Within fourteen days from December 8, 2011, nonparty CDCR shall file a declaration, under oath and if true, that a diligent search has been made and that all confidential and non-confidential documents produced in response to the subpoena served on August 26, 2011, are all of the physical and electronic documents in its possession, custody or control, responsive to the subpoena. The declaration shall specifically address what efforts were made to find documents, any document retention policy that affected CDCR's ability to produce documents, and whether any litigation hold was placed on any of the documents requested. If documents requested were destroyed, the declaration shall set forth when the destruction occurred.

5. Within fourteen days from December 8, 2011, counsel for defendants shall file a declaration, under oath, confirming he has communicated with counsel for CDCR, and that all documents received through discovery, identified for use at trial, and sought by subpoena, have been provided to counsel for plaintiff. The declaration shall specifically address what efforts were made to find documents, any document retention policy that affected CDCR's ability to produce documents, and whether any litigation hold was placed on any of the documents requested. If documents requested were destroyed, the declaration shall set forth when the destruction occurred.

6. Within fourteen days from December 8, 2011, each defendant personally shall file a declaration attesting that all relevant, non-privileged documents in his possession have been produced to plaintiff's counsel.

7. Within twenty-eight days from December 8, 2011, counsel for plaintiff shall notify counsel for defendants regarding whether the depositions of any defendant needs to be continued, and, if so, identify the specific issue or issues. To the extent the parties agree on the scope of any continued deposition, the expenses of such deposition shall be worked out between counsel for defendants and counsel for CDCR.

B. Within forty-five days from December 8, 2011, the CDCR shall show cause why a contempt citation should not be issued against the CDCR, including an order to reimburse plaintiff's counsel for their reasonable attorney's fees and costs incurred in bringing the instant motion to compel.

C. Plaintiff's request for evidentiary sanctions against defendants is taken under submission.

D. Nonparty CDCR's request for monetary sanctions is denied. E. The Clerk of the Court is directed to serve a copy of this order on counsel for nonparty CDCR, The Nield Law Group, at gnield@nieldlaw.com.


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