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Leon Hawkins v. Derral G. Adams

May 24, 2012

LEON HAWKINS,
PLAINTIFF,
v.
DERRAL G. ADAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY (Doc. 62)

Before the Court is Plaintiff's motion to compel further responses to discovery. (Doc. 62) It appears Plaintiff seeks further responses to request for production of documents set one, number 22 (Id. at 1, 8), to request for production set two, numbers 1-8 (Id. at 11) and responses to requests for admission. Id. at 12. In addition, Plaintiff complains that the responses that were made were not provided in a timely manner and, therefore, urges that any objections made should be deemed waived. Id. at 3. Finally, Plaintiff seeks an award of $15,000 to compensate him for having to file this motion. Id. at 2. For the reasons set forth below, the motion to compel is DENIED.

I. The discovery responses were timely made

Plaintiff notes that Fed. R. Civ. P. 34 requires discovery responses to be provided within 30 days of service. (Doc. 62 at 4-5) However, Fed. R. Civ. P. 34 also provides that this 30-day deadline applies unless "ordered by the court." In this case, the Court issued a "Discovery and Scheduling Order" which permitted the parties 45 days to respond to discovery requests. (Doc. 46 at 1) This 2 order reads in relevant part,

2. Responses to written discovery requests shall be due forty-five (45) days after the request is first served;

3. To ensure that the responding party has forty-five (45) days after the request is first served to respond, discovery requests must be served at least forty-five (45) days before the discovery deadline;

Id. Therefore, Defendant's failure to respond within 30 days was not improper.

On the other hand, Plaintiff's first request for production of documents was served on January 19, 2012. (Doc. 62 at 21) Defendant provided his responses on February 14, 2012. Id. at 35. According the scheduling order, Defendant's response was required to be served no later than March 5, 2012. Thus, Defendant's response was timely. Plaintiff's "second request" for production of documents was served on March 7, 2012. Id. at 48. The deadline for responding to this discovery was April 23, 2012. Defendant provided his responses on April 23, 2012. (Doc. 63 at 3) Thus, these responses were timely. Plaintiff's request for admissions, set two, was served on March 29, 2012. Id. at 54. By this time, only 25 days remained until the expiration of the discovery period. Thus, these requests were not timely served.*fn1

Because Defendant's responses to discovery were timely served, the motion to compel on this basis is DENIED. Moreover, because Plaintiff's requests for admissions set two were not served more than 45 days before the discovery deadline, they were not timely served and Defendant acted properly is refusing to respond. Thus, the motion to compel further responses to this discovery request is DENIED.

II. Defendant's response to request for production set one, number 22 and set two, numbers 1 through 8 were sufficient.

The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure. In relevant part, Rule 26(b) states:

Unless otherwise limited by court order, parties may obtain discovery regarding any non-privileged manner that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b). Relevant evidence is defined as "evidence having any tendency to make the 6 existence of any fact that is of consequence to the determination of the action more probable or less 7 probable than it would be without the evidence." Fed. R. Evid. 401. 8

In responding to discovery requests for production of documents, Defendant must produce 9 documents which are in his "possession, custody or control." Fed.R.Civ.P. 34(a). Actual possession, custody or control is not required. "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). 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, ...


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