UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 16, 2013
GENGHIS KHAN ALI STEVENSON, PLAINTIFF,
GREGORY BLAKE, DEFENDANT.
The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS (DOC. NO. 60)
On December 17, 2012, Plaintiff filed a Motion for Sanctions ("Motion"). On January 7, 2013, Defendant filed an Opposition to the Motion. On January 14, 2013, the Court held a hearing on the Motion. The Court, having reviewed the moving and opposition papers of Plaintiff and Defendant, and having heard oral argument, and GOOD CAUSE APPEARING, HEREBY DENIES Plaintiff's Motion.
On September 23, 2011, Plaintiff served on Defendant a Request for Production of Documents seeking, inter alia, all written reports and statements about the incident on March 13, 2007 between 8:00 and 9:00 AM*fn1 made by Defendant Blake and all written reports and statements made by Defendant Blake in regard to Staff Complaint, Appeal Log. No. CAL-4-07-00544 at Calipatria State Prison ("Calipatria").*fn2
On October 26, 2011, Defendant responded that there were no responsive written reports or statements by Defendant Blake.
On January 18, 2012, Plaintiff filed a Motion to Compel Further Responses to the above-noted Requests for Production of Documents. Defendant filed an Opposition to the Motion to Compel stating that he could not provide further responses because there were no documents responsive to Plaintiff's Requests for Production of Documents. Based on Defendant's Opposition, on January 23, 2012, the Court denied Plaintiff's Motion to Compel.
On August 10, 2012, the District Judge assigned to this case affirmed in part the Order of January 23, 2012.
On August 30, 2012, Defendant informed the Court (via the Declaration of G. Nunez, a Correctional Counselor at Calipatria), that there existed a "Confidential Supplement To Appeal: 'Appeal Inquiry,' dated May 14, 2007 that is responsive to Plaintiff's Requests for Production of Documents. However, since the document was confidential, and producing it to Plaintiff could endanger persons employed at Calipatria, imprisoned at Calipatria, or the prison itself, he could not produce the document to Plaintiff, but could produce it to the Court for in camera review.
On September 24, 2012, the Court ordered that the above-noted document be produced to the Court for in camera review. On September 25, 2012, Defendant lodged the document with the Court.
On October 3, 2012, the Court ordered Defendant to produce to Plaintiff the "Confidential Supplement To Appeal: 'Appeal Inquiry,' dated May 14, 2007 and the Memorandum of T. Armstrong, dated March 13, 2007.*fn3
On December 20, 2012, Plaintiff filed the Motion for Sanctions that is now before the Court. In the Motion, Plaintiff insisted that Defendant had failed to produce other documents that were responsive to his Requests for Production of Documents that he knew existed, but that Defendant told him and the Court did not exist.
On January 7, 2013, Defendant filed an Opposition to Plaintiff's Motion. The Declaration of M. Ormand, inter alia, was submitted in support of Defendant's Opposition. Attached to Ormand's Declaration were six documents that were responsive to Plaintiff's Requests for Production of Documents, that had not been previously produced to Plaintiff. The six documents include one two-page document that Plaintiff insisted existed all along, but that Defendant claimed did not exist.
At the January 14, 2013 hearing, Defendant's counsel, Susan Coleman, explained that when she receives a Request for Production of Documents, she customarily requests the sought documents from the litigation coordinator at the prison where the incident took place. Also, she provides the Request for Production of Documents to the litigation coordinator. She stated that she does not personally search for the requested documents at the prison. Rather, she relies on the litigation coordinator to search for and collect the requested documents. Thereafter, the litigation coordinator provides the searched-for, collected documents to her.
Also, at the hearing, Gabriela Nunez, the Litigation Coordinator at Calipatria at the time Plaintiff served the Requests for Production of Documents, explained the process she used for obtaining requested documents. From Ms. Nunez' explanation, it became apparent to the Court that either a mistake was made in requesting the documents sought by Plaintiff, or there was a simple lack of diligence in assuring that all documents responsive to Plaintiff's Requests for Production of Documents were either produced to Plaintiff, or to the Court for in camera review.
Therefore, the Court concludes that Defendant's failure to timely produce all of the documents responsive to Plaintiff's Requests for Production of Documents was not purposeful nor an intentional effort to avoid his discovery obligations nor to gain a tactical advantage over Plaintiff. As a result, Plaintiff's Motion for Sanctions is DENIED.
However, the Court has grave concerns that Defendant did not act with due diligence in searching for and producing the documents requested by Plaintiff. Instead, Defendant took a cavalier approach to searching for and producing the requested documents, despite the fact that Plaintiff had represented to Defendant, and to the Court, on several occasions, that certain documents he knew existed, had not been produced to him. In fact, Plaintiff was correct in his assertions. Moreover, the documents he insisted existed would have never been produced to him had he not filed the Motion for Sanctions, which apparently caused Defendant to engage in a further search for responsive documents.
Defendant and the authorities at Calipatria are warned that the Court expects that they will act with due diligence in searching for and producing requested documents. This means that a search must be conducted in all places in which responsive documents may exist. A person who conducts the search for documents must not simply request documents from an office which he/she believes responsive documents exist. Rather, the search must include all places where the requested documents may be found. If a question exists as to whether a particular document is responsive to a document production request, it should be referred to the counsel representing the defendant(s) in the case. A decision whether to produce, or not produce, a document should not be made by a litigation coordinator, an appeal administrator, or any other person employed in the correctional institution.
IT IS SO ORDERED.