The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY (Docs. 116, 133)
Plaintiff Andrew R. Lopez ("Plaintiff") requests that the Court enter "sanctions, including default, against defendants; [and] compel responses." (Docs. 116, 133). Plaintiff also requests appointment of counsel. Id. Defendants Reed and Florez (collectively "Defendants") oppose this motion. (Doc. 128). Having read and considered the pleadings, Plaintiff's motion to compel discovery is GRANTED IN PART and DENIED IN PART.
I. Factual and Procedural Background
On January 16, 2013, Plaintiff filed the instant motion to compel. (Doc. 116). In it, Plaintiff requests sanctions, including entry of default for Defendants' alleged failure to comply with Plaintiff's request for production, Interrogatory Sets One through Three, and Requests to Admit. (Doc. 116). On January 31, 2013, Defendants requested an extension of time up to an including February 25, 2013, to respond to Plaintiff's motion to compel. (Doc. 119). The Court granted Defendants' motion for extension of time on February 4, 2013. (Doc. 120).
On February 25, 2013, Defendants filed their opposition to Plaintiff's motion to compel. (Doc. 128). On March 7, 2013, Plaintiff filed notice that Defendants failed to oppose his motion to compel, 3 dated January 16, 2013. (Doc. 133).
The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure. In relevant part, Rule 26(b) states: 7
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 existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.
In responding to discovery requests for production of documents, Defendant must produce 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, 212 (D.Mass. 2000) (A "party must produce otherwise discoverable documents that are in his attorneys' possession, custody or control."); Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ill. 1992).
Fed.R.Civ.P. 37 governs sanctions for discovery violations. Prior to granting any dismissal for discovery violations, the Court must consider: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of prejudice to opposing parties;
(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Clinton v. California Dept. of Corrections, 264 F.R.D. 635, 641 (E.D. Cal. 2010).
A warning of dismissal is sufficient to satisfy factor number five. Id., at 641. The minimal threshold 2 inquiry the Court must make prior to any dismissal is to determine whether any willfulness, fault or 3 bad faith exists on the part of the non-moving party. Id. 4
A. Request for production of documents.
Federal Rules of Civil Procedure 34(a)(1) permits a party to seek production of documents.
The obligation imposed by Fed.R.Civ.P. 34(a)(1) extends only to those designated and non-privileged 8 documents, tangible things, or electronically stored information which are within the responding 9 party's "possession, custody or control." A responding party may be required to produce a document that is not in its possession if the responding party has a "legal right to obtain the document." Bryant v. Armstrong, 285 F.R.D. 596, 603 (S.D. Cal. 2012)(internal citation omitted). A responding party has an affirmative duty to reasonably seek information requested under Rule 34(a) from its agents or others under its control. Hill v. Eddie Bauer, 242 F.R.D. 556, 560 (C.D. Cal. 2007). The Court may require more than a simple answer where a responding party contends that documents are not in its possession, custody or control. Bryant, at 603. However, the burden of proving that a document is in the possession, custody or control of a responding party rests on the requesting party. See Clinton, at 645.
Plaintiff contends that the documents requested in his request for production numbers 1, 2, 7, 8, 9, and 11 through 17 should be in the Defendants' "possession, custody or control." The Court addresses Plaintiffs request for production number concerns as follows:
1.Request for production numbers 1, 2, 11, 12, 13, and 14.
In request for production numbers 1, 2, 11, 12, 13, and 14, Plaintiff requests certain documents that relate to Defendants' medical training. After noting objections, namely that the request was overly broad and unduly burdensome, Plaintiff reports that Defendant Reed responded to requests number 1, 11, 13 and 14 that following a diligent search, no responsive documents could be found. As to request number 1, Florez produced responsive documents.*fn1 As to requests number 1, 13 and 14, 2
Plaintiff claims Florez reported that following a diligent search, no responsive documents could be 3 found. As to the remaining requests, Plaintiff claims both Defendants noted that all responsive 4 documents had been provided. 5
Defendants assert that as to requests number 1 and 2, both Defendants claim they produced all 6 responsive documents. As to requests 11 and 12, both Defendants claim they produced all responsive 7 documents which were the same documents produced in response to requests number 1 and 2. As to 8 requests 13 and 14, Defendants claim they reported they had no responsive documents. 9
In any event, Plaintiff argues that Defendants "must have training documentation" that Defendants should produce. However, makes no showing that the documents exist or are within Defendants' control. The Court cannot force a party to produce documents he does not have. Thus, Plaintiff's motion to ...