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Rogers v. Emerson

United States District Court, Ninth Circuit

December 17, 2013

CHARLES A. ROGERS, Plaintiff,
v.
N. EMERSON, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (Document 42)

DENNIS L. BECK, Magistrate Judge.

Plaintiff Charles A. Rogers ("Plaintiff") is a prisoner proceeding pro se in this civil rights action. Defendants paid the filing fee and removed the action to this Court on November 7, 2012.

Pursuant to the Court's June 20, 2013, order, this action is proceeding on the following cognizable claims: (1) retaliation in violation of the First Amendment against Defendant Emerson; and (2) negligence against Defendant Goss. The discovery cut-off date was December 1, 2013.[1]

On October 28, 2013, Plaintiff filed a motion to compel further responses to (1) Request for Production of Documents, Set Five, Number 16, from Defendant Emerson; (2) Requests for Production of Documents, Set Five, Number 14, from Defendant Goss; and (3) Requests for Production of Documents, Set Six, Number 17, from Defendants Emerson and Goss.

Defendants opposed the motion on November 15, 2013. Plaintiff did not file a reply. The motion is deemed submitted pursuant to Local Rule 230(l).

A. LEGAL STANDARD

"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... 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)(1). Defendants are required to "furnish such information as is available" to him in responding to Plaintiff's interrogatories, and documents which are in his "possession, custody or control" in responding to Plaintiff's request for the production of documents. Fed.R.Civ.P. 33(a), 34(a).

A party may serve on any other party a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody or control: any designated documents or tangible things. Fed.R.Civ.P. 34(a)(1) (quotation marks omitted).

If Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden to demonstrate why the objection is not justified. Plaintiff must inform the court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the Court why the information sought is relevant and why Defendants' objections are not justified. However, the Court is vested with broad discretion to manage discovery and notwithstanding these procedures, Plaintiff is entitled to leniency as a pro se litigant. Therefore, to the extent possible, the Court will resolve the motion to compel on its merits. Hunt v. County of Orange , 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions , 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002).

B. REQUEST FOR PRODUCTION, SET FIVE, NUMBER 16

Request for Production Number 16 requests a copy of Defendant Emerson's "annual audit of training for the year 2011."

Defendant objected on the grounds that the request is overbroad, burdensome and irrelevant. Defendant also objected to production because the request concerned confidential peace officer documents protected by the official information privilege, California Government Code section 6254, and California Evidence Code sections 1040, 1041 and 1043. Defendant Emerson indicated that he would not produce any documents.

In his motion, Plaintiff contends that state privileges are not applicable to the instant action, and that Defendant Emerson failed to provide any federal statutes that would support his refusal to produce the requested documents.

Defendant Emerson argues that the request seeks character evidence precluded by Federal Rule of Evidence 608(b). He also contends that Plaintiff seeks employee personnel information, which is confidential and privileged. Specifically, Defendant Emerson cites the official information privilege and contends that because the request ...


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