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Shepard v. Cohen

United States District Court, E.D. California

August 13, 2014

LAMONT SHEPARD, Plaintiff,
v.
COHEN, et al., Defendants.

ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL (Doc. 45.) ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS, WITHOUT PREJUDICE TO RENEWAL OF THE MOTION WITHIN THIRTY DAYS ORDER FOR DEFENDANTS TO RE-SERVE THEIR SUPPLEMENTAL RESPONSES UPON PLAINTIFF WITHIN TEN DAYS

GARY S. AUSTIN, Magistrate Judge.

I. BACKGROUND

Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on May 19, 2014, against defendants Dr. Cohen, Sgt. J. Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on Plaintiff's due process claim and against defendants Dr. Cohen, Sgt. J. Lopez, C/O Z. Dean, and C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.) On June 10, 2014, defendants Lopez, Dean, and Campbell filed an Answer to the Second Amended Complaint. (Doc. 43.) To date, defendants Cohen and Brown have not been served with process nor appeared in this action. (Court Record.)

On January 29, 2014, the Court issued a Scheduling Order establishing a deadline of September 29, 2014, for the parties to complete discovery, including the filing of motions to compel. (Doc. 22.) The Scheduling Order required the parties to serve responses to written discovery requests within forty-five days after the request is first served. (Id. ¶2.)

On July 7, 2014, Plaintiff filed a motion to compel production of documents from defendants Lopez, Dean, and Campbell ("Defendants"). (Doc. 45.) On July 25, 2014, Defendants filed an opposition to the motion. (Doc. 46.) On August 7, 2014, Plaintiff filed a reply to the opposition. (Doc. 49.) Plaintiff's motion to compel, filed on July 7, 2014, is now before the court.

II. MOTION TO COMPEL

A. Federal Rules of Civil Procedure 26(b), 34, and 37(a)

Under Rule 26(b), "[U]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter 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 and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.[1] "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).

Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request... to inspect and copy any designated documents... which are in the possession, custody or control of the party upon whom the request is served." Fed.R.Civ.P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them." Clark v. Vega Wholesale Inc. , 181 F.R.D. 470, 472 (D.Nev. 1998) quoting Estate of Young v. Holmes , 134 F.R.D. 291, 294 (D.Nev. 1991). "A party that has a legal right to obtain certain documents is deemed to have control of the documents." Clark , 181 F.R.D. at 472; Allen v. Woodford, No. CV-F-05-1104 OWW LJO , 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co. , 61 F.3d 465, 469 (6th Cir.1995)); accord Evans v. Tilton, No. 1:07CV01814 DLB PC , 2010 WL 1136216, at *1 (E.D.Cal. Mar. 19, 2010).

Under Rule 34(b), the party to whom the request is directed must respond in writing that inspection and related activities will be permitted as requested, or state an objection to the request, including the reasons. Fed.R.Civ.P. 34(b)(2). Also, "[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request." Fed.R.Civ.P. 34(b)(E)(I).

Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed.R.Civ.P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(4). "It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants , 959 F.2d 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler , 650 F.2d 1154, 1160 (9th Cir. 1981)). The moving party bears the burden of demonstrating "actual and substantial prejudice" from the denial of discovery. See Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).

Parties' Arguments

Plaintiff requests a court order compelling Defendants to produce documents in response to his Request for Production of Documents ("RFP"), Set Two, which Plaintiff asserts he served upon Defendants on or about May 4, 2014. Plaintiff has re-stated the relevant three RFP's for the court's review. Plaintiff alleges that on June 4, 2014, Defendants informed him that they would provide responses by June 20, 2014; however, by June 28, 2014, Plaintiff had not ...


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