United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL DEFENDANT CLARK TO PROVIDE A FURTHER RESPONSE TO REQUEST FOR PRODUCTION NUMBER 26
DENNIS L. BECK, Magistrate Judge.
Plaintiff William Atcherley ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 28 U.S.C. § 1983. This action is proceeding on Plaintiff's Second Amended Complaint, filed on October 14, 2014, for violation of the Eighth Amendment and negligence against numerous Defendants.
Discovery closed on September 29, 2014.
On September 17, 2014, the Court granted Plaintiff's prior motion to compel and ordered Defendant Clark to provide a further response to the following request for production: "Statements made by witnesses or Defendants during the investigations of Plaintiff's appeals related to the claims in this action, for the dates January 18, 2011, through June 1, 2012." ECF No. 119, at 6.
Plaintiff now brings this November 5, 2014, motion to compel Defendant Clark to provide a further response. Defendant Clark opposed the motion on December 18, 2014. Plaintiff did not file a reply and the motion is deemed suitable for decision pursuant to Local Rule 230(l).
A. LEGAL STANDARD
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). "Property is deemed within a party's possession, custody, or control' if the party has actual possession, custody, or control thereof or the legal right to obtain the property on demand." 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 Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 719206, at *4 (S.D. Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1 (E.D. Cal. Mar. 19, 2010).
In responding to discovery requests, a reasonable inquiry must be made, and if no responsive documents or tangible things exist, Fed.R.Civ.P. 26(g)(1), the responding party should so state with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence, Uribe v. McKesson, No. 08cv1285 DMS (NLS), 2010 WL 892093, at *2-3 (E.D. Cal. Mar. 9, 2010). If responsive documents do exist but the responsive party claims lack of possession, control, or custody, the party must so state with sufficient specificity to allow the Court (1) to conclude that the responses were made after a case-specific evaluation and (2) to evaluate the merit of that response. Ochotorena v. Adams, No. 1:05-cv-01525-LJO-DLB (PC), 2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). As with previously discussed forms of discovery, boilerplate objections do not suffice. Fed.R.Civ.P. 34(b)(2)(B), (C); Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149.
B. REQUEST NUMBER 26
Request Number 26 requested a copy of "any written report of any investigation into the plaintiff's claims in this action, including any statement by any of the defendants in this action." ECF No. 105, at 11. In objecting, Defendant argued that the request was overbroad and vague, included information that is attorney-client privileged, included information that had been provided to Plaintiff and may include information that is confidential. Defendant also objected because the request was duplicative of three prior requests for production of documents.
In the September 17, 2014, order, the Court held that statements related to Plaintiff's appeals and/or investigations are relevant to his claims, and because Plaintiff offered to narrow his request, the Court granted the motion. The Court ordered Defendant to provide a supplemental response to the following request: Statements made by witnesses or Defendants during the investigations of Plaintiff's appeals related to the claims in this action, for the dates January 18, 2011, through June 1, 2012. The Court also noted that while Plaintiff may have narrowed the scope of his request, it is still possible that responsive documents may be properly withheld.
Defendant Clark supplemented his response by incorporating his objections based on privileges, privacy and confidentiality. Defendant also stated, "Defendant has no responsive documents in his possession or control. A reasonable search has been conducted on behalf of Defendant for documents responsive to this request. The documents located are identified in the following privilege log and will not be produced based on the objections to this request." ECF No. 149, at 6. The privilege log identifies seven pages of attachments to Plaintiff's inmate administrative appeal log number XX-XX-XXXXX. As grounds for withholding the documents, Defendant states that Plaintiff's administrative appeal was designated as a Staff Complaint and as such, is a privileged and confidential personnel matter protected by the constitutional right to privacy, the official information privilege, California Government Code section 6254, California Evidence Code sections 1040, 1041 and 1043, and common law. Defendant also indicates that the documents are prohibited from disclosure to either the inmate or correctional staff at issue under Title 15 of the California Code of Regulations, section 3084.9.
In his opposition, Defendant further explains that the withheld documents derive from Plaintiff's administrative appeal against Defendant Ross. In the appeal, Plaintiff alleges that Defendant Ross, a nurse at Corcoran State Prison, refused to change his bandages on more than one occasion. Plaintiff was informed of the activities, outcomes and decisions related to his appeal, but ...