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Cowart v. Rahman

United States District Court, E.D. California

February 16, 2018

GARDELL COWART, Plaintiff,
v.
RAHMAN, et al., Defendants.

          ORDER ON PLAINTIFF'S MOTION TO COMPEL (DOC. 48) FOURTEEN (14) DAY DEFENSE DEADLINE ORDER ON DEFENDANTS' MOTION TO MODIFY THE DISCOVERY AND SCHEDULING ORDER (DOC. 52)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's claims in the First Amended Complaint against Dr. Ngozi Ignibinoza, Dr. Scharffenberg, Dr. Kandkhorova, Dr. Ugwueze, and Dr. Sunduram for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. The Discovery and Scheduling Order issued on July 13, 2017, opening discovery and setting a discovery cut-off date of December 13, 2017, and a dispositive motion deadline of February 12, 2018. (Doc. 40.)

         On August 29, 2017, Plaintiff filed a subpoena to obtain medical records for treatment he received at Dignity Health, Mercy Hospital, 2215 Truxtin Ave., Bakersfield, CA, 93301. (Doc. 43.) On October 3, 2017, an order issued indicating that Plaintiff met the requirements for the issuance of a subpoena. (Doc. 44.) In that order, defense counsel was directed to file a statement setting forth the steps taken to obtain the records sought by Plaintiff and stating whether they would be willing to provide Plaintiff copies of any documents obtained. (Id.) In compliance with that order, on October 12, 2017, defense counsel filed a statement indicating that records from the facility where Plaintiff is currently housed were recently received, which included some, but not all records from outside providers. (Doc. 45.) Defense counsel forwarded a copy of the records received to Plaintiff that same week. (Id.) It therefore appeared that a subpoena was no longer required and the order granting it was withdrawn. (Doc. 47.) Following receipt and review of those records, Plaintiff was permitted to file a renewed request for a subpoena, if he believed they were incomplete and was able to specify the missing records and their relevance to this action. (Id.)

         II. PLAINTIFF'S MOTION TO COMPEL

         On November 3, 2017, Plaintiff filed a motion to compel indicating that upon review, he discovered the set of records provided by defense counsel did not contain his complete records from (1) Sierra Vista Regional Medical Center, 1010 Murray Ave., San Luis Obispo, CA 93405 (where the initial surgery was performed); and (2) Dignity Health Mercy Hospital, 2215 Truxtin Ave., Bakersfield, CA 93301 (where Plaintiff received medical care and treatment when the surgical cite became infected), and Plaintiff's medical records from the California Department of Rehabilitation and Corrections. (Doc. 48.) Plaintiff requests full copies of the records from these facilities and $2, 000 as “reasonable expenses in obtaining this order.” (Id., p. 4.)

         Defendants response to Plaintiff's motion indicated that they subpoenaed Plaintiff's medical records from the facility where Plaintiff is incarcerated, which should have included all of the records from the outside providers sought by Plaintiff. (Doc. 50.) As such, Defendants did not issue separate subpoenas for records from the outside providers. (Id.) Counsel for Defendants indicated they would separately subpoena the records from Dignity Health/Mercy Hospital and provide Plaintiff a copy. (Id.) To accommodate this, Defendant requested extensions of the discovery cut-off to January 13, 2017, and the dispositive motion deadline to March 12, 2018. (Id.) This motion is deemed submitted. L.R. 230(l).

         III. DEFENDANTS' MOTION TO MODIFY SCHEDULING ORDER

         On December 28, 2017, Defendants filed a motion to modify the Discovery and Scheduling Order, stating that on December 19, 2017, they received the subpoenaed records from Dignity Health/Mercy Hospital which “consist of several hundred additional pages of medical records.” (Doc. 52, p. 2.) Defendants request further extensions of the discovery deadline to February 12, 2018, and the dispositive motion deadline to May 1, 2018. (Id., p. 4.)

         Plaintiff opposes Defendants' motion to modify the Discovery and Scheduling Order. (Doc. 55.) Plaintiff acknowledges receipt of the “several hundred additional pages” of medical records from defense counsel, but contends that defense counsel were evasive and untrustworthy since counsel did not initially provide him a full copy of his medical records. (Id.) Plaintiff further contends that Defendants' production is still incomplete because the records provided do not contain his records from the other facilities where he received care and treatment for his infection-Sierra Vista Regional Medical Center in San Luis Obispo, California and San Joaquin Hospital in Bakersfield, California. (Id.) Defendants' reply does not address whether records from either of these two facilities have been subpoenaed or provided to Plaintiff, focusing instead on their diligence to obtain records once Plaintiff brought the incomplete nature of the records from his facility to light, and the lack of prejudice to Plaintiff if the deadlines are extended as requested. (Doc. 57.) This motion is deemed submitted. L.R. 230(l).

         IV. DISCUSSION

         A. Plaintiff's Request for Medical Records

         Federal Rule of Civil Procedure (“Rule”) 45 permits issuance of subpoenas for discovery from nonparties equivalent to discovery from parties under Rule 34. See Adv. Comm. Note to 1991 Amendment to FRCP 45. Rule 34 governs discovery of designated documents, electronically stored information, and designated tangible things subject to the provisions of Fed.R.Civ.P. 26(b). Meeks v. Parsons, 2009 WL 3003718, *2 (E.D. Cal. 2009) (citing Fahey v. United States, 18 F.R.D. 231, 233 (S.D.N.Y. 1955). Rule 26(b)(1) establishes the scope of discovery, stating in pertinent part:

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 books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not ...

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