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Smith v. C. Hernandez

United States District Court, E.D. California

April 2, 2018

DELBERT J. SMITH, Plaintiff,
C. HERNANDEZ, et al., Defendants.



         Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

         On July 26, 2017, Plaintiff filed a motion for issuance of a subpoena duces tecum pursuant to Federal Rule of Civil Procedure 45, filed on July 26, 2017. (ECF No. 31.) On September 27, 2017, the Court ordered Defendants to produce certain materials sought by Plaintiff in his motion, as the Defendants agreed that the request should have been directed at them. (ECF No. 38.) Certain objections were also ruled upon. In pertinent part, Defendants objected that privileges may apply to some of the information requested, and thus the Court directed that any privilege asserted should be set forth on a privilege log and the withheld material provided to the Court for in-camera review. (Id. at 3)

         On November 27, 2017, Defendants filed the instant notice of submission of documents, with a declaration in support by the Litigation Coordinator at California Correctional Institution (“CCI”). (ECF No. 44.) Regarding Plaintiff's request 3F seeking “D.O.M. procedure for ‘non-responsive' and ‘man down' emergency procedures, ” Defendants responded that no relevant, responsive version of their restricted policy is available, because they could not locate a version of such policy which was in effect in March 2016, during the time of the events at issue. Defendants further produced a privilege log for the 2017 D.O.M. § 55090R, enacted in April 2017. They argue that such policy is not relevant or responsive, and is also confidential on the grounds of safety and security. However, they further assert that the 2016 D.O.M. § 51020.12.2, which is not restricted, outlines the policy for immediate extractions when an imminent threat exists, including for non-responsive inmates, and that this material could be provided to Plaintiff without endangering institutional or staff safety.[1]


         Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, and for good cause, the Court may order discovery of any matter relevant to the subject matter involved in the action. Fed.R.Civ.P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id.

         However, the court must limit discovery if the burden of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2)(C). In such situations, the Court must limit discovery if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Id. “In each instance, the determination whether ... information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.” Fed.R.Civ.P. 26 Advisory Committee's Note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).

         In this case, Plaintiff alleges that excessive force was used on him on March 1, 2016 after he cried, “Man Down” to get medical attention, and on March 2, 2016 when he was being removed from his cell. (ECF No. 32.) Thus, the relevant time period at issue is March 2016. Therefore the Court agrees with Defendants that the 2017 D.O.M. § 55090R, which was enacted in April 2017, nearly a year after the events at issue, is not relevant to this action and is not responsive to Plaintiff's document request. Therefore, on those grounds the Court finds that the document need not be produced to Plaintiff, and the Court need not reach the issue of Defendants' assertions of privilege.[2]

         According to the declaration submitted by the Litigation Coordinator at CCI, a search was made and the 2016 version of the restricted policy cannot be located. However, the record on this matter is insufficiently developed for the Court to make a determination that a diligent and reasonable inquiry was made.

         “[A] party responding to a Rule 34 production request is under an affirmative duty to seek that information reasonably available to it from its employees, agents, or others subject to its control.” A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (internal quotations and citations omitted). “[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) (alteration in original) (quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 ...

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