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Bernal v. Beard

United States District Court, E.D. California

October 25, 2019

JEFFREY BEARD, et al., Defendants.



         Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motions to compel discovery from defendant Weeks (ECF Nos. 19, 23), which defendant has opposed (ECF Nos. 20, 25).

         I. Plaintiff's Allegations

         Plaintiff alleges that defendants Weeks and Arana conspired to retaliate and actually retaliated against him for filing complaints against Weeks, by searching his cell, seizing property and paperwork, and writing him up on fictious grounds. ECF No. 1 at 6-8.

         II. Motions to Compel

         Plaintiff has filed two motions to compel discovery from defendant Weeks: one to compel further production of documents (ECF No. 19) and one to compel further responses to interrogatories (ECF No. 23). Defendant Weeks opposes the motion to compel further production on the grounds that the plaintiff failed to indicate how defendant's responses are deficient and that the responses were appropriate and the objections well founded. ECF No. 20. He opposes the motion to compel further responses to interrogatories on similar grounds. ECF No. 25.

         A. Standards Governing Discovery

         The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. Discovery may be obtained as to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. The court, however, may limit discovery if it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;” or if the party who seeks discovery “has had ample opportunity to obtain the information by discovery;” or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C). The purpose of discovery is to “make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent, ” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citation omitted), and “to narrow and clarify the basic issues between the parties, ” Hickman v. Taylor, 329 U.S. 495, 501 (1947).

         Where a party fails to answer an interrogatory submitted under Federal Rule of Civil Procedure 33 or fails to produce documents requested under Federal Rule of Civil Procedure 34, the party seeking discovery may move for compelled disclosure. Fed.R.Civ.P. 37(a). “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794 at * 1 (S.D. Cal. May 14, 2009) (citations omitted); see also Nugget v. Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992) (upholding denial of motion to compel because moving party did not show the request fell within the scope of Rule 26(b)(1)). The opposing party is “required to carry a heavy burden of showing why discovery was denied.” Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

         B. Requests for Production

         On January 5, 2019, [1] plaintiff filed a motion to compel the production of documents from defendant Weeks. ECF No. 19. While neither party has provided a copy of the original requests, plaintiff asserts that they were served on November 15, 2018 (ECF No. 24 at 1), while defendant claims they were mailed on November 19, 2018 (ECF No. 20 at 1). Weeks served his responses to the requests on January 8, 2019. ECF No. 20 at 43.

         Plaintiff's motion simply lists his requests for production without addressing how Weeks' responses to the requests were deficient. ECF No. 19. Based on plaintiff's reply and the dates provided by the parties during briefing, it is clear that plaintiff had not yet received defendant's responses at the time he filed the motion. Defendant opposes the motion to compel on the ground that it fails to identify how his responses are deficient (ECF No. 20), and in reply, plaintiff once again fails to identify any deficiencies other than to claim that the responses were untimely (ECF No. 24).

         Responses to discovery requests were due forty-five days after the date of service (ECF No. 17 at 4, ¶ 2), and defendant was entitled to an additional three days after the forty-five-day deadline expired because plaintiff's requests were served by mail, Fed.R.Civ.P. 6(d). Accordingly, contrary to defendant's assertion, his responses to plaintiff's requests for production were untimely because regardless of whether the requests were served on November 15 or November 19, 2018, responses were due by January 7, 2019.[2]

         “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)). However, because defendant's responses and objections were only one day late, and the lateness appears to have been the result of a calculation error given counsel's belief that his responses were timely, good cause exists to find that defendant's objections were not waived.

         In any case, plaintiff's motion to compel was prematurely filed before defendant's deadline for responding to the requests. Plaintiff's reply, which acknowledged that he had since received defendant's responses, failed to identify any specific deficiencies with any of the responses or objections contained therein. ECF No. 24.

The Court does not hold prisoners proceeding pro se to the same standards that it holds attorneys. However, at a minimum, as the moving party plaintiff bears the burden of informing the court of which discovery requests are the subject of his motion to compel and, for each disputed response, why defendant's objection is not justified.

Waterbury v. Scribner, No. 1:05-cv-0764 OWW DLB PC, 2008 WL 2018432, at *1, 2008 U.S. Dist. LEXIS 53142, at *3 (E.D. Cal. May 8, 2008).

         Although plaintiff has failed to make any specific assertions, the court has reviewed defendant's responses to the requests. Review of the responses demonstrates that defendant appears to have produced all documents requested in response to requests 3 through 7[3] and 14, with only minor redactions that are not material. ECF No. 20 at 7-8, 11, 28-35. He also appears to have provided operational procedures responsive to Request 1, to the extent procedures responsive to the request exist, and appropriately objected to Request 12 on the ground that it related to staff complaints against defendant Arana, who is represented by separate counsel and whose records are not available to Weeks. Id. at 5-6, 9-10. The motion will therefore be denied as to these requests and the court will turn to the remaining requests.

Request for Production No. 2: Inmate housing roster for High Desert State Prison “B” Yard date 11 July 2015.
(A) B4 Housing Unit A section, (Names and CDC Numbers)
(B) B4 Housing Unit B section, (Names and CDC Numbers)
(C) B4 Housing Unit C section, (Names and CDC ...

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