United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR DISCOVERY
[ECF NO. 93]
ALLISON H. GODDARD, UNITED STATES MAGISTRATE JUDGE
November 19, 2019, Plaintiff filed a Motion Requesting
Discovery Material (ECF No. 93) asking the Court to require
Defendant to provide a copy of the San Diego Police
Department's “Canine Unit Operations Manual”
(“SDPD Canine Unit Manual”). Defendant filed a
Response in opposition to the Motion on November 22, 2019.
ECF No. 94. To date, Plaintiff has filed no Reply in support
of the Motion. Therefore, the Court considers the Motion
fully briefed and ripe for ruling.
Court begins with a brief overview of discovery in this case.
On March 4, 2019, the Court issued the initial Scheduling
Order setting the fact discovery deadline on July 12, 2019
and the expert discovery deadline on September 27, 2019. ECF
10, 2019, Plaintiff filed a Request for Subpoenas to Produce
Documents pursuant to Fed.R.Civ.P. 45 (ECF No. 70), which
requested that the Court provide him two blank subpoena forms
to assist him in seeking third-party discovery. Specifically,
Plaintiff wanted to subpoena the SDPD Canine Unit Manual from
the San Diego Police Department and to subpoena documents
from the San Diego County Jail concerning the medical
treatment he received there for his dog bite wounds.
Id. On July 3, 2019, the Court granted the Motion
for Subpoenas and directed the Clerk of Court to mail
Plaintiff two subpoena duces tecum forms, consistent with
Fed.R.Civ.P. 45(a)(3). ECF No. 71 at 3. In that Order, the
Court also gave Plaintiff detailed instructions on how to
complete the forms and directed him to return the completed
forms along with a copy of the Order to the United States
Marshal for service within twenty-one days of the date of the
Order, or July 24, 2019. Id. at 3-4. See
also 28 U.S.C. § 1915(d) (providing that, in cases
where a prisoner plaintiff is proceeding in forma
pauperis, “the officers of the court shall issue
and serve all process, and perform all duties”).
According to the relevant docket entry, the Court mailed the
two blank subpoena duces tecum forms to Plaintiff along with
the Order, and there is no docket entry indicating that any
mail was returned to the Court as undeliverable.
August 16, 2019, the Court modified the Scheduling Order to
extend the fact discovery deadline to September 27, 2019, the
same day as the expert discovery deadline ECF No. 82.
Although the Court warned in that Order that no further
extensions of time would be granted without a showing of good
cause, on October 9, 2019, the Court sua sponte
reopened discovery until November 22, 2019 for the limited
purpose of permitting the parties to take one another's
depositions and extended the pretrial motions deadline
accordingly. ECF No. 89.
prepared and dated the present Motion on November 12, 2019,
and it was filed one week later on November 19. ECF No. 93.
In the Motion, Plaintiff again requests that the Court to
provide him a subpoena to serve on the San Diego Police
Department to demand the SDPD Canine Unit Manual.
Id. However, Plaintiff never previously completed
the subpoena duces tecum forms provided by the Court or
followed the related instructions to obtain the assistance of
the United States Marshal Service in completing service of
the forms, as he was entitled to do under 28 U.S.C. §
1915(d). See ECF No. 71 at 3-4.
California, federal courts interpret Rule 45 as setting forth
two types of subpoenas: pretrial discovery subpoenas and
trial subpoenas.” nSight, Inc. v.
PeopleSoft, Inc., No. 3:04CV3836MMC(MEJ), 2006 WL
988807, at *2 (N.D. Cal. Apr. 13, 2006) (citing F.T.C. v.
Netscape Commc'ns Corp., 196 F.R.D. 559, 560 (N.D.
Cal. 2000) and Integra Lifesciences I, Ltd. v. Merck
KGaA, 190 F.R.D. 556, 562 (S.D. Cal. 1999)). Where, as
here, a party wants to request production of books,
documents, and other tangible items, such a request falls
under the umbrella of pre-trial discovery subpoenas.
nSight, 2006 WL 988807, at *2. “Case law
establishes that subpoenas under Rule 45 are discovery, and
must be utilized within the time period permitted for
discovery in a case.” Integra, 190 F.R.D. at
561 (citing Marvin Lumber & Cedar Co. v. PPG Indus.,
Inc., 177 F.R.D. 443, 445 (D. Minn. 1997)).
offers no explanation in his Motion as to why he failed to
meet the Court's earlier deadline to complete and return
the forms. Nor does Plaintiff otherwise establish good cause
to reopen discovery to permit him to serve a third-party
subpoena duces tecum on the San Diego Police Department long
after the close of discovery, when he had ample opportunity
to subpoena the SDPD Canine Unit Manual before the discovery
cutoff. “A party may not use a trial subpoena to secure
documents involving information known to them during
discovery.” nSight, 2006 WL 988807, at *4.
Therefore, the Court will deny Plaintiff's request. In
reaching this conclusion, the Court is particularly cognizant
of the fact that the discovery deadlines in this matter have
already been delayed twice, primarily to accommodate
Plaintiff. When the Court first extended the fact discovery
deadline to September 27, 2019 at Plaintiff's request,
the Court did so purely to afford Plaintiff leniency as a
pro se litigant, despite finding that Plaintiff did
not meet the “good cause” standard for modifying
the Scheduling Order since his proffered reason for needing a
continuance was that he “became singularly concerned
with the [expert witness] issues and did not get around to
the fact discovery.” ECF No. 82 at 5 (quoting ECF No.
77 at 3). And when the Court reopened discovery on a limited
basis, it did so to permit the parties to take one
another's depositions, in part because Plaintiff had
expressly sought such an opportunity. See ECF Nos.
87, 89. However, at this stage in the litigation, the Court
will not again extend discovery and interfere with existing
case deadlines to permit Plaintiff to pursue additional
discovery that he had every opportunity to obtain earlier.
See Marvin, 177 F.R.D. at 445 (“[T]o allow a
party to continue with formal discovery . . . whether in the
guise of Rule 45, or any of the other discovery methods
recognized by [former] Rule 26(a)(5), after the discovery
deadline unnecessarily lengthens [the] discovery process, and
diverts the parties' attention, from the post-discovery
aspects of preparing a case for [t]rial . . . . [W]e can find
no plausible reason to exempt Rule 45 discovery from the time
constraints that are applicable to all of the discovery
methods recognized by the Federal Rules of Civil
on the foregoing considerations, Plaintiff's Motion for
Discovery (ECF No. 93) is DENIED.