Vaughn v. Teran

          ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL DISCOVERY (DOC. 35)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Defendant is a nurse employed by the California Department of Corrections and Rehabilitation. Plaintiff alleges that on August 5, 2015, Defendant provided Plaintiff a bleach product, with full knowledge that dispensing bleach in the circumstances exposed Plaintiff to a substantial risk of serious harm that the bleach would be inhaled causing significant damage to his lungs. Plaintiff states that he now suffers with a form of chronic obstructive pulmonary disorder, requires supplemental oxygen, and is permanently disabled.

         On December 4, 2019, Plaintiff filed a motion to compel discovery, including a joint statement regarding discovery disagreement. (Doc. 35.) For the reasons set forth below, Plaintiff's motion to compel discovery is GRANTED IN PART.

         I. Plaintiff's Motion to Compel Discovery

         Under the Federal Rules, “[a] party seeking discovery may move for an order compelling an answer, designation, production or inspection” when “a party fails to answer an interrogatory submitted under Rule 33; or . . . a party fails to produce documents or fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(B).

         A. Scope of Discovery and Requests

         The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure and Evidence. The scope of discovery of a Rule 45 subpoena is the same as with a production request under Rule 34, which is guided by Rule 26. Fed.R.Civ.P. 26(b) states:

Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged manner that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things…For good cause, the court may order discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

         Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Relevancy to a subject matter is interpreted “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

         1. Requests for Production of Documents

         A party may request documents “in the responding party's possession, custody, or control.” Fed.R.Civ.P. 34(a)(1). Similarly, a party may serve a request “to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property . . .” Fed.R.Civ.P. 34(a)(2). A request is adequate if it describes items with “reasonable particularity;” specifies a reasonable time, place, and manner for the inspection; and specifies the form or forms in which electronic information can be produced. Fed.R.Civ.P. 34(b). Thus, a request is sufficiently clear if it “places the party upon ‘reasonable notice of what is called for and what is not.'” Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D. W.Va. 2000) (quoting Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D. N.C. 1992)); see also Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (Rev. #1 2011) Discovery, para. 11:1886 (“the apparent test is whether a respondent of average intelligence would know what items to produce”).

         The responding party must respond in writing and is obliged to produce all specified relevant and non-privileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed.R.Civ.P. 34(a). Actual possession, custody or control is not required. “A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). Such documents include documents under the control of the party's attorney. Meeks v. Parson, 2009 WL 3303718 (E.D. Cal. Sept. 18, 2009) (involving a subpoena to the CDCR); Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000) (a “party must produce otherwise discoverable documents that are in his attorneys' possession, custody or control”).

         In the alternative, a party may state an objection to a request, including the reasons. Fed.R.Civ.P. 34(b)(2)(A)-(B). When a party resists discovery, he “has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Oakes v. Halvorsen Marine Ltd., 189 F.R.D 281, 283 (C.D. Cal. 1998) (citing Nestle Food Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990)). Boilerplate objections to a request for a production are not sufficient. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005).

         If a party “fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Rule 34, ” the propounding party may make a motion to compel production of the documents. Fed.R.Civ.P. 37(a)(3)(B)(iv). Further, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed.R.Civ.P. 37(a)(4). “The moving party bears the burden of demonstrating ‘actual and substantial prejudice' from the denial of discovery.” Hasan v. Johnson, 2012 WL 569370 at *2 (E.D. Cal. Apr. 9, 2012) (citing Hallet v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).

         2. Request to Compel Testimony

         Pursuant to Rule 30 of the Federal Rules of Civil Procedure, “[a] party may, by oral questions, depose any person, including a party, without leave of court” by serving proper notice. The Court is authorized to issue sanctions for a party's failure to appear for a deposition under Rule 37(d), which provides in relevant part: “if a party... fails, after being served with proper notice, to appear for that person's deposition… [s]sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(iv).” Such orders include directing the striking pleadings, issuing terminating sanctions, or other “just orders.” Fed.R.Civ.P. 37(b)(2)(A)

         3. Subpoenas for Deposition

         Under Rule 45 of the Federal Rules of Civil Procedure, a subpoena may be issued requiring a nonparty to attend a deposition “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed.R.Civ.P. 45(c)(1)(A). In addition, any party may serve a subpoena that commands a non-party “to produce documents, electronically stored information, or tangible things . . .” Fed.R.Civ.P. 45(a)(1)(C). Subpoenas are subject to the relevance requirements of Rule 26(b), and therefore may command the production of documents which are “nonprivileged [and] . . . relevant to a party's claim or defense.” Fed.R.Civ.P. 26(b)(1).

         Once a nonparty has been properly served with a Rule 45 subpoena, the nonparty “may (1) comply with the subpoena, (2) serve an objection on the requesting party in accordance with Civil Rule 45(c)(2)(B), or (3) move to quash or modify the subpoena in accordance with Civil Rule 45(c)(3).” In re Plise, 506 B.R. 870, 878 (2014) (citation omitted). If a nonparty serves a written objection to the subpoena, the party seeking the deposition must obtain a court order that directs the nonparty to comply with the subpoena. Id. (citations omitted). Even if a nonparty does not serve a written objection or move to quash, “the more prudent practice for the court is to issue such an order before entertaining a motion for contempt.” United States Sec. Exch. Comm'n. v. Hyatt, 621 F.3d 687, 694 (7th Cir. 2010) (citation omitted).

         B. Discussion and Analysis

         Plaintiff alleges that the discovery at issue involves the following: (1) Subpoena to CDCR dated May 29, 2019; (2) Inspection Demand, Set Four, dated July 11, 2019 (Items 8-10); (3) Subpoena to CDCR dated September 13, 2019; (4) Deposition Subpoena to Edgar Clark, M.D., with witness fee; and (5) Notice of Deposition of Stewart Lonky, M.D., with documents demands.

         1. Subpoena to CDCR dated May 29, 2019

         The Subpoena dated May 29, 2019 requested the following:

Item No. 1:

All DOCUMENTS in their NATIVE FORM CONCERNING medical records, beginning August 1, 2015, to his discharge in December 2018, limited to the treatment of Mark Vaughn, former CDCR No. T72743, only for the effect of inhalation of Dakin's solution occurring on or about August 5, 2015, including chemically induced asthma and/or chronic obstructive pulmonary disease, or any other diagnosis related to inhalation of Dakin's solution.

Item No. 2:

All DOCUMENTS in their NATIVE FORM CONCERNING all medical expenses paid by YOU for the treatment of Mark Vaughn, former CDCR No. T72743, related to his pulmonary care beginning August 1, 2015, to his discharge in December 2018. The medical treatment expenses include, but are not limited to, those for emergency acute care, transportation, hospitalizations, treatment in clinical settings, ...