United States District Court, E.D. California
MARK A. VAUGHN, Plaintiff,
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
COMPEL DISCOVERY (DOC. 35)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
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
Plaintiff's Motion to Compel Discovery
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.
Scope of Discovery and Requests
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.
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).
Requests for Production of Documents
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
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
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.
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)).
Request to Compel Testimony
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.”
Subpoenas for Deposition
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).
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
Discussion and Analysis
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
Subpoena to CDCR dated May 29, 2019
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, ...