United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTIONS TO COMPEL AND
DIRECTING PLAINTIFF TO SHOW CAUSE WHY AWARD OF EXPENSES
SHOULD NOT BE IMPOSED (DOCS. 39, 41)
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
the Court are Plaintiff's motions to compel discovery
responses. In his first motion, Plaintiff requests
“production of original video/audio
tapes/CDs/electronically stored evidence.” (Doc. 39.)
The court construes this as a motion to compel under Federal
Rule of Civil Procedure 37. In his second motion, Plaintiff
seeks an order compelling Defendants' responses to
requests for production. (Doc. 41.) Although Plaintiff attempts
to bring this motion under Rule 26, (see Id. at 1),
the Court construes it as a motion brought under Rule 37.
Defendants filed oppositions to the motions on August 5,
2019, and August 26, 2019. (Docs. 40, 42.) Plaintiff has not
filed a reply to either opposition, and the time to do so has
passed. See Local Rule 230(1). For the reasons set
forth below, the Court denies Plaintiff's motions.
may seek “discovery regarding 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 “need not be
admissible in evidence to be discoverable.”
Id. Within this general scope, a party may serve on
any other party an interrogatory or a request to produce
documents, electronically stored information, or tangible
things that are in the responding party's possession,
custody, or control. Fed.R.Civ.P. 33(a), 34(a)(1).
“Property is deemed within a party's
‘possession, custody, or control' if the party has
actual possession, custody, or control thereof or the legal
right to obtain the property on demand.” Allen v.
Woodford, No. 1:05-cv-01104-OWW-LJO, 2007 WL 309945, at
*2 (E.D. Cal. 2007) (citation omitted). The responding party
must reply to the interrogatory or request within 30 days
after being served. Fed.R.Civ.P. 33(b), 34(b)(2). The
responding party must answer each interrogatory or state that
he will produce the requested documents, information, or
things; or, the party must “state with
specificity” the grounds for objecting to the
interrogatory or request. Id.
party fails to answer to an interrogatory or to produce
documents as requested, the party seeking discovery may file
a motion with the Court to compel a response. Fed.R.Civ.P.
37(a)(3)(B). The moving party must “state the relief
sought” and provide “with particularity the
grounds for seeking” the relief. Fed.R.Civ.P. 7(b)(1).
Generally, the moving party must certify that she has
conferred or attempted to confer in good faith with the
responding party to resolve the dispute without court action.
Fed.R.Civ.P. 37(a)(1); Local Rule 251(b). However, in
prisoner cases involving pro se plaintiffs, the
meet-and-confer requirements of Rule 37 and Local Rule 251 do
not apply, though they are still encouraged. (See
Doc. 32 at 2.)
Plaintiff's Motions to Compel
February 2019, Plaintiff served on Defendants
interrogatories, requests for production, and requests for
admission. (Doc. 42 at 2.) Defendants timely responded to
Plaintiff's discovery requests in April 2019.
(Id.; see also Doc. 36 at 1.)
supplemental responses, Defendants provided Plaintiff with a
compact disc (CD) containing seven videos of the incident
underlying this action. (Myers Decl. No. 1, ¶ 2, Doc.
40-1 at 1.) Plaintiff concedes that he received the CD, but
“[i]t is [his] belief [c]ounsel … and/or
defendants deliberately distorted images in order to prevent
proper viewing.” (Doc. 39 at 2.) Plaintiff further
contends that the defense “knowingly withheld”
additional security footage. (Id.) Plaintiff
requests that the Court order Defendants to provide the Court
“the original security footage, in its original form,
” as well as the footage allegedly withheld, “for
veiwing [sic] to determine the validity and
authenticity” of the videos. (Id. at 2-3.)
sworn declaration, Tulare County Assistant Sheriff Keith
Douglass states that he provided Tulare County Counsel with
all videos of the incident that he found while conducting a
diligent search. (Douglass Decl., ¶¶ 3-4, 7-8, Doc.
40-2 at 2.) He states that he produced the videos in their
original format, and none were manipulated or distorted.
(Id., ¶¶ 5-6.) In her sworn declaration,
Defendants' counsel, Amy Myers, states that she placed
the videos on a CD, per the instructions of Valley State
Prison, and her office produced the videos in their original
format. (Myers Decl. No. 1, ¶¶ 3-5, Doc. 40-1 at
2.) She states that neither she nor anyone in her office
manipulated or distorted the videos. (Id., ¶
5.) Plaintiff did not file a reply to Defendants'
opposition and supporting declarations.
second motion, Plaintiff requests the following
“information withheld”: “security footage
in [its] original state unedited, ” two additional
“camera positions, ” and internal affairs (IA)
investigation reports regarding the incident underlying this
action. (Doc. 41 at 1.) In their opposition, Defendants state
that they “fully responded to each of Plaintiff's
demands and produced all records in their possession, custody
and control.” (Doc. 42 at 2.) Plaintiff again did not
file a reply to Defendants' opposition and supporting
argue that Plaintiff does not provide “the basis of his
allegations that Defendants have purposefully altered and/or
withheld evidence, nor how Defendants have been evasive or
noncompliant.” (Doc. 42 at 6.) The Court agrees. In his
first motion, Plaintiff provides no facts to support his
allegations that Defendants distorted the videos they
produced and withheld additional footage of the incident, and
he provides no evidence to counter the declarations of Ms.
Myers and Mr. Douglass. Plaintiff simply states that it
“is [his] belief” that videos were altered or
withheld to “discredit [his] case.” (See
Doc. 39 at 2.) Such self-serving belief is inadequate for a
motion to compel.
second motion, Plaintiff again provides no facts or evidence
to support his allegations that Defendants altered videos and
withheld footage and IA reports. Moreover, Plaintiff does not
include with his motion Defendants' responses to the
discovery requests at issue, nor does he contend that such
responses were evasive. Rather, Plaintiff simply asserts that
Defendants withheld videos and reports, without stating the
grounds for such assertions. (See Doc. 41 at 1.)
Such bare assertions, without more, are inadequate for a
motion to compel. See Daniel F. v. Blue Shield of
California, 305 F.R.D. 115, 122-23 (N.D. Cal. 2014)
(“The court does not consider any arguments based on
factual assertions that are unsupported by evidence.”)
Defendants' Requests for ...