Garces v. Degadeo et al
ORDER DENYING 93 Motion to Compel; The Clerk of the Court shall resend the Original subpoena and U.S. Marshal form 285 (Doc. #95) to the U.S. Marshals, along with a copy of this Order, and the Marshals shall immediately serve the subpoena;The Marshals shall also serve a copy of thisOrder with the subpoena; the return date on the subpoena is extended from July 4, 2009to 20 days after service, signed by District Judge James A Teilborg on 08/21/2009. (Martin, S)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA (Fresno) Luis M. Garces, Plaintiff, vs. Degadeo, Officer Bott, Smith, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. 1:06-cv-1038-JAT (PC) ORDER
IT IS ORDERED that Plaintiff's motion to compel (Doc. #93) is denied because it is untimely under the Court's scheduling orders (all motions to compel were due by June 15, 2009 (Doc. #85 at 3) and although Plaintiff purports to have signed the motion June 6, 2009, the Certificate of Service (Doc. #93 at 56) shows that Plaintiff mailed the motion June 29, 2009. Thus, even giving Plaintiff the benefit of the prison mailbox rule, the June 29, 2009 mailing was untimely. IT IS FURTHER ORDERED that the Court previously ordered that Plaintiff could subpoena certain records (Doc. #89); however, the U.S. Marshals elected to not serve the subpoena (Doc. #95). The Clerk of the Court shall resend the Original subpoena and U.S. Marshal form 285 (Doc. #95) to the U.S. Marshals, along with a copy of this Order, and the Marshals shall immediately serve the subpoena. The Marshals shall also serve a copy of this Order with the subpoena; the "return date" on the subpoena is extended from July 4, 2009 to 20 days after service.
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IT IS FURTHER ORDERED that, while the Court will not reach the merits of the motion to compel because it is untimely, the Court notes that Defendants frequently object to production because the documents sought are not in their "custody and control." Based on this objection, Defendants have waived the right to use these documents in support of any summary judgment motion, or at trial;1 and Plaintiff is encouraged to move to strike any documents he sought through discovery which Defendants stated that they did not have. IT IS FURTHER ORDERED that the dispositive motion deadline of August 27, 2009 is confirmed. DATED this 21st day of August, 2009.
Generally, Rule 26(a) requires a party, "without awaiting a discovery request," to provide other parties with: names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support her claim; copies or descriptions of documents, electronic information, or tangible objects that are in the disclosing party's possession or control which that party may use to support her claims; and a computation of damages while making available for inspection the documents upon which such computation is based. Fed.R.Civ.P. 26(a)(1)(A)-(D).
Doctor v. Nicholson, 2008 WL 700169, *4 n.3 (D. Ariz. 2008). -2-
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