Pogue v. Dr. Igbanosa et al

Filing 123

ORDER, signed by District Judge G. Murray Snow on 10/12/11: Motion for Sanctions 104 is DENIED. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Leon H. Pogue,
Plaintiff,

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vs.

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Dr. Igbanosa, et. Al., ,
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Defendant.
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No. 1:07cv-01577-GMS
ORDER

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Pending before the Court is Plaintiff’s Notice of Motion and Motion for Sanctions,
Doc. 104.

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Plaintiff basically failed to engage in any discovery for a period of years in this case.

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Once Plaintiff obtained counsel, counsel asked that the discovery period be extended so that

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he could conduct basic discovery on Plaintiff’s claims. The Motion was granted to a limited

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extent, and Plaintiff served his Request for Production of Documents on Defendants on

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February 28, 2011. Plaintiff received his initial Responses on April 4. He thereafter

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requested assurances from the Defendants that they had searched not only their work files

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but their own personal files (both electronic and hard copy) for any documents responsive

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to Plaintiff’s interrogatories. Although Plaintiff received two supplemental responses, he still

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alleges that he has no adequate assurances that Defendants personal files have been searched

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for material responsive to his Request for Production

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Plaintiff previously requested authorization to move for sanctions based on the

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assertion that Defendants had failed to take adequate steps once they were apprised of this

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litigation to preserve documents. That motion was denied. Plaintiff was authorized,

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however, to file a motion seeking sanctions with respect to the failure of some of the

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individual Defendants to sufficiently respond to Plaintiff’s request for production. The

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motion was authorized with respect to individual Defendants Diep, Ahlin, Price and

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Martinez.

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In his motion, Plaintiff principally argues that sanctions are merited by the failure of

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Defense counsel to provide Plaintiff’s counsel with adequate assurances that Defendants

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searched not only their office or business files and records but their own personal files to

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respond to the Requests for Production. Plaintiff requests that, as sanctions for this alleged

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failure Defendants be: (1) “precluded from relying on the absence of documents as a basis

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for arguing on summary judgment that Plaintiff has failed to show genuine issues of disputed

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fact” regarding their deliberate indifference to his serious medical needs; and (2) Defendants

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(but not Plaintiff) are precluded from relying on or entering into evidence documents

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produced after June 13.

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Plaintiff’s motion is denied in its entirety. After having reviewed the motion and its

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supporting materials together with the response and its supporting materials, the Court is of

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the view that all possibly responsive files have been searched and Plaintiff has received all

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responsive documents. Further, Plaintiff has not satisfied this Court that any possible

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relevant or responsive document was deleted or destroyed by any of the individual

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Defendants. Therefore, in the Court’s judgment, no sanctions are indicated and the motion

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for sanctions is denied in its entirety. See, e.g., Tri-County motors, inc. v. American Suzuki

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Motor Corp., 301 Fed. Appx. 11, 14 2008 WL 5063291 (2nd Cir. 2008) (lack of evidence

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that the allegedly missing e-mails actually existed or were relevant to the litigation” justified

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the Court for failing to impose sanctions), Concord Boat Corp. V. Brunswick Corp., 1997

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WL 33352759 (E.D. Ark. 1997) (holding no adverse inference instruction appropriate where

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there was no evidence, direct or circumstantial of the allegedly unfavorable e-mails.).

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IT IS THEREFORE ORDERED denying the Motion for Sanctions (Doc. 104).

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DATED this 12th day of October, 2011.

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