Foster v. Enenmoh et al
Filing
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ORDER Granting Plaintiff's Motion to Compel 55 and Requiring Defendant to Serve a Response Within Thirty Days; ORDER Requiring Plaintiff to Set Forth Reasonable Expenses Incurred in Filing Motion to Compel, If Any, Within Thirty Days an Providing Defendant Thirty Days Thereafter Within Which to File a Response, signed by Magistrate Judge Sheila K. Oberto on 4/13/12. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL LOUIS FOSTER,
CASE NO. 1:08-cv-01849-LJO-SKO PC
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Plaintiff,
ORDER GRANTING PLAINTIFF’S MOTION
TO COMPEL AND REQUIRING
DEFENDANT TO A SERVE RESPONSE
WITHIN THIRTY DAYS
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v.
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A. ENENMOH,
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(Doc. 55)
Defendant.
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ORDER REQUIRING PLAINTIFF TO SET
FORTH REASONABLE EXPENSES
INCURRED IN FILING MOTION TO
COMPEL, IF ANY, WITHIN THIRTY DAYS
AND PROVIDING DEFENDANT THIRTY
DAYS THEREAFTER WITHIN WHICH TO
FILE A RESPONSE
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Order on Motion to Compel
I.
Introduction
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Plaintiff Michael Louis Foster, a state prisoner proceeding pro se and in forma pauperis, filed
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this civil rights action pursuant to 42 U.S.C. § 1983 on December 3, 2008. This action is proceeding
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on Plaintiff’s second amended complaint, filed on September 17, 2009, against Defendant Enenmoh
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for violation of the Eighth Amendment of the United States Constitution. Plaintiff’s claim arises out
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of the alleged denial of medical care.
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On March 13, 2012, Plaintiff filed a motion seeking to compel a response to interrogatory
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number 10. Defendant filed an opposition on March 30, 2012. Local Rule 230(l).
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II.
Motion to Compel
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Interrogatory number 10 states: “During the time that you were plaintiff Michael Foster’s
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treating physician, what medication did you prescribe for his constipation problem that actually
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helped his constipation problem.” (Doc. 55, Motion, Attach. 1.)
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Defendant responded: “This information is contained in plaintiff’s medical records which
are equally available to the plaintiff.” (Id.)
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Plaintiff argues that he is seeking information reasonably calculated to lead to the discovery
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of admissible evidence, and he is entitled to an answer. Fed. R. Civ. P. 26(b)(1), 33. Defendant
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contends that Plaintiff failed to complete the meet and confer process before filing his motion to
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compel, Fed. R. Civ. P. 37(a)(1), and that he properly referred Plaintiff to Plaintiff’s own medical
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records in response to the interrogatory.
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Parties are obligated to respond to interrogatories to the fullest extent possible under oath,
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Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4).
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The responding party shall use common sense and reason. E.g., Collins v. Wal-Mart Stores, Inc.,
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No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D. Kan. Apr. 30, 2008). A responding party is not
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generally required to conduct extensive research in order to answer an interrogatory, but a reasonable
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effort to respond must be made. L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL
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2781132, *2 (E.D. Cal. Sep. 21, 2007). Further, the responding party has a duty to supplement any
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responses if the information sought is later obtained or the response provided needs correction. Fed.
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R. Civ. P. 26(e)(1)(A).
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Defendant’s contention that Plaintiff failed to complete the meet and confer process is
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without merit. Pursuant to the Court’s discovery and scheduling order, there is no meet and confer
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requirement. (Doc. 45, ¶5.)
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Defendant was Plaintiff’s treating physician during a portion of the events at issue and
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Plaintiff is seeking to know what medications Defendant prescribed during that time which
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successfully treated Plaintiff’s condition. This inquiry seeks information which is relevant and non-
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privileged, and the request is neither overly broad nor unduly burdensome. Fed. R. Civ. P. 26(b).
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Defendant’s response that Plaintiff’s medical records are equally available to him is untenable; the
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interrogatory is proper and Defendant is required to respond in full. Fed. R. Civ. P. 33(b); Morgan
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v. Haviland, No. 2:09-cv-2155 WBS KJN P, 2011 WL 2433648, at *1 (E.D.Cal. 2011); Thomas v.
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Cate, 715 F.Supp.2d 1012, 1032 (E.D.Cal. 2010); National Academy of Recording Arts & Sciences,
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Inc. v. On Point Events, LP., 256 F.R.D. 678, 682 (C.D.Cal. 2009); Fosselman v. Gibbs, No. C 06-
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0375 PJH (PR), 2008 WL 745122, at *2 (N.D.Cal. 2008). Plaintiff’s motion to compel is granted
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and Defendant shall serve a response within thirty days.
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III.
Payment of Expenses
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If a motion to compel is granted, the Court shall require the party whose conduct necessitated
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the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable
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expenses incurred in making the motion. Fed. R. Civ. P. 37(a)(5) (quotation marks omitted). Before
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doing so, the Court must provide an opportunity to be heard and the Court shall not order payment
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if circumstances make an award of expenses unjust. Id. (quotation marks omitted).
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Plaintiff has thirty days from the date of service of this order within which to set forth, under
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penalty of perjury, the reasonable expenses he incurred in making his motion. If Plaintiff, due to
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indigence or other reason, did not incur any expenses, he shall state that fact. Defendant has thirty
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days from the date of service of Plaintiff’s response to be heard regarding the payment of reasonable
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expenses.
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IV.
Order
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
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Plaintiff’s motion to compel a response to interrogatory number 10, filed on March
13, 2012, is GRANTED;
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2.
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Defendant shall serve a response within thirty (30) days from the date of service of
this order;
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3.
Within thirty (30) days from the date of service of this order, Plaintiff shall set forth,
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under penalty of perjury, the reasonable expenses he incurred in bringing his motion
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to compel, if any; and
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Defendant has thirty (30) days thereafter within which to file a response regarding
the payment of reasonable expenses.
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IT IS SO ORDERED.
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Dated:
ie14hj
April 13, 2012
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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