Franklin v. United States

Filing 78

ORDER (1) GRANTING IN PART and DENYING IN PART Plaintiff's 49 Motion to Compel further Responses to Set One Request for Production and (2) DENYING 51 Cross-Motions for Discovery Sanctions; Further Responses Due in Thirty Days signed by Magistrate Judge Michael J. Seng on 5/9/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EMERY I. FRANKLIN,

CASE No. 1:10-cv-00142-LJO-MJS (PC)

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Plaintiff,

ORDER (1) GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION
TO COMPEL FURTHER RESPONSES TO
SET ONE REQUEST FOR PRODUCTION
and (2) DENYING CROSS-MOTIONS FOR
DISCOVERY SANCTIONS

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v.

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UNITED STATES,
(ECF Nos. 49, 51)

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Defendant.

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FURTHER RESPONSES DUE IN THIRTY
(30) DAYS

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/
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I.

PROCEDURAL HISTORY

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On January 20, 2010, Plaintiff Emery I. Franklin, a federal prisoner proceeding

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pro se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims

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Act (“FTCA”) for personal injuries arising from a motor vehicle accident. (ECF No. 1.)

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The action proceeds on Plaintiff’s Second Amended Complaint for negligence against

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the United States. (ECF No. 13.) Defendant filed its Answer on April 19, 2012. (ECF

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No. 22.)

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Now pending before the Court is Plaintiff’s January 2, 2013 Motion to compel

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further responses to his May 21, 2012 request for production, set one, items 6, 7, 10,

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11, 12, 13, and for sanctions. (ECF No. 49.) Defendant filed Opposition to the Motion
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on January 17, 2013, and also requested sanctions. (ECF No. 51.) Plaintiff filed a

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Response to Defendant’s Opposition on February 6, 2013. (ECF No. 58.) The Motion is

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deemed submitted for ruling. Local Rule 230(l).

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II.

LEGAL STANDARDS

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A.

Discovery Motions

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Plaintiff is a federal prisoner proceeding pro se. As a result, the parties were

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relieved of some of the requirements which would otherwise apply, including initial

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disclosure and the need to meet and confer in good faith prior to involving the Court in a

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discovery dispute. Fed. R. Civ. P. 26(a)(1); Fed. R. Civ. P. 26(c); Fed. R. Civ. P.

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37(a)(1); Local Rule 230; ECF No. 24 at ¶5.
However, regardless of Plaintiff’s incarceration, this is a civil action to which the

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Federal Rules of Civil Procedure apply, and the discovery process is subject to the

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overriding limitation of good faith. Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d

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1242, 1246 (9th Cir. 1981). Parties may obtain discovery regarding any non-privileged

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matter that is relevant to any party’s claim or defense, and for good cause, the Court

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may order discovery of any matter relevant to the subject matter involved in the action.

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Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at the trial if the

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discovery appears reasonably calculated to lead to the discovery of admissible

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evidence. Id.

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Generally, if the responding party objects to a discovery request, the party

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moving to compel bears the burden of demonstrating why the objections are not

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justified. E.g., Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012);

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Mitchell v. Felker, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra,

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2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the moving party to

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inform the Court which discovery requests are the subject of the motion to compel, and,

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for each disputed response, why the information sought is relevant and why the

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responding party’s objections are not meritorious. Grabek, 2012 WL 113799, at *1;

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Womack v. Virga, 2011 WL 6703958, at *3 (E.D. Cal. December 21, 2011).
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Nonetheless, the Court is vested with broad discretion to manage discovery,

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Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v.

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Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d

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732, 751 (9th Cir. 2002), and where the discovery request seeks information which,

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based on the record, is clearly within the scope of discovery and the objection lacks

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merit, the Court may elect to exercise its discretion to reach the merits of the dispute,

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the moving party’s initial burden notwithstanding. Marti v. Baires, 2012 WL 2029720, at

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*3 (E.D. Cal. Jun. 5, 2012); Williams v. Adams, 2009 WL 1220311, at *1 (E.D. Cal. May

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4, 2009).

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Courts in the Eastern District of California have required, “at a minimum, [that]

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the moving party plaintiff has the burden of informing the court (1) which discovery

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requests are the subject of his motion to compel, (2) which of the defendant's

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responses are disputed, (3) why he believes the defendant's responses are deficient,

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(4) why the defendant's objections are not justified, and (5) why the information he

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seeks through discovery is relevant to the prosecution of this action.” Walker v. Karelas,

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2009 WL 3075575 at *1 (September 21, 2009); Brooks v. Alameida, 2009 WL 331358

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at *2 (February 10, 2009).

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The court must limit discovery if the burden of the proposed discovery outweighs

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its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). “In each instance [of discovery], the

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determination whether . . . information is discoverable because it is relevant to the

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claims or defenses depends on the circumstances of the pending action.” Fed. R. Civ.

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P. 26 Advisory Committee's note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).

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B.

Requests for Production

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A party may serve on any other party a request within the scope of Rule 26(b) to

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produce and permit the requesting party or its representative to inspect, copy, test, or

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sample items in the responding party's possession, custody or control. Fed. R. Civ. P.

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34(a)(1).

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III.

Discussion
Plaintiff seeks further responses to his request for production, set one, items 6,

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7, 10, 11, 12, and 13. Each of the parties has requested Rule 37 monetary sanctions

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against the other.

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A.

Plaintiff’s Argument In Support

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Plaintiff argues that (1) he inadvertently named U.S. Attorney Ben Wagner as the

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“responding party”; (2) he subsequently narrowed his requests to items in Defendant’s

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possession, custody and control concerning phone records, emails and text messages

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of Correctional Officer Paul Lehmann, Defendant’s employee driving the medical

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transport at the time of the December 17, 2008 incident, and other unspecified

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escorting officers, and their employers (ECF 50 at 2, 34; ECF 58 at 3), and video of

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USP Atwater CMS facilities and Unit 6-A from December 17, 2008 to May 6, 2009; (3)

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the six hundred and sixty-nine documents produced on October 26, 2012 by defense

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counsel in response to Plaintiff’s set two request for production are “mostly

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inconsequential” (ECF No. 50 at 6); and, (4) Rule 37 sanctions in the sum of $98.36 are

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appropriate given Defendant’s continued refusal to properly respond to the discovery.

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B.

Defendant’s Argument In Opposition

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Defendant argues that (1) Plaintiff failed to set this matter for hearing, Local Rule

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251(a); (2) Plaintiff failed to confer in advance of the Motion, Local Rule 251(b); (3) the

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Motion is not supported by a joint statement of discovery dispute as required by Local

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Rule 251(c); (4) the discovery improperly seeks production from non-parties, Fed. R.

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Civ. P. 34, (ECF 51 at 1:18-22); (5) Defendant has produced in response to Plaintiff’s

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set two request for production of documents, request number 15, all relevant document

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in its possession that are responsive to the instant set one requests (Id.)1, and Plaintiff

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Set two production request num ber 15, seeks “[A]ll docum ents that contain, m ention, construe or
refer to the hours of 10:00 a.m . - when Plaintiff was being escorted and - 1:00 p.m . - when the head-on
collision occur - from the escort Paul Lehm an, including but not lim ited to e-m ails, cell phone records,
record of Internet usage and record of all usage of electronic devices Decem ber 17, 2008.”

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has been so advised (Id. at 7:4-5); and, (6) Plaintiff should be sanctioned under Rule 37
for reasonable costs incurred in opposing this Motion in the sum of $2400. (Id. at 7:6-9;
ECF 51-1 at ¶ 11.)
C.

Having considered Plaintiff's Motion, Defendant's Opposition, Plaintiff's Reply
and the relevant discovery requests and responses, the Court rules as follows:
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set this matter for hearing and prepare a joint statement regarding the discovery
dispute.
These objections are overruled. This pro se prisoner motion need not be set for
hearing and is not subject to the joint statement requirements of Local Rule 251. Local
Rule 230(l); ECF No. 24 at ¶5.
2.

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Production Request No. 6: “All phone records from defendant

and escorts from 8:30 a.m. to 1 p.m. December 17, 2008.”
Response: “Responding party objects to this request on the

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Defendant’s Procedural Objections:

Defendant objects the Motion is procedurally deficient because Plaintiff failed to

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Analysis

grounds that he is not a party to this case and Rule 34 does not authorize the Plaintiff to
request production of documents from him. To the extent that a nonparty can be
compelled to produce documents, all documents regarding the substance of this
complaint are protected from discovery by the attorney-client privilege and the work
product privilege. Responding Party also objects to this request as overly broad and
unduly burdensome. Responding Party also objects to the term “defendant” as vague
and ambiguous, in that this is a Federal Tort Claims Act (FTCA) case, wherein the
“defendant” is the United States. No documents will be produced in response to this
request.”
Ruling: Defendant’s objections on the grounds that Plaintiff
requests discovery from a nonparty and that the term “defendant” is vague and
ambiguous are sustained.
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Plaintiff’s request on its face seeks responses from defense counsel, a nonparty. The error is understandable and might not have been fatal if Defendant had
relied exclusively on it and not responded. However, the error was pointed out to
Plaintiff who, rather than serving corrected requests, compounded the problem by
indicating in subsequent correspondence to defense counsel that he meant to request
responses from nonparties USP-Atwater, escort officer Lehmann, and two other
unnamed escorts. Thus it remains unclear from whom Plaintiff was seeking documents
and whether the discovery was directed to a party or a non-party. For the same
reasons, the requests are uncertain as to the identity and capacity of the “defendant”
referred to therein.
To the extent Plaintiff may have subsequently narrowed the set one requests to
the records of Officer Lehmann, ambiguity remains as to the time frame covered and
whether Plaintiff seeks records within or beyond Defendant’s possession, custody, or
control.2 Similarly, the narrowing of the scope of the requests to records of unnamed
escort officers and their employers leaves it uncertain whose records are sought, what
records are sought, and what time frame is intended.3
Defendant’s remaining grounds for objection are overly broad boilerplate, lack
necessary specificity and are overruled. Burlington Northern & Santa Fe. Ry. Co., v.
U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Defendant has
not sufficiently clarified, explained, and supported these grounds for objection.
El–Shaddai v. Wheeler, 2009 WL 301824 at *2 (E.D. Cal. 2009).
The foregoing aside, as noted above, the Court is vested with broad discretion to
manage discovery, Hunt, 672 F.3d at 616; Surfvivor Media, Inc., 406 F.3d at 635;

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Property is deem ed 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 dem and. Allen v.
W oodford, No. CV–F–05–1104 OW W LJO, 2007 W L 309945, *2 (E.D. Cal. Jan. 30, 2007), citing In re
Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); accord Bovarie v. Schwarzenegger, No. 08cv1661
LAB (NLS), 2011 W L 719206, at *4 (S.D. Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC,
2010 W L 1136216, at *1 (E.D. Cal. Mar.19, 2010).
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See n.2.

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Hallett, 296 F.3d at 751, and where the discovery request seeks information which,
based on the record, is clearly within the scope of discovery and objection lacks merit,
the Court may elect to exercise its discretion to reach the merits of the dispute, the
moving party’s initial burden notwithstanding. Marti, 2012 WL 2029720 at *3; Williams,
2009 WL 1220311 at *1. In this regard the Court has considered what it believes to be
the reason for, nature, scope and reasonableness of Plaintiff’s instant discovery and
what Defendant ultimately provided in its response to set two requests for production.
Specifically, the Court has examined Plaintiff’s set two request for production of
documents, request number 15 which seeks:
“[A]ll documents that contain, mention, construe or refer to the hours of
10:00 a.m. - when Plaintiff was being escorted and - 1:00 p.m. - when the
head-on collision occur - from the escort Paul Lehman, including but not
limited to e-mails, cell phone records, record of Internet usage and record
of all usage of electronic devices December 17, 2008.”
The Court finds this request to be appropriate and in keeping with the dictates of
the Federal Rules of Civil Procedure.
Defendant lodged boilerplate objections on grounds of overbreadth, lack of
particularity, and confidentiality/privacy, but agreed to produce:
“[R]elevant portions of the documents relating to the mobile telephone
designated for medical trips by the Bureau of Prisons on the relevant date,
which are identified as: Verizon Records, US 00001-00047. No other
responsive documents are currently known to exist.”
(ECF 51-1 at 12:1-9.) Defendant later supplemented this production with redacted
medical travel and training logs, and medical records related to Plaintiff’s December 17,
2008 procedure. (Id. at 20.)
It is unclear from Defendant’s response to set two request number 15, which is
limited to “relevant” documents relating to a singular telephone, and supplemental
medical logs and records, whether Defendant has fully complied with request number
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15. The request appears to extend to “all documents” relating to the escort and the time
period specified. Reasonableness also limits the request to documents relating to the
incident at issue in this case. Objections to producing same on the grounds of
relevancy, overbreadth and lack of particularity are overruled. Objection on
privacy/confidentiality grounds can not be ruled upon based on the information
presently before the Court.
Accordingly, absent some further valid showing of privacy, confidentiality or
privilege, Defendant is ordered to produce to Plaintiff within thirty days of this Order all
documents in its possession, custody or control containing, referring to, relating to or
otherwise reflecting communications with, to or about escort Paul Lehman and the
event and the time period described in the set two request number 15 or attest that no
such documents are currently known to exist beyond those already produced.
3.

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defendant and escorts from 8:30 a.m. to 1 p.m. December 17, 2008.”
Response: “Responding party objects to this request on the

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Production Request No. 7: “All text messages sent from

grounds that[:] he is not a party to this case and Rule 34 does not authorize the Plaintiff
to request production of documents from him[;] . . .[t]o the extent that a nonparty can be
compelled to produce documents, all documents regarding the substance of this
complaint are protected from discovery by the attorney-client privilege and the work
product privilege[;] . . . [the] request [is] overly broad and unduly burdensome[;] the term
“defendant” [is] vague and ambiguous in that this is a Federal Tort Claims Act FTCA)
case [in which] the “defendant” is the United States[;] [and further] . . . to the extent it
seeks information protected by the law enforcement privilege, material whose
disclosure would violate the privacy interests of persons not parties to this litigation, or
any other applicable privilege. No documents will be produced in response to this
request.”
Ruling: For all the reasons discussed above, Defendant’s various
objections are sustained and/or overruled as set forth above, and Defendant is ordered
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to respond further as directed above.
4.

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and escorts from 8:30 a.m. to 1 p.m. December 17, 2008.”
Response: “Responding party objects to this request on the

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grounds that he is not a party to this case and Rule 34 does not authorize the Plaintiff to
request production of documents from him. To the extent that a nonparty can be
compelled to produce documents, all documents regarding the substance of this
complaint are protected from discovery by the attorney-client privilege and the work
product privilege. Responding Party also objects to the term “defendant” as vague and
ambiguous, in that this is a Federal Tort Claims Act (FTCA) case, wherein the
“defendant” is the United States. No documents will be produced in response to this
request.”
Ruling: For all the reasons discussed above, Defendant’s various

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Production Request No. 10: “All U-Tube records from defendant

objections are sustained and/or overruled as set forth above, and Defendant is ordered
to respond further as directed above.
5.

Production Request No. 11: “All hand-held electronic device

records from defendant and escorts from 8:30 a.m. to 1 p.m. December 17, 2008.”
Response: “Responding party objects to this request on the
grounds that he is not a party to this case and Rule 34 does not authorize the Plaintiff to
request production of documents from him. To the extent that a nonparty can be
compelled to produce documents, all documents regarding the substance of this
complaint are protected from discovery by the attorney-client privilege and the work
product privilege. Responding Party also objects to the term “defendant” as vague and
ambiguous, in that this is a Federal Tort Claims Act (FTCA) case, wherein the
“defendant” is the United States. Responding Party also objects to this request as
overly broad and unduly burdensome. Responding Party objects to the phrase “handheld electronic device” on the ground it is vague and ambiguous. No documents will be
produced in response to this request.”
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Ruling:

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electronic device” is vague and ambiguous is overruled. The meaning of this phrase is
reasonably clear from its context and common usage. In all other respects, Defendant’s
various objections are sustained and/or overruled as set forth above, and Defendant is
ordered to respond further as directed above.
6.

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Response: “Responding party objects to this request on the
grounds that he is not a party to this case and Rule 34 does not authorize the Plaintiff to
request production of documents from him. To the extent that a nonparty can be
compelled to produce documents, all documents regarding the substance of this
complaint are protected from discovery by the attorney-client privilege and the work
product privilege. Responding Party also objects to the term “in connection to” as vague
and ambiguous. No documents will be produced in response to this request.”
Ruling: Defendant’s objections, other than on grounds the phrase

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“in connection to” is vague and ambiguous, are sustained and/or overruled as set forth
above.
Defendant’s objection on grounds the phrase “in connection to” is vague and
ambiguous is sustained. The meaning of this phrase is not reasonably clear from its
context and common usage. It is unclear whether the items sought are within the scope
of Rule 26 discovery.
Plaintiff’s request for a further response to set one request number 12 is denied.
7.

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Production Request No. 12: “All recordings in connection to this

action.”

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Defendant’s objection on grounds the phrase “hand-held

Production Request No. 13: “All video recordings in connection to

this action.”
Response: “Responding party objects to this request on the
grounds that he is not a party to this case and Rule 34 does not authorize the Plaintiff to
request production of documents from him. To the extent that a nonparty can be
compelled to produce documents, all documents regarding the substance of this
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complaint are protected from discovery by the attorney-client privilege and the work
product privilege. Responding Party also objects to [ ] the term “in connection to” as
vague and ambiguous. No documents will be produced in response to this request.”
Ruling: Defendant’s objections are sustained and/or overruled and

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Plaintiff’s request for a further response denied for the reasons stated in the ruling
above for set one request number 12.
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The parties each seek monetary discovery sanctions.

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Pursuant to Federal Rule of Civil Procedure 37(a)(5), the court may order

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payment of reasonable expenses for bringing a motion or decline to do so if it finds that
a party’s position is substantially justified or circumstances make the award unjust.
The competing requests for sanctions are both denied. Plaintiff’s requests were

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problematic for the reasons noted above and Defendant appears to have made a good
faith effort to resolve the problems and reasonably respond. Similarly, Plaintiff’s
requests and their modification appear to have been made in a good faith effort to
obtain discoverable information and the flaws resulted form Plaintiff’s pro se status and
apparent inexpedience with such discovery. The Court does not believe either party has
acted in bad faith, Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980); Miller v.
City of Los Angeles, 661 F.3d 1024, 1036 (9th Cir. 2011).
IV.

ORDER
Based on the foregoing, it is HEREBY ORDERED that:
1.

13, and for sanctions (ECF No. 49) is DENIED;

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Except as provided below, Plaintiff’s Motion to compel further responses
to his May 21, 2012 set one request for production items 6, 7, 10, 11, 12,

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Cross-Motions for Sanctions:

2.

Defendant request for sanctions (ECF No. 51) is DENIED; and,

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Absent some further valid showing of privacy, confidentiality or privilege,
Defendant is ordered to produce to Plaintiff within thirty (30) days of the
date of this Order all documents in its possession, custody or control
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containing, referring to, relating to or otherwise reflecting communications

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with, to or about escort Paul Lehman and the event and the time period

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described in the set two production request number 15 or attest that no

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such documents are currently known to exist beyond those already

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produced.

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IT IS SO ORDERED.
Dated:
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May 9, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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