Jacobs v. Quinones et al

Filing 62

ORDER Granting in Part Plaintiff's Motions for Issuance of Subpoenas Duces Tecum 41 , 53 , signed by Magistrate Judge Jennifer L. Thurston on 5/15/14. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GEORGE E. JACOBS, IV,

12

Plaintiff,
v.

13
14

A.C. QUINONES, et al.,

1:10-cv-02349-AWI-JLT (PC)
ORDER GRANTING IN PART PLAINTIFF'S
MOTIONS FOR ISSUANCE OF SUBPOENAS
DUCES TECUM
(Docs. 41, 53)

Defendants.

15
16
17
18

I.

BACKGROUND
Plaintiff is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. '

19

1983. This action is proceeding on the First Amended Complaint for Plaintiff's Eighth

20

Amendment claims against Defendants Does #1-3, Pruitt, Magana, and Davis for deprivation of

21

basic necessities; against Defendants Cogdill, Scaiffe, Quinones and Davis for excessive force;

22

and against Defendants Bardonnex and Williams for depriving Plaintiff of yard time. (Docs. 11,

23

17, 19, 24.)

24

Plaintiff filed two motions for subpoena duces tecum. (Docs. 41, 53.) Defendants filed an

25

opposition to the first of Plaintiff's motions to which Plaintiff replied. (Docs. 43, 46.) Defendants

26

did not file an opposition to the latter of Plaintiff's motions. The motions are deemed submitted.

27

L.R. 230(l).

28
1

1

II.

PARTIES' POSITIONS
In his motions, Plaintiff seeks subpoenas duces tecum to issue requesting numerous

2
3

documents.1 (See Docs. 41, 53, P's 1st & 2nd Mot. for SDTs.) Defendants argue that Plaintiff's

4

motions should be denied because they are untimely under the discovery and scheduling order

5

(Doc. 43, Ds' Opp., 1:1-14); because his subpoena is improperly formatted under Rule 45 of the

6

Federal Rules of Civil Procedure (id., at 2:15-22); and because Plaintiff's requests are overbroad

7

and seek documents that are privileged and irrelevant (id., at 2:23-12). Plaintiff responds by

8

arguing that the Attorney General cannot properly bring the opposition on behalf of an entity that

9

is not a party to this action and that the Court lacks jurisdiction to rule on the arguments raised by

10

Defendants since they filed an opposition rather than a motion to quash. (See Doc. 46, P's Reply.)

11

III.

LEGAL STANDARD
Federal Rule of Civil Procedure ("Rule") 45 permits issuance of subpoenas for discovery

12
13

from nonparties equivalent to discovery from parties under Rule 34. See Adv. Comm. Note to

14

1991 Amendment to FRCP 45. Rule 34 governs discovery of designated documents,

15
16
17
18

electronically stored information, and designated tangible things subject to the provisions of Fed.
R. Civ. P. 26(b). Meeks v. Parsons, 2009 WL 3003718, *2 (E.D. Cal. 2009) (citing Fahey v.
United States, 18 F.R.D. 231, 233 (S.D.N.Y. 1955). Rule 26(b)(1) establishes the scope of
discovery, stating in pertinent part:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense-including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location of persons
having knowledge of any discoverable matter. For good cause, the court
may order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery of
admissible evidence.

19
20
21
22
23
24

Accordingly, under Rule 34, the test for admissibility is the relevance of the requested
25
material or information. Id., (citing Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir.1980);
26
White v. Jaegerman, 51 F.R.D. 161, 162 (S.D.N.Y.1970); Ceramic Corp. of Amer. v. Inka
27
28

1

It is noteworthy that the requested categories of documents are variously duplicative between Plaintiff's motions.

2

1

Maritime Corp., Inc., 163 F.R.D. 584 (C.D.Cal.1995)).

2

AThe law [of discovery] begins with the presumption that the public is entitled to every

3

person's evidence.@ Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389

4

(N.D.Cal.1976). A nonparty may be compelled to produce documents and tangible things as

5

provided in Rule 45. Fed. R. Civ. P. 34(c). Assuming that the subpoena is properly constituted

6

and served, Rule 45 requires the subpoena=s recipient to produce the requested information and

7

materials, provided the issuing party Atake[s] reasonable steps to avoid imposing undue burden or

8

expense.@ Fed. R. Civ. P. 45(c)(1) and (d)(1).

9

IV.

10
11

DISCUSSION
Plaintiff has the right to subpoena documents from a third party that are relevant to the

claims upon which he is proceeding in this action.

12

A.

Timeliness of Plaintiff's motions for subpoenas duces tecum

13

Defendants argue that Plaintiff's motions for subpoenas duces tecum are untimely. (Doc.

14

43, Ds' Opp., 2:1-14.) Defendants cite cases from other district courts to argue that Rule 45

15

subpoenas are subject to the discovery deadlines in the discovery and scheduling order. (Id.)

16

However, the discovery and scheduling order dictates that the parties respond to discovery

17

requests propounded by their opponent; it does not seek to modify the deadlines by which a third

18

party must respond to requests. Thus, non-parties responding to a subpoena must be allowed only

19
20
21
22
23
24
25
26
27
28

a reasonable time to comply. Fed. R. Civ. Pro. 45(d)(3)(A)(i). Thus, Defendants' argument that
Plaintiff's motions for issuance of subpoenas duces tecum are untimely lacks merit.
B.

Improper Format

Defendants also argue that Plaintiff's motions should be denied because they are not
formatted in compliance with Rule 45. (Doc. 43, Ds' Opp., at 2:15-22.) If this action were being
pursued by a represented plaintiff and counsel had issued the subpoena that Plaintiff attached to
his motions (see Doc. 41, P's 1st Mot. for SDT, p. 11; Doc. 53, P's 2nd Mot. for SDT, p. 2),
Defendants' argument would have merit. However, since Plaintiff is an inmate proceeding pro se
and in forma pauperis, the subpoenas he submitted will not be utilized; rather the Court will
prepare and issue the subpoenas. Thus, Defendants' argument that Plaintiff's motions should be
3

1

denied because he did not properly fill out the subpoena form likewise lacks merit.

2

C.

Privileged and Irrelevant Documents

3

Defendants argue that Plaintiff's motions should be denied because his requests seek

4

documents that are privileged and irrelevant. (Doc. 43, Ds' Opp., at 2:23-12.) Plaintiff replies

5

that Defendants cannot object to issuance of the subpoenas duces tecum because they do not

6

represent the entity on whom he seeks to have the subpoenas served.

7

Ordinarily, a party cannot object to a subpoena duces tecum served on a nonparty, but

8

rather must seek a protective order or move to quash. Moon v. SCP Pool Corp., 232 F.R.D. 633,

9

636 (C.D. Cal. 2005) (citing Schwarzer, Tashima, & Wagstaffe, California Practice Guide:

10

Federal Civil Procedure Before Trial, & 11:2291 (2005 rev.); see also Pennwalt Corp. v. Durand-

11

Wayland, Inc., 708 F.2d 492, 494 n. 5 (9th Cir. 1983)). The burden of quashing or objecting to a

12

subpoena duces tecum is generally on the person to whom the subpoena is directed. See Sullivan

13

v. Dickson, 283 F.2d 725 (9th Cir. 1960); Fed. R. Civ. P. 45(c)(2) and (3). However, that general

14

rule is extended to parties where Athe party claims some personal right or privilege with regard to

15

the documents sought.@ Atlantic Inv. Management, LLC v. Millennium Fund I, Ltd., 212 F.R.D.

16

395 (N.D. Ill. 2002) (quoting Wright & Miller, Federal Practice and Procedure, 9A Civil 2d '

17

2459 at 41 (1995 ed.).

18
19
20
21
22
23
24
25
26
27
28

Defense counsel correctly acknowledges that he does not represent CDCR. (Doc. 43, Ds'
Opp., 2:26-27.) He also correctly asserts that the subpoenas requested by Plaintiff are
objectionable on grounds of privilege and relevance. (Id.) However, defense counsel does not
address each individual request with the required specificity. Rule 34(b) specifically requires that
each request be addressed and that if the requested inspection is not allowed, an objection and the
reasons for the objection Ashall be stated.@ The objecting entity must state specifically how,
despite the broad and liberal construction of federal discovery rules, each question is overly
broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing
the nature of the burden. Klein v. AIG Trading Group, Inc., 228 F.R.D. 418, 422 (D. Conn.
2005). Objections must be made with sufficient specificity in accordance with Rule 34;
objections that are not sufficiently specific, such as statements that requests are overly broad,
4

1

burdensome, or oppressive, are waived. Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409

2

(C.D. Cal. 2005). Here, Defendants' objection of overly-broad and privileged are raised as a

3

general principle and are not raised in reference to a specific request.2 (See i.e. Doc. 43, 3:1-7.)
Despite the inadequacy of Defendants' opposition, the Court is wont to allow discovery of

4
5

clearly privileged correctional officers' information to inmates, or to allow wholesale release of

6

records to inmates because oppositional ineptitudes. The below restating of the limited number of

7

Plaintiff's requests that will be allowed was undertaken in an effort to preserve Defendants'

8

clearly privileged information, to preserve the safety and security of the institution,3 and yet to

9

allow Plaintiff to obtain information which is relevant to the claims upon which he proceeds in

10

this action.

11

D.

12

A subpoena duces tecum will issue within 15 days requesting production of copies

13

Allowed Requests

reflecting the following:
(1) any and all documents reflecting complaints (including, but not
limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) against
Defendants Pruitt, Magana, and/or Davis for deprivation of basic necessities
(conditions of confinement) in violation of the Eighth Amendment;

14
15
16

(2) any and all documents reflecting complaints (including, but not
limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) against
Defendants Cogdill, Scaiffe, Quinones, and/or Davis for excessive force in
violation of the Eighth Amendment;

17
18
19

(3) any and all documents reflecting complaints (including, but not
limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) against
Defendants Bardonnex and/or Williams for restricting an inmate's yard time
in violation of the Eighth Amendment;

20
21
22

(4) any and all documents reflecting complaints (including, but not
limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) against
Defendants Pruitt, Magana, Davis, Cogdill, Scaiffe, Quinones, Bardonnex,
and/or Williams for the giving of false testimony;

23
24
25
26
27
28

2

The only request that Defendants specifically address is Request #6 in Doc. 41 wherein Plaintiff requests
"statements of psychiatrists, psychologist, therapist or consultants" contained in Defendants' files (Doc. 43, Ds'
Opp., 3:8-9) which are, at the very least, privileged from disclosure under the privacy rule of the Health Insurance
Portability and Accountability Act ("HIPA").
3
Correctional officers' personal information is protected for obvious security reasons. See Sanchez v. City of Santa
Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1991).

5

1
2
3
4
5
6
7
8
9
10
11
12
13

(5) any and all documents reflecting disciplinary action taken against
Defendants Pruitt, Magana, and/or Davis based on complaints (including, but
not limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) for
deprivation of basic necessities (conditions of confinement) in violation of
the Eighth Amendment;
(6) any and all documents reflecting disciplinary action taken against
Defendants Cogdill, Scaiffe, Quinones, and/or Davis based on complaints
(including, but not limited to filings in a civil lawsuit or by inmate
grievances, i.e. 602) for excessive force in violation of the Eighth
Amendment;
(7) any and all documents reflecting disciplinary action taken against
Defendants Bardonnex and/or Williams based on complaints (including, but
not limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) for
restricting an inmate's yard time in violation of the Eighth Amendment;
(8) any and all documents reflecting disciplinary action taken against
Defendants Pruitt, Magana, Davis, Cogdill, Scaiffe, Quinones, Bardonnex,
and/or Williams based on complaints (including, but not limited to filings in
a civil lawsuit or by inmate grievances, i.e. 602) for the giving of false
testimony;

14
15
16
17
18
19
20
21
22
23
24

(9) the CDCR Daily 114 A file/log (notes) regarding Plaintiff, George
E. Jacobs IV, #348666;
(10) any and all documents reflecting investigations of Defendants
Pruitt, Magana, and/or Davis based on complaints (including, but not limited
to filings in a civil lawsuit or by inmate grievances, i.e. 602) for deprivation
of basic necessities (conditions of confinement) in violation of the Eighth
Amendment including, but not limited to documents from the Bureau of
Independent Review ("BIR"), and disciplinary audits from the office of Legal
Affairs, and/or O.I.A.;
(11) any and all documents reflecting investigations of Defendants
Cogdill, Scaiffe, Quinones, and/or Davis based on complaints (including, but
not limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) for
excessive force in violation of the Eighth Amendment including, but not
limited to documents from the Bureau of Independent Review ("BIR"),
disciplinary audits from the office of Legal Affairs, and/or O.I.A., and the
Use of Force Review Committee;

25
26
27
28

(12) any and all documents reflecting disciplinary investigations of
Defendants Bardonnex and/or Williams based on complaints (including, but
not limited to filings in a civil lawsuit or by inmate grievances, i.e. 602) for
restricting an inmate's yard time in violation of the Eighth Amendment
including, but not limited to documents from the Bureau of Independent
6

Review ("BIR"), and disciplinary audits from the office of Legal Affairs,
and/or O.I.A.; and

1
2

(13) any and all documents reflecting investigations of Defendants
Pruitt, Magana, Davis, Cogdill, Scaiffe, Quinones, Bardonnex, and/or
Williams based on complaints (including, but not limited to filings in a civil
lawsuit or by inmate grievances, i.e. 602) for the giving of false testimony
including, but not limited to documents from the Bureau of Independent
Review ("BIR"), and disciplinary audits from the office of Legal Affairs,
and/or O.I.A.

3
4
5
6

Plaintiff's request for the issuance of subpoenas duces tecum is GRANTED IN PART.

7
8

Two subpoenas will issue4 -- one to the Secretary of the California Department of Corrections and

9

Rehabilitation (CDCR) and one to the Custodian of Records of the Inspector General ordering

10

production of documents responsive to the above requests. Pursuant to Federal Rule of Civil

11

Procedure 45(b)(1), this order serves as notice to the parties that the United States Marshal will be

12

directed to initiate service of the subpoenas following the passage of fifteen days from the date of

13

service of this order.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:

14

1.

15

PART as specified in this order;

16
2.

17

The issuance of subpoenas duces tecum directing the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) and the Custodian of

18

Records of the Inspector General to produce responsive documents to the

19

requests as stated hereinabove is authorized; and

20
3.

21

Pursuant to Rule 45(b)(1), the parties are placed on notice that the subpoenas
duces tecum will be issued after 15 days from the date of service of this order.

22
23

Plaintiff's requests for the issuance of subpoenas duces tecum, are GRANTED IN

IT IS SO ORDERED.

24
Dated:

May 15, 2014

/s/ Jennifer L. Thurston

25

UNITED STATES MAGISTRATE JUDGE

26
27
28

4

The Court will prepare and issue the subpoenas and forward them to the United States Marshal for service.

7