McCoy v. Ramirez et al

Filing 65

ORDER Denying without Prejudice Plaintiff's Motion for Civil Subpoena 63 , signed by Magistrate Judge Michael J. Seng on 6/8/16. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAKEITH LEROY MCCOY,

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Plaintiff,
v.

CASE NO. 1:13-cv-01808-MJS (PC)
ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S
MOTION
FOR
CIVIL
SUBPOENA

J. RAMIREZ, et al.,
(ECF No. 63)
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant

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Ramirez on an Eighth Amendment excessive force claim.

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Pending now is Plaintiff April 27, 2016, motion for a civil subpoena. (ECF No. 63.)

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Defendant opposes the motion. For the reasons set forth below, the Court construes

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Plaintiff’s motion as a motion to compel and will deny it without prejudice to its renewal.

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On March 24, 2016, Plaintiff served on Defendant his First Request for Production

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of Documents (“RPD”), which included 18 total requests. Pl.’s Decl. ¶ 2, Ex. A (ECF No.

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63). On April 6, 2016, Defendant objected to the requests on multiple grounds, including

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relevance, overbreadth, privacy, and privilege. See Pl.’s Decl. Ex. B. Relevant here,

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Defendant responded as follows to Request Nos. 14-17: “After diligent search and
reasonable inquiry, Responding Party is not in possession of any documents responsive
to this request.” Id. (ECF No. 63 at 21-23).
It appears that Plaintiff has interpreted this response that Defendant is not in
possession of responsive documents as an assertion that Defendant does not have
access to them. Based on that interpretation, Plaintiff now moves to serve a civil
subpoena on the Litigation Coordinator at California Correctional Institution in
Tehachapi, California, who Plaintiff presumes to have access not only to documents
responsive to Request Nos. 14-17, but to all 18 Requests.
Defendant opposes Plaintiff’s motions on two grounds. First, he argues that
Plaintiff failed to meet and confer and failed to submit a joint discovery statement in
violation of Federal Rule of Civil Procedure 37(a)(1) and the Court’s Local Rule 251.
However, the Court’s March 17, 2016, Discovery and Scheduling Order specifically
relieved the parties of the duties imposed by these Rules. See ECF No. 58 ¶ 4 (“[U]nless
otherwise ordered, Local Rule 251 shall not apply, and the requirement set forth in
Federal Rules of Civil Procedure 26 and 37 of a good faith conference or attempt to
confer with the other party to resolve the dispute shall not apply.”). Accordingly,
Defendant’s objection on this ground is overruled.
Defendant next argues that Plaintiff failed to satisfy his burden as the moving
party. Pursuant to Federal Rule of Civil Procedure 26(b), parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1) (Dec. 2015). As the
moving party, Plaintiff bears the burden of informing the Court of (1) which discovery
requests are the subject of his motion to compel, (2) which of Defendant’s responses are
disputed, (3) why he believes Defendant’s responses are deficient, (4) why Defendant’s
objections are not justified, and (5) why the information he seeks through discovery is
relevant to the prosecution of this action. See, e.g., Ellis v. Cambra, 2008 WL 860523, at

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*4 (E.D. Cal. Mar. 27, 2008) (“Plaintiff must inform the court which discovery requests
are the subject of his motion to compel, and, for each disputed response, inform the
court why the information sought is relevant and why Defendant's objections are not
justified.”).
The Court agrees with Defendant that Plaintiff has not met his burden here. In this
motion, Plaintiff seeks documents responsive to all 18 Requests without addressing any
of the objections asserted by Defendant. By way of example, the Court reproduces
Plaintiff’s Request for Production No. 3 and Defendant’s response:

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Request for Production No. 3: The names, addresses, and
telephone numbers of all persons interviewed by the agency
during the investigation of said complaints.
Response to Request No. 3: Responding Party objects to
this request on the grounds that the request is vague and
ambiguous. Responding Party does not know what Plaintiff
means by “complaints” or “the agency.” Responding Party
further objects on the grounds that the request seeks
confidential and restricted security information, and it seeks
information protected by the Constitutional right to privacy of
Responding Party and third parties. Responding Party
further objects to this request on the grounds that the
requested documents are confidential and not disclosed to
inmates, other CDCR employees, or the general public.
Responding party further objects on the grounds and to the
extent that this request is not relevant nor reasonably
calculated to lead to the discovery of admissible evidence.

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ECF No. 63 at 16.

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Though Defendant objects to Request No. 3 on grounds of ambiguity,

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confidentiality, privacy, and relevance, Plaintiff does not discuss any of these objections

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in his motion. Instead, he focuses in on Defendant’s response to Request Nos. 14-17

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that he is not in possession of responsive documents. Apparently widening the target of

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this response to all 18 Requests instead of the 4 against which it was actually asserted

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and also substituting the word “access” for “possession,” Plaintiff expresses confusion,

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stating that he was under the impression that Defendant’s current counsel had access to
responsive documents since they were allegedly available to previous counsel.1 He
declares:

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[¶ 4] That prior to [current] counsel coming onto the case to
represent Defendant, Defendant was represented by the
California Attorney General’s Officer [sic] who does have
access to these documents Plaintiff requests.

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[¶ 5] That Plaintiff misconstrued then counsel and current
[counsel] as having equal access to the documents
requested.

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Pl.’s Decl. ¶¶ 4-5. Review of Defendant’s responses, however, reveals that access to
responsive documents is not an issue, let alone the only issue.
In sum, Plaintiff has misunderstood Defendant’s response to Request Nos. 14-17,

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expanded the scope of the response to all 18 Requests, and failed to address any of the
other objections raised by Defendant. Plaintiff’s motion must therefore be denied.2
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s April 27, 2016,

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motion for civil subpoena (ECF No. 63) is DENIED without prejudice to its renewal.
IT IS SO ORDERED.

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Dated:

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June 8, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Defendant’s current counsel substituted in on February 10, 2016 (ECF No. 56).

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Since the discovery deadline in this case is November 17, 2016 (ECF No. 58), Plaintiff will have time to
renew this motion after appropriately addressing the objections asserted by Defendant. Assuming Plaintiff
pursues this discovery, Defendant is advised that the Court would find it inordinately unhelpful, and
perhaps sanctionable, if Defendant’s assertions of privilege went accompanied by a privilege log. Miller v.
Pancucci, 141 F.R.D. 292, 300 (9th Cir. 1992); Fed. R. Civ. P. 26(b)(5)(A).

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