McCoy v. Ramirez et al
Filing
91
ORDER Granting in Part Plaintiff's Motion to Compel; Granting in Part Defendant's Motion for Protective Order; Granting Plaintiff's Motion for Modification of Discovery and Scheduling Order; Denying Plaintiff's Motion for Civil Subpoena; and Denying Plaintiff's Motion for Sanctions, signed by Magistrate Judge Michael J. Seng on 12/19/16. Motions 79 , 80 , 82 , 85 , 86 terminated. (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,
CASE NO. 1:13-cv-01808-MJS (PC)
ORDER
v.
(1) GRANTING IN PART PLAINTIFF’S
MOTION TO COMPEL;
J. RAMIREZ, et al.,
Defendants.
(2) GRANTING IN PART DEFENDANT’S
MOTION FOR PROTECTIVE ORDER;
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(3) GRANTING PLAINTIFF’S MOTION
FOR MODIFICATION OF DISCOVERY
AND SCHEDULING ORDER;
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(4) DENYING PLAINTIFF’S MOTION FOR
CIVIL SUBPOENA; AND
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(5) DENYING PLAINTIFF’S MOTION FOR
SANCTIONS.
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(ECF Nos. 79, 80, 82, 85, 86)
SEVEN-DAY DEADLINE
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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
Jason Ramirez on an Eighth Amendment excessive force claim. Both parties have
consented to the jurisdiction of a magistrate judge.
The following motions are now pending before the Court: (a) Plaintiff’s motion to
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compel (ECF No. 79), (b) Plaintiff’s motion for modification of the March 17, 2016,
Discovery and Scheduling Order (“DSO”) (ECF No. 80), (c) Plaintiff’s motion for civil
subpoena (ECF No. 82), (d) Defendant’s motion for protective order (ECF No. 85), and
(e) Plaintiff’s motion for sanctions (ECF No. 86).
I.
After Plaintiff initiated this action on November 8, 2013, his complaint was
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dismissed with leave to amend for failure to state a claim. (ECF No. 9.) Plaintiff then filed
a first amended complaint, which was found to state an excessive force claim against
Defendant Ramirez. (ECF No. 12.)
Rather than proceeding on the first amended complaint as screened, Plaintiff filed
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a second amended complaint. The second amended pleading was screened and again
found only to state an excessive force claim against Defendant. (ECF No. 33.) Service
was thus ordered, and Defendant filed an Answer on February 18, 2016.
On March 17, 2016, a Scheduling Order issued setting November 17, 2016, as
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the discovery deadline, and January 26, 2017, as the deadline for filing dispositive
motions. (ECF No. 58.)
II.
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Relevant Legal Standards
The following legal standards are applicable to the various motions addressed
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Relevant Procedural History
below:
Federal Rule of Civil Procedure 26(b)(1) sets forth the following standard
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pertaining to discovery of relevant evidence:
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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, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant
information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
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Limitations to discovery are set forth in Federal Rule of Civil Procedure
26(b)(2)(C), which provides:
On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by
local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).
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Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery
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may move for an order compelling an answer, designation, production, or inspection.”
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Fed. R. Civ. P. 37(a)(3) (B). The court may order a party to provide further responses to
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an “evasive or incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4).
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“District courts have ‘broad discretion to manage discovery and to control the course of
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litigation under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d
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606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,
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833 (9th Cir. 2011)). Generally, if the responding party objects to a discovery request,
the party moving to compel bears the burden of demonstrating why the objections are
not justified. E.g., Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012);
Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the
moving party to inform the Court which discovery requests are the subject of the motion
to compel, and, for each disputed response, why the information sought is relevant and
why the responding party's objections are not meritorious. Grabek, 2012 WL 113799, at
*1; Womack v. Virga, 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).
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The Court is vested with broad discretion to manage discovery; notwithstanding
these procedures, Plaintiff is entitled to leniency as a pro se litigant, and so, to the extent
possible, the Court endeavors to resolve Plaintiff's motion to compel on its merits. Hunt,
672 F.3d at 616; Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th
Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
III.
Discussion
A.
Plaintiff’s Motion to Compel
In the October 11, 2016, motion to compel, Plaintiff moves for the second time for
further responses to his First Request for Production of Documents (“RPD”). Additionally,
Plaintiff moves for the first time to compel further responses to Interrogatory No. 13 from
his First Set of Interrogatories. Defendant opposes the motion.
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Document Requests
On July 5, 2016, Plaintiff moved to compel further responses to a number of
document requests that he served on March 24, 2016. (ECF No. 67.) As relevant here,
Plaintiff sought the following documents in connection with the excessive force claim:
any statements made by officers to investigators (RPD No. 11), all written statements
“identifiable as reports” (RPD No. 13); all California Department of Corrections and
Rehabilitation (“CDCR”) forms (3010, 3011, 3012, 3014, 3015, 3034, and 3036) (RPD
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No. 14); all internal affairs allegations logs (RPD No. 16); and the confidential request for
an internal affairs investigation (RPD No. 17).
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On August 26, 2016, the undersigned granted Plaintiff’s motion to compel as to
RPD Nos. 11, 13, 14, 16, and 17 after overruling Defendant’s confidentiality and privacy
objections. (ECF No. 74.) As to the confidentiality objections, the Court found
Defendant’s privilege log tardy and materially deficient and his confidentiality argument
legally insufficient in failing to comply with prerequisites for asserting privilege.
Defendant was thus directed to submit supplemental responses to these discovery
requests within fourteen days.
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In response to the Court’s order, defense counsel filed a declaration on
September 9, 2016, stating that he had previously produced all documents responsive to
RPD Nos. 11 and 13, and that he was not in possession of any documents responsive to
RPD Nos. 14, 16, or 17. Decl. of Matthew Roman in Resp. to Court Order (ECF No. 75.)
As to RPD Nos. 14, 16 and 17, counsel declared that he spoke to Defendant and the
litigation coordinator at the prison to confirm that no such documents exist. Roman Decl.
¶ 6.
One month later, on October 11, 2016, Plaintiff filed the instant motion to compel
challenging Defendant’s claims that no further responsive documents exist or that
Defendant is not in possession of them. Plaintiff argues that Defendant (1) failed to
support his claims with an affidavit or declaration from a prison official with knowledge of
the matters attested to and (2) failed to specify whether the documents ever existed.
Plaintiff also doubts the truthfulness of the custodian of the documents, Marion Dailo, as
he was the individual who interviewed Plaintiff following the excessive force incident.
In his opposition to the instant motion, Defendant describes a continued search
for documents responsive to Plaintiff’s discovery requests. Def.’s Opp’n at 2. According
to Defendant, the ongoing search has produced several additional documents in
response to RPD Nos. 11, 13, and 14. Defendant here seeks a protective order as to
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those newly discovered documents. The documents are described as follows: (1) the
Confidential Supplement to Appeal – “Appeal Inquiry,” dated August 29, 2013; (2) the
Memorandum RE Staff Complaint Letter from Inmate McCoy, dated August 20, 2013; (3)
the CDCR Form 3014 – Report of Findings – Inmate Interview, dated August 20, 2013;
(4) the Memorandum Regarding Initial Allegation of Excessive or Unnecessary Force,
dated July 23, 2013; (5) the Memorandum Regarding Administrative Review, dated
August 5, 2013; and (6) the Memorandum Regarding Allegation of Excessive or
Unnecessary Force, dated September 10, 2013. Defendant claims these documents are
confidential pursuant to California Code of Regulations Title 15 § 3084.9(i) and are
subject to the official information privilege.
Pursuant to Federal Rule of Civil Procedure 26(c)(1), the Court may, for good
cause, issue a protective order forbidding or limiting discovery. The avoidance of undue
burden and expense are grounds for the issuance of a protective order. Additionally, the
assertion of a privilege is governed by Rule 26(b)(5), which directs a party seeking to
withhold otherwise discoverable information to expressly make the claim and describe
the nature of the documents not produced and to do so in a manner that would enable
other parties to assess the claim.
Under California Code of Regulations Title 15 § 3084.9(i)(3), one of two things is
to ensue from the filing of a grievance deemed to be a staff complaint: a CDCR staff
member is to review the complaint and determine if the allegations warrant a request for
an Internal Affairs investigation if the alleged conduct would likely lead to adverse
personnel action, § 3084.9(i)(3)(A), or the allegations do not warrant a request for an
internal affairs investigation in which case a confidential inquiry will be completed by the
reviewer, § 3084.9(i)(3)(B). The appellant is ultimately informed of the results of this
investigation pursuant to § 3084.9(i)(4), but the confidential report is ultimately kept only
in the appeal file in the Appeals Office, § 3084.9(i)(3)(B)(1). “This document is strictly
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confidential to all inmates and any staff except those involved in the inquiry process or
litigation involving the department.” § 3084.9(i)(3)(B)(1).
It appears Plaintiff’s staff complaint was not referred for an Internal Affairs
investigation and so was instead subject to a confidential inquiry. See Def.’s Mot. Prot.
O. at 5. Defendant argues that portions of the results of this confidential inquiry “contain
statements from non-party inmates and non-party correctional officers” and, as such, are
subject to the official information privilege. In support, Defendant has now submitted a
declaration of the Custodian of Records, M. Dailo, who states that the information in
these records must be protected from disclosure for the safety and security of the
institution, its employees and the inmates. See Decl. of M. Dailo in Supp. Def.’s Mot.
Prot. O. (ECF No. 85-2) ¶¶ 2-6. Ms. Dailo further declares that the disclosure of these
reports would undermine the investigative process. Id. ¶ 7.
The Court rejected Defendant’s initial assertion of the official information privilege
in its August 26, 2016, Order because of Defendant’s failure to provide a timely and
adequate privilege log and his failure to comply with the requirements for asserting the
privilege. Defendant’s attempt to re-assert the privilege now is not well-taken. Defendant
claims that the documents subject to this renewed assertion were only recently
identified. However, under CDCR policy, these reports are routinely prepared following
an excessive force incident. It is difficult to imagine how/why they were not located,
identified, and produced earlier and/or made the subject of a privilege claim in response
to Plaintiff’s initial discovery request. Reasonable inquiry should have identified them
months ago. Plaintiff’s requests were not vague; he identified by number specific CDCR
forms related to investigations of staff complaints (e.g., RPD No. 16 identified “CDCR
Form 2140, Internal Affairs Allegations Logs…”; RPD No. 17 identified “CDCR Form 989,
Confidential Request for Internal Affairs Investigation…”). Defendant was, of course,
aware of the confidential inquiry, having admitted having been interviewed in the
investigation following the incident. Finally, the Court notes that Defendant’s motion for
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a protective order is tardy, having been filed after the current discovery deadline and two
weeks after he filed his opposition to the instant motion.
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In light of the routine nature of these documents and the multiple opportunities
that Defendant has now had to identify them and/or seek timely protection from
disclosure, Defendant’s motion for protective order will be granted in part, and Plaintiff’s
motion to compel will be granted. Out of deference to the possibility that blanket
disclosure could conceivably jeopardize the safety and security of inmates and staff
members, Defendant will be directed to produce the documents after redacting the last
names of individuals not previously identified by either party during the course of this
litigation. Defendant must simultaneously provide to the Court unredacted copies for in
camera review and release if and as the Court deems appropriate.
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2.
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Interrogatory No. 13
Also at issue in the instant motion is Defendant’s response to Interrogatory No.
13, which was first served on May 19, 2016, and which asked “Were you ever
interviewed regarding Plaintiff McCoy filing a grievance against you for unnecessary and
excessive force against him? If so, by who [sic]?” Pl.’s MTC Ex. A (ECF No. 79 at 1618).
Defendant responded to Interrogatory No. 13 as follows
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Responding Party objects to this interrogatory on the
grounds that it is compound. Subject to and without waiving
said objections, Responding Party responds as follows:
Responding Party was interviewed regarding the allegations
in the appeal. Responding Party does not recall who
conducted the interview.
Pl.s MTC Ex. B (ECF No. 79 at 26).
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Plaintiff argues that Defendant’s answer is evasive to the extent he claims not to
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remember who interviewed him. Plaintiff believes that Marion Dailo, the current
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Custodian of Records, conducted this interview. Defendant admits this to be true and will
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supplement his response accordingly. Plaintiff’s motion for further responses to
Interrogatory No. 13 will therefore be denied as moot.
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B.
Plaintiff next moves for a civil subpoena to conduct audiovisual depositions of
Defendant and other witnesses. Defendant has not filed an opposition or statement of
non-opposition to this motion.
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Plaintiff’s Motion for Civil Subpoena
1.
Deposition of Defendant
Plaintiff’s motion for a civil subpoena to depose Defendant will be denied.
subpoenas are directed to non-parties. See Adv. Comm. Note to 1991 Amendment to
Fed. R. Civ. P. 45(a). Plaintiff does not need leave of Court or a subpoena to depose
Defendant. As to the officials and staff at the institution where Plaintiff is housed, the
Court does not have jurisdiction over them and cannot order a video deposition.
Under the Federal Rules of Civil Procedure, depositions may be taken orally or by
written questions. Fed. R. Civ. P. 30, 31. “A party who wants to depose a person by oral
questions must give reasonable written notice to every other party.” Fed. R. Civ. P.
30(b)(1). “The party who notices the deposition must state in the notice the method for
recording the testimony.” Fed. R. Civ. P. 30(b)(3)(A). The noticing party must also bear
costs of recording the deposition. Id. In addition, that party must arrange for an officer to
conduct the depositions (absent a stipulation by all parties otherwise). Fed. R. Civ. P.
30(b)(5)(A).
Depositions by written questions must be taken pursuant to the procedures set
forth under Federal Rule of Civil Procedure 31. As explained by another court:
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The deposition upon written questions basically would work
as follows: The prisoner would send out a notice of
deposition that identifies (a) the deponent (i.e., the witness),
(b) the officer taking the deposition, (c) a list of the exact
questions to be asked of the witness, and (d) the date and
time for the deposition to occur. The defendant would have
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time to send to the prisoner written cross-examination
questions for the witness, the prisoner would then have time
to send to defendant written re-direct questions for the
witness, and the defendant would have time to send to the
prisoner written re-cross-examination questions for the
witness[.]
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Harrell v. Jail, No. 2:14-cv-1690-TLN-CKD P, 2015 WL 8539037, at *1-2 (E.D. Cal. Dec.
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11, 2015) (quoting Brady v. Fishback, No. 1:06-cv-00136-ALA (P), 2008 WL 1925242, at
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*1-2 (E.D. Cal. April 30, 2008)).
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Under either scenario, Plaintiff’s in forma pauperis status does not entitle him to
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free services from the Court, such as scheduling, conducting, or recording the
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deposition, or to utilize Defendant’s resources for the deposition. See, e.g., Brooks v.
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Tate, No 1:11-cv-01503-AWI-DLB PC, 2013 WL 4049053, *1 (E.D. Cal. Aug. 7, 2013)
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(indigent prisoner not entitled to take the depositions of defendant and non-party
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witnesses during his own deposition).
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Plaintiff also seeks to depose “numerous” witnesses to the excessive force
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Deposition of Non-Parties
incident, though he identifies only Correctional Officer R. Mullins.
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Under Rules 30(a)(1) and 31(a)(1) of the Federal Rules of Civil Procedure,
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Plaintiff may depose any person by oral examination or written questions, respectively,
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without leave of court. Pursuant to both Rules, the deponent’s attendance may be
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compelled by subpoena under Rule 45.
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Plaintiff has indicated his intent to proceed with oral depositions of non-parties.
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Pursuant to Rule 45(a)(1)(B), “[a] subpoena commanding the attendance at a deposition
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must state the method for recording the testimony.” Plaintiff is also required to tender
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witness fees and mileage pursuant to Rule 45(b)(1). As noted supra, “Plaintiff's in forma
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pauperis status ... does not entitle him to waiver of witness fees, mileage or deposition
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officer fees.” Jackson v. Woodford, 2007 WL 2580566, at *1. (S.D. Cal. August 17,
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2007).
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Since Plaintiff has not proffered any fees or indicated his ability to do so, his
motion will be denied without prejudice.
C.
Plaintiff’s Motion for Modification of Discovery and Scheduling Order
Next, Plaintiff moves for a modification of the scheduling order in light of
Defendant’s repeated failures to respond properly to Plaintiff’s document requests.
Plaintiff also claims that he needs additional time to obtain a declaration from an inmate
witness. He contends that he had one in his possession, but it was stolen and destroyed
by unidentified correctional officers. Plaintiff has attempted to obtain correspondence
approval to contact this inmate witness, but his attempts have been unsuccessful thus
far. Defendant has not filed an opposition or statement of non-opposition to this motion.
Good cause must be shown for modification of the scheduling order. Fed. R. Civ.
P. 16(b)(4). The Ninth Circuit explained:
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Rule 16(b)'s “good cause” standard primarily considers the
diligence of the party seeking the amendment. The district
court may modify the pretrial schedule if it cannot reasonably
be met despite the diligence of the party seeking the
extension. Moreover, carelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.
Although existence of a degree of prejudice to the party
opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving
party's reasons for modification. If that party was not diligent,
the inquiry should end.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (internal
quotation marks and citations omitted). Therefore, parties must “diligently attempt to
adhere to the schedule throughout the course of the litigation.” Jackson v. Laureate, Inc.,
186 F.R.D. 605, 607 (E.D. Cal. 1999). The party requesting modification of a scheduling
order has the burden to demonstrate:
(1) that she was diligent in assisting the Court in creating a
workable Rule 16 order, (2) that her noncompliance with a
Rule 16 deadline occurred or will occur, notwithstanding her
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efforts to comply, because of the development of matters
which could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference,
and (3) that she was diligent in seeking amendment of the
Rule 16 order, once it become apparent that she could not
comply with the order.
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Id. at 608 (internal citations omitted).
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In light of Defendant’s failure to submit responsive documents to Plaintiff’s
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discovery requests or to move for protection from disclosure in a timely manner, the
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Court finds good cause to modify the scheduling order.
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D.
Plaintiff’s Motion for Sanctions
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Lastly, Plaintiff moves for sanctions in the form of a default judgment in light of
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Defendant’s dilatory and evasive discovery-related conduct. Defendant has not filed an
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opposition or statement of non-opposition to this motion.
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To determine whether a default judgment is an appropriate sanction, courts look
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to five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the
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court's need to manage its dockets; (3) the risk of prejudice to the party seeking
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sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the
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availability of less drastic sanctions.” Conn. Gen. Life Ins. Co. v. New Images of Beverly
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Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (quoting Jorgensen v. Cassiday, 320 F.3d
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906, 912 (9th Cir. 2003)). “This ‘test’ in not mechanical. It provides the district court with
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a way to think about what to do, not a set of conditions precedent for sanctions ....” Id.
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Having considered the above factors, the undersigned concludes that a discovery
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sanction in the form of a default judgment is not warranted at this time. Although
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Defendant’s failure to identify and produce routine documents is troubling and his
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explanation for the delayed protective order is more so, the Court finds that the public
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policy favoring disposition of cases on their merits and the availability of less drastic
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sanctions (in this case, the production of the documents pursuant to a protective order)
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weigh against a default judgment.
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Accordingly, Plaintiff’s motion will be denied.
IV.
Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion to Compel (ECF No. 79) is GRANTED IN PART;
2.
Defendant’s Motion for Protective Order (ECF No. 85) is GRANTED IN
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PART;
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days from the date of this Order and pursuant to the following protective
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order:
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a. The responsive documents shall be produced for the purposes of this
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litigation only and shall be made available only to the parties, their
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counsel, experts, if any, and to the Court.
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b. These documents shall be returned to Defendant (and all copies
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destroyed) upon the entry of judgment in this action unless an appeal is
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filed, in which case said documents shall be returned (and all copies
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destroyed) upon the conclusion of the appeal.
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c. Defendant shall redact the last names of individuals not previously
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identified by either party during the course of this litigation.
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d. Defendant must simultaneously provide to the Court unredacted copies
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for in camera review and release if and as the Court deems
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appropriate.
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e. Defendant’s failure to produce these documents may result in
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Defendant shall produce the documents identified supra within seven (7)
sanctions, including the entry of default judgment.
4.
Plaintiff’s Motion for Subpoenas (ECF No. 82) is DENIED;
5.
Plaintiff’s Motion for a modification of the Discovery and Scheduling Order
(ECF No. 80) is GRANTED.
a. The discovery deadline is extended to February 1, 2017; and
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b. The dispositive motion deadline is extended to March 15, 2017.
6.
Plaintiff’s Motion for Sanctions (ECF No. 86) is DENIED.
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IT IS SO ORDERED.
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Dated:
December 19, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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