Sullivan v. Biter et al

Filing 83

ORDER GRANTING 62 Motion to Compel; ORDER GRANTING 63 Motion to Modify Discovery and Scheduling Order, signed by Magistrate Judge Stanley A. Boone on 11/5/2019. (Deadline for Discovery: 02/21/2020; Deadline for Dispositive Motions: 04/21/2020; Deposition: 70-Day Deadline; Response to Interrogatories: 30-Day Deadline; Request for Production: 60-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.: 1:15-cv-00243-DAD-SAB (PC)

MICHAEL J. SULLIVAN,
Plaintiff,

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ORDER GRANTING DEFENDANT’S
MOTION TO COMPEL PLAINTIFF’S
DEPOSITION AND DISCOVERY
RESPONSES
(ECF No. 62)

v.
M. D. BITER,

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ORDER GRANTING DEFENDANT’S
MOTION TO MODIFY DISCOVERY AND
SCHEDULING ORDER
(ECF No. 63)

Defendant.

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Plaintiff Michael J. Sullivan is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendant M.D. Biter’s motion to compel Plaintiff’s

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deposition and discovery responses and Defendant’s motion to modify the discovery and

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scheduling order, filed on April 18, 2019. (ECF Nos. 62, 63.)

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I.

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RELEVANT HISTORY

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This action is currently proceeding on Plaintiff’s Eighth Amendment conditions of

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confinement claim against Defendant Biter, arising out of allegations of arsenic-contaminated

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drinking water at Kern Valley State Prison. (ECF No. 36.)

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On August 22, 2018, the Court issued a Discovery and Scheduling Order. (ECF No. 61.)

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The Discovery and Scheduling Order provides that responses to written discovery requests shall

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be due forty-five (45) days after the request is first served. (Id. at 1.) Further, the Discovery and

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Scheduling Order states that: “Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B),

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Defendant may depose Plaintiff and any other witness confined in a prison upon condition that, at

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least fourteen (14) days before such a deposition, Defendant serves all parties with the notice

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required by Federal Rule of Civil Procedure 30(b)(1).” (Id. at 2.) Finally, as pertinent here, the

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Discovery and Scheduling Order provides that the deadline for the completion of all discovery,

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including filing all motions to compel discovery, is April 22, 2019, and that the deadline for filing

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all dispositive motions (other than a motion for summary judgment for failure to exhaust) is July

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1, 2019. (Id. at 2-3.)

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On April 18, 2019, Defendant M. D. Biter filed a motion to compel Plaintiff’s deposition
and discovery responses. (ECF No. 62.)
Also, on April 18, 2019, Defendant filed a motion to modify the discovery order. (ECF

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No. 63.) Plaintiff did not file an opposition to Defendant’s motion to modify the discovery order

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or request an extension of time to file an opposition, and the time to do so has passed. Therefore,

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Defendant’s motion to modify the discovery order has been submitted for review without oral

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argument. Local Rule 230(l).

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Following four extensions of time, Plaintiff’s opposition to Defendant’s motion to compel

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Plaintiff’s deposition and discovery responses was due on or before October 18, 2019. (ECF Nos.

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65, 67, 76, 79.) On October 21, 2019, Plaintiff filed a motion for a fifth extension of time to file

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opposition to Defendant’s motion to compel Plaintiff’s deposition and discovery responses, and

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for the appointment of counsel. (ECF No. 80.)

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On October 28, 2019, the Court denied Plaintiff’s motion for a fifth extension of time and

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construed the motion as Plaintiff’s opposition to Defendant’s motion to compel Plaintiff’s

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deposition and discovery responses. (ECF No. 81.)

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On November 4, 2019, Defendant filed a reply in support of his motion to compel
Plaintiff’s deposition and discovery responses. (ECF No. 82.)
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Therefore, Defendant’s motion to compel Plaintiff’s deposition and discovery responses

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and Defendant’s motion to modify the discovery and scheduling order have been submitted for

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decision. Local Rule 230(l).

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II.

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DISCUSSION

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A.

Defendant’s Motion to Compel Plaintiff’s Deposition and Discovery Responses

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1.

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Federal Rule of Civil Procedure 26(b)(1) states that, “[u]nless otherwise limited by court

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Legal Standard

order,” “[p]arties 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[.]”

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Federal Rule of Civil Procedure 30(a)(2)(B) and (b)(1) provides that a party may depose a

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prisoner by oral examination if the party seeking to depose the prisoner obtains leave of court and

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gives every other party “reasonable written notice” of the time and place of the deposition and, if

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known, the deponent’s name and address. Here, the discovery and scheduling order issued in this

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case gives Defendant leave to court to depose Plaintiff so long as Defendant served Plaintiff with

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the notice required by Rule 30(b)(1) at least fourteen (14) days before the deposition. (ECF No.

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61, at 2.)

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A party may propound interrogatories relating to any matter that may be inquired to under

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Rule 26(b). Fed. R. Civ. P. 33(a). Rule 33(b)(3) states that “[e]ach interrogatory must, to the

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extent that it is not objected to, be answered separately and fully in writing under oath.” In

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general, a responding party is not required “to conduct extensive research in order to answer an

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interrogatory, but a reasonable effort to respond must be made.” Haney v. Saldana, No. 1:04-cv-

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05935-AWI-SMS-PC, 2010 WL 3341939, at *3 (E.D. Cal. Aug. 24, 2010). “Any ground not

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stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.

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R. Civ. P. 33(b)(4). Here, the discovery and scheduling order issued in this case required the

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responding party to serve its responses within forty-five (45) days after the interrogatories were

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first served. (ECF No. 61, at 1.) Further, the responding party has a duty to supplement any

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responses to the interrogatories if the responding party “learns that in some material respect the
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… response is incomplete or incorrect, and if the additional or corrective information has not

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otherwise been made known to the other parties during the discovery process or in writing[.]”

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Fed. R. Civ. P. 26(e)(1)(A).

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Finally, a party may request documents “in the responding party’s possession, custody, or

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control.” Fed. R. Civ. P. 34(a)(1). The responding party must respond to each request for

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documents in writing and either produce all specified relevant and non-privileged documents,

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tangible things, or electronically stored information in its possession, custody, or control on the

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date specified or object to the request. Fed. R. Civ. P. 34(b)(2). Actual possession, custody, or

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control is not required. “A party may be ordered to produce a document in the possession of a

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non-party entity if that part has a legal right to obtain the document or has control over the entity

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who is in possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal.

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1995). Although Rule 34 does not contain an express provision stating that untimely objections

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are waived, courts have found an implied provision stating that any ground not stated in a timely

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objection to a request for documents is waived unless the court, for good cause, excuses the

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failure. See Sprague v. Fin. Credit Network, Inc., No. 1:18-cv-00035-SAB, 2018 WL 4616688,

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at *2 (E.D. Cal. Sep. 25, 2018). Here, the discovery and scheduling order issued in this case

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requires the responding party to serve its responses within forty-five (45) days after the

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interrogatories were first served. (ECF No. 61, at 1.) Further, the responding party has a duty to

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supplement any responses to the requests for production if the responding party “learns that in

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some material respect the … response is incomplete or incorrect, and if the additional or

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corrective information has not otherwise been made known to the other parties during the

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discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1)(A).

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Under Federal Rule of Civil Procedure 37(a)(3)(B), “[a] party seeking discovery may

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move for an order compelling an answer [or] production[]” if “a deponent fails to answer a

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question asked under Rule 30 or 31;” “a party fails to answer an interrogatory submitted under

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Rule 33; or a party fails to produce documents or fails to respond that inspection will be permitted

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– or fails to permit inspection – as requested under Rule 34.” If a motion to compel is granted, or

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if the requested discovery is provided after a motion to compel is filed, the Court “must …
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require the party or deponent whose conduct necessitated the motion … to pay the movant’s

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reasonable expenses incurred in making the motion, including attorney’s fees[,]” unless the Court

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finds that it would be unjust for some reason to make an award of expenses. Fed. R. Civ. P.

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37(a)(5)(A).

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2.

Analysis

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On February 19, 2019, Defendant served Interrogatories, Set One, and Requests for

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Production of Documents, Set One, on Plaintiff by mail. (ECF No. 62-1 at 8, Declaration of

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Tyler V. Heath (“Heath Decl.”), ¶ 2 & Exs. A & B.) Pursuant to the Discovery and Scheduling

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Order issued in this case and Federal Rule of Civil Procedure 6(d), Plaintiff’s responses to

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Defendant’s Interrogatories and Requests for Production of Documents were due on or before

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April 8, 2019. However, Defendant did not receive written responses or objections to the

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Interrogatories and/or Requests for Production of Documents by the April 8, 2019 deadline and

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Plaintiff did not request an extension of time. (Id. at ¶ 3.) In fact, as of April 18, 2019, the date

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that Defendant’s motion to compel was filed, Defendant has not received any written responses to

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the Interrogatories and/or Requests for Production of Documents from Plaintiff. (Id.)

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On March 25, 2019, Defendant served Plaintiff by mail with a notice that Plaintiff’s

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deposition was scheduled for April 16, 2019 at 9:30 a.m. at the Richard J. Donovan Correctional

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Facility. (Id. at ¶ 5 & Ex. C.) Defendant did not receive any objections to the deposition notice

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or a request for an extension of time related to the deposition prior to the April 16, 2019

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deposition date. (Id. at ¶ 5.)

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On April 16, 2019, Defendant’s counsel appeared by video-conference at the Richard J.

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Donovan Correctional Facility to depose Plaintiff. (Id. at ¶ 6.) When Plaintiff appeared for his

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deposition, Plaintiff immediately stated that he objected to having his deposition taken for several

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reasons, including that he wanted to employ discovery procedures first before any depositions

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were taken. (Id. at Ex. D, 5:11-6:2.) Plaintiff also stated that he had received Defendant’s

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Interrogatories and Requests for Production of Documents, but that he believed that Defendant’s

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discovery requests were premature and that he would like to employ discovery procedures before

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he is forced to answer Defendant’s discovery requests. (Id. at Ex. D, 6:3-8.) After Defendant’s
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counsel asked Plaintiff if Plaintiff was going to forward with his deposition, Plaintiff said no and

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that he was objecting to the deposition. (Id. at Ex. D, 9:16-19.) Defendant’s counsel advised

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Plaintiff that if he refused to be deposed, Defendant would move to compel Plaintiff’s deposition

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and Plaintiff’s refusal could result in sanctions. (Id. at Ex. D, 10:14-19, 11:21-12:2.) Plaintiff

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confirmed that he was refusing to go forward with the deposition. (Id. at Ex. D, 13:9-16.) At that

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point, Defendant’s counsel ended the deposition.

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Now, Defendant moves to compel Plaintiff to sit for a deposition and to compel Plaintiff

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to respond to Defendant’s propounded interrogatories and requests for production of documents.

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(ECF No. 62.) Defendant asserts that his motion to compel should be granted because Plaintiff

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refused to allow his properly noticed deposition to take place and failed to timely serve any

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responses or objections to Defendant’s discovery requests.

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It is undisputed that Plaintiff has not responded to Defendant’s Interrogatories, Set One,

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and/or Requests for Production of Documents, Set One. It is also undisputed that Plaintiff refused

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to proceed with his properly noticed deposition. However, in his opposition, Plaintiff contends

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that the Court should deny Defendant’s motion to compel because Defendant’s discovery and

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deposition requests are premature and that requiring him to respond to Defendant’s discovery

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requests and answer questions at a deposition will give Defendant an unfair advantage over

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Plaintiff because Defendant is either in actual or constructive possession of the information he

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wants to ask Plaintiff about or Defendant has more ready access to the information through

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Google or the internet. (ECF No. 80, at 5.) Plaintiff asserts that he should be allowed to engage

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in his own discovery and depositions before he should have to respond to Defendant’s discovery

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requests or answer questions at a deposition noticed by Defendant. (Id.)

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However, initially, the Court finds that Defendant’s discovery requests and deposition

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notice are not premature. Defendant waited approximately six months after discovery opened

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before serving Plaintiff with Interrogatories, Set One, and Requests for Production of Documents,

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Set One, and waited an additional month before serving Plaintiff with a deposition notice.

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Further, Plaintiff has failed to establish how requiring him to respond to Defendant’s discovery

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responses and answer questions at a deposition will give Defendant an unfair advantage over
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Plaintiff. “An important purpose of discovery is to reveal what evidence the opposing party has,

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thereby helping determine which facts are undisputed – perhaps paving the way for a summary

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judgment motion – and which facts must be resolved at trial.” Computer Task Group, Inc. v.

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Brotby, 364 F.3d 1112, 1117 (9th Cir. 2004) (per curiam). Therefore, even assuming that

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Defendant already has some of the information that he seeks in discovery from Plaintiff, or that

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Defendant can more easily obtain the information sought from other sources, this does not excuse

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Plaintiff’s failure to respond to Defendant’s discovery requests or failure to answer questions at

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his noticed deposition.

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Finally, “[t]he Court does not look favorably upon a tit-for-tat approach to discovery.”

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Genentech, Inc. v. Trs. of the Univ. of Pa., No. C 10-02037 LHK (PSG), 2011 WL 7074208, at

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*1 (N.D. Cal. Jun. 10, 2011) (citation and internal quotation marks omitted); see also Fed. R. Civ.

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P. 26(d)(3)(B) (providing that “discovery by one party does not require any other party to delay

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its discovery.”). A party may not “condition its compliance with its discovery obligations on

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receiving discovery from its opponent.” Id.; see also Ward v. American Pizza Co., 279 F.R.D.

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451, 458 (S.D. Ohio 2012) (“[T]he obligation to respond to discovery is independent of any

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discovery or disclosure obligation an opposing party may have.”); Pulsecard, Inc. v. Discover

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Card Services, Inc., 168 F.R.D. 295, 308 (D. Kan. 1996) (“A party may not withhold discovery

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solely because it has not obtained to its satisfaction other discovery.”). Therefore, Plaintiff may

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not properly refuse to respond to Defendant’s discovery requests or comply with Defendant’s

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deposition notice on the ground that Defendant should have to respond to Plaintiff’s discovery

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methods first.

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Consequently, Defendant’s motion to compel Plaintiff’s deposition and discovery

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responses is granted. First, Plaintiff is ordered to appear at a deposition noticed by Defendant

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within seventy (70) days, even though Plaintiff may not be housed at an institution under the

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jurisdiction of the California Department of Corrections and Rehabilitation. Plaintiff must appear

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for his rescheduled deposition at the time and place noticed by Defendants, who are to coordinate

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scheduling with the appropriate officials at Plaintiff’s place of incarceration. Defendants must

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provide Plaintiff with proper notice of the deposition at least fourteen (14) days in advance.
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Plaintiff is directed to appear at his rescheduled deposition and to fully cooperate in answering all

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questions to the best of his ability. Plaintiff is advised that “[a]n objection at the time of the

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examination – whether to evidence, to a party’s conduct, to the officer’s qualifications, to the

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manner of taking the deposition, or to any other aspect of the deposition – must be noted on the

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record, but the examination still proceeds; the testimony is taken subject to any objection.” Fed.

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R. Civ. P. 30(c)(2). In other words, even if Plaintiff objects to a question, his objection will be

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noted but he is still required to answer the question, unless it involves a privilege. If such is the

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case and one party believes the objection is not well founded, then that party may seek immediate

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Court attention on the appropriateness of the privilege assertion and the failure to answer.

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Plaintiff’s failure to fully cooperate with the Defendants’ properly noticed deposition request will

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be grounds for sanctions, which may include dismissing this action entirely. Fed. R. Civ. P.

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37(b).

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Second, Plaintiff must submit full responses to Defendant’s Interrogatories, Set One,

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without objections, within 30 days after service of this order. The Court understands that Plaintiff

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is currently housed at the Contra Costa County Jail and does not have access to his personal or

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legal property. However, Plaintiff only has to respond to Defendant’s Interrogatories to the best

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of his current ability. If Plaintiff learns that one or more of his responses to Defendant’s

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Interrogatories is incomplete or incorrect at some later date, then Plaintiff has a duty to serve

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Defendant with supplemental responses to the interrogatories. Fed. R. Civ. P. 26(e)(1)(A).

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Third, the Court understands that Plaintiff does not currently have access to any of his

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legal or personal property due to the fact that he is currently housed at the Contra Costa County

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Jail. Therefore, Plaintiff must submit full responses to Defendant’s Requests for Production of

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Documents, Set One, without objections, within 60 days after service of this order. Defendants

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are advised that if Plaintiff does not gain access to his property within the time allotted by this

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order, they may want to facilitate with the institution for Plaintiff to receive access to his legal

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property in order for him to serve a response to Defendants’ Requests for Production of

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Documents.

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Lastly, Defendant requests that the Court order Plaintiff to compensate Defendant for the
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expenses incurred in preparing this motion and conducting his deposition. Specifically,

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Defendant requests an award of reasonable expenses in the total amount of $2,956.40 pursuant to

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Rule 37(a)(5)(A). (ECF No. 62-1, Heath Decl., ¶ 9.) However, given that Plaintiff is a pro se

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prisoner proceeding in forma pauperis, the Court finds, that although Plaintiff’s conduct is

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sanctionable and a complete refusal to participate in discovery without a justifiable basis, that the

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award of expenses and attorneys fees at this time is not warranted. Fed. R. Civ. P.

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37(a)(5)(A)(iii). Nevertheless, Plaintiff is cautioned that if he continues to refuse to participate in

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discovery, future requests for fees and costs may be granted regardless of Plaintiff’s status as a

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prisoner proceeding pro se and in forma pauperis.

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B.

Defendant’s Motion to Modify the Discovery and Scheduling Order

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with

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the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers

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the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably

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be met despite the diligence of the party seeking the extension.” Id. If the party was not diligent,

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the inquiry should end. Id.

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Defendant argues that good cause exists to modify the discovery and dispositive motion

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deadlines because Plaintiff failed to respond to Defendant’s Interrogatories and Requests for

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Production of Documents and refused to allow Defendant to take his deposition. (ECF No. 63.)

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Based on the Court’s ruling on Defendant’s motion to compel Plaintiff’s deposition and

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discovery responses, it is clear that additional time is needed to complete discovery in this case.

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Therefore, the Court finds that there is good cause to amend the Discovery and Scheduling Order

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and extend the deadlines for the completion of all discovery and for filing all dispositive motions.

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Fed. R. Civ. P. 16(b)(4). Consequently, Defendant’s motion to modify the Discovery and

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Scheduling Order is granted. The Court sets forth new deadlines as to the completion of all

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discovery and the filing of all dispositive motions below.

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III.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Defendant’s motion to compel Plaintiff’s deposition and discovery responses,
(ECF No. 62), is GRANTED;

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2.

Plaintiff is required to appear at his properly noticed rescheduled deposition, to be

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conducted within seventy (70) days from the date of service of this order, and to

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fully cooperate in answering all questions to the best of his ability.

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3.

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Plaintiff must serve full responses to Defendant’s Interrogatories, Set One, without
objections, within thirty (30) days from the date of service of this order;

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4.

Plaintiff must serve full responses to Defendant’s Requests for Production of

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Documents, Set One, without objections, within sixty (60) days from the date of

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service of this order;

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5.

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Defendant’s request for an award of reasonable expenses incurred in making the
motion to compel, (ECF No. 62), is DENIED;

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6.

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Defendant’s motion to modify the discovery and scheduling order, (ECF No. 63),
is GRANTED;

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7.

The deadline for the completion of all discovery is February 21, 2020;

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8.

The deadline for filing all dispositive motions is April 21, 2020; and

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9.

All other substantive provisions of the Court’s August 22, 2018 Discovery and

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Scheduling Order, (ECF No. 61), remain in full force and effect.

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IT IS SO ORDERED.
Dated:

November 5, 2019
UNITED STATES MAGISTRATE JUDGE

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