Christopher Lipsey, Jr. v. Depovic et al

Filing 63

ORDER DENYING Plaintiff's 61 Motion to Compel Discovery signed by Magistrate Judge Helena M. Barch-Kuchta on 1/3/2022. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, JR.,

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Plaintiff,

Case No. 1:18-cv-00767-NONE-HBK
ORDER DENYING PLAINTIFF'S MOTION
TO COMPEL DISCOVERY

v.
(Doc. No. 61)
DR. DEPOVIC, DR. GREWAL,

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Defendants.

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Before the Court is Plaintiff Christopher Lipsey Jr.’s (“Plaintiff” or “Lipsey”) motion to

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compel discovery from Defendant Grewal filed on December 13, 2021. (Doc. No. 61).

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Defendant Grewal filed an opposition on December 17, 2021. (Doc. No. 62). The motion is

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deemed submitted.

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BACKGROUND
At issue is an Eighth Amendment claim for failure to provide Plaintiff, a state prisoner,

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with prescribed medication over a week in August 2017. (Doc. Nos. 12 at 3; 13 at 5-7; 18 at 1).

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Plaintiff, who is proceeding pro se, requested the following documents from Defendant, Dr.

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Grewal: “a redacted copy of all grievances filled against you by prisoners (redacting their names

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only) the entire time you’ve been employed by CDCR.” (Doc. No. 62 at 2). On November 19,

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2021, Defendant Dr. Grewal objected to the request on the grounds that: (1) the request “seeks

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privileged, confidential medical records of third parties”; (2) the request “is unduly burdensome,

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given the grievances are not maintained by who they are against, but are instead maintained in the

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filer’s medical records”; (3) the request is not proportionate to the needs of the case, given the

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information is irrelevant and inadmissible; and (4) the responding party lacks access to the

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records, as she is retired and no longer works for CDCR. (Id.).

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APPLICABLE LAW AND ANALYSIS
Parties may obtain discovery regarding non-privileged matters relevant to any party’s

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claim or defense. Fed. R. Civ. P. 26(b)(1). Information need not be admissible to be

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discoverable, but discovery requests must be proportional to the needs of the case. Id. A party

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may request documents in another party’s “possession, custody, or control.” Fed. R. Civ. P.

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34(a)(1). A responding party is obligated to produce requested materials in its actual possession,

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custody, or control, or that the party has a legal right to obtain on demand. Bryant v. Armstrong,

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285 F.R.D. 596, 607 (S.D. Cal. 2021). The requesting party has the burden of demonstrating that

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the requested materials are in the responding party’s possession, custody, or control. United

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States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).

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Plaintiff’s request is overbroad. This is a medical deliberate indifference case, involving

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consideration of whether Defendant disregarded a risk of serious harm to Plaintiff by failing to

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promptly refill his anti-depressant medication. The request seeks all grievances made against Dr.

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Grewal, at any time during the entirety of her employment with CDCR, relating to any issue.

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Plaintiff has not explained how such records are relevant to this action, stating only that “it is

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axiomatic” they are relevant. This is not so. See Salinas v. Wang, 2021 WL 1060160, *1 (E.D.

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Cal. Mar. 18, 2021) (discovery of inmate complaints against defendant not relevant or

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discoverable in medical deliberate indifference action); Reed v. Barcklay, 2013 WL 12177161, *4

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(D. Ariz. Apr. 13, 2013) (request for all disciplinary violations filed against defendant was

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overbroad and not relevant to plaintiff’s deliberate indifference and retaliation claims).

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This case, involving a single incident of alleged medical deliberate indifference, is unlike

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cases in which the plaintiff alleges a pattern of misconduct or alleges bias and prior grievances

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are relevant to those allegations. Cf. Villery v. Jones, 2020 WL 6318205, *3 (E.D. Cal. Oct. 28,

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2020) (when plaintiff alleged defendants engaged in a pattern of retaliation, complaints alleging
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similar conduct were relevant); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 412 (C.D.

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Cal. 2005) (when plaintiff alleged extensive and systemic failures including Brady violations,

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false search warrant applications, intimating witnesses, and tainting the reliability of witnesses,

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broad request for complaints was relevant); Taylor v. Los Angeles Police Dept., 1999 WL

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33101661, *1, 4 (C.D. Cal. Nov. 10, 1999) (in action against police department alleging wrongful

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death, failure to train and supervise, and constitutional violations caused by department policy,

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pattern or practice, requests for complaints against defendant officers were relevant). Still, at

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least in the context of traditional grievances against correctional officer defendants, some courts

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have concluded that grievances alleging similar misconduct by the defendant may be relevant to

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show intent or lack of mistake. See Williams v. Navarro, 2021 WL 5180123, *1-5 (S.D. Cal.

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Nov. 8, 2021) (citing cases).

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However, even if a narrowed request could lead to the discovery of potentially relevant

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evidence against Dr. Grewal, the request is also unduly burdensome and not proportionate to the

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needs of the case. Production of health care grievances implicates serious privacy concerns and

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would certainly require a protective order and significant redactions. See, e.g., Salinas, 2021 WL

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1060160, *1. Plaintiff also has other, less burdensome discovery means, such as interrogatories

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and requests for admission, that may allow him to determine whether similar grievances of failure

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to timely provide medication were made against Dr. Grewal while she was employed at CDCR.

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Moreover, Defendant represents that health care grievances are not filed by provider, but rather

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by patient, and that as a result Defendant “would have to search all of Defendant’s patient’s

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records to determine whether a grievance was made by each individual.” (Doc. No. 62 at 5:1-2).

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While further detail, such as the number of years Defendant was employed at CDCR and/or how

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many patients she served, would have bolstered this argument, privacy concerns and the limited

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relevance of the requested records to this medical deliberate indifference claim support a finding

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that the request is unduly burdensome and not proportionate to the needs of this case.

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Lastly, but critically, the record indicates that Defendant Grewal, now retired, lacks

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possession, custody, or control of any responsive documents. While in certain circumstances

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current employees may be compelled to produce their employer’s records, Allen v. Woodford,
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2007 WL 309945, *6 (E.D. Cal. Jan. 20, 2007), former employees do not generally have

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possession, custody or control of their former employer’s records. Wilkins v. Barber, 2021 WL

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4033126, *5 (E.D. Cal. Sep. 3, 2021) (denying motion to compel retired CDCR employee to

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produce records relating to plaintiff’s grievances); Bryant v. Armstrong, 285 F.R.D. 596, 607

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(S.D. Cal. 2012) (denying motion to compel former CDCR to produce CDCR policies); see also

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Lowe v. D.C., 250 F.R.D. 36, 38 (D.D.C. 2008) (“[f]ormer employees of government agencies do

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not have ‘possession, custody, or control’ of documents held by their former employers”).

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Plaintiff has not submitted any evidence suggesting that Defendant Grewal, a retired doctor, has

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possession, custody, or control of any responsive documents.

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On this final point, the analysis may be different if the facts established Defendant Grewal

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retired after the requests were served but before responses were provided. Villery v. Crounse,

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2021 WL 5040379, *3, 9 (C.D. Cal. Oct. 29, 2021); Wilkins, 2021 WL 4033126 at *5.

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Additionally, if Plaintiff had no other way of obtaining the documents, the Court might have to

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consider whether Defendant, represented by the California Attorney General, could theoretically

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obtain relevant documents from CDCR upon request. See Wilkins, 2021 WL 4033126 at *5

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(citing Pupo-Leyvas v. Bezy, 2009 WL 1810337, *1-2 (S.D. In. Jun. 24, 2009). However,

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Plaintiff has the ability to obtain relevant documents in the possession, custody, or control of

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CDCR by serving a subpoena, if appropriate. Fed. R. Civ. P. 45.

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Accordingly, IT IS ORDERED:

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Plaintiff’s motion to compel discovery (Doc. No. 61) is DENIED.

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Dated:

January 3, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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