Scruggs v. Vance et al

Filing 181

ORDER signed by Magistrate Judge Kendall J. Newman on 04/23/12 ordering plaintiff's 04/05/12 motion 173 is denied. Discovery is re-opened for the sole purpose of allowing plaintiff to take depositions pertinent to the recently provided confidential documents. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTAY SCRUGGS,

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Plaintiff,

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vs.

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No. 2:06-cv-0633 KJM KJN P

S. VANCE, et al.,

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Defendants.

ORDER
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Plaintiff is proceeding through counsel with a civil rights complaint pursuant to

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42 U.S.C. § 1983. On April 5, 2012, plaintiff filed a motion for sanctions for violation of court

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order. Plaintiff seeks an order compelling defendants and the California Department of

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Corrections and Rehabilitation (“CDCR”) to produce all evidence withheld in violation of this

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court’s orders and the Federal Rules of Civil Procedure; precluding defendants from introducing

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or relying at trial on the withheld evidence; providing an evidentiary instruction to the jury

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concerning the issue on which defendants withheld evidence; specifically, that defendants knew

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that Lorenzo Robinson was a member of the Crips gang and was therefore incompatible as a cell

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mate for the plaintiff; and awarding plaintiff the costs of bringing this motion.

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On April 20, 2012, pursuant to this court’s order, the parties filed a joint statement
pursuant to Local Rule 251(c). It appears that defendants’ counsel was provided a larger set of
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confidential documents by counsel for CDCR because CDCR counsel provided the confidential

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documents that had not been reviewed to remove those documents not responsive to the

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subpoena duces tecum. The subpoena duces tecum required the CDCR to produce documents

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between the date Robinson was “first housed at CSP-Sac or September 1, 2003, whichever is

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earlier, and May 20, 2004 (but in no event more than three years prior to May 20, 2004).” (Dkt.

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No. 153-3 at 3.) The undersigned found that plaintiff’s initial subpoena duces tecum was too

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broad in time because plaintiff sought all documents prior to May 20, 2004, and Robinson was

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incarcerated on September 17, 1991. (Dkt. No. 140 at 2-3.)

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The confidential memorandum, was prepared at Pelican Bay State Prison, and

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dated June 27, 2000, and therefore did not fall within the subpoena duces tecum. Therefore,

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CDCR is not subject to sanctions for any alleged failure to provide the document to plaintiff.

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Moreover, counsel for CDCR informed defendants’ counsel that the confidential documents

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provided to defendants’ counsel were the same confidential documents that CDCR provided to

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plaintiff. Therefore, counsel for defendants was unaware he possessed confidential documents

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plaintiff did not possess. Accordingly, plaintiff is not entitled to sanctions, evidentiary or

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otherwise, based on the inadvertent disclosure of the June 27, 2000 memorandum.

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Although plaintiff speculates that defendants or defendants’ counsel may have had

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access to the confidential June 27, 2000 memorandum during reviews of Robinson’s central file,

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there is no evidence before the court that defendants reviewed the confidential portion of

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Robinson’s central file or had possession of the June 27, 2000 memorandum prior to defendants’

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counsel’s receipt of the memorandum from CDCR counsel on or about January 25, 2012. In

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addition, there is no indication that plaintiff sought, through discovery, information concerning

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Robinson’s gang membership. The subpoena duces tecum does not identify gangs or gang

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membership, and the amended complaint does not identify gang membership as the reason

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defendants allegedly failed to protect plaintiff by housing him with inmate Robinson (dkt. no. 26

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at 10-11). Finally, although plaintiff apparently became aware on February 21, 2012, that
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defendants’ expert relied on the June 27, 2000 memorandum in the expert report disclosed,

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plaintiff did not seek to depose the expert witness Murphy, and it was not until April 4, 2012,

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that plaintiff’s counsel informed defendants’ counsel that plaintiff had not previously received

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the June 27, 2000 confidential memorandum.

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While the June 27, 2000 confidential memorandum is relevant, and it is

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unfortunate that plaintiff was not previously provided the memorandum, the court does not find it

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appropriate to award sanctions or expenses. However, the court orders that discovery is reopened

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so that plaintiff may take and re-take depositions pertinent to the newly-disclosed confidential

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documents up until the date of trial. Defendants and counsel for defendants shall cooperate in

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the scheduling of these depositions to avoid further delay, and to ensure that the depositions

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occur prior to trial.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s April 5, 2012 motion (dkt. no. 173) is denied;

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2. Discovery is re-opened for the sole purpose of allowing plaintiff to take

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depositions pertinent to the recently-provided confidential documents;1 and

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3. Defendants and defendants’ counsel shall cooperate in the scheduling of these

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depositions as set forth above.

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DATED: April 23, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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scru0633.san2

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At the trial confirmation hearing, plaintiff’s counsel should be prepared to address
whether, in fact, he anticipates conducting additional depositions.
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