Christ v. Blackwell et al

Filing 45

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/30/11 DENYING 27 Motion to Compel. The 42 order to show cause is DISCHARGED. (Dillon, 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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JON CHRIST,
Plaintiff,

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vs.

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No. CIV S-10-0760 EFB P

R. BLACKWELL, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The case is before the undersigned pursuant to the parties’ consent. See 28

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U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). Currently before the court

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are plaintiff’s motion to compel (Docket No. 27) and defendants’ response to the court’s order to

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show cause regarding the same (Docket No. 43). For the reasons that follow, the court denies

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the motion to compel and discharges the order to show cause.
Plaintiff’s motion seeks an order compelling defendants to respond to his requests for

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production of documents (hereinafter “RFPs”). Dckt. No. 27. Defendant originally refused to

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respond to plaintiff’s RFPs (three requests, dated October 21, 2010) because plaintiff had not

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identified the specific defendant subject to each request. Dckt. No. 27 at 15-17.1 Plaintiff again

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attempted to obtain documents from defendants through RFPs dated November 9, 2010 (20

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requests), and defendants again refused to respond because plaintiff had not identified the

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specific defendant subject to each request. Id. at 8-13. Plaintiff then sent amended RFPs on

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December 21, 2010 (14 requests), specifying which defendant each request was directed to. Id.

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at 2-6.

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Plaintiff filed the motion to compel responses to the RFPs on January 10, 2011. Under

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Federal Rule of Civil Procedure 34(b)(2)(A), defendants had 30 days from service of the

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amended RFPs to respond; that is, until January 20, 2011. In their January 24, 2011 opposition

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to the motion to compel, defendants asserted, without citation, that their responses were not due

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until February 7, 2011. Dckt. No. 30 at 1-2. Defendants further stated that they were in the

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process of responding to plaintiff’s RFPs. Id. However, plaintiff filed reply briefs on February

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7, 2011 and February 18, 2011 implying that he had not received any RFP responses. Dckt. Nos.

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32, 33. Accordingly, the court ordered defendants to show cause why they should not be

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compelled to respond to the RFPs and why sanctions and/or an award of expenses should not

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issue under Federal Rule of Civil Procedure 37.

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In response to the order to show cause, defendants argue that their responses to the

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December 21, 2010 RFPs were not due until 48 days from service “in accordance with the

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Court’s Scheduling Order.” Dckt. No. 43 at 2. The court has reviewed the scheduling order,

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issued October 7, 2010 and appearing at Docket No. 19 and finds no such extension of the

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normal time limit contained in Federal Rule of Civil Procedure 34(b)(2)(A). Rather, the order

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simply provides that discovery is to proceed as provided in the Federal Rules of Civil Procedure.

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Dckt. No. 19 at 1.

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Page numbers cited herein refer to those assigned by the court’s electronic docket
management system and not those assigned by the parties.
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Defendants also argue that, even if they had calendared their response due date according

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to Federal Rule of Civil Procedure 34(b)(2)(A), plaintiff did not attach a proof of service to the

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December 21, 2010 RFPs, so they had 30 days from the date they received the requests,

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December 27, 2010, plus three days for mailing (Federal Rule of Civil Procedure 6(d)), to

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respond. Defendants argue that, under this computation, the responses were not due until

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January 29, 2011, a date falling outside the discovery period provided in the court’s scheduling

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order by one day.

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Even accepting the premises of defendants’ timeliness argument, defendants did not

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object or refuse to respond to the December 21, 2010 RFPs on timeliness grounds. Nor did

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defendants raise the timeliness issue in opposing plaintiff’s motion to compel. See Dckt. No. 30.

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Instead, defendants served responses to the December 21, 2010 RFPs by mail on February 7,

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2010 (well beyond the January 29, 2011 due date computed by defendants), with verifications

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following the next day. Dckt. No. 43-1, Ex. A. Accordingly, the court considers defendants’

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argument that plaintiff’s December 21, 2010 RFPs were untimely, raised for the first time in

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response to the court’s order to show cause, waived.

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It appears that defendant attributes the failure to timely respond to plaintiff’s December

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21, 2010 RFPs, to defense counsel’s secretary apparently laboring under the misconception that

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the due date should be calendared using 48 days and because defendants did ultimately serve

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responses. St. James Declaration, Dckt. No. 43, Exh. 1, ¶ 5. Attribution of the error to support

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staff in no way excuses counsels failure to comply with scheduling orders or federal or local

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rules. Although the court declines to impose a sanction at this time, counsel is admonished that

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the court will enforce future filing deadlines. Accordingly, the court discharges the order to

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show cause and considers the merits of plaintiff’s requests to compel further responses. Dckt.

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Nos. 27, 32, 33, 44.

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In his original motion to compel, plaintiff simply stated as grounds for an order

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compelling discovery that “Plaintiff has tried three times for documents. Defendant objects to
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all of Plaintiff’s requests so far in this discovery.” Dckt. No. 27 at 1. Plaintiff included no

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argument regarding why defendants’ objections were not well-founded or should be disregarded

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by the court. Plaintiff’s first reply brief to defendants’ opposition to the motion to compel was

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similarly insubstantial. Dckt. No. 32. Plaintiff raised slightly more specific contentions in his

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brief filed February 18, 2011, in which he argued that defendants had “claim[ed] ambiguities in

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questions that any two-year-old would understand” and implied that defendants had wrongfully

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claimed that documents were not in their “possession, custody or control” and were protected by

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the attorney-client privilege. Dckt. No. 33. Plaintiff did not identify which specific RFP

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responses he contended were inadequate for these reasons, however.

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As the moving party, plaintiff bears the burden of informing the court which discovery

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requests are the subject of his motion to compel, which of defendants’ responses are disputed,

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why he believes defendants’ responses are deficient, why defendants’ objections are not

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justified, and why the information he seeks through discovery is relevant to the prosecution of

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this action. See, e.g., Brooks v. Alameida, No. CIV S-03-2343 JAM EFB P, 2009 U.S. Dist.

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LEXIS 9568, 2009 WL 331358, at *2 (E.D. Cal. Feb. 10, 2009) (“Without knowing which

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responses plaintiff seeks to compel or on what grounds, the court cannot grant plaintiff's

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motion.”); Ellis v. Cambra, No. CIV 02-05646-AWI-SMS PC, 2008 U.S. Dist. LEXIS 109050,

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2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008) (“Plaintiff must inform the court which

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discovery requests are the subject of his motion to compel, and, for each disputed response,

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inform the court why the information sought is relevant and why Defendant’s objections are not

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justified.”).

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As noted above, plaintiff has not identified the specific discovery responses he

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challenges. Nor has he provided specific arguments as to why each challenged response is

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deficient. Merely stating generally that defendants have “claim[ed] ambiguities in questions

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that any two-year-old would understand” and implying that defendants have wrongfully claimed

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that documents were not in their “possession, custody or control” and were protected by the
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attorney-client privilege is not sufficient. The court will not review each of plaintiff’s discovery

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requests and each of defendants’ responses in order to determine whether any of defendants’

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responses are somehow deficient. Plaintiff has the burden of accurately identifying his requests

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and describing why defendants’ particular response is inadequate. See, e.g., Williams v. Flint,

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No. CIV S-06-1238 FCD GGH P, 2007 U.S. Dist. LEXIS 98794, 2007 WL 2274520, at *1 (E.D.

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Cal. Aug. 3, 2007) (“It is plaintiff’s burden to describe why a particular response is inadequate.

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It is not enough to generally argue that all responses are incomplete.”).

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Accordingly, the plaintiff’s motion to compel must be denied. As discovery has now
closed, plaintiff must seek a modification of the scheduling order if he wishes to file a renewed

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motion to compel that specifically identifies each of the discovery responses he wishes to

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challenge and provides the court with argument as to why each challenged discovery response is

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deficient. Any request to modify the scheduling order must comply with and satisfy the “good

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cause” standard set out in Fed. R. Civ. P. 16(b)(4).

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IV.

Order

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Accordingly, it is hereby ordered that:

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1. Plaintiff’s January 10, 2010 motion to compel (Docket No. 27) is denied.

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2. The order to show cause issued on May 17, 2011 (Docket No. 42) is discharged.

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DATED: August 30, 2011.

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