Herrera v. Statti

Filing 107

ORDER signed by Magistrate Judge Dale A. Drozd on 03/24/14 granting 97 Motion to Compel. Within 30 days of the date of service of this order, plaintiff shall serve on defense counsel further responses to defendant's special interrogatories ( set one) and request for production of documents (set one) Defendant's requests for terminating sanctions and monetary sanctions 97 are denied without prejudice. Defendants's motion for terminating sanctions based on plaintiff's failure to cooperate with discovery 102 is denied without prejudice. Plaintiff shall cooperate with defendse counsel in the taking of his deposition. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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No. 2:10-cv-1154 MCE DAD P

Plaintiff,

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v.

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P. STATTI, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action. Pending before the

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court is defendant Medina’s motion to compel responses to discovery requests and for sanctions

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as well as defendant Medina’s motion for terminating sanctions based on plaintiff’s failure to

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cooperate with discovery.

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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.

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P. 26(b). Under Rule 37 of the Federal Rules of Civil Procedure, the court may order a party to

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provide further responses to “an evasive or incomplete disclosure, answer, or response.” Fed. R.

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Civ. P. 37(a)(3).

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First, the court will address defendant’s motion to compel responses to their discovery

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requests. Defense counsel moves the court for an order dismissing the claims against the

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defendant, or in the alternative, compelling responses to defendant’s special interrogatories (set
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one) and request for production of documents (set one). Defendant also seeks an order imposing

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sanctions against plaintiff for the amount of attorney’s fees incurred in bringing the motion to

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compel. (Def.’s Mot. to Compel at 3-4.) Plaintiff acknowledges that he received defendant’s

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motion to compel dated January 21, 2014, but has not opposed the motion on the merits. (Pl.’s

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Opp’n to Def.’s Mot. to Compel at 1.)

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Under these circumstances, the court will order plaintiff to provide defendant Medina with

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verified responses to the defendant’s special interrogatories (set one) and request for production

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of documents (set one) within thirty days. Plaintiff failed to provide any responses to defendant’s

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special interrogatories, and plaintiff merely stated “No Comment” and “Need appointment of

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counsel” in response to defendant’s request for production of documents. These are neither

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proper nor adequate responses to defendant’s discovery requests. Plaintiff is advised that he is

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obligated to respond to defendant’s interrogatories to the fullest extent possible under oath. Fed.

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R. Civ. P. 33(b)(3). In addition, plaintiff is obligated to produce all specified relevant documents

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in his “possession, custody, or control” in response to defendant’s requests for production of

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documents. Fed. R. Civ. P. 34(a). If plaintiff is not in possession of responsive documents, he

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may so state in his response to that particular request. Plaintiff must, however, make a good-faith

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effort to provide the facts which he claims support his claim where requested. See Asea v.

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Souther Pac. Tranp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981) (“The discovery process is subject

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to the overriding limitation of good faith.”). Plaintiff is cautioned that his failure to provide

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adequate responses to defendant’s discovery requests in the future may result in the imposition of

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sanctions, including a recommendation that this action be dismissed due to his failure to

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cooperate in the discovery phase of the litigation.

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As to defendant Medina’s request for terminating sanctions, such a drastic sanction is

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available under Rule 37(b)(2)(A) for a party’s failure to obey an order compelling discovery

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responses. This order, however, represents the first time this court has compelled plaintiff to

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provide further discovery responses. As such, at this time, the court finds that terminating

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sanctions are unwarranted. As to defendant Medina’s request for monetary sanctions, under Rule

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37(a)(5) the court has authority to order plaintiff to pay the defendant’s reasonable expenses
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unless, among other circumstances, the “circumstances made an award of expenses unjust.” Fed.

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R. Civ. P. 37(a)(5)(A)(iii). Here, the court is not persuaded as of yet that plaintiff, a prisoner who

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is proceeding pro se, has acted in bad faith. As such, at this time, the court finds that an award of

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monetary sanctions would be unjust. If plaintiff fails to provide adequate responses to defendant

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Medina’s discovery requests in accordance with this court order, defense counsel may renew his

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request for sanctions and for an award of expenses.

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The court will now turn to defendant’s motion for terminating sanctions based on

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plaintiff’s failure to cooperate with discovery. In the motion, defense counsel explains that, on

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February 6, 2014, the defendant noticed plaintiff’s deposition to take place on February 21, 2014

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at 1:00 p.m. and further requested that plaintiff stipulate to counsel conducting the deposition via

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video-conference. Plaintiff refused to stipulate to conducting the deposition via video-

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conference, so on February 12, 2014, the defendant sent plaintiff an amended notice of deposition

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for the deposition to take place on the same date, February 21, 2014, but at 10:00 a.m. instead of

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1:00 p.m., at the request of institutional staff. On February 21, 2014, defense counsel commuted

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four hours one way and attempted to take plaintiff’s deposition, but upon counsel’s arrival at the

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institution counsel learned from correctional staff members that plaintiff refused to appear at his

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deposition because he had a medical appointment to attend. Based on plaintiff’s conduct,

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defendant asks the court to issue terminating sanctions. (Def.’s Mot. for Term. Sanctions at 2-3.)

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Plaintiff has opposed defendant’s motion and argues that he did not refuse to do anything, and

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rather, he was unable to attend his deposition because he had a medical appointment to address

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his chronic pain. (Pl.’s Opp’n to Def.’s Mot. for Term. Sanctions at 1.)

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Under the court’s October 3, 2013, and January 16, 2014, discovery and scheduling

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orders, defendant Medina is allowed to depose plaintiff provided he provides plaintiff at least

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fourteen days notice of the deposition in accordance with Rule 30(b)(1) of the Federal Rules of

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Civil Procedure. The record in this case demonstrates that, on February 12, 2014, the defendant

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sent plaintiff an amended notice of deposition to take place on February 21, 2014, at 10:00 p.m.

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When defense counsel attempted to take his deposition, however, plaintiff refused to attend the

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proceeding because he had a medical appointment. Under these circumstances, the court will
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allow defendant Medina to re-notice plaintiff’s deposition within thirty days1 and will order

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plaintiff to cooperate with defense counsel in the taking of his deposition. Again, however, the

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court finds that terminating sanctions are, as of yet, unwarranted since this order represents the

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first time this court has been required to compel plaintiff to cooperate with defense counsel in the

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taking of his deposition.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to compel responses to defendant’s special interrogatories (set

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one) and request for production of documents (set one) (Doc. No. 97) is granted. Within thirty

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days of the date of service of this order, plaintiff shall serve on defense counsel further responses

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to defendant’s special interrogatories (set one) and request for production of documents (set one);
2. Defendant’s requests for terminating sanctions and monetary sanctions (Doc. No. 97)

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are denied without prejudice;
3. Defendant’s motion for terminating sanctions based on plaintiff’s failure to cooperate

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with discovery (Doc. No. 102) is denied without prejudice. Defendant Medina may re-notice

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plaintiff’s deposition within thirty days. Plaintiff shall cooperate with defense counsel in the

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taking of his deposition; and
4. Plaintiff’s failure to provide adequate responses to defendant Medina’s discovery

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requests and/or plaintiff’s refusal to cooperate in the taking of his deposition may result in the

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imposition of sanctions, including a recommendation for dismissal of this action.

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Dated: March 24, 2014

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DAD:9
herr1154.depo

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The court may, on motion, order that plaintiff participate in his deposition via video-conference.
See Fed. R. Civ. P. 30(b)(4). If defense counsel is so inclined, he may file a motion seeking a
court order authorizing him to take plaintiff’s deposition via video-conference.
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