Lyons v. Folsom Mercy Hospital

Filing 43

ORDER signed by Magistrate Judge Kendall J. Newman on 4/23/12 DENYING 42 Motion without prejudice. (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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BART LYONS,

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Plaintiff,
vs.
FOLSOM MERCY HOSPITAL, et al.,
Defendants.

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No. 2:11-cv-0268 GEB KJN P

ORDER
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Plaintiff has filed a motion requesting that the court issue subpoenas to obtain

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documents and materials sought by defendants pursuant to a production request served on

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plaintiff. (Dkt. No. 42.) Plaintiff states that he does “not know of any other way to provide

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these things to the defense.” (Id. at 2.) Plaintiff also seeks a protective order directing

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defendants to refrain from showing, to any third party, a video clip taken of plaintiff when he was

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hospitalized, and a request that defendants be ordered to identify those persons who have, to date,

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seen the video. (Id.)

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Plaintiff is informed that he need only produce those documents or things,

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responsive to a production request, that are within plaintiff’s actual “possession, custody, or

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control.” Fed. R. Civ. P. 34(a)(1). If a requested item is not within plaintiff’s “possession,

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custody, or control,” he must say so in his response to the request, and is then not further
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obligated to produce the item. Hence, there is no basis for issuing subpoenas in this action.

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Moreover, plaintiff has not demonstrated that a protective order is warranted. See Fed. R. Civ. P.

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26(c) (a protective order may be issued to protect a party from “annoyance, embarrassment,

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oppression, or undue burden or expense,” only upon good cause shown, and after the moving

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party has attempted in good faith to resolve the matter informally).

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The court further notes that plaintiff’s instant motion was not served on

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defendants. Plaintiff is advised that every document submitted to the court for consideration

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must be served on defendants. Fed. R. Civ. P. 5. Documents are usually served by placing a

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copy in the U.S. Mail. If an attorney has filed a document with the court on behalf of any

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defendant, then documents submitted by plaintiff must be served on that attorney and not on the

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defendant himself. Every document submitted to the court must include a certificate that

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identifies the date that an accurate copy of the document was mailed to defendants or their

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attorney, and the address to which it was mailed. See Local Rule 135(c). The Clerk of Court

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cannot serve any document for any party.

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More generally, plaintiff is informed that the assistance of the court should not be

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sought in the discovery process, unless a party believes in good faith that an opposing party has

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failed to comply with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26- 37.

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Furthermore, discovery disputes should not be filed with the court unless, and until, they are at

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issue, and the parties have failed to resolve the matter on their own. See Local Rule 251 (b)

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(parties are required to attempt to resolve their discovery differences).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion filed April 16,

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2012 (Dkt. No. 42), is denied without prejudice.

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DATED: April 23, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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lyon0268.disc.411.35

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