Hardy v. Davis et al

Filing 100

ORDER signed by Magistrate Judge Deborah Barnes on 2/1/17 ORDERING that Plaintiff's motion to compel (ECF No. 67 ) is DENIED; Plaintiff's motion for protective order and for stay (ECF No. 68 ) is DENIED; Plaintiff's motion to serve additional interrogatories and to extend discovery (ECF No. 76 ) is DENIED; and Plaintiff's motion to compel discovery (ECF No. 77 ) is DENIED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRISTIN HARDY,

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No. 2:13-cv-0726 JAM DB

Plaintiff,

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v.

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C DAVIS, et al.,

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ORDER
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983 alleging he was unreasonably strip-searched and subjected to

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excessive force, in violation of his Fourth and Eighth Amendment rights.
Before the close of discovery, plaintiff filed two discovery motions, seeking to compel

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better answers to interrogatories (ECF No. 67) and seeking to stay a deposition scheduled by

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defendants (ECF No. 68). After the close of discovery, plaintiff filed two more discovery

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motions, seeking to submit additional interrogatories to defendants, to extend the discovery

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deadline (ECF No. 76) and compel better responses to interrogatories (ECF No. 77). For the

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reasons outlined below, the undersigned denies all four motions.

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I.

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Motion to Compel Better Responses to Interrogatories (ECF No. 67)
On October 20, 2015, Plaintiff served his first set of interrogatories on defendants. (ECF

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No. 65 at 2-9.) Based on the Discovery and Scheduling Order, defendants’ interrogatory

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responses were to be served on or before December 7, 2015. (ECF No. 56; Fed. R. Civ. P. 6(e).)

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Defendants sought an extension of time until December 21, 2015, to respond to plaintiff’s

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discovery, and the court granted this extension. (ECF Nos. 63; 64.) Defendants served their

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interrogatory responses on plaintiff on December 21, 2015. (ECF No. 70-1 ¶ 5.)
Plaintiff alleges that defendants’ responses to several of his interrogatories were

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“incomplete and evasive.” (ECF No. 67 at 2-3.) In particular, plaintiff takes issue with defendant

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Davis’ responses to Interrogatory Nos. 5, 9, 17, and 21, and defendants Morris and Zahniser’s

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responses to Interrogatories Nos. 6, 12-13, and 17. (Id.) Plaintiff’s barebones accusations of

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incomplete discovery responses do not meet the burden imposed on him by the federal rules

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governing discovery.

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Under Federal Rule of Civil Procedure 37, a party propounding discovery may seek an

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order compelling a discovery response when an opposing party has failed to respond or has

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provided evasive or incomplete responses. Fed. R. Civ. P. 37(a). A mere disagreement with the

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responding party’s responses is not a basis for objection. Johnson v. Cate, No. 1:10–cv–02348–

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LJO–MJS, 2014 WL 4249141, at *6 (E.D. Cal. Aug. 27, 2014). Furthermore, the party moving

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to compel better responses must demonstrate how or why the responses are incomplete or

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evasive. Id. Plaintiff has not done that here.

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A review of each interrogatory response -- which plaintiff attached to the motion (ECF

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No. 67 at 5-42) -- finds no clear instances of incomplete or evasive answers. To be sure,

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defendants objected to each of the subject interrogatories; however, despite posing objections,

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defendants still offered substantive responses to each interrogatory. (Id.) While some of these

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responses expressly stated that defendants could not remember or were not aware of certain facts,

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such answers -- when delivered in good faith -- are completely appropriate if defendants lack

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knowledge.

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Accordingly, the court denies plaintiff’s motion to compel (ECF No. 67) because plaintiff

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failed to demonstrate how the interrogatory responses were inadequate and the court’s review of

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the material did not find incomplete or evasive answers.

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II.

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Motion for Order of Protection and for Stay (ECF No. 68)
On December 31, 2015, defendants served a deposition subpoena on Mr. Daniel W.

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Wright. (ECF No. 68 at 8-9.) Mr. Wright’s deposition was scheduled for Thursday, January 21,

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2016, at 10:00 a.m., at California State Prison, Sacramento, where Mr. Wright was incarcerated.

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(Id. at 8.) On January 11, 2016, plaintiff moved to stay this deposition. (Id.)

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Plaintiff objects to defendants taking Mr. Wright’s deposition and seeks a stay on the

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following grounds: (1) the deposition will cause undue annoyance, burden, and oppression on Mr.

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Wright; (2) Mr. Wright is elderly and has various medical issues; (3) the deposition will not lead

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to the discovery of admissible evidence; (4) and Mr. Wright was plaintiff’s former cellmate and

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was not present during the July 17, 2012 incident. (Id. at 2-3.) Plaintiff seeks the following

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remedies: (1) Mr. Wright’s deposition be taken in camera; (2) the scope of the deposition be

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limited only to the July 17, 2012 incident; and (3) the length of the deposition be limited to ninety

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minutes, with the parties having equal time to ask Mr. Wright questions. (Id. at 4.)

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Absent a claim of privilege or personal right, only the non-party served with the subpoena

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has standing to quash it. See Wells Fargo & Co. v. ABD Ins., No. C 12–03856 PJH, 2012 WL

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6115612, at *2 (N.D. Cal. Dec. 10, 2012); Coulter v. Murrel, No. 10–102 IEG (NLS), 2011 WL

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666894, at *2 (S.D. Cal. Feb.14, 2011); In re Ashworth, Inc. Securities Litig., No. 99–CV–121,

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2002 WL 33009225, at *2 (S.D. Cal. May 10, 2002). A party has no standing to object to a non-

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party subpoena on the basis that the subpoena seeks irrelevant information or would impose an

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undue burden when the non-party has not objected. Wells Fargo, 2012 WL 6115612 at *2.

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Here, only Mr. Wright, not plaintiff, has standing to quash defendants’ subpoena and, to

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date, he has not moved to do so. Furthermore, plaintiff does not identify any personal right or

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privileged information that would be jeopardized if Mr. Wright is allowed to testify. (Id. (citing

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Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005)).

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Therefore, plaintiff’s objections, including those relating to any purported undue burden on Mr.
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Wright, are not grounds on which plaintiff has standing to object to defendants’ subpoena.
Notwithstanding plaintiff’s lack of standing to object to the deposition of Mr. Wright, the

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motion is also moot, as the deposition was scheduled for January of 2016.
Accordingly, the court denies plaintiff’s motion for protective order and for stay (ECF No.

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68) because plaintiff lacks standing to bring the motion and because the relief sought is now

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moot.

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III.

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Motion to Serve Additional Interrogatories and to Extend Discovery (ECF No. 76)
On September 23, 2015, the Court issued its Discovery and Scheduling Order, setting the

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discovery deadline for February 12, 2016. (ECF No. 56 at 5.) To date, plaintiff has served two

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sets of interrogatories on Defendants. (ECF No. 78-1 ¶ 2.) Specifically, plaintiff has served a

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total of twenty-one interrogatories on Defendant Davis, and twenty-four on Defendants Morris

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and Zahniser. (Id.) On February 1, 2016, plaintiff moved for additional discovery, seeking to

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serve ten additional interrogatories on each defendant and to extend the discovery cut-off by

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sixty-days. (ECF No. 76.)

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When a party seeks leave to serve additional interrogatories, that party must make a

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particularized showing of why that discovery is necessary. Waterbury v. Scribner, No. 1:05-cv-

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0764 OWW DLB PC, 2008 WL 2018432, at *8 (E.D. Cal. May 8, 2008) (citing Archer Daniels

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Midland Co. v. Aon Risk Servs., Inc. of Minnesota, 187 F.R.D. 578, 586 (D. Minn. 1999)).

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Pursuant to Federal Rule 33(a), once the moving party has made a particularized showing, the

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Court shall grant leave if it is consistent with FRCP 26(b)(2).

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Plaintiff's instant motion is deficient. Plaintiff alleges simply that he is acting as his own

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attorney and “that additional discovery is needed to discover potentially relevant information that

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may be needed if this case proceeds to trial.” (ECF No. 76 at 1.) Plaintiff adds that he is limited

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to interrogatories as his only discovery tool. (Id.) Plaintiff’s motion does not adequately set forth

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why up to thirty additional interrogatories are needed, nor does the motion explain the nature or

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subject matter of the additional interrogatories. Additionally, courts require that parties moving

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to serve additional interrogatories submit the proposed interrogatories for review by the court

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with the motion. Waterbury, 2008 WL 2018432 at *8. Plaintiff has not done so here. Thus, the
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court cannot adequately address plaintiff’s need to serve additional interrogatories.
Accordingly, the court denies plaintiff’s motion to serve additional interrogatories and to

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extend discovery (ECF No. 76) because the motion is deficient.

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IV.

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Motion to Compel Discovery (ECF No. 77)
Finally, plaintiff moves (again) to compel better answers to interrogatories from defendant

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Morris. (ECF No. 77.) In contrast to plaintiff’s first motion (ECF No. 67), this motion does

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attempt to specifically demonstrate the inadequacy of two interrogatory responses with

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specificity. However, plaintiff’s arguments are not persuasive.

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Interrogatory No. 6 asked defendant Morris if he ever responded to the C-Facility law

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library to remove an inmate at defendant Davis’ behest, other than the July 17, 2012 incident

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where he removed plaintiff from the library. (ECF No. 77 at 3.) Defendant Morris objected to

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this interrogatory on several grounds: (1) overbroad as to scope and time; (2) calling for improper

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character evidence; (3) calling for speculation; (4) irrelevance; and (5) not being proportionate to

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the needs of the case. (Id.) Without waiving these objections, defendant Morris responded that

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he may have responded to the C-Facility law library at the behest of defendant Davis for unruly

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inmate behavior in the past, but he could not remember when those incidents took place. (Id.)

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Plaintiff contends that this response is inadequate and evasive. While the response may

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not have provided plaintiff with an answer that he wanted, the response complies with the federal

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rules. Defendant Morris stated -- under oath -- that he did not remember any specific incident.

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Only a reasonable effort must be made in responding to an interrogatory. Gorrell v. Sneath, 292

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F.R.D. 629, 632 (E.D. Cal. 2013). While plaintiff is correct that defendant Morris’ objections are

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all improper,1 an adequate response was still provided notwithstanding the objections. From

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plaintiff’s perspective, defendant Morris’ lack of recall concerning any other specific incidents is

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Any grounds of an objection to an interrogatory must be stated “with specificity.” Fed. R. Civ.
P. 33(b)(4); see also Nagele v. Electronic Data Systems Corp., 193 F.R.D. 94, 109 (W.D.N.Y.
2000) (objection that interrogatories were “burdensome” overruled for failure to “particularize”
the basis for objection); Mitchell v. AMTRAK, 208 F.R.D. 455, 458 n. 4 (D.D.C. 2002)
(objections must explain how an interrogatory is overbroad or unduly burdensome). Defendant
provides no explanation concerning all five objections stated in the response. Accordingly, these
objections are all improper.
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“evasive” and “incomplete,” but the court cannot compel defendant Morris to remember an

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incident. . This interrogatory only required defendant Morris to search his recollection, which he

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did. As such, the court finds the response adequate.

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Interrogatory No. 7 requested defendant Morris to produce copies of any Rules Violation

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Reports (RVR) and/or inmate grievances that resulted from any incident identified in response to

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Interrogatory No. 6. (ECF No. 77 at 3.) Defendant Morris asserted the same objections used in

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Interrogatory No. 6, plus a privacy objection because plaintiff was potentially seeking the

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production of sensitive information about non-party inmates. (Id.) Without waiving these

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objections, defendant Morris responded that, as with No. 6, he could not remember any specific

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incidents as a result of responding to the law library at the behest of defendant Davis, and

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therefore also did not know if those inmates were given an RVR or wrote an inmate grievance.

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(ECF Nos. 77 at 3; 78-1 at 37-38.)

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As with No. 6, the objections are inadequately stated. However, the substantive response

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provided by defendant Morris is sufficient. Defendant Morris stated that he does not remember

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other incidents and therefore cannot provide any documentation concerning those potential

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incidents. The court cannot force defendant Morris to remember something that he cannot recall.

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Accordingly, the court denies plaintiff’s motion to compel discovery (ECF No. 77)

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because the answers provided to the interrogatories are adequate.

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V.

Conclusion

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to compel (ECF No. 67) is denied;

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Plaintiff’s motion for protective order and for stay (ECF No. 68) is denied;

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3.

Plaintiff’s motion to serve additional interrogatories and to extend discovery (ECF

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No. 76) is denied; and

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4.

Plaintiff’s motion to compel discovery (ECF No. 77) is denied.

Dated: February 1, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / hard.0726.mtc

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