Franks v. Kelso et al

Filing 49

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/10/2019 DENYING plaintiff's 39 motion to compel and GRANTING defendant 14 days within which to renew his motion for summary judgment. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOM MARK FRANKS,

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No. 2:17-cv-1056 KJM CKD P

Plaintiff,
v.

ORDER

J. CLARK KELSO, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action arising under 42 U.S.C.

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§ 1983. The remaining defendant, defendant Giddings, is a dentist at High Desert State Prison.

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Plaintiff has filed a motion to compel concerning defendant’s responses to plaintiff’s “second

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request for production of documents.”

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The court has reviewed defendant’s responses. Essentially, defendant asserts he has no

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responsive documents other than notes counsel made while interviewing potential witnesses

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Gonzalez and Andrea. Counsel for defendant asserts correctly that these notes are trial

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preparation material and are not discoverable unless plaintiff shows “substantial need for the

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materials to prepare [his] case and cannot, without undue hardship, obtain their substantial

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equivalent by other means.” Fed. R. Civ. P. 26(3). Plaintiff has not made that showing. Plaintiff

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indicates that he is the one who identified Gonzalez and Andrea as potential witnesses to

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defendant so it appears that plaintiff knows what they know. Further, plaintiff does not indicate
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what he hopes to learn by accessing counsel’s notes other than simply learning what the potential

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witnesses told counsel. With respect to witness Gonzalez, plaintiff asserts he already knows what

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she said in her interview anyway.
Finally, plaintiff asserts he requires counsel’s notes for his opposition to defendant’s

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motion for summary judgment, but he fails to identify how the notes would help him overcome

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the motion, even if the notes were admissible which is doubtful.1

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Accordingly, IT IS HERBY ORDERED that:

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1. Plaintiff’s December 26, 2018 motion to compel is denied; and

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2. Defendant is granted 14 ways within which to renew his motion for summary

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judgment.

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Dated: May 10, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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frank1056.rtp(2)

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The information contained in the notes most likely amounts to inadmissible hearsay, see Fed. R.
Evid. 801 et seq. or opinions, Fed R. Evid. 701 et seq.
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