Gomez v. Acharya et al

Filing 58

ORDER signed by Magistrate Judge Carolyn K. Delaney on 06/08/20 DENYING 49 Motion to Compel. Plaintiffs pretrial statement 54 and defendants response 57 are disregarded. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD GOMEZ,

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Plaintiff,

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No. 2:17-cv-2407 MCE CKD P

v.

ORDER

ACHARYA, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.

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§ 1983, has filed a motion to compel discovery (ECF No. 49) and a pretrial statement (ECF No.

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54).

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I.

Motion to Compel
The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad.

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Discovery may be obtained as to “any nonprivileged matter that is relevant to any party’s claim or

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defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “Information within

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this scope of discovery need not be admissible in evidence to be discoverable.” Id. The court,

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however, may limit discovery if it is “unreasonably cumulative or duplicative, or can be obtained

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from some other source that is more convenient, less burdensome, or less expensive;” or if the

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party who seeks discovery “has had ample opportunity to obtain the information by discovery;”

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or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
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26(b)(2)(C). The purpose of discovery is to “make a trial less a game of blind man’s bluff and

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more a fair contest with the basic issues and facts disclosed to the fullest practicable extent,”

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United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citation omitted), and “to

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narrow and clarify the basic issues between the parties,” Hickman v. Taylor, 329 U.S. 495, 501

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(1947).

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Where a party fails to produce documents requested under Federal Rule of Civil

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Procedure 34, the party seeking discovery may move for compelled production. Fed. R. Civ. P.

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37(a). “The party seeking to compel discovery has the burden of establishing that its request

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satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery

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has the burden of showing that the discovery should be prohibited, and the burden of clarifying,

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explaining or supporting its objections.” Bryant v. Ochoa, No. 07-cv-0200 JM PCL, 2009 WL

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1390794 at *1, 2009 U.S. Dist. LEXIS 42339 at *3 (S.D. Cal. May 14, 2009) (citations omitted);

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see also Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir.

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1992) (upholding denial of motion to compel because moving party did not show the request fell

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within the scope of Rule 26(b)(1)). The opposing party is “required to carry a heavy burden of

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showing why discovery was denied.” Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.

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1975).

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Plaintiff has filed a motion to compel in which he seeks to compel defendants to produce a

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transcription of portions of his medical records and a video recording. (ECF No. 49.) Defendants

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oppose the motion on the grounds that plaintiff is seeking the creation of a document not already

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in existence and that the request for production of surveillance video is a new request.

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Defendants’ objection to plaintiff’s request that they provide him with a transcription of

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portions of his medical record because he is unable to read the handwritten record is well taken.

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Federal Rule of Civil Procedure 34 requires a party to produce documents in their “possession,

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custody, or control.” Fed. R. Civ. P. 34(a)(1). In other words, their obligation is to produce

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documents already in existence, not to create new documents. Defendants produced medical

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records that corresponded to the dates requested (ECF No. 52 at 4) but were under no obligation

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to provide a transcription of those records. The motion will therefore be denied as to this request.
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With respect to plaintiff’s request to compel copies of surveillance video from specific

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dates, the motion will be denied. Defendants have provided a copy of plaintiff’s requests for

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production showing that a request for such video was not previously made. (ECF No. 52-1 at 4-

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8.) Because plaintiff did not previously request the video, the motion to compel is improper as to

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this request and will be denied.

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II.

Pretrial Statement
Plaintiff has filed a pretrial statement (ECF No. 54) and defendants have objected on the

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ground that it is premature and request that in the event the court construes the statement as a

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motion for summary judgment an order to that effect be issued and they be given an opportunity

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to respond (ECF No. 57).
Because the dispositive motion deadline has not yet passed, it has yet to be determined

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whether this case will proceed to trial and the pretrial statement is premature. If it is determined

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that this case will proceed to trial and a trial date is set, a deadline for filing pretrial statements

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will be set at that time. Furthermore, plaintiff’s pretrial statement is not a motion for summary

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judgment and will not be construed as such. Accordingly, both the pretrial statement and

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defendants’ response will be disregarded.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel (ECF No. 49) is denied.

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2. Plaintiff’s pretrial statement (ECF No. 54) and defendants’ response (ECF No. 57) are

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disregarded.

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Dated: June 8, 2020

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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13:gome2407.mtc.pretrial

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