Toscano v. Department of Corrections et al

Filing 55

ORDER Re Medical Records Discovery. Signed by Judge Edward M. Chen on 9/17/2018. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 9/17/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

BENJAMIN K. TOSCANO,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 16-cv-06800-EMC
ORDER RE MEDICAL RECORDS
DISCOVERY

v.
NANCY ADAM, et al.,

Docket Nos. 52, 53

Defendants.

12
13

Plaintiff sent to the Court two document subpoenas, apparently so that they could be issued

14

by the Clerk and served by the Marshal. Docket No. 52. The Clerk will not issue the subpoenas

15

and they will not be served.

16
17
18

The subpoenas did not “set out the text of Rule 45(d) and (e),” as is mandated by Federal
Rule of Civil Procedure 45(a)(1)(A)(iv).
The subpoenas also did not allow a reasonable time for compliance. The subpoenas were

19

received at the Court on September 4, 2018, and commanded compliance by September 10, 2018,

20

just six days later. Even if the subpoenas had been issued and served on the day they were

21

received by the Court – an unrealistic expectation given the volume of filings the Court receives

22

every day – allowing just six days to comply with a document subpoena was not reasonable. The

23

court can quash or modify a subpoena that “fails to allow a reasonable time to comply.” Fed. R.

24

Civ. P. 45(d)(3)(A).

25

Each subpoena also has other problems unique to that subpoena. One subpoena is directed

26

at multiple people (i.e., Amy Lo, Nancy Adam, and P. Lenoir) and requests production of the

27

documents “requested in the attached request for production of documents re. back.” Docket No.

28

52 at 1. The group subpoena was improper as a separate subpoena should be used for each person

1

being subpoenaed. There also was no request for production of documents attached to the

2

subpoena, so the subpoena would yield no documents. Moreover, if the subpoena did indeed

3

simply command the subpoenaed persons to produce documents that were requested in a request

4

for production of documents, the subpoena was unnecessary and therefore did not comply with the

5

requirement that a party issuing a subpoena “take reasonable steps to avoid imposing undue

6

burden on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Further, because the

7

Marshal must serve a subpoena issued for a party proceeding in forma pauperis, serving a

8

subpoena that simply requests documents already subject to a request for production of documents

9

wastes tax dollars.
The second subpoena, dated August 29, 2018, is directed at the custodian of health care

10

United States District Court
Northern District of California

11

records at Pelican Bay State Prison and requests medical records “from September 1, 2018 to the

12

present date.” The date error would have resulted in either no records (because the subpoena

13

predated the earliest date for records sought), or would have yielded just nine days’ worth of

14

records (i.e., from September 1, 2018, through the September 10, 2018 production date). The

15

September 1, 2018 date appears to be wrong, given that the events at issue in this case occurred in

16

2016 - 2017.
Because of the many flaws mentioned above, the subpoenas will not be issued or served.

17
18

The Court is, however, surprised that Mr. Toscano apparently has not yet received his medical

19

records, given that his medical care is the focus of this case, and would prefer to avoid a discovery

20

dispute about the medical records. To that end, Defendants are strongly encouraged to promptly

21

provide to Mr. Toscano a copy of his medical records from January 1, 2016, through

22

December 31, 2017, if they have not done so yet. No later than October 1, 2018, Defendants

23

must file and serve a notice that either (a) states that they have provided to Mr. Toscano a copy of

24

those medical records, or (b) explains why they have not done so. Mr. Toscano is strongly

25

encouraged to sign any forms needed to obtain a copy of his medical records. Defendants may

26

charge Mr. Toscano reasonable photocopying fees for the records they produce pursuant to this

27

order.

28
2

1

Mr. Toscano has filed a “reply to defendants[’] refusal to provide requested documents for

2

inspection.” Docket No. 53. Mr. Toscano is encouraged to read and comply with the order dated

3

June 11, 2018, in which the Court discussed the discovery process. See Docket No. 42 at 2-3.

4
5

IT IS SO ORDERED.

6
7

Dated: September 17, 2018

8
9
10

______________________________________
EDWARD M. CHEN
United States District Judge

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3