Estate of Dimitris Kalatzakis et al v. RTC Grounds et al

Filing 50

ORDER DENYING MOTION TO COMPEL by Magistrate Judge Paul Singh Grewal denying 40 . (psglc1S, COURT STAFF) (Filed on 4/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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D.K., et al.,
Plaintiffs,

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ORDER DENYING MOTION TO
COMPEL

v.

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(Re: Docket No. 40)

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RTC GROUNDS, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 5:14-cv-05634-RMW

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The question before the court is straightforward: does Fed. R. Civ. P. 34 require a

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defendant to produce documents from his former employer? The answer, at least on this record is

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equally straightforward: no.

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Plaintiffs in this Section 1983 case served various document requests on Defendants

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R.T.C. Grounds and Gary Sandor.1 Plaintiffs are the estate of Dimitris Kalazakis, his parents, and

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his minor son through his duly appointed guardian ad litem.2 Kalazakis was killed by his cellmate

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at Salinas Valley State Prison, and Plaintiffs wish to hold Defendants, one the SVSP warden at the

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time of the homicide, and the other a member of the committee that determined Kalazakis’

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housing classification, responsible.3 Grounds and Sandor have both since retired from their

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former employer, the California Department of Corrections and Rehabilitation.4 Among their

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See Docket No. 40 at 2.

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See id. at 1.

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See id.

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See id. at 2.

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Case No. 5:14-cv-05634-RMW
ORDER DENYING MOTION TO COMPEL

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objections to Plaintiffs’ requests, Defendants argue that they do not have possession, custody or

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control of any otherwise responsive documents in the files of their former employer.5
While Rule 34 provides that a party is required to produce responsive documents within

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his “possession, custody, or control,” courts have struggled with what exactly that means.6 Within

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the Ninth Circuit, trial courts follow the “legal right” standard: “[c]ontrol must be firmly placed in

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reality, and the court examines whether there is actual, not theoretical control. Decisions within

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the Ninth Circuit have noted the importance of a legal right to access documents created by

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statute, affiliation or employment.”7
Against these standards, Plaintiffs’ demand for documents from Defendants’ former

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employer falls flat. In particular, Plaintiffs fail to show that Grounds and Sandor have the

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United States District Court
Northern District of California

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authority to compel the CDCR or any of its facilities to produce the documents they request. At

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the time their responses were served, Grounds and Sandor were retired from CDCR.8 Plaintiffs

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were aware that Sandor was retired when they served the discovery in November 2015, because

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Plaintiffs’ counsel had taken Sandor’s deposition on October 14, 2015 in another case. There, he

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explained in detail the various positions he held with CDCR through April 2014, including his

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limited work at California State Prison-Corcoran.9 Similarly, Grounds retired from SVSP in 2014,

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and at the time he served his responses on December 21, 2015, he was retired. Grounds recently

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accepted a limited appointment as a Retired Annuitant-Chief Deputy Warden at the California

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Institution for Men. As a retired annuitant, he is akin to an independent contractor, hired for a

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See id.

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See, e.g., Goodman v. Praxair Servcs., Inc., 632 F. Supp. 2d 494, 514 (D. Md. 2009) (“What is
meant by [Rule 34] ‘control’ . . . has yet to be fully defined.”) (Grimm, J.).

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Verigy US, Inc. v. Mayder, Case No. C07-04330 RMW (HRL), 2008 WL 4786621, at *1 (N.D.
Cal. Oct. 30, 2008).
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See Docket Nos. 41-1, Docket No. 41-2.

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See Docket No. 41-3.

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Case No. 5:14-cv-05634-RMW
ORDER DENYING MOTION TO COMPEL

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specific purpose as stated in the Justification Memo and Duty Statement submitted to the court.10

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His appointment is limited to CIM and is expected to end in June 2016.11 But Grounds’ current

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limited role at CIM does not change the analysis here, because as a contractor, he is not a CDCR

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employee and does not have the legal right to demand production of the requested documents.12
Plaintiffs point to Ochotorena v. Adams,13 Bovarie v. Schwarzenegger, et al.,14 Woodall v.

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California,15 Mitchell v. Adams16 and Allen v. Woodford,17 but those cases are factually inapposite:

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they involve current, not former, employees. None of the cases Plaintiffs rely on stand for the

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proposition that former CDCR employees have actual or constructive possession, custody or

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control of documents in the actual possession of their former employer.
Courts have routinely held that former employees do not have the requisite control. In

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United States District Court
Northern District of California

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Bryant v. Armstrong,18 the district court rejected the plaintiff’s argument that Defendant

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“Armstrong has control over Calipatria’s law library scheduling policies” because “she and the

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other Defendants are represented by the Attorney General’s Office, and the other Defendants are

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currently employed by CDCR.”19 The court noted that the plaintiff’s argument “would be stronger

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See Docket No. 41-4.

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See id.

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Cf. Guthrey v. California Dep’t of Corr. & Rehab., Case No. 1:10–cv–02177–OWW–GSA,
2011 WL 1259835, at *4 (E.D. Cal. Mar. 30, 2011) (finding that plaintiff, a retired annuitant for
CDCR, cannot bring claims under Government Code § 12940 “as only an individual’s employer
may be held liable under FEHA”).

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Case No. No. 1:05-cv-01524-LJO-DLB (PC), 2010 WL 1035774 (E.D. Cal. Mar. 19, 2010).

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Case Civil No. 08cv1661 LAB (NLS), 2011 WL 719206 (S.D. Cal. Feb. 22, 2011).

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Case No. 1:08–CV–01948–OWW–DLB PC, 2010 WL 4316953 (E.D. Cal. Oct. 22, 2010).

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Case No. CIV S-06-2321 GEB GGH P, 2009 WL 674348 (E.D. Cal. Mar. 6, 2009).

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Case No. CV-F-05-1104 OWW LJO, 2007 WL 309945 (E.D. Cal. Jan. 30, 2007).

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285 F.R.D. 596 (S.D. Cal. 2014).

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Id. at 607.

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Case No. 5:14-cv-05634-RMW
ORDER DENYING MOTION TO COMPEL

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if the document request was directed at a Defendant who was currently employed by CDCR.”20

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The court concluded that “Armstrong cannot be compelled to produce documents from an agency

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that previously employed her when the records are not in her custody, possession, or control.”21 In

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Lopez v.Chertoff, the court found that the defendant, a former employee of the Yolo County Public

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Defender’s Office, did not have possession, custody, or control of documents “held by his former

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employer, nor [did] he have the present ability to legally demand such documents.” 22 And the

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district court in Lowe v. District of Columbia stated that “[f]ormer employees for government

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agencies do not have ‘possession, custody, or control’ of documents held by their former

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employers.” 23
Plaintiffs separately rely on Bovarie and Woodall for the proposition that individuals

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United States District Court
Northern District of California

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represented by the Office of the Attorney General have control over the requested documents. In

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both cases, the court concluded that by virtue of their representation and continued employment

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with CDCR, the defendants had control of the requested documents, and required the defendants

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to provide factual support if they continued to assert that they did not have control of the

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documents. But here, Plaintiffs cited no regulation, code or other authority that gives the Office of

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the Attorney General unfettered access to the documents requested in the production requests

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directed at Grounds and Sandor.

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Id.

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Id.

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Case No. CV 07–1566–LEW, 2009 WL 1575214, at *2 (E.D. Cal. June 2, 2009).

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250 F.R.D. 36, 38 (D.D.C. 2008); see also, McCurdy v. Johnson, Case No. 2:08–cv–01767–
JAD–PAL, 2013 WL 4506432, at *3 (D. Nev. 2013) (“Defendant cannot be compelled to produce
documents from an agency that previously employed him when the records are not in his
possession, custody, or control.”).
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Case No. 5:14-cv-05634-RMW
ORDER DENYING MOTION TO COMPEL

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SO ORDERED.

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Dated: April 1, 2016
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
Northern District of California

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Case No. 5:14-cv-05634-RMW
ORDER DENYING MOTION TO COMPEL