Lopez v. Giurbino et al

Filing 162

ORDER Denying 115 Plaintiff's Motion Requesting Permission to Submit Additional Interrogatory Questions; Granting 120 Plaintiff's Motion to Compel. Defendants are ordered to comply with the Court's Order by November 26, 2012. Signed by Magistrate Judge Ruben B. Brooks on 11/6/2012. (All non-registered users served via U.S. Mail Service) (srm)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ADAM RAY LOPEZ,

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Plaintiff,

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v.
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P. SANTOYO, D.D.S, C.
ROBERTSON, C.D.O.,

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Defendants.
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Civil No. 09cv00108 W(RBB)
ORDER (1) DENYING PLAINTIFF’S
MOTION REQUESTING PERMISSION
TO SUBMIT ADDITIONAL
INTERROGATORY QUESTIONS [ECF
NO. 115]; AND (2) GRANTING
PLAINTIFF’S MOTION FOR AN
ORDER COMPELLING DISCOVERY
[ECF NO. 120]

Plaintiff Adam Ray Lopez, a state prisoner proceeding pro se

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and in forma pauperis, filed a Complaint on January 16, 2009,

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pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 4].

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filed a First Amended Complaint on July 15, 2009 [ECF No. 7], and a

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Second Amended Complaint on December 13, 2010 [ECF No. 62].1

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contends that Defendants Santoyo and Robertson violated his Eighth

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Amendment right to be free from cruel and unusual punishment by

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acting with deliberate indifference to Plaintiff’s serious medical

He subsequently

Lopez

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Because the Second Amended Complaint is not consecutively
paginated, the Court will cite to it using the page numbers
assigned by the electronic case filing system.
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09cv00108 W (RBB)

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needs.

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Answer on December 1, 2011 [ECF No. 98].

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(Second Am. Compl. 5, ECF No. 62.)

The Defendants filed an

Plaintiff’s Motion Requesting Permission to Submit Additional

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Interrogatory Questions was filed nunc pro tunc to May 1, 2012 [ECF

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No. 115].

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construing Plaintiff’s request as a motion for leave to serve

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additional and untimely interrogatories because the May 7, 2012

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deadline for propounding discovery had lapsed [ECF No. 117].

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Defendants Santoyo and Robertson filed their Opposition to

On May 10, 2012, the Court issued a minute order

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Plaintiff’s Motion for Leave to Serve Additional and Untimely

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Interrogatories on May 24, 2012 [ECF No. 118].

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Plaintiff filed an “Opposition to Defendants Motion [sic] and

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Opposition to Plaintiffs Motion for Leave to Serve Additional

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Interrogatories,” which the Court construes as his Reply [ECF No.

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124].

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On June 8, 2012,

Lopez also filed a Motion for an Order Compelling Discovery on

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May 31, 2012 [ECF No. 120].

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“Discovery Matter:

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to Plaintiff’s Motion to Compel” on June 25, 2012 [ECF No. 126].

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One month later, on July 25, 2012, Lopez similarly filed a document

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titled “Discovery Matter:

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Opposition to Plaintiff’s Motion to Compel,” which the Court

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construes as his Reply [ECF No. 130].

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Defendants filed a document titled

Defendants’ Notice of Opposition and Opposition

Plaintiff’s Opposition to Defendants’

The Court finds the motions suitable for resolution on the
See S.D. Cal. Civ. R.

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papers, pursuant to Civil Local Rule 7.1.

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7.1(d)(1).

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Permission to Submit Additional Interrogatory Questions is DENIED.

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Plaintiff’s Motion for an Order Compelling Discovery is GRANTED.

For the reasons stated below, Lopez’ Motion Requesting

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I.

FACTUAL BACKGROUND

On December 13, 2010, when Lopez filed his Second Amended

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Complaint, he was incarcerated at the California Substance Abuse

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Treatment Facility and State Prison in Corcoran, California.

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(Second Am. Compl. 1, ECF No. 62.)

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action occurred between July 26, 2006, and July 10, 2007, while

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Plaintiff was housed at Calipatria State Prison (“Calipatria”).

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(Id. at 2, 5-10.)

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The events giving rise to this

Plaintiff argues that on July 26, 2006, he submitted a Health

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Care Services Request Form complaining of pain and discomfort in

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his teeth and requesting that his wisdom teeth be extracted.

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at 5 (citing id. Ex. A, at 14).)

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examined Lopez on November 1, 2006, in response to his request.

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(Id.)

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examination indicate that Lopez had a serious dental need.

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see id. Ex. B, at 16.)

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completed a physician request for services form stating that Lopez

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was in “urgent” need of oral surgery for two impacted molars, and

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he was experiencing swelling, pain, and infection in his mouth.

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(Second Am. Compl. 5, ECF No. 62.)

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condition as “Priority 1C,” a classification that required any oral

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surgery to be performed within sixty days of diagnosis.

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Additionally, Plaintiff asserts that he told Defendant he was

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experiencing extreme pain and discomfort, but the dentist refused

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to prescribe any pain medication.

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(Id.

Defendant Santoyo, D.D.S.,

The Plaintiff maintains that Dr. Santoyo’s notes from that
(Id.;

According to Plaintiff, Santoyo then

Santoyo classified Plaintiff’s

(Id.)

(Id. at 5, 7).

Lopez submits that Dr. Santoyo told him that because Santoyo

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did not perform wisdom teeth extractions, Lopez must be transported

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to an outside medical service provider, and Dr. Torchia, D.D.S.,

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09cv00108 W (RBB)

(Id. at 6.)2

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would perform the surgery.

But another inmate at the

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prison, Christopher Soto, told Lopez in late 2007 that Dr. Santoyo

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had extracted Soto’s wisdom teeth.

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complains that “defendant Santoyo maliciously told [him] that he

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did not perform tooth extractions.”

(See id. at 9-10.)

Plaintiff

(Id. at 10.)

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Lopez alleges that on November 2, 2006, Defendant Robertson,

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chief dental officer at Calipatria, approved the “urgent Priority

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1C” surgery.

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regulations provide that the chief dental officer must review all

(Id. at 6.)

The Plaintiff maintains that prison

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documents relating to a prisoner’s medical condition before

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approving oral surgery.

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wisdom teeth extraction, Robertson was made aware of Plaintiff’s

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serious dental need.

(Id.)

Lopez argues that in approving the

(Id. at 7.)

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Lopez submitted an inmate grievance on January 1, 2007.

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His grievance was partially granted at the informal level on

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February 20, 2007.

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that he was “on the oral surgery list to be seen by an outside

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provider.”

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the formal level, stating that his surgery should be done

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“forthwith.”

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(Id.)

(Id. Ex. E, at 27.)

Id.

Plaintiff was informed

Dissatisfied, Lopez appealed the 602 response to

(Id.)

On April 20, 2007, Plaintiff submitted another health care

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request seeking priority status over other prisoners’ medical

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procedures in light of his severe pain.

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No. 62.)

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Ex. E, at 27-28.)

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see the oral surgeon on April 30, 2007.

(Second Am. Compl. 7, ECF

Santoyo responded to the appeal on April 23, 2007.

(Id.

Plaintiff was advised that he was scheduled to
(Id. Ex. E, at 28.)

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Claims against Dr. Torchia were dismissed with prejudice on
September 17, 2010. (Order Adopting Report & Recommendation 12,
ECF No. 55.)
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On that date, “after a 10 month delay without any pain

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medication,” Plaintiff contends he was transported to the outside

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medical provider in San Diego, California, and received his

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surgery.

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Dr. Torchia chipped one of Plaintiff’s teeth while performing the

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procedure and subsequently issued a physician’s order directing

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Calipatria dentists to repair the tooth.

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at 32).)

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supply of Motrin for the pain.

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(Second Am. Compl. 8, ECF No. 62.)

According to Lopez,

(Id. (citing id. Ex. G,

Lopez asserts Torchia only prescribed him a five-day
(Id.)

On May 2, 2007, the Plaintiff submitted a health care request

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complaining of pain and swelling to his jaw and stating that the

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Motrin had no effect on his pain.

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was put on a liquid diet but was not prescribed “any medication at

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all.”

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his surgery, he spoke with Dr. Santoyo, who stated he would repair

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Lopez’s chipped tooth himself.

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36).)

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Santoyo that he was in pain and needed his tooth repaired, yet

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Defendant did “absolutely nothing for the plaintiff.”

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8-9.)

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(Id.)

(Id.)

Lopez maintains that he

Plaintiff claims that approximately one week after

(Id. at 9 (citing id. Ex. I, at

On May 15, 2007, Santoyo examined Lopez, who told Dr.

(Id. at

On May 31, 2007, Lopez submitted another health care request

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indicating that he needed his chipped tooth filled and his teeth

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cleaned.

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12, 2007; Lopez told him that he was in pain, could not eat, and

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needed his tooth repaired, but the Defendant “took no action.”

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(Id.)

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10, 2007.

(Id. at 9.)

Plaintiff was seen by Dr. Santoyo on June

Santoyo ultimately repaired Lopez’s chipped tooth on July
(Id.)

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Plaintiff alleges Defendants’ conduct constituted deliberate

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indifference to his serious medical needs in violation of the

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Eighth Amendment to the United States Constitution.

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11.)

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and policy Title 15 3354” are ineffective because he did not

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receive his surgery within sixty days of being approved for

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surgery, as required.

Lopez also complains that “the prison’s medical care system

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(Id. at 11.)
II.

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A.

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(Id. at 5, 10-

DISCUSSION

Additional Interrogatories

Federal Rule of Civil Procedure 33(a)(1) provides:

“Unless

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otherwise stipulated or ordered by the court, a party may serve on

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any other party no more than 25 written interrogatories, including

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all discrete subparts.

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may be granted to the extent consistent with Rule 26(b)(2).”

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Local Rule 33.1 requires a party seeking to serve additional

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interrogatories to “submit to the court a written motion setting

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forth the proposed additional interrogatories and the reasons

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establishing good cause for their use.”

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Leave to serve additional interrogatories
Civil

S.D. Cal. Civ. R. 33.1(a).

On January 21, 2012, Lopez served his interrogatories on

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Defendant Santoyo.

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Serve Addt’l & Untimely Interrogs. 3, ECF No. 118.)

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interrogatories on Defendant Robertson on January 23, 2012.

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Although Plaintiff was allowed twenty-five interrogatories, he

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served only twenty-two interrogatories on each Defendant.

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Plaintiff’s deadline to serve interrogatories was May 7, 2012.

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(Case Mgmt. Conference Order 2, ECF No. 104.)

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their responses to Plaintiff’s interrogatories on February 23,

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2012.

(Defs.’ Mem. P. & A. Opp’n Pl.’s Mot. Leave
He served
(Id.)

Defendants served

Defs.’ Mem. P. & A. Opp’n Pl.’s Mot. Leave Serve Addt’l &

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Untimely Interrogs. 3, ECF No. 118.)

Assuming that Plaintiff’s

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twenty-two interrogatories did not include discrete subparts, Lopez

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was free to serve three additional interrogatories on each of the

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Defendants by May 7, 2012, without seeking leave of Court.

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Instead, Plaintiff submitted this Motion Requesting Permission to

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Submit Additional Interrogatory Questions [ECF No. 115], which was

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filed nunc pro tunc to May 1, 2012.

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not explain why he served fewer interrogatories than allowed by the

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federal and local rules.

In his Motion, Plaintiff does

Neither does he provide a reason for his

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delay in attempting to serve additional interrogatories.

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Furthermore, neither Lopez’s Motion nor his Reply offer any

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information on how many proposed additional interrogatories he

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seeks to serve on Defendants, as required by the Civil Local Rule

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33.1.

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In his Motion Requesting Permission to Submit Additional

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Interrogatory Questions, Lopez argues that Defendants objected to

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all of the questions.

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Addt’l Interrog. Questions 1, ECF No. 115).

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is “not sure what he did wrong” and requests that the Court permit

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him to “correct” his interrogatories and resubmit them to

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Defendants.

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Plaintiff has not established grounds for serving additional,

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untimely interrogatories because Defendants provided responses to

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the interrogatories Plaintiff served in January.

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A. Opp’n Pl.’s Mot. Leave Serve Addt’l & Untimely Interrogs. 3, ECF

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No. 118.)

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indicate that Defendant Santoyo answered twenty-one of the twenty-

(Id.)

(Pl.’s Mot. Requesting Permission Submit
Lopez states that he

In their Opposition, Defendants argue that

(Defs.’ Mem. P. &

Defendants attach their interrogatory responses, which

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two interrogatories,3 and Defendant Robertson answered all twenty-

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two.

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contend that Plaintiff’s Motion violates Civil Local Rule 33.1(a)

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because Lopez failed to identify the deficiencies in Defendants’

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responses and set forth his proposed interrogatories.

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P. & A. Opp’n Pl.’s Mot. Leave Serve Addt’l & Untimely Interrogs.

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4, ECF No. 118.)

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good cause for serving additional interrogatories and that he

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failed to meet and confer with Defendants prior to filing the

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(See id. Attach. #1, Decl. Kral, Exs. B, D.)

Motion.

Defendants

(Defs.’ Mem.

They also allege that Lopez has not established

(Id.)

In his Reply, Lopez argues that he is unable to meet and

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confer with Defendants because he is incarcerated.

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No. 124.)

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propound additional interrogatories because he is otherwise unable

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to depose Defendants.

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access to the law library or to legal assistance; he lacks

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“knowledge in the law and court procedures[;]” and he has

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“difficulty understanding the discovery process.”

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(Reply 2, ECF

He contends that it is “necessary and essential” that he

(Id.)

Finally, Lopez alleges that he has no

(Id.)

“In general, pro se representation does not excuse a party

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from complying with a court's orders and with the Federal Rules of

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Civil Procedure.”

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F.3d 852, 856–57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d

Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86

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Defendant Santoyo objected and did not answer interrogatory
number thirteen, which asked Santoyo to describe the circumstances
where Defendant would “refuse to prescribe pain medication or take
any action to relieve a patient’s pain and suffering when
[Defendant had] personal knowledge that the patient is in extreme
pain and the patient requests pain medication.” (Defs.’ Mem. P. &
A. Opp’n Pl.’s Mot. Leave Serve Addt’l & Untimely Interrogs.
Attach. #1, Decl. Kral, Ex. B, ECF No. 118.) Defendant objected to
this question as overbroad, argumentative, burdensome, oppressive,
vague and ambiguous, and irrelevant. (Id.)
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158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82,

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84 (8th Cir. 1983)).

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abide by the rules of the court in which they litigate.

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Comm'r, 784 F.2d 1006, 1008–09 (9th Cir. 1986); see also Bias v.

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Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (discussing the pro

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se litigant's violation of local rules).

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may be entitled to some latitude when dealing with sophisticated

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legal issues, acknowledging their lack of formal training, there is

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no cause for extending this margin to straightforward procedural

Plaintiffs who represent themselves must
Carter v.

“[W]hile pro se litigants

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requirements that a layperson can comprehend as easily as a

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lawyer.”

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v. Rainbow Play Sys., No. CIV 06–4128, 2008 U.S. Dist. LEXIS 17489,

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at *4 (D.S.D. Mar. 5, 2008) (explaining that pro se litigants must

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follow procedural rules).

Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991); Cone

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In this case, Lopez had sufficient time to send out additional

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interrogatories after he received Defendants’ responses on February

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23, 2012.

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understand “what he did wrong regarding the interrogatory

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questions[,]” Plaintiff does not describe any action he took to

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correct his perceived mistakes after Defendants served their

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responses.

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interrogatories, he could have requested an extension of the May 7,

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2012 deadline for propounding discovery.

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Conference Order 2, ECF No. 104.)

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until April 22, 2012, to file the current motion.

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whether to penalize a party for dilatory conduct during discovery

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proceedings is committed to the sound discretion of the trial

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court.”

Even accepting Lopez’s argument that he did not

If Plaintiff needed more time to serve his

(See Case Management

Instead, Lopez chose to wait
“The decision

Bollow v. Fed. Reserve Bank, 650 F.2d 1093, 1102 (9th Cir.

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1981) (citing Fed. R. Civ. P. 37(a)(4); Marquis v. Chrysler Corp.,

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577 F.2d 624, 640 (9th Cir. 1978)).

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frivolous piece of paper, idly entered, which can be cavalierly

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disregarded by counsel without peril.”

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(quotation omitted).

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discovery cutoff date is commonplace, and has impacts generally

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helpful to the orderly progress of litigation, so that the

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enforcement of such an order should come as a surprise to no one.”

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Cornwell, 439 F.3d at 1027.

“A scheduling order is not a

Johnson, 975 F.2d at 610

“The use of orders establishing a firm

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Even if the Court excuses Lopez’s failure to timely seek

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permission to exceed the allowed number of interrogatories, he has

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not established good cause for serving more than twenty-five

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interrogatories.

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proposed interrogatories.

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argues that he should be allowed to propound additional

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interrogatories because he is unable to depose defendants, and he

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lacks knowledge of the law.

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is subjected to burdens beyond those ordinarily imposed on

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incarcerated pro se litigants.

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is no evidence that Lopez was diligently working to meet his May 7

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discovery deadline.

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Lopez has not provided the Court with his
See S.D. Civil Rule 33.1(a).

Plaintiff

Yet, there is no indication that Lopez

Further, as discussed above, there

Despite his pro se status, Lopez is not entitled to any

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latitude for the untimeliness.

See Ackra Direct Mktg. Corp., 86

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F.3d at 856–57 (stating that pro se representation does not excuse

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a litigant from complying with court orders); Jourdan, 951 F.2d at

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109 (explaining that although courts should liberally construe pro

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se plaintiffs' legal arguments, courts should strictly construe

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their compliance with procedural requirements); see also Carter,

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784 F.2d at 1008–09 (noting that pro se plaintiffs must follow the

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rules of the court).

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Permission to Submit Additional Interrogatory Questions is DENIED.

Accordingly, Plaintiff's Motion Requesting

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B.

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Federal Rule of Civil Procedure 34 governs production of

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MOTION TO COMPEL

documents and provides, in pertinent part:
A party may serve on any other party a request
within the scope of Rule 26(b):
(1) to produce and permit the requesting party or
its representative to inspect, copy, test, or sample the
following items in the responding party's possession,
custody, or control:
(A) any designated documents or electronically
stored information—including writings, drawings, graphs,
charts, photographs, sound recordings, images, and other
data or data compilations—stored in any medium from which
information can be obtained either directly or, if
necessary, after translation by the responding party into
a reasonably usable form . . . .

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Fed. R. Civ. P. 34(a)(1)(A).

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37(a)(1) allows a party to move for an order compelling disclosure

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or discovery.

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certification that the movant has in good faith conferred or

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attempted to confer with the person or party failing to make

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disclosure or discovery in an effort to obtain it without court

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action.”

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Federal Rule of Civil Procedure

The rule provides that such a motion “must include a

Fed. R. Civ. P. 37(a)(1).

Lopez moves the Court for an order pursuant to Rule 37(a)

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compelling Defendants Santoyo and Robertson to produce the

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following documents:

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CDCR 7433" for July 1, 2006, through July 30, 2007; (2) “Daily

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Dental Treatment/Appointment Log (DDTAL) CDCR 7434" for July 1,

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2006, through July 30, 2007; (3) “CDCR Dental Pharmaceutical Record

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Log” for July 1, 2006, through July 30, 2007; and (4) “Written

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Minutes recorded by the OT of all Committee (D.A.R., M.A.R.,

(1) “Request for Dental Treatment Log (RDTL)

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H.C.R.C.) Meetings” from November 1, 2006, through March 1, 2007.

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(Pl.’s Mot. Order Compelling Disc. 1-2, ECF No. 120.)

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contends that he submitted a written request for these documents on

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February 1, 2012, and allowed Defendants six additional weeks to

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produce them.

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he sent a letter to Defendants' counsel informing him that

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Plaintiff had not received the documents.

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received no response.

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Defendants regarding the requested documents.

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not receive a response to his second letter.

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Compelling Disc. 3, ECF No. 120.)

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good faith attempted to confer with Defendants prior to filing this

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Motion.

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(Id. at 2.)

Plaintiff

Lopez alleges that on April 21, 2012,

(Id.; id. Ex. A.)

He

Subsequently, Lopez sent another letter to
(Id. Ex. B.)

He did

(Pl.’s Mot. Order

Lopez contends that he has in

(Id.)

In their Opposition to Plaintiff's Motion, Defendants contend

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that the requested documents were not specifically mentioned in

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Lopez's original request for production served on Defendants on

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January 30, 2012.

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Defendants argue that although they produced over 430 pages of

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documents in response to Lopez's original request, Plaintiff

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subsequently sought four additional documents.

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argue that because Lopez's initial request was vague and overbroad,

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any further production would be unduly burdensome.

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Defendants also oppose the Motion on the following grounds:

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The requested documents are no longer maintained by the CDCR; (2)

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production would violate the Health Information Portability and

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Accountability Act; (3) requested documents are not relevant to

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Lopez's case; and (4) the request for production violates

(Defs’ Opp’n Pl.'s Mot. Compel 5, ECF No. 126.)

(Id.)

Defendants

(Id. at 2.)
(1)

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California Evidence Code section 1157 and the federal privilege of

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critical self-analysis.

(Id.)

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1.

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Defendants argue that the Court should deny the motion to

Availability of Documents

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compel production of documents requested by Lopez because the

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requested items no longer exist.

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investigation revealed that documents responsive to requests

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numbers 1 through 4 were purged by CDCR prior to 2010.

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Defendants submitted a declaration from Christina Castro, a CDCR

Defendants allege that their

(Id. at 6.)

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office technician responsible for scheduling inmate-patients dental

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treatment.

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August 2010, the CDCR implemented new procedures for maintenance of

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inmate dental records that required most records to be kept for

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only three years.

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minutes, the request for dental treatment log, the dental

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treatment/appointment log, and the pharmaceutical record log

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requested by Lopez are no longer available because they had been

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purged pursuant to the new policy.

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that the relevant information about Plaintiff's treatment is

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available in Lopez's medical records.

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(Id. Ex. H, Decl. Castro.)

(Id. at 1.)

Ms. Castro states that in

Castro alleges that the written

(Id. at 2.)

Castro also states

(Id.)

In his Reply, Plaintiff challenges Ms. Castro's declaration

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and argues that the records he seeks may still exist.

(Pl.’s

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[Reply] to Defs.’ Opp’n 6, ECF No. 130.)

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Defendants failed to produce the updated 2010 manual which

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allegedly shortens the time for record keeping to three years.

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(Id.)

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Dental Policies and Procedures Manual, both of which mandate that

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certain dental records be kept for a period of five years.

Lopez points out that

Instead, they turned over copies of the 2006 and 2007 CDCR

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(Id.

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Exs. D, E.)

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Defendants’ part.

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Additionally, Lopez contends that the information sought is not

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contained in his medical file.

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Lopez argues that this indicates bad faith on
(Pl.’s [Reply] to Defs.’ Opp’n 6, ECF No. 130.)

(Id. at 10-11.)

“‘Document retention policies,’ which are created in part to

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keep certain information from getting into the hands of others,

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. . . are common in business,” and are lawful “under ordinary

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circumstances.”

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696, 704 (2005).

Arthur Andersen LLP v. United States, 544 U.S.
Litigants, however, are under a duty to preserve

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“what [they know], or should know, is relevant in the action, is

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reasonably calculated to lead to the discovery of admissible

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evidence, is reasonably likely to be requested during discovery

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and/or is the subject of a pending discovery request.”

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UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).

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extends to “any documents or tangible things . . . made by

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individuals ‘likely to have discoverable information that the

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disclosing party may use to support its claims or defenses.’”

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at 217–18 (quoting Fed. R. Civ. P. 26(a)(1)(A)).

Zubulake v.
The duty

Id.

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The duty to preserve begins when a party reasonably should

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have known that the evidence is relevant to anticipated litigation.

21

See In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060,

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1067 (N.D. Cal. 2006).

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a litigant is under a duty to preserve evidence which it knows or

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reasonably should know is relevant to the action, is reasonably

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calculated to lead to the discovery of admissible evidence, is

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reasonably likely to be requested during discovery, or is the

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subject of a pending discovery request.

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v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1445 (C.D. Cal. 1984).

As soon as a potential claim is identified,

14

Id.; Wm. T. Thompson Co.

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1

Spoliation of evidence is defined as “the destruction or

2

significant alteration of evidence, or the failure to preserve

3

property for another's use as evidence in pending or reasonably

4

foreseeable litigation.”

5

314 F.3d 995, 1001 (9th Cir. 2002).

6

evidence is considered “willful” if the party “has some notice that

7

the [evidence was] potentially relevant to the litigation before

8

[it was] destroyed.”

9

(9th Cir. 2006) (internal citation omitted).

United States v. Kitsap Physicians Serv.,
A party's destruction of

Leon v. IDX Sys. Corp., 464 F.3d 951, 959
“Once the duty to

10

preserve attaches, a party must ‘suspend any existing policies

11

related to deleting or destroying files and preserve all relevant

12

documents related to the litigation.’”

13

2:08–cv–2512 KJM KJN P, 2011 U.S. Dist. LEXIS 61825, at *1-2 (E.D.

14

Cal. June 9, 2011) (citation omitted).

15

Brooks v. Felker, No.

Plaintiff initiated this litigation in 2009, and Defendants

16

were on notice of Lopez’s claims as early as October of 2009.

17

Defs.’ Ex Parte Appl. Extension Time File Initial Responsive

18

Pleading, ECF No. 13 (filed Oct. 30, 2009).)

19

that the new policy and procedures for inmate dental services were

20

implemented in August of 2010; subsequently, the records Lopez

21

seeks were “purged pursuant to the policy.”

22

Mot. Compel Attach. #2, Ex. H, Decl. Castro 1-2, ECF No. 126.)

23

(See

Defendants allege

(Defs’ Opp’n Pl.'s

The 2010 change in the record keeping policy does not excuse

24

Defendants’ failure to retain records relevant to this case.

As

25

noted above, parties are under an obligation to preserve all

26

documents and evidence that may be relevant to pending litigation.

27

Defendants had a duty not to purge records even after implementing

28

the 2010 policy.

Because they were on notice of Lopez’s claims as

15

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1

early as 2009, whether evidence was intentionally destroyed, the

2

likely contents of that evidence, and the appropriate trial

3

sanction are questions for another day.

4

Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001).

See Fujitsu Ltd. v.

5

2.

Relevance of the Requested Documents

6

Defendants Santoyo and Robertson argue that the Court should

7

deny Lopez's request because the documents he seeks do not contain

8

any information relevant to any claim or defense in this case.

9

(Defs.’ Opp’n Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 11, ECF No.

10

126.)

11

when Lopez requested dental treatment, when his appointments were

12

made, what medicine he may have received, and what recommendations

13

were made by dental staff, is available to Plaintiff by examining

14

his own medical records.

15

They state that the information sought by Plaintiff, such as

(Id.)

Lopez replies that the information he seeks is relevant to

16

proving his claim for deliberate indifference to his medical needs

17

because it would demonstrate when Defendants learned about

18

Plaintiff's condition, what medication was prescribed, and when his

19

surgery was approved.

20

130.)

21

available in his medical file.

22

(Pl.’s [Reply] to Defs.’ Opp’n 8, ECF No.

Further, Plaintiff contends the information he seeks is not
(Id. at 10-11.)

With respect to document request number one, Plaintiff

23

explains that he needs the CDCR Form 7433, Request for Dental

24

Treatment Log, to show when Defendants received his CDCR Form 7362,

25

Health Care Services Request Form.

26

alleges that he submitted a request on July 26, 2006, Defendant

27

Santoyo claims in his response to an interrogatory that the request

28

did not reach him until November 1, 2006.

16

(Id. at 8.)

(Id.)

Although Lopez

Plaintiff argues

09cv00108 W (RBB)

1

that the log will show when his request was received, and is

2

therefore essential to show that Defendant Santoyo was aware of

3

Plaintiff's condition earlier than November 1, 2006.

4

(Id.)

As to the document request number two, the CDCR Form 7434,

5

Daily Dental Treatment/Appointment Log, Lopez argues that the

6

document will show when his request reached Defendant Santoyo, and

7

when Santoyo scheduled Lopez’s dental appointment.

8

He contends that obtaining the appointment log is necessary,

9

because Plaintiff disputes that Santoyo scheduled Lopez’s

(Id. at 8-9.)

10

appointment according to the priority designation.

(Id. at 9.)

11

The information in the logs relates to the parties’ dispute

12

regarding when Defendant Santoyo became aware of Lopez’s request

13

for dental care.

14

is at issue with regard to the deliberate indifference claim, the

15

information in the logs is relevant.

Because when Santoyo learned about Lopez’s need

16

Lopez also seeks production of the CDCR dental pharmaceutical

17

log that lists medications prescribed and given to Plaintiff along

18

with the dates and Defendants’ signatures.

19

log is relevant because Lopez claims he was denied pain medication

20

and disputes what medication he actually received.

The information in this

(Id. at 9.)

21

Finally, Lopez seeks the written minutes recorded by OT of all

22

Committee (DAR, MAR, HCRC) Meetings from November 1, 2006, to March

23

1, 2007.

24

members approve all inmate surgeries and discuss any unresolved

25

issues, such as delays in approved treatment.

26

Plaintiff alleges these records will show that Defendant Robertson,

27

as a committee member, participated in approving Lopez’s surgery on

28

November 1, 2006.

Plaintiff argues during the monthly meetings, committee

(Id. at 10.)

Defendants claim that Robertson was not aware of

17

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1

any grievances regarding Plaintiff’s wisdom teeth until April 23,

2

2007.

3

#1, Mem. P. & A. 9, ECF No. 131.)

4

his surgery was discussed in subsequent committee meetings, and

5

therefore the records will prove that Robertson was put on notice

6

of the delay prior to April of 2007.

7

Opp’n 10, ECF No. 130.)

8

to Lopez’s claim of deliberate indifference to his serious medical

9

needs against Defendants.

(See Defs.’ Mot. Summ. J. &/or Summ. Adjudication Attach.
Lopez argues that the delay in

(Pl.’s [Reply] to Defs.’

The information in the minutes is relevant

10

3.

11

Defendants argue that the Court should deny Plaintiff’s Motion

12

to Compel production of the written minutes from prison medical and

13

dental committee meetings because the records are protected by

14

California law.

15

& A. 9, ECF No. 126.)

16

that the peer review privilege found in California Evidence Code

17

section 1157 applies.

18

assert a state law privilege in this federal lawsuit and that, in

19

any event, section 1157 contains an exception for statements made

20

by parties to an action.

21

No. 130.)

22

Privileges

(Defs.’ Opp’n Pl.’s Mot. Compel Attach. #1 Mem. P.
Specifically, Santoyo and Robertson assert

(Id.)

Lopez replies that Defendants may not

(Pl.’s [Reply] to Defs.’ Opp’n 11-12, ECF

In civil rights cases brought under federal statutes,

23

questions of privilege are resolved by federal law.

Kerr v. United

24

States District Court, 511 F.2d 192, 197 (9th Cir. 1975). “State

25

privilege doctrine, whether derived from statutes or court

26

decisions, is not binding on federal courts in these kinds of

27

cases.”

28

Cal. 1987).

Kelly v. City of San Jose, 114 F.R.D. 653, 655–56 (N.D.
Plaintiff brought this case under a federal statute,

18

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1

42 U.S.C. § 1983, and it is well settled that “questions of

2

evidentiary privilege arising in the course of the adjudication of

3

federal rights are governed by the principles of federal common

4

law.”

5

(citing United States v. Zolin, 491 U.S. 554 (1989)); see also Fed.

6

R. Evid. 501.

7

Miller v. Pancucci, 141 F.R.D. 292, 297 (C.D. Cal. 1992)

Defendants also argue that the written minutes should not be

8

produced because the federal privilege of critical self-analysis

9

prevents the disclosure of self-evaluative material where the

10

public need for confidentiality outweighs the need for discovery.

11

(Defs.’ Opp’n Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 9-10, ECF

12

No. 126.)

13

The “self-critical” analysis privilege invoked by defendants

14

has not been recognized by the Ninth Circuit.

15

v. Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000); Dowling v. Am.

16

Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992).

17

addition, it does not appear that California has recognized that

18

privilege.

19

58 Cal. Rptr. 2d 365, 369 (1996) (naming thirteen privileges

20

recognized in the California Evidence Code, the self-critical

21

analysis privilege not among them).

22

Cal. App.2d 106, 63 Cal. Rptr. 84 (1967), is cited by Defendants

23

for the proposition that a critical self-analysis privilege is

24

similar to the privilege created by Evidence Code section 1157 for

25

health care professional review committees.

26

provision that would apply to Defendants’ records.

27

Kenney was decided on the basis of attorney work product, not

28

critical self-analysis.

Union Pac. R.R. Co.

In

Cloud v. Superior Court, 50 Cal. App. 4th 1552, 1559,

Kenney v. Superior Court, 255

There is no similar
Furthermore,

Id. at 112.

19

09cv00108 W (RBB)

1

The self-critical analysis privilege would be inapplicable to

2

this case because the four elements of the “self-critical” analysis

3

privilege are not met.

4

critical self-analysis undertaken by the party seeking protection.

5

Dowling, 971 F.2d at 426.

6

interest in preserving the free flow of the type of information

7

sought.

8

would be curtailed if discovery were allowed.

9

order for the privilege to apply, the document must be prepared

Id.

First, the information must result from a

Second, the public must have a strong

Third, the information must be of the type whose flow
Id.

Finally, in

10

with the expectation that it would be kept confidential, and has in

11

fact been kept confidential.

12

Id.

Defendants also cite In re Air Crash Near Cali, Colombia on

13

Dec. 20, 1995, 959 F. Supp. 1529, 1533 (S.D. Fla. 1997), and

14

suggest that a critical analysis privilege is “often asserted when

15

disclosure would have a chilling effect.”

16

Compel Attach. #1 Mem. P. & A. 10, ECF No. 126.)

17

however, does not support Defendants’ position.

18

stated, “[W]e decline to recognize any self-critical analysis

19

privilege under the facts and circumstances of this case.”

20

(Defs.’ Opp’n Pl.’s Mot.
The case,
There, the court

Id.

For these reasons, the Court will not apply the self-critical

21

analysis privilege to the written committee minutes requested by

22

Lopez.

23

information on this basis.

Accordingly, Defendants may not withhold the requested

24

4.

Defendants’ Other Objections

25

Defendants argue that the Court should deny Lopez’s Motion to

26

Compel because his requests in the April 21, 2012 letter are vague

27

and overbroad.

28

& A. 5-6, ECF No. 126.)

(Defs.’ Opp’n Pl.’s Mot. Compel Attach. #1 Mem. P.
Plaintiff replies that Defendants’

20

09cv00108 W (RBB)

1

response to his letter, dated May 16, 2012, does not raise these

2

objections.

3

(Pl.’s [Reply] to Defs.’ Opp’n 7, ECF No. 130.)

Plaintiff’s April 21, 2012 letter does not contain a time

4

period for three out of four requests.

5

Disc. Ex. A, ECF No. 120.)

6

letter, minutes of specified committees, is for the period from

7

November 1, 2006, through March 1, 2007.

8

however, Lopez specifies that he is seeking the logs for the time

9

period beginning on July 1, 2006, and ending on July 30, 2007.

10

(See Mot. Order Compelling

The fourth item identified in the

(Id.)

In his Motion,

(Mot. Order Compelling Disc. 1-2, ECF No. 120.)

11

Defendants Santoyo and Robertson also oppose Plaintiff’s

12

Motion to Compel on the ground that Lopez’s requests violate laws

13

regulating the privacy of medical records.

14

Mot. Compel Attach. #1 Mem. P. & A. 7, ECF No. 126.)

15

that because Lopez seeks logs which contain dental and medical

16

records of other inmates, disclosure of their confidential medical

17

information violates the Health Information Portability And

18

Accountability Act, 42 U.S.C. § 1320d et. seq. (“HIPAA”).

19

10.)

20

(Defs.’ Opp’n Pl.’s
They allege

(Id. at

Defendants do not dispute Plaintiff’s right to access his own

21

medical records.

Lopez contends he is only seeking information

22

regarding his treatment and medication during the complaint period.

23

(Pl.’s [Reply] to Defs.’ Opp’n 11, ECF No. 130.)

24

points out that the Court may order the documents to be redacted to

25

the extent they refer to individuals other than Plaintiff.

26

8.)

27

regard to the entries in the logs that refer to Lopez only.

Plaintiff also

(Id. at

Accordingly, the Court will grant Plaintiff’s request with

28

21

09cv00108 W (RBB)

1
2

III.

CONCLUSION

For the reasons discussed above, Lopez has not established

3

good cause for permitting him to file additional and untimely

4

interrogatories.

5

Permission to Submit Additional Interrogatory Questions is DENIED.

6

Plaintiff’s Motion for an Order Compelling Discovery is GRANTED.

7

Defendants may redact identifying information of other inmates,

8

such as inmate name or number, from the documents.

9

ordered to comply with the Court’s Order by November 26, 2012.

10

Consequently, Lopez's Motion Requesting

Defendants are

IT IS SO ORDERED.

11
12

DATE: November 6, 2012

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_____________________________
Ruben B. Brooks, Magistrate Judge
United States District Court

cc:
Judge Whelan
All Parties of Record

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