ORDER ON PLAINTIFF'S MOTION TO COMPEL

(Doc. 48)

FOURTEEN (14) DAY DEFENSE DEADLINE

ORDER ON DEFENDANTS' MOTION TO MODIFY THE DISCOVERY AND SCHEDULING ORDER (Doc. 52)

SHEILA K. OBERTO, Magistrate Judge.

I. BACKGROUND

Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's claims in the First Amended Complaint against Dr. Ngozi Ignibinoza, Dr. Scharffenberg, Dr. Kandkhorova, Dr. Ugwueze, and Dr. Sunduram for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. The Discovery and Scheduling Order issued on July 13, 2017, opening discovery and setting a discovery cut-off date of December 13, 2017, and a dispositive motion deadline of February 12, 2018. (Doc. 40.)

On August 29, 2017, Plaintiff filed a subpoena to obtain medical records for treatment he received at Dignity Health, Mercy Hospital, 2215 Truxtin Ave., Bakersfield, CA, 93301. (Doc. 43.) On October 3, 2017, an order issued indicating that Plaintiff met the requirements for the issuance of a subpoena. (Doc. 44.) In that order, defense counsel was directed to file a statement setting forth the steps taken to obtain the records sought by Plaintiff and stating whether they would be willing to provide Plaintiff copies of any documents obtained. (Id.) In compliance with that order, on October 12, 2017, defense counsel filed a statement indicating that records from the facility where Plaintiff is currently housed were recently received, which included some, but not all records from outside providers. (Doc. 45.) Defense counsel forwarded a copy of the records received to Plaintiff that same week. (Id.) It therefore appeared that a subpoena was no longer required and the order granting it was withdrawn. (Doc. 47.) Following receipt and review of those records, Plaintiff was permitted to file a renewed request for a subpoena, if he believed they were incomplete and was able to specify the missing records and their relevance to this action. (Id.)

II. PLAINTIFF'S MOTION TO COMPEL

On November 3, 2017, Plaintiff filed a motion to compel indicating that upon review, he discovered the set of records provided by defense counsel did not contain his complete records from (1) Sierra Vista Regional Medical Center, 1010 Murray Ave., San Luis Obispo, CA 93405 (where the initial surgery was performed); and (2) Dignity Health Mercy Hospital, 2215 Truxtin Ave., Bakersfield, CA 93301 (where Plaintiff received medical care and treatment when the surgical cite became infected), and Plaintiff's medical records from the California Department of Rehabilitation and Corrections. (Doc. 48.) Plaintiff requests full copies of the records from these facilities and $2,000 as "reasonable expenses in obtaining this order." (Id., p. 4.)

Defendants response to Plaintiff's motion indicated that they subpoenaed Plaintiff's medical records from the facility where Plaintiff is incarcerated, which should have included all of the records from the outside providers sought by Plaintiff. (Doc. 50.) As such, Defendants did not issue separate subpoenas for records from the outside providers. (Id.) Counsel for Defendants indicated they would separately subpoena the records from Dignity Health/Mercy Hospital and provide Plaintiff a copy. (Id.) To accommodate this, Defendant requested extensions of the discovery cut-off to January 13, 2017, and the dispositive motion deadline to March 12, 2018. (Id.) This motion is deemed submitted. L.R. 230(l).

III. DEFENDANTS' MOTION TO MODIFY SCHEDULING ORDER

On December 28, 2017, Defendants filed a motion to modify the Discovery and Scheduling Order, stating that on December 19, 2017, they received the subpoenaed records from Dignity Health/Mercy Hospital which "consist of several hundred additional pages of medical records." (Doc. 52, p. 2.) Defendants request further extensions of the discovery deadline to February 12, 2018, and the dispositive motion deadline to May 1, 2018. (Id., p. 4.)

Plaintiff opposes Defendants' motion to modify the Discovery and Scheduling Order. (Doc. 55.) Plaintiff acknowledges receipt of the "several hundred additional pages" of medical records from defense counsel, but contends that defense counsel were evasive and untrustworthy since counsel did not initially provide him a full copy of his medical records. (Id.) Plaintiff further contends that Defendants' production is still incomplete because the records provided do not contain his records from the other facilities where he received care and treatment for his infection—Sierra Vista Regional Medical Center in San Luis Obispo, California and San Joaquin Hospital in Bakersfield, California. (Id.) Defendants' reply does not address whether records from either of these two facilities have been subpoenaed or provided to Plaintiff, focusing instead on their diligence to obtain records once Plaintiff brought the incomplete nature of the records from his facility to light, and the lack of prejudice to Plaintiff if the deadlines are extended as requested. (Doc. 57.) This motion is deemed submitted. L.R. 230(l).

IV. DISCUSSION

A. Plaintiff's Request for Medical Records

Federal Rule of Civil Procedure ("Rule") 45 permits issuance of subpoenas for discovery from nonparties equivalent to discovery from parties under Rule 34. See Adv. Comm. Note to 1991 Amendment to FRCP 45. Rule 34 governs discovery of designated documents, electronically stored information, and designated tangible things subject to the provisions of Fed. R. Civ. P. 26(b). Meeks v. Parsons, 2009 WL 3003718, *2 (E.D. Cal. 2009) (citing Fahey v. United States, 18 F.R.D. 231, 233 (S.D.N.Y. 1955). Rule 26(b)(1) establishes the scope of discovery, stating in pertinent part:

Pursuant to Rule 34, the test for admissibility is the relevance of the requested material or information. Id., (citing Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir.1980); White v. Jaegerman, 51 F.R.D. 161, 162 (S.D.N.Y.1970); Ceramic Corp. of Amer. v. Inka Maritime Corp., Inc., 163 F.R.D. 584 (C.D.Cal.1995)).

"The law [of discovery] begins with the presumption that the public is entitled to every person's evidence." Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389 (N.D.Cal.1976). A nonparty may be compelled to produce documents and tangible things as provided in Rule 45. Fed. R. Civ. P. 34(c). Assuming that the subpoena is properly constituted and served, Rule 45 requires the subpoena's recipient to produce the requested information and materials, provided the issuing party "take[s] reasonable steps to avoid imposing undue burden or expense." Fed. R. Civ. P. 45(c)(1) and (d)(1).

Plaintiff has the right to subpoena documents from a third party that are relevant to the claims upon which he proceeds in this action. Care and treatment for Plaintiff's medical condition which is the subject of this action is clearly relevant for discovery purposes. Plaintiff contends that he received care and treatment for the medical condition which is the subject of this action at Dignity Health/Mercy Hospital, Sierra Vista Regional Medical Center and at San Joaquin Hospital. All parties now appear to have received a full set of the records from Dignity Health/Mercy Hospital. It does not appear however that either side has obtained the records from the latter two facilities.1

It is clear from the parties' pleadings on these discovery issues that the copy of Plaintiff's records from the facility of his current incarceration was less than complete. Thus, the records of Sierra Vista Regional Medical Center and San Joaquin Hospital are discoverable. Since the surgery which precipitated Plaintiff's claims occurred in 2015, only Plaintiff's records from 2015, 2016, and 2017 at these facilities needs to be obtained.

Plaintiff requests $2,000 as "reasonable expenses in obtaining this order." (Doc. 48, p. 4). The Court "may . . . apportion the reasonable expenses" incurred for discovery motions. Fed. R. Civ. Pro. 37(a)(5)(C). Defendants did not specifically respond to Plaintiff's sanction request, and instead address efforts to subpoena Plaintiff's records from Dignity Health/Mercy Hospital to obtain a full set of Plaintiff's records and their production to Plaintiff. Defendants' efforts were not unreasonable under the circumstances presented. The Court also notes that Plaintiff does not present any evidence that prior to filing his motion to compel, he notified defense counsel that he received treatment for infections at Sierra Vista Regional Medical Center and San Joaquin Hospital, but that their records were missing from his prison medical file. Under these circumstances, an award of expenses to Plaintiff would be unjust.

B. Modification of the Discovery and Scheduling Order

Pursuant to F.R.Civ.P. 16(b)(3)(A), district courts must enter scheduling orders to establish deadlines for, among other things, filing motions and completing discovery. "A schedule may be modified only for good cause and with the judge's consent." F.R.Civ.P. 16(b)(4). This standard "primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). However, there are a number of factors that may be considered:

U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995) vacated on other grounds, 520 U.S. 939 (1997) citing Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987).

Here, trial is not imminent. Although Plaintiff opposes Defendants' request to modify the schedule in this case, Plaintiff will benefit from an extension because Plaintiff desires additional medical records and the extensions will be equally applicable to Plaintiff. Further, the current posture of this case was not caused by either party as there has been considerable delay in obtaining a copy of Plaintiff's medical file from the prison. Further, both motions were timely filed, but the Court's docket prevented their earlier consideration.

In sum, all parties have exercised due diligence. Additional time for discovery is necessary to obtain Plaintiff's 2015, 2016, and 2017 records from Sierra Vista Regional Medical Center and San Joaquin Hospital. An extension of both the discovery cut-off and dispositive motion filing deadlines is therefore appropriate.

V. ORDER

Accordingly, it is HEREBY ORDERED that:

IT IS SO ORDERED.