JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff Demond Hammond asserts Defendant Management & Training Corporation ("MTC") operates the correctional facility in which Plaintiff is incarcerated. Plaintiff asserts MTC is responsible for his exposure to, and contraction of, Coccidioidomycosis, commonly known as "Valley Fever." In the matter pending before the Court, Plaintiff seeks to compel further discovery responses to 34 requests for production of documents related to his claims. (Doc. 51.) MTC objects to the request for additional discovery, reporting that it "has produced all responsive documents . . . which included over 2700 pages of policies, minutes from meetings, administrative appeals, construction documents, and emails." (Doc. 52 at 10.)
The parties filed their "Joint Statement Re: Discovery Disagreement" in compliance with Local Rule 251 on January 21, 2015. (Doc. 52.) The Court heard the oral arguments of the parties on January 28, 2015. For the following reasons, Plaintiff's motion to compel is
Plaintiff initiated this action by filing a complaint against MTC on August 2, 2013. (Doc. 2.) Plaintiff alleges MTC held a contract with the United States of America to operate Taft Correctional Institution, and MTC's "officers, agents and/or employees negligently and recklessly exposed" Plaintiff to Valley Fever at the correctional facility. (Doc. 2 at 2, ¶ 3.) According to Plaintiff, MTC was "on notice of the risk of harm from cocci and failed to take actions to protect Plaintiff from that harm." (Id. at 6, ¶ 15.) Specifically, Plaintiff alleges:
(Id. at 11, ¶ 35.) Plaintiff reports he was diagnosed with Valley Fever on August 9, 2011, and alleges that "[a]s a result of [the] valley fever infection, Plaintiff will require lifetime medical supervision, treatment, and in all likelihood, medication." (Id., ¶¶36, 38.) Defendant MTC filed its answer to Plaintiff's complaint on September 10, 2013. (Doc. 8.)
The Court entered its Scheduling Order in this action on January 8, 2014. (Doc. 20.) Pursuant to that Order, non-expert discovery was to be concluded no later than December 1, 2014. (Id. at 1.) However, on November 25, 2014, the parties requested the deadlines ordered by the Court be extended, because there were several outstanding discovery requests and Defendant had produced over 1,000 documents that Plaintiff had not been able to review. (Doc. 44.) The Court amended the Scheduling Order to allow an extension of time for the filing of non-dispositive motions, but did not extend the deadline for non-expert discovery. (Doc. 50.)
Despite the Court's explicit order that no discovery motions may be filed without authorization of the Court, Plaintiff completely ignored his obligation and filed the motion without any explanation attempting to justify his actions. The scheduling order was explicit that,
(Doc. 20 at 4.)
Likewise, throughout the joint statement, when setting forth the grounds for disagreement, Plaintiff omits the fact that Defendant provided supplemental responses to a number of the requests and, seemingly, appears to believe that he can proceed based upon his disagreement with the initial response without regard for the supplemental responses. Finally, the Court is stunned by what appears to be a multitude of frivolous arguments, i.e., "If MTC undertook no efforts to combat the spread of cocci at TCI, MTC should so state." (Doc. 52 at 41.) Clearly, the fact that a defendant does not possess responsive documents does not equate to an admission that it took no action. Even if a defendant does not have responsive documents because it took no action, this does not mean that the request for production of documents is converted to an interrogatory wherein the defendant is obligated to make a written explanation of its failure to act. If an admission is sought, a plaintiff is must propound requests for admissions under Fed. R. Civ. P. 36. Likewise, if a defendant attests it has no responsive documents, insisting to the contrary without providing supporting evidence, is insufficient.
Though the conduct of this motion causes the Court grave concern, it will, nonetheless, allow it to proceed. However, counsel is strongly admonished in future to comply with all orders of the Court and should not expect any further leniency.
The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure. In relevant part, Rule 26(b) states:
Fed. R. Civ. P. 26(b). Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.
A party may request documents "in the responding party's possession, custody, or control." Fed. R. Civ. P. 34(a)(1). Similarly, a party may serve a request "to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property . . ." Fed. R. Civ. P. 34(a)(2). A request is adequate if it describes items with "reasonable particularity;" specifies a reasonable time, place, and manner for the inspection; and specifies the form or forms in which electronic information can be produced. Fed. R. Civ. P. 34(b). Thus, a request is sufficiently clear if it "places the party upon `reasonable notice of what is called for and what is not.'" Kidwiler v. Progressive Paloverde Ins. Co., 192. F.R.D. 193, 202 (N.D. W. Va. 2000) (quoting Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C. 1992)); see also Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (Rev. #1 2011) Discovery, para. 11:1886 ("the apparent test is whether a respondent of average intelligence would know what items to produce").
The responding party must respond in writing and is obliged to produce all specified relevant and non-privileged documents, tangible things, or electronically stored information in its "possession, custody, or control" on the date specified. Fed. R. Civ. P. 34(a). Actual possession, custody or control is not required. "A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document." Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). Such documents include documents under the control of the party's attorney. Meeks v. Parson, 2009 U.S. Dist. LEXIS 90283, 2009 WL 3303718 (E.D. Cal. September 18, 2009) (involving a subpoena to the CDCR); Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000) (A "party must produce otherwise discoverable documents that are in his attorneys' possession, custody or control.").
In the alternative, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 34(b)(2)(A)-(B). When a party resists discovery, he "has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd., 189 F.R.D 281, 283 (C.D. Cal. 1998) (citing Nestle Food Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990)). Boilerplate objections to a request for a production are not sufficient. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005).
If a party "fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34," the propounding party may make a motion to compel production of documents. Fed. R. Civ. P. 37(a)(3)(B)(iv). Further, "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond." Fed. R. Civ. P. 37(a)(4). "The moving party bears the burden of demonstrating `actual and substantial prejudice' from the denial of discovery." Branch v. Umphenour, 2014 U.S. Dist. LEXIS 109288 at *10 (E.D. Cal. Aug. 7, 2014) (citing Hallet v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).
Defendant objected to this request, asserting it "is vague, ambiguous, and overly broad as to the term `refer to,'" and "is overly broad as to time period." (Doc. 52 at 10.) Further, Defendant contends Plaintiff's request for all documents relating to the policy "is overly broad because personal protective equipment (PPE) includes equipment that has nothing to do with Valley Fever." (Id.) Defendant notes that "latex gloves [for] inmates who are employed as painters, or slip resistant footwear for inmates who are janitors" are PPE, but "have nothing to do with this lawsuit." (Id. at 11; Doc 52-1 at 3.)
On the other hand, Plaintiff asserts that Defendant's response to the discovery request was insufficient because there is a factual dispute regarding whether masks where available to inmates. (Doc. 52 at 11.) According to Plaintiff, "Defendant maintains that masks were `readily available," while he "adamantly state[s] that masks were not available." (Id.) Plaintiff contends that "Defendant refuses to provide any emails or correspondence related to whether masks were requested by or offered to inmates or whether, as it relates to cocci, this policy was ever implemented." (Id.)
Significantly, as Defendant argues, the request for production of any and all documents related to the PPE policy appears overbroad, as the policy covered PPE for activities and equipment not related to this lawsuit. Defendant produced documents related to "the following inmate work related activities: Horticulture, Janitor-Housing Unit, Painters, Welders, and Wheels Powder Coating; the N95 Mask Clearance Packet and Procedures; Collateral Duty Safety Officer (COSO) Guidelines; and TCI Policy 5A: Inmate Work and Performance Pay." (Doc. 52 at 11.) Plaintiff has not demonstrated how this response is insufficient. To the extent Plaintiff sought specific information regarding masks, the request for production was not narrowly tailored but sought documents as to all PPE. Defendant's objection that the request is overbroad is
Defendant produced the "Procedure re Treatment of Inmates with Cocci/Valley Fever (SOP-4002) dated October 2007" as part of its initial disclosures. (Doc. 52 at 12.) According to Plaintiff, "The policy states that "Inmate(s) who have a medical condition that puts them at risk for developing Coccidiodomycosis . . . will be re-designated to a federal facility wherein this fungal infection/disease is not endemic. The Policy then sets out a criteria used to determine if the inmate should be transferred." (Id. at 13.) Further, Plaintiff asserts: "the Policy mandates that "All positive Cocci tests will be reported to the Kern County Department of Pub. Health using the Confidential Morbidity Report form PM 110 (rev. 10/30/08)." (Id.)
Through this request for production, Plaintiff seeks information regarding "who developed this policy or determined its criteria . . . and what information was relied on when the policy was drafted." (Doc. 52 at 13.) Specifically, Plaintiff seeks to learn why race was not included in the list of criteria, because Plaintiff believes race "is the greatest indicator of a likelihood to acquire the illness." (Id.) In addition, Plaintiff reports MTC did not provide any completed Confidential Morbidity Report forms. (Id.) Plaintiff argues he is "entitled to review any completed forms that were prepared by and submitted by MTC to Kern County," because he was given "charts prepared by MTC that summarize the amount of cocci-infections at TCI, but were not provided the materials (such as these forms) used to compile those charts." (Id.) In taking this position, however, Plaintiff fails to explain how the information he seeks is fairly encompassed by the request.
Defendant maintains that it has "produced all responsive documents in its custody, possession, and control." (Doc. 52 at 14.) Although Plaintiff requested emails that reference SOP-4002, Defendant reports that the policy "was established in 2007, and per the email retention policy, MTC does not retain emails from that time period." (Id.) Defendant notes that Plaintiff deposed Warden Benov, Health Care Administrator L. Watts, and Dr. B. Rucker, and "addressed the issue of SOP 4002, including its creation, revision, et cetera." (Id.) Further, MTC asserts "cocci serology/morbidity reports for each inmate are maintained in inmate medical files and not in a central database," as a result "it would be unduly burdensome to go through every inmate medical file and pull the serology reports and other cocci medical records." (Id. at 15.) In addition, Defendant argues that pulling the requested reports is unduly burdensome because MTC does not have a list identifying "all the Valley Fever positive inmates whose medical files that would have to be obtained and combed through in order to pull these reports." (Id.)
Plaintiff has not explained why Defendant's objections to the request as overbroad and unduly burdensome are without merit. See Grabek v. Dickinson, 2012 WL 113799 at *1 (E.D. Cal. Jan. 13, 2012); Waterbury v. Scribner, 2008 WL 2018432 at *1 (E.D. Cal. May 8, 2008) ("the moving party bears the burden of informing the court . . . for each disputed response, why defendant's objection is not justified"). The mere fact that "Plaintiffs have no idea who developed this policy or determined its criteria" is hardly a basis for compelling an additional response. If this is Plaintiff's true knowledge deficit, the Court has difficult understanding why he did not simply ask for this information in an interrogatory and, instead, sought it through a document request which was not designed to elicit this information.
On the other hand, there is no indication that the Confidential Morbidity Report forms "refer to" the policy—although they may have been completed and provided to the county as a result of MTC's implementation of the policy.
Defendant objects to this request because it "assumes facts not in evidence." (Doc. 52 at 15.) Further, Defendant objects on the following grounds:
(Id.)
As an initial mater, the objection that an interrogatory "assumes facts not in evidence" is not proper in the course of discovery. See Garcia v. Clark, 2012 WL 1232315, at *2 (E.D. Cal. Apr. 12, 2012) (explaining "[a]ssuming facts not in evidence may be the basis for an objection during trial or some other evidentiary hearing," but not during the course of discovery"); see also Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 298 (D.C. Pa. 1980) (that a discovery request "may contain an element of conclusion is not objectionable on this ground alone"). Thus, Defendant's objection is overruled. Nevertheless, MTC conducted "a diligent search regarding email communications and produced all responsive emails . . . and letters that it had with the BOP including correspondence to Dr. Pelton about Valley Fever and requests to BOP to consider race-exclusion policies." (Doc. 52 at 18.) Further, Defendant reports that "most" of its communications occurred during monthly meetings with the BOP, and MTC "produced the minutes from all meetings from when MTC took over control of Taft in September 27, 2007 until present." (Id.) As a result, Defendant maintains it produced "all documents that it has in its custody, possession, and control that were responsive to this request." (Id at 17.)
Although Plaintiff asserts he is entitled to any correspondence "[i]f the BOP corresponded with MTC about cocci at TCI (or vice-versa)" (Doc. 52 at 16), he has not presented any evidence that additional responsive documents exist. In Evans v. Tilton, the Court ruled the defendants had adequately responded to a request for production where the plaintiff failed to present "a sufficient showing . . . which creates a reasonable belief that more information exists. Id., 2010 U.S. Dist. LEXIS 36953, at *8 (E.D. Cal. March 18, 2010). Here, Plaintiff does no more than speculate that MTC has not produced all documents that relate to the efforts made by the BOP "to determine the incidence of the disease . . . among the inmates or staff in its prison system." Accordingly, Plaintiff's request to compel further responses from MTC to the Request for Production Set Two, No. 12 is
Defendant objects to this request on the grounds that it assumed facts not in evidence; overly broad in scope as related to the time period, and to the extent Plaintiff seeks "medical records for any/all inmates who report to medical staff with potential symptoms of Coccidioidomycosis;" unduly burdensome; and "vague and ambiguous at to the term `incidence.'" (Doc. 52 at 19.) For the reasons set forth above, this objection is overruled. See Garcia, 2012 WL 1232315 at *2; Roesberg, 85 F.R.D. at 298. In addition, Defendant fails to explain how the request is unduly burdensome, and as a result this objection is overruled. See Burlington Northern & Santa Fe Ry., 408 F.3d at 1149; Oakes, 179 F.R.D. at 283.
Regardless, "Defendant maintains that it did a diligent search and produced all policies, emails, and minutes that are responsive to this request." (Doc. 52 at 20.) Plaintiff presents no evidence to suggest that additional documents exist. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8. Therefore, the request to compel further responses to Request for Production Set Two, No. 13 is
MTC objects to this request as "assum[ing] facts not in evidence, . . . overly broad, and unduly burdensome." (Doc. 52 at 20.) For the reasons set forth above, these objections are overruled. See Garcia, 2012 WL 1232315 at *2; Roesberg, 85 F.R.D. at 298; Burlington Northern & Santa Fe Ry., 408 F.3d at 1149. Defendant objects also that the "request is irrelevant to the extent that it seeks documents before MTC took over management of the premises in August 2007;" "is compound and violates the privacy and HIPAA rights of third parties if medical records for individual inmates are sought." (Doc. 52 at 20.) Further, Defendant reported that MTC "investigated and there are no responsive documents regarding the costs for medical treatment for these inmates, as the medical treatment is primarily provided at Taft by salaried medical staff." (Id.) In a supplemental response, Defendant produced "the costs of diflucan (the primary treatment for Valley Fever) from August 20, 2007 until September 29, 2014." (Id. at 22; see also Doc. 52-1 at 17.)
Plaintiff argues the response is insufficient and asserts that he seeks information related to the costs of medical treatment. (See Doc. 52 at 21.) Moreover, it does not appear to seek medical records of inmates. Plaintiff asserts MTC's response fails to "answer the question of how much MTC spent responding to cocci infections at TCI." (Id.) Plaintiff explains:
(Id.) Plaintiff asserts it is reasonable to presume that "MTC made similar investigation and analysis as its predecessor, GEO," and argues that he is "entitled to know what cost-estimates were made by MTC relating to Valley Fever." (Id.)
However, it is not clear that the request would encompass documents related to a failed attempt to obtain health care insurance coverage even assuming MTC undertook the same efforts to obtain coverage as GEO. Notably, the request seeks information about "the number of inmates actually receiving medical treatment." Exactly how this request, then, fairly seeks information about a failed attempt to buy insurance, is unclear.
Additionally, although the insurance coverage held by MTC's predecessor, apparently, was impacted by the number of inmates contracting Valley Fever, there is no indication that MTC had the same insurance carrier or suffered a similar cost increase for its insurance or that MTC even had insurance or ever wanted to have it. MTC asserts that it has not submitted written applications for insurance. (See Doc. 52-1 at 66, Gruenberg Decl. ¶ 11.) As such there is no evidence to support Plaintiff's speculation that there must be documents related to the number of inmates infected with Valley Fever and/or MTC's insurance costs. Moreover, Defendant maintains that it "does not have custody or control of any documents related to the cost of their outside care, as MTC pays for outside medical services in the aggregate and does not differentiate between Valley Fever medical expenses versus other types of medical expenses." (Doc. 52 at 22.) Thus, Plaintiff's motion to compel further production of documents in response to Request for Production Set Two, No. 14 is
Defendant objected to this request for production as overly burdensome, speculative, and irrelevant because that the costs for other inmates are irrelevant to the plaintiff's claims. (Doc. 52 at 23-24.) However, MTC "investigated and determined that only 3 inmates from Taft have been hospitalized after contracting Coccidioidomycosis." (Id. at 23.) In its supplemental response to the request, "Defendant produced the Medical/Surgical and Psychiatric Referral Requests for inmates who have been referred for outside care. Defendant also produced the monthly Performance Minutes from 2007 until present, which identifies the number of inmates who have been transported for medical care each month." (Id. at 24.) Defendant notes that outside medical services are billed in the aggregate so the costs for the cost of the hospitalization of these three inmates re not ascertainable. However, at the hearing, Defendant agreed to confirm there was no separate line item related to the cost of hospitalization for these inmates. Defendant SHALL provide this confirmation no later than
On the other hand, Plaintiff fails to explain how the supplemental response was nonresponsive or insufficient. Further, to the extent that the responses were insufficient, Plaintiff has not carried his burden to explain any "actual and substantial prejudice." See Branch, 2014 U.S. Dist. LEXIS 109288 at *10 (citing Hallet, 296 F.3d at 751 (9th Cir. 2002)). Thus, Plaintiff's request to compel further responses to Request for Production Set Two, No. 15 is
Defendant argues that this request is compound, unduly burdensome, and vague and ambiguous. (Doc. 52 at 25.) Also, Defendant argues this is overly broad and irrelevant "to the extent that it seeks documents before MTC took over management of the premises in August 2007." (Id.) Finally, MTC asserts the request should have been directed to the BOP. (Id.)
In response, Plaintiff conceded that "MTC can limit its response to its period of operation." (Doc. 52 at 26.) However, Plaintiff argues that Defendant failed to produce all the responsive documents because "MTC produce[d] a letter to the BOP dated January 13, 2014 . . . regarding MTC's request to change the at-risk of Valley Fever designation to include African Americans and Filipinos," and letter indicated it was "a follow up to MTC's October 14, 2013 letter." (Id.) Plaintiff asserts the letter from MTC to the BOP dated October 14, 2013, was not produced. (Id.) Also, Plaintiff seeks further information related to communications with "with the Kern County Department of Health for each cocci-infection at TCI," arguing he is entitled to see any such "emails, letters, and completed forms" reporting Valley Fever cases. (Id.)
Defendant reports that MTC "did a diligent search regarding email communications and produced all responsive emails." (Doc. 52 at 27.) MTC supplemented its responses to this request "with emails and letters that it had with BOP, including but not limited to correspondence to Dr. Pelton about Valley Fever and requests to BOP to consider race-exclusion policies." (Id., citing Patrick Decl. ¶ 5.) Defendant maintains that its response was sufficient because MTC "produced all responsive documents in its custody, possession, and control." (Id. at 26.)
As an initial matter, it is unclear whether Defendant's supplemental response included the letter dated October 14, 2013. On the other hand, MTC is not an administrative agency. See Edison v. United States, 2013 U.S. Dist. LEXIS 15631 at *3 (E.D. Cal. Feb. 4, 2013). Similarly, the Kern County Department of Health is not an agency of the Department of Justice or the U. S. Centers for Disease Control and Prevention (CDC). Although Plaintiff wants communications between MTC and the BOP, and MTC and the County Department of Health, such documents are not encompassed in the request for communications "between any agency of the Department of Justice . . . and the U. S. Centers for Disease Control and Prevention (CDC), and/or any of its divisions." Moreover, Plaintiff has not presented any evidence that further documents between an agency of the Department of Justice and any division of the CDC are in the care, custody, or control of MTC. Accordingly, Plaintiff's request to compel further responses to the Request for Production Set Two, No. 20 is
Defendant asserts that this request also should have been directed to the Federal Bureau of Prisons. (Doc. 52 at 28.) On the other hand, Plaintiff asserts:
(Id. at 28.) In response, Defendant asserts that "Plaintiff is confusing government tort claims with administrative appeals." (Id. at 29.) Indeed, government tort claims must be "presented in writing to the appropriate Federal agency . . ." 28 U.S.C. § 2401(b). As such, any government tort claims would have been filed with the Bureau of Prisons, not MTC.
Furthermore, Defendant asserts that "[n]o government tort claims were filed with MTC, nor does MTC receive copies of any tort claims that Plaintiff may have filed with Bureau of Prisons in connection with the Federal Tort Claims Act." (Doc. 52 at 29.) As a result, MTC reports "[t]here are no documents responsive to plaintiff's request in defendant's possession, custody, or control." (Id. at 28.) This response is sufficient, and Plaintiff has not identified any evidence suggesting the contrary. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8. Therefore, Plaintiff's request to compel responses to Request for Production Set Two, No. 23 is
Defendant objects that Plaintiff "assumes facts not in evidence" with this request. (Doc. 52 at 29.) As explained above, this is not a proper objection in the course of discovery, and this objection is overruled. See Garcia, 2012 WL 1232315, at *2; Roesberg, 85 F.R.D. at 298. MTC objects also to the request as overly broad and unduly burdensome because Plaintiff "seeks `any and all documents' pertaining to any lawsuit for an indefinite time period." (Id.) Nevertheless, Defendant conducted an investigation and identified cases brought by Fekrat, Edison, Hammond, Aluya, Sutton, Nuwintore, Healy, and Mercado. (Doc. 52 at 29-30.) According to MTC, "Litigation Coordinator D. Patrick is apprised of lawsuits involving inmates who are or were at Taft, and he is not aware of any other lawsuits involving Valley Fever other than the lawsuits identified in Defendant's response." (Id. at 30, citing Patrick Decl. ¶ 9.) Specifically, Mr. Patrick reports:
(Doc. 52-1 at 69-70, Patrick Decl. ¶ 9.) Again, Plaintiff presents no evidence that Defendant has not been candid and that further information exists. Therefore, Plaintiff's request to compel further responses to Request for Production Set Two, No. 24 is
In its initial response to this request, MTC referred Plaintiff to documents already in his possession, including the "Standard Operating Procedure: Intake Screening (SOP-14 4005) (MTC 0724-0730); Procedure re Treatment of Inmates with Cocci/Valley Fever (SOP-4002) dated October 2007 (MTC 0022-0026); [and] American Lung Association, Facts about Cocci. (MTC 0001-0003)." (Doc. 52 at 31.) In addition, Defendant provided copies of minutes from performance meetings where Valley Fever was discussed. (Id. at 32.)
Plaintiff reports that Defendant "`padded' its responses" by providing "13 identical copies of the minutes of one meeting" and failing to "provide the minutes from the following performance meetings: April, June, July and November, 2009; March, May, October, November, December, 2010; ALL months in 2011 except November and December; and May, 2013." (Doc. 52 at 32.) MTC reports this was an unintentional error, and admits its error in omitting the minutes. (Id.) At the hearing, Plaintiff's request noted that the minutes had been produced but MTC admitted also that the April 2009 minutes were not. MTC committed to producing them. Thus, the April 2009 minutes
Defendant asserts that this request "assumes facts not in evidence, is overly broad as to time period and facility, and unduly burdensome." (Doc. 52 at 33.) In addition, MTC argues this request violates the HIPAA and privacy rights of third parties to the extent any "medical records for individual inmates are sought." (Id.)
For the reasons set forth above, Defendant's objection that the request "assumes facts not in evidence" is overruled. See Garcia, 2012 WL 1232315, at *2; Roesberg, 85 F.R.D. at 298. Further, Defendant fails to explain how the request is unduly burdensome. Because the Court cannot speculate as to the grounds upon which this objection is based, the objection is overruled. See Burlington Northern & Santa Fe Ry., 408 F.3d at 1149; Oakes, 179 F.R.D. at 283.
On the other hand, Plaintiff does not address Defendant's argument that the request is overly broad because it includes prison facilities that are not operated by MTC, and in regions were Valley Fever is not endemic. The Court finds the objection is well-taken and it is sustained. Moreover, Defendant identified "the number of individuals who were diagnosed with Valley Fever at Taft through the infectious disease reports," as well as "the costs of diflucan . . . from August 20, 2007 until September 29, 2014." (Doc. 52 at 33.) Defendant asserts that it does not have "custody or control of any documents related to the cost of . . . outside care, as MTC pays for outside medical services in the aggregate and does not differentiate between Valley Fever medical expenses versus other types of medical expenses." (Id. at 33-34.) Plaintiff presents no evidence that additional documents exist. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8. At the hearing, Defendant clarified that it had no further responsive documents except for minutes related to an April 2009 meeting which they
Defendant objects that this request is "vague and ambiguous, and overly broad as to the term `all documents evidencing any claims,' and is therefore unduly burdensome." (Doc. 52 at 34.) The Court agrees. For example, Plaintiff could be seeking information made on claims made by inmates to medical personnel regarding their symptoms, or claims made to prison staff regarding the need for medical treatment, government tort claims filed with the BOP, administrative grievances filed with MTC, or claims filed in either the state or federal courts. Thus, the request is not sufficiently clear to place MTC upon "reasonable notice" of the type of "claims" Plaintiff seeks information regarding. See Kidwiler v. Progressive Paloverde Ins. Co., 192. F.R.D. at 202; see also Fed. R. Civ. P. 34(b) (requiring that a document request describe items with "reasonable particularity"). Plaintiff's request to compel further discovery in response to Request for Production Set Two, No. 34 is
Initially, Defendant objected the request, in part, as "vague and ambiguous at to the term[] `ground disturbing activities,'" because the term was not defined. (Doc. 52 at 35.) In response, Plaintiff clarified that "[g]round breaking activities" included "plumbing, gardening and `discing' (looking for contraband under soil)." (Id.) Also, Plaintiff reported "several witnesses have discussed work on a plumbing drain on or around 2012 which required the disruption of soil." (Id.) Plaintiff argues he is "entitled to know what ground-disturbing activities took place on site (to determine if they were done in a fashion that did, or did not, prevent inmates from infection." (Id. at 35-36.)
In a supplemental response, MTC "produced documents and emails in its control regarding the water pipeline project," which MTC asserts "was the only construction project that involved the breaking of soil." (Doc. 52 at 36.) According to Defendant, these documents establish that "MTC had a very limited role in construction projections—mainly providing gate clearance to BOP contractors." (Id.) Defendant maintains that "it is not the custodian of records for the U.S. Bureau of Prisons," and Plaintiff's request should have been directed to the BOP. (Id.)
Plaintiff acknowledges "some responsive documents were received," and fails to explain how the supplemental response was nonresponsive or otherwise insufficient. The Court cannot manufacture arguments on Plaintiff's behalf related to the sufficiency of the discovery response. See Womack v. Virga, 2011 WL 6703958, at *11 (E.D. Cal. Dec. 21, 2011) (explaining that the party seeking to compel discovery "has the burden of informing the court why . . . the defendants' responses are deficient"); Walker v. Karelas, 2009 WL 3075575, at *1 (E.D. Cal. Sep. 21, 2009) (at a minimum, the moving party plaintiff has the burden of informing the court . . . why he believes the defendant's responses are deficient"). Further, Plaintiff identifies no evidence from which the Court may determine that additional responsive documents exist. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8.
At the hearing, Plaintiff's counsel complained that Defendant's response failed to identify the relevant Bates-numbered documents. Thus,
Therefore, the request to compel further responses to Request for Production Set Two, No. 36 is
As with the related prior request, Plaintiff fails to explain how the supplemental response to the request, which included the documents and emails related to the water pipeline project at Taft CI, was not responsive or otherwise insufficient. See Womack, 2011 WL 6703958, at *11; Evans, 2010 U.S. Dist. LEXIS 36953, at *8. For the reasons set forth as to Request No. 36, the request to compel further responses to Request for Production Set Two, No. 37 is
Defendant objected, "This request assumes facts not in evidence, and is vague and ambiguous." (Doc. 52 at 37.) For the reasons set forth above, these objections are overruled. See Garcia, 2012 WL 1232315 at *2; Roesberg, 85 F.R.D. at 298; Burlington Northern & Santa Fe Ry., 408 F.3d at 1149. In addition, Defendant objected "th[e] request is overly broad in time period and seeks information not reasonably calculated to lead to the discovery of admissible evidence." (Id. at 37.) Given that the evidence related to watering relates to methods that may be taken to prevent Valley Fever, Defendant's objection on the grounds of relevancy is overruled.
Nevertheless, Plaintiff reports that "MTC identified some documents that relate to MTC's decision to cease watering the grass at TCI." (Doc. 52 at 38.) Plaintiff argues the discovery produced does not include "any internal documents relying on the materials [MTC] provided, or used in determining whether to continue providing the ground-cover (an effective method to combat the spread of cocci-infections." (Id. at 38.) According to Plaintiff, "Someone at MTC made a decision, and informed others, to cease watering the grounds," and he is "entitled to see all documents and emails relating to that decision." (Id.) However, Defendant has explained that "most prison administrative matters are no communicated via email" or in writing, but were rather "discussed over the phone and during meetings with the Bureau of Prisons." (Id.) MTC produced the minutes from all such meetings, and conducted "a diligent search regarding email communications." (Id., citing Patrick Decl. ¶ 5.)
Although Plaintiff speculates there must be more documents, he has not identified any evidence supporting this assertion. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8. Therefore, Plaintiff's request to compel further responses to Request for Production Set Two, No. 38 is
As with Request Nos. 36 and 37, Plaintiff fails to explain how Defendant's supplemental response, which included the documents and emails related to the water pipeline project at Taft CI, was not responsive or otherwise insufficient. See Womack, 2011 WL 6703958, at *11; Walker, 2009 WL 3075575, at *1. For the reasons set forth above, the request to compel further responses to Request for Production Set Two, No. 39 is
Again, Plaintiff fails to explain how Defendant's supplemental response was not sufficient. See Womack, 2011 WL 6703958, at *11; Walker, 2009 WL 3075575, at *1. Plaintiff does not present any evidence that any construction occurred at Taft CI other than the water pipeline project, or that creates a reasonable belief that more information exists. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8. For the reasons set forth above, the request to compel further responses to Request for Production Set Two, No. 40 is
Defendant objects to this request as vague and ambiguous, overly broad as to time period, and unduly burdensome. (Doc. 52 at 40.) Further, Defendant asserted the request was overbroad "if it requests medical records for any/all inmates who report to medical staff with potential symptoms of Coccidioidomycosis, as those records are maintained in patient medical records," and that the "inmate medical records are protected by privacy rights and HIPAA protections." (Id. at 40-41.) Without waiving these objections, Defendant produced the "MTC, Taft CI Handbook, dated 2014," and directed Plaintiff to documents already in his possession, including the Standard Operating Procedure (SOP-4002), Treatment of Inmates with Cocci/Valley Fever, Standard Operating Procedure (SOP-4005), Intake Screening (MTC 0724-0730), and "Taft Correctional Institution Infectious Disease Report From September 2007 until December 2011." (Id. at 41.)
Plaintiff concedes the time was overbroad, and responded that "MTC can limit its responses to the time period in which it operated TCI." (Doc. 52 at 41.) In addition, Plaintiff asserts that the documents produced "establish that those sought by the Request exist — for example: [] The Standard Operating Procedure is a final document that describes how TCI is to be run by MTC. MTC presumably developed the SOP based on suggestions, drafts, and discussions." (Id.) Further, he asserts "The `Taft Correctional Institution Infectious Disease Report From September 2007 until December 2011 (MTC 0731-782)' is a purported summary of the amount of inmates who became infected on a monthly bases . . . based on some other information (presumably the Kern County Department of Health cocci forms) . . ." (Id. at 42.) Plaintiff contends he is entitled to see any drafts and documents used to prepare the final documents produced by MTC. (Id. at 41-42.)
In response, Defendant asserts Plaintiff is "seeking documents related to the [Standard Operating Procedure] that no longer exist." (Doc. 52 at 42.) MTC reports that "SOP-4002 was established in 2007, and per the email retention policy [to keep emails 180 days], MTC does not retain emails from that time period."
Finally, it is not clear how the medical records of any inmates would be responsive to the request for "efforts by MTC" to reduce the spread of Valley Fever. Although, the medical records would describe the treatment received by the inmates, they would not identify policies or practices implemented by MTC to reduce the infection rate of others.
Because Defendant reports it has produced all response documents (Doc. 52 at 42), and Plaintiff has not presented evidence that creates a reasonable belief that more information exists, the request to compel further responses to Request for Production Set Two, No. 42 is
Defendant asserts this request "assumes facts not in evidence, is overly broad as to time period and scope of documents, and is overly burdensome." (Doc. 52 at 44.) Despite these objections, Defendant "produced the Infectious Disease Reports from September 2007 to July 2013," and reports it has "requested the Infectious Disease Reports from July 2013 to present, and will supplement this response upon receipt." (Id.) In the supplemental response, MTC produced "emails and letters that it had with BOP, including correspondence to Dr. Pelton about Valley Fever and requests to BOP to consider race-exclusion policies." (Id.) Therefore, Defendant asserts the "response was adequate because [MTC] produced all documents in its custody, possession, and control." (Id.)
On the other hand, Plaintiff asserts Defendant's "Response was insufficient[,] [f]or the same reasons identified in the discussion of Request for Production No. 12." (Doc. 52 at 44.) Plaintiff acknowledges that MTC produced "emails from 2011 from MTC to the BOP related to the cocci problem at TCI," but asserts MTC did not produce "[a] privilege log or other documents identifying other documents that were not produced." (Doc. 52 at 16.) However, Defendant did not assert any privilege exists in response to the request for production, and Plaintiff does not explain how the documents produced as part of MTC's supplemental response were not sufficient to respond to Request No. 47. See Womack, 2011 WL 6703958, at *11; Walker, 2009 WL 3075575, at *1. Moreover, there is no evidence to suggest Defendant was not telling the truth that it has produced all documents responsive to this request in its care, custody and control. Therefore, the request to compel further responses to Request for Production Set Two, No. 47 is
MTC objects, in part, to this request for production as "overly broad as to . . . [the] scope of documents." (Doc. 52 at 44.) The Court agrees. Because Plaintiff seeks any and all documents which even mention Valley Fever, Coccidiodomycosis, or cocci, the request does not give MTC "reasonable notice" of the documents requested by Plaintiff. See Kidwiler, 192. F.R.D. at 202; see also Fed. R. Civ. P. 34(b) (requiring that a document request describe items with "reasonable particularity"). Rather, the request is so broad that compliance with the request would place a significant burden upon MTC. Moreover, production would be unduly burdensome to the extent that Plaintiff seeks medical records and the cocci forms filed with or by the Kern County Department of Public Health. Defendant reports that it does not have a list "of all the Valley Fever positive inmates whose medical files that would have to be obtained and combed through in order to pull these reports." (Doc. 52 at 15.) Defendant asserts the "cocci serology/morbidity reports for each inmate are maintained in inmate medical files and not in a central database." (Id.) As a result, MTC would be required "to go through every inmate medical file and pull the serology reports and other cocci medical records." (Id.) Given the number of inmates housed at Taft CI, and such a task is unduly burdensome.
Accordingly, Defendant's objections that the request for production is overly broad and unduly burdensome are
Defendant objected to this request, arguing: "This request assumes facts not in evidence
Significantly, this request suffers the same infirmity as Request No. 48. Because Plaintiff seeks any and all documents which even mention Valley Fever, Coccidiodomycosis, or cocci, between MTC and any private entity— without clarifying if this is limited to organization— the request does sufficiently identify documents requested by Plaintiff. See Kidwiler, 192. F.R.D. at 202; see also Fed. R. Civ. P. 34(b). Defendant's objections that the request for production is overly broad and unduly burdensome are
MTC argues, "This request vague and ambiguous, and overly broad as to the term `all complaints,' and is therefore unduly burdensome." (Doc. 52 at 47.) Similar to Plaintiff's request No. 34, this request does not give MTC "reasonable notice" of the type of "complaints" sought by Plaintiff. See Kidwiler v. Progressive Paloverde Ins. Co., 192. F.R.D. at 202; see also Fed. R. Civ. P. 34(b) (requiring that a document request describe items with "reasonable particularity"). For example, Plaintiff could be seeking information on complaints made by inmates to medical personnel regarding their symptoms, complaints made about medical personnel for inadequate medical assistance, any administrative complaints filed with MTC, or complaints filed in the state and/or federal courts. Indeed, in response to the request, Defendant identified complaints filed in this Court and produced inmate grievances raising Valley Fever. (See Doc. 52 at 47.)
Given the lack of clarity, Defendant's objections that the request is vague and ambiguous, and overbroad are
Initially, Defendant objected to this request for production. (Doc. 52 at 48.) Plaintiff responded that "MTC spends a great deal of money on Fluconazole, which is prescribed to inmates afflicted with disseminated Valley Fever," and argued he is "entitled to know how much is spent on this medication." (Id.) Accordingly, Defendant supplemented its response and "produced the document regarding the ordering of diflucan from August 20, 2007 until September 29, 2014." (Id.)
Plaintiff does not assert the supplemental response was nonresponsive. (See Doc. 52 at 48.) The Court will not speculate as to the sufficiency of the response. See Womack, 2011 WL 6703958, at *11; Walker v. Karelas, 2009 WL 3075575, at *1. Furthermore, Plaintiff presents no evidence that additional responsive documents exist. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8. Therefore, Plaintiff's request to compel further document production in response to Request for Production Set Two, No. 53 is
MTC objects, "This request assumes facts not in evidence, is overly broad as to time period and scope of documents, and is overly burdensome." (Doc. 52 at 49.) Objections notwithstanding, Defendant reports that it "investigated and there are no responsive documents that were retained from when MTC took control from GEO in 2007." (Id.)
Because Defendant maintains that there are no responsive documents, Plaintiff's motion to compel responses to Request for Production Set Two, No. 54 is
In its supplemental discovery response, Defendant produced a "full set of minutes from 2007 to present to Plaintiff." (Doc. 52 at 50.) However, MTC indicated at the hearing, it failed to produce the minutes from the April 2009 meeting and committed to doing so
Defendant sought clarification from Plaintiff regarding "which insurance documents Plaintiff was seeking . . ., as Defendant was unclear what precise documents Plaintiff was looking for or how they were relevant to the case." (Doc. 52 at 52.) However, MTC reports that Plaintiff did not provide any clarification. (Id.) Nevertheless, Defendant's counsel "investigated the matter and was informed that MTC does not submit a written application for insurance." (Id., citing Doc. 52-1 at 66, Gruenberg Decl. ¶ 11.) Because MTC has not submitted written applications for insurance, there are no documents to be produced, and Plaintiff's request to compel responses to Request for Production Set Two, No. 60 is
Defendant objected to this request, and noted that it sought clarification as to what was being sought. However, rather than providing clarification, the current motion was filed. At the hearing, counsel clarified that the request was directed "primarily" at health care insurance coverage but agreed that this request could have applied to liability coverage as well. However, because MTC interpreted this, fairly, as a request for the information related to health care coverage and Plaintiff failed to provide clarification that he also sought liability coverage, and MTC has documented that it has no such health care coverage for the costs associated with the treatment of Valley Fever, the request is
Defendant argues this request is duplicative of No. 42, which sought documents "related to efforts by MTC to reduce the spread of infection" of Valley Fever at Taft CI. (Doc. 52 at 55; see also id. at 40.) MTC notes that it "produced policies, minutes, emails, administrative grievances, and other documents showing how MTC responded to address Valley Fever." (Id.) According to Defendant, "Plaintiff has not demonstrated how Defendant's responses are insufficient." (Id.) The Court agrees.
The requests are substantively similar, and require the same documents to be produced, such as the MTC Taft Handbook, Standard Operating Procedures, and guidelines for "Treatment of Inmates with Cocci/Valley Fever." Given the duplicative nature of the request, Plaintiff's motion to compel further responses to Request for Production Set Four, No. 62 is
Defendant objects to this request on several grounds, but directed Plaintiff "to the Taft Correctional Institution Admission and Orientation Program Lecture-Medical, which was produced in response to Plaintiffs [sic] Third Set of Request for Production of Documents." (Doc. 52 at 55-56.) MTC noted these documents "includ[e] several policies that relate to dust." (Id. at 56.)
Plaintiff does not explain how this response was nonresponsive or deficient. See Womack, 2011 WL 6703958, at *11 (the party seeking to compel discovery "has the burden of informing the court why . . . the defendants' responses are deficient"). To the extent that the responses were insufficient, Plaintiff met his burden of explaining any "actual and substantial prejudice" from the denial of further discovery. See Branch, 2014 U.S. Dist. LEXIS 109288 at *10 (citing Hallet, 296 F.3d at 751 (9th Cir. 2002)). Finally, this request is substantively the same as the prior requests made by Plaintiff regarding efforts undertaken by MTC to address and prevent the spread of Valley Fever at Taft CI.
Previously, MTC produced the "N95 Mask Clearance Packet and Procedures." (Doc. 52 at 11.) Responding to this request, Defendant asserts Plaintiff seeks documents that are overbroad in scope and "irrelevant to the extent that it seeks documents [related to time] before MTC took over management of the premises in August 2007." (Id. at 56.) Plaintiff has not carried his burden to explain why Defendant's objections to the request as overbroad and irrelevant are without merit. See Waterbury, 2008 WL 2018432 at *1 ("the moving party bears the burden of informing the court . . . for each disputed response, why defendant's objection is not justified"). These objections are sustained.
In addition, Defendant directed Plaintiff to other documents previously produced, including "The Taft Correctional Institution Admission and Orientation Program Lecture-Medical." (Doc. 52 at 57.) Plaintiff acknowledges that Defendant produced "TCI forms and instructions . . . as to how inmates could request various types of masks." (Id.) There is nothing in the record that "creates a reasonable belief that more information exists. See Evans, 2010 U.S. Dist. LEXIS 36953, at *8.
At the hearing, Plaintiff's counsel asserted that this request should have generated production of receipts related to purchasing masks for inmates. However, in the meet and confer efforts, counsel never made this clarification and the request, as phrased, fails to alert MTC that cost information was being sought. Accordingly, Plaintiff's motion to compel further responses to this request is
At the hearing, Plaintiff's counsel indicated that this dispute had been resolved and, therefore, the motion as to this request is deemed
Without waiving its objections in response to this request, MTC referred Plaintiff to "the Taft Correctional Institution Admission and Orientation Program Lecture-Medical," which was produced previously. (Doc. 52 at 59.) Plaintiff argues the "reference to three pages of an orientation brochure is insufficient." (Id. at 60.) Plaintiff asserts that through this request, he sought information regarding "what were given inmates that involved the disturbing of soil (such as gardening, plumbing, assistance, or discing, etc.)." (Id.) Further, Plaintiff sought documents identifying "what precautions were taken so that inmates involved in such activities would not get infected, or that the activities were done in a fashion to minimize the risk to others." (Id.) According to Plaintiff, "Simply put — inmates cleaned the ground and were involved in maintaining the premises. MTC knows what inmates were instructed to do," and he is "entitled to see what MTC did or did not do in relation to this hazardous activity." (Id.)
Importantly, the request does not clearly include the information Plaintiff seeks. Further, this request is substantively duplicative to other requests Plaintiff made regarding "ground disruption" and "breaking the soil," such as Request No. 36 for any documents "related to ground disturbing activities . . . including, but not limited to, plumbing or other maintenance and gardening practices." (See Doc. 52 at 35.) Finally, MTC asserts that it "has produced all responsive documents" (id. at 60), and there is no evidence in the record to suggest that further information exists. Therefore, Plaintiff's motion to compel further responses to Request for Production Set Four, No. 71 is
Defendant objected to this request as "vague and ambiguous, . . . overly broad, and unduly burdensome." (Doc. 52 at 61.) Also, Defendant objected that the information sought "is irrelevant to the extent that it seeks documents before MTC took over management of the premises in August 2007." (Id.) Despite these objections, MTC reported that it found "no documents responsive to plaintiffs [sic] request." (Id.)
Plaintiff asserts Defendant's response was not sufficient, because there have been "[s]everal studies . . . to determine the spread of cocci at prisons in the San Joaqin [sic] Valley [that] evaluated the amount of time an inmate spends each day outside." (Doc. 52 at 61.) Plaintiff argues, "Either this information is available, or MTC never inquired." (Id.)
Defendant supplemented its response "to refer to the inmate handbooks that says that the recreation department is open seven days a week, 0600-2030 hours, unless there is inclement weather." (Doc. 52 at 62.) Defendant explained that Taft CI "is a low level facility," and "there is not a strict schedule." (Id. at 62.) The time spent outside by each inmate depends on job assignments, educational classes, and the time chosen to participate in outdoor recreation—and there is no "documentation of how much time an average inmate spends outside." (Id. at 61-62.) Finally, MTC reports it "is not aware that any studies were conducted at its facility." (Id. at 63.)
Plaintiff does not assert the supplemental response was nonresponsive, and does not identify any study undertaken at Taft CI that evaluated the time spent outside by inmates. (See Doc. 52 at 61-62.) Because it does not appear that additional responsive documents exist, Plaintiff's request to compel further responses to Request for Production Set Four, No. 73 is
MTC asserts this request is overly broad and "duplicative of prior requests for production of documents regarding this topic." (Doc. 52 at 62.) As part of his second set of requests, Plaintiff previously sought correspondence and emails between MTC and any private entity and "any other governmental agency, including, but not limited to, the Kern County Department of Health which references or relates to "Valley Fever", "Coccidiodomycosis" or "cocci" between 2007 and the present." (See Doc. 52 at 44-46.) Because the request is duplicative, and for the reasons set forth above related to Request Nos. 48 and 49, Plaintiff's motion to compel further responses to Request for Production Set Four, No. 79 is
Based on the foregoing, the Court
IT IS SO ORDERED.
