KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel. This action proceeds on plaintiff's Eighth Amendment medical claims against defendant Dr. Kuersten.
Plaintiff's motion to compel further responses to his request for production of documents is before the court. As set forth below, plaintiff's motion is partially granted.
Under Rule 37 of the Federal Rules of Civil Procedure, "a party seeking discovery may move for an order compelling an answer, designation, production, or inspection." Fed. R. Civ. P. 37(a)(3)(B). Such "motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to produce documents or fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34." Fed. R. Civ. P. 37(a)(3)(B). 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). "District courts have `broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16.'"
Plaintiff bears the burden of informing the court (1) which discovery requests are the subject of his motion to compel, (2) which of the responses are disputed, (3) why he believes the response is deficient, (4) why defendants' objections are not justified, and (5) why the information he seeks through discovery is relevant to the prosecution of this action.
The purpose of discovery is to "remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute."
Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them."
(ECF No. 59 at 27.)
Despite objections, defendant responded that there are no documents responsive to this request. Defendant cannot be compelled to produce a document that does not exist, or to create a document to respond to a request for production of documents. Plaintiff's motion is denied as to request no. 2.
(ECF No. 59 at 27.)
Defendant's objections are well taken. Plaintiff did not narrow his request as to time, or as to medical staff who treated plaintiff for specific medical problems at issue in this action, or as to plaintiff's claims that are at issue herein. Rather, plaintiff sought documents of "all" medical staff at CSP-Solano, which would include medical staff who did not treat plaintiff, and therefore are not relevant. Although plaintiff claims he cannot obtain this information any other way, he is entitled to review his own medical records which would include the names of treating medical staff. No further production is required.
(ECF No. 59 at 27.)
Despite objections, defendant responded that there are no documents responsive to this request. Defendant cannot be compelled to produce a document that does not exist, or to create a document to respond to a request for production of documents. Plaintiff's motion is denied.
(ECF No. 59 at 27-28.)
Defendant did not address request no. 5 in the opposition. (ECF No. 64 at 9.) Plaintiff seeks all documents involving medical complaints on defendant that were filed with the California Medical Board, including ones that don't meet the criteria for posting. Plaintiff objects that a portion of the document produced by defendant states that the survey information has not been verified by the board and argues that defendant is attempting to send plaintiff on an "unfruitful fishing trip." (ECF No. 59 at 3.)
The document produced by defendant reflects that there have been no public record actions taken against defendant, and that there are no public documents. (ECF No. 59 at 39.) Moreover, the Medical Board's website reflects that under California law, complaints made to the Medical Board are confidential, not public, and would not appear on a record.
Although defendant failed to address this request, the undersigned finds that defendant's response was sufficient. The document provided by defendant demonstrates that no public record actions have been taken against defendant. To the extent plaintiff sought "all" complaints to the Medical Board against defendant, such request is overbroad and not in proportion to the needs of this case. No further production is required.
(ECF No. 59 at 28.)
Defendant cannot be compelled to produce documents that are not in his possession or control. Plaintiff now claims that he mistakenly wrote Dr. Martin Kohler instead of Dr. Lori Kohler. As noted in the court's first footnote above, plaintiff may not revise discovery requests in his motion to compel. But in any event, it is also unlikely that defendant Dr. Kuersten would have possession or control of complaints lodged against Dr. Lori Kohler with the California Medical Board. Plaintiff's motion to compel further responses is denied.
(ECF No. 59 at 28-29.)
As to Request No. 9, defendant's objections are sustained. Plaintiff seeks all of his medical records from November 1, 2008, to the present, which would likely contain medical records not relevant to plaintiff's instant claims against defendant Dr. Kuersten. Moreover, it appears that Dr. Kuersten was not involved in reviewing medical orders for plaintiff until 2014. (ECF No. 20 at 84.) Thus, the request, as written, is overbroad and overly burdensome. The record also reflects that plaintiff has copies of many of his medical records. (ECF No. 13 at 13-16; ECF No. 20 at 40-94, 96-102; 106; 112-28.) These include records involving Dr. Kuersten. (
That said, despite defendant's claim that plaintiff has equal access to his own medical records, plaintiff complains that he is "only allowed what medical records will print out," and claims that prison staff at CSP-Solano will not allow inmates to view their medical files. (ECF No. 59 at 5.) In support, plaintiff points to an appeal response that states:
(ECF No. 59 at 46.) In addition, such appeal confirms plaintiff's difficulties in obtaining "RFS" and orders pertaining to plaintiff's GI specialty appointment on 12-12-16, that was then canceled or deleted on December 13, 2016, including a page that plaintiff signed indicating he wanted to keep such appointment, witnessed by Correctional Officer Stiltner and RN Rouso. (
Therefore, although it appears plaintiff was provided copies of his medical records from 2017, the record reflects that plaintiff made good faith efforts to obtain other pertinent medical records without success. Defendant shall provide plaintiff with a copy of any RFS or orders pertaining to plaintiff's GI specialty appointment from November 1, 2016, through December 31, 2016. If counsel for defendant does not have such medical records in her current physical possession, defendant shall make a good faith effort to locate such records from plaintiff's electronic medical file as well as any hard copy physical file at both CSP-Solano and Old Folsom State Prison. If defendant is unable to locate such documents, defendant shall file a declaration setting forth the efforts to locate such documents.
While the court understands that there are security concerns with having inmates access computers to view their medical records, plaintiff is entitled to access his medical records in order to personally determine whether a particular record is relevant to his legal claims. Thus, counsel for defendant is ordered to work with the litigation coordinator to facilitate plaintiff's ability to review his medical records and obtain copies of the medical records he needs to support his claims against defendant. In the alternative, counsel may opt to provide plaintiff with a copy of plaintiff's medical records from 2014 to 2017.
Defendant's objections in response to Request No. 8 are well taken. Request No. 8 was not limited as to time, institution, or type of communication (i.e. related to a particular medical ailment, treatment, or issue). In addition, the court cannot order a party to produce that which does not exist. That said, in the opposition to plaintiff's motion, defendant states that if plaintiff sought information about medical transfers, such information is contained in plaintiff's medical file, arguing that plaintiff has access to such file. However, due to the difficulties plaintiff identified in response to Request No. 9, defendant is ordered to provide plaintiff with a copy of documents addressing plaintiff's medical transfers from 2014 through 2017 inasmuch as such documents are relevant to plaintiff's claims against defendant.
(ECF No. 59 at 29.)
Plaintiff objects that defendant altered the request by "assuming plaintiff is seeking information concerning medical transfers." (ECF No. 59 at 6.) Plaintiff contends his request is not broad because plaintiff was transferred due to "institutional needs" as well as "medical risk," involving several different transfers. In opposition, defendant argues that he is a medical doctor, not custody staff, and has no input in determining whether an inmate is transferred for "institutional needs," and in any event, defendant is being sued based on his alleged failure to provide adequate medical care. (ECF No. 64 at 12.)
Defendant provided plaintiff with the health care services transfer procedures. Plaintiff fails to demonstrate how his transfers, no matter the type, are relevant to his claims against defendant. Defendant's objections are sustained, and no further production is required.
(ECF No. 59 at 29-30.) Defendant did not address plaintiff's motion in defendant's opposition. (ECF No. 64 at 12.)
Plaintiff "now clarifies" the time for his request, the subject matter, and type of training. (ECF No. 59 at 7.) However, as addressed in footnote 1 above, plaintiff may not modify the nature of his discovery request within his motion to compel. Plaintiff's request is vague as to time, subject matter, type of training, and to which medical staff plaintiff referred, and plaintiff fails to demonstrate the relevance of such request to his claims against Dr. Kuersten. No further production is required.
(ECF No. 59 at 30.) Defendant did not address plaintiff's motion in defendant's opposition. (ECF No. 64 at 12.)
Plaintiff states that he has not yet received the requested documents. However, plaintiff fails to show that defendant has received any documents from the Correctional Health Care Services office. Defendant affirmatively responded that if such documents are received, they will be produced to plaintiff. However, in light of defendant's failure to respond to plaintiff's motion, defendant is directed to advise whether or not any documents have, to date, yet been received and, if so, what date they were produced to plaintiff.
(ECF No. 59 at 30.)
Despite plaintiff's unsubstantiated claim that that the "huddle" is a daily occurrence and that there should be such documents (ECF No. 59 at 7), defendant cannot be compelled to produce a document that does not exist. Plaintiff's motion is denied.
(ECF No. 59 at 13.)
Despite his initial failure to identify a time frame, plaintiff states that he seeks all medical documents that have been "modified" in the medical computer record from October 2016 to the present. He claims that "modified" is a section of the Cerner Medical Computer System, and that correctional counselors have nothing to do with medical records. In any event, plaintiff states that the medical records department at CSP-Solano will not provide such documents to plaintiff. In response, defendant reiterates he is unaware of any medical documents that have been modified, but that if plaintiff provides the dates and subject matter of the alleged modified documents, defendant would review the record and provide any responsive document that exists. Defendant's counsel is directed to work with the litigation coordinator at CSP-Solano to arrange plaintiff's meaningful access to his medical file, along with an ability to obtain copies of pertinent documents.
(ECF No. 59 at 13.)
Despite his initial failure to limit his request as to time, plaintiff now requests mental health records from March 2017 to the present, and reiterates his difficulties in accessing his medical file, in which mental health records are also held. Defendant's counsel is directed to work with the litigation coordinator to provide plaintiff with meaningful access to plaintiff's medical records, along with a contemporaneous ability to obtain copies.
(ECF No. 59 at 31.)
Plaintiff reiterates his difficulties accessing his mental health records, and claims he needs such modified mental health records from March 2017 to the present. Defendant offers to provide responsive documents if plaintiff provides the dates and subject matter of the alleged modified documents. Defendant's counsel is directed to work with the litigation coordinator at CSP-Solano to provide plaintiff with meaningful access to plaintiff's medical records, along with a contemporaneous ability to obtain copies.
(ECF No. 59 at 31-32.)
Initially, the court notes that defendant's objections are well-taken in that plaintiff failed to tailor his request as to time or subject matter, and that defendant cannot produce a medical record that has been erased or deleted. In his motion, plaintiff clarifies he seeks such documents from October 2016 to the present, and has requested these records in the past but the medical records department at CSP-Solano refused to produce them, and will not print deleted-canceled-voided-erased-modified records for inmates. (ECF No. 59 at 8.) Defendant states that if cancellations for appointments exist, such documents would be contained in plaintiff's medical file, which is available to plaintiff for inspection and copying. Plaintiff will be provided access to his medical records as set forth above.
Further, plaintiff suggests that the medical records supervisor, Mr. Weeks, may need the Information Technology department to assist him in retrieving the record, ostensibly to search for deleted or erased medical records. However, in his request to compel further response to Request No. 18, plaintiff cites no basis for his belief that a particular medical record has been deleted or erased.
(ECF No. 59 at 32.)
Defendant's objections that this request is vague as to time or overbroad are overruled inasmuch as plaintiff provided a specific date. However, it appears that this request is intertwined with plaintiff's Request No. 9. As ordered above, defendant shall provide plaintiff with a copy of any RFS or orders pertaining to plaintiff's GI specialty appointment from November 1, 2016, through December 31, 2016, including any orders that were cancelled or voided.
(ECF No. 59 at 32-33.)
Defendant's objections are sustained. No further production is required.
(ECF No. 59 at 33.)
Plaintiff counters that not all documents and communications are in his medical file because emails and phone calls between medical staff at CSP-Solano and Dr. Rigdon would not be in plaintiff's medical file. Arguably, documents scheduling plaintiff's appointment with Dr. Rigdon as well as reports from appointments with Dr. Rigdon would be located in plaintiff's medical file, and the court is ordering plaintiff to have access to review his file. Plaintiff has failed to demonstrate what relevance any such emails or phone calls between medical staff at CSP-Solano and Dr. Rigdon would have in connection with plaintiff's claims against defendant Dr. Kuersten. Thus, at this time, no further production of documents in connection with Request No. 21 is ordered.
(ECF No. 59 at 33.)
Plaintiff argues that this request is material, relevant and proportional because the names of both Dr. Kuersten and Dr. Rigdon appear on the medical records at issue. (ECF No. 59 at 13, citing ECF No. 20 at 124, 125.) Plaintiff contends that on July 3, 2017, medical staff on duty at San Joaquin General Hospital, who performed the barium enema, "stated and identified blockage to plaintiff as well as correctional officers that were present," and told plaintiff it would be on the report, but it was not. (ECF No. 59 at 13.) Plaintiff also claims that the staff who performed the barium enema were completely different staff and from a different department of the hospital which also differ from names that appear on the reports of the July 3, 2017 barium enema and esophagram. Defendant counters that any documents responsive to this request would be in plaintiff's medical file, which is available to plaintiff.
Plaintiff is advised that Dr. Kuersten's name is on Dr. Rigdon's reports because Dr. Kuersten was the "referring provider." (ECF No. 20 at 124-25.) Such information, standing alone, does not demonstrate relevance to plaintiff's claims against Dr. Kuersten. Moreover, plaintiff has failed to show that defendant, a doctor at CSP-Solano, has custody or control of records from a barium enema performed at the San Joaquin General Hospital. Defendant's objections are sustained and no further production is required.
(ECF No. 59 at 33-34.)
Defendant's objections are sustained. No further production is required.
(ECF No. 59 at 34.)
Defendant's objections are sustained. No further production is required.
(ECF No. 59 at 34.)
Defendant did not address Request No. 25 in his opposition. (ECF No. 64 at 18.)
In his motion, plaintiff now claims that Stilzner's name is "Stiltner," (ECF No. 59 at 15) and clarifies that Stiltner is a witness to the existence of certain documents related to the GI appointment documents at issue in Request No. 9. However, just because this correctional officer allegedly witnessed plaintiff's exchange with RN Rouso or signed a particular medical record as a witness does not demonstrate that he would have "documents or logs" pertaining to such acts or other documents relevant to plaintiff's Eighth Amendment medical claims at issue herein. Defendant's objections are sustained and no further production is required.
(ECF No. 59 at 34-35.)
Defendant's objections are sustained. No further production is required.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to compel further production of documents (ECF No. 59) is granted in part, as follows:
1. Within thirty days, in response to Request No. 8, defendant shall provide plaintiff with a copy of documents addressing plaintiff's medical transfers from 2014 through 2017, and provide a declaration to the court attesting to such production.
2. Within thirty days, in response to Request Nos. 9 and 19, defendant shall provide plaintiff with a copy of any RFS or orders pertaining to plaintiff's GI specialty appointment from November 1, 2016, through December 31, 2016, including any orders that were cancelled, modified or voided, and file a declaration attesting to such production. If counsel for defendant does not have such medical records in her current physical possession, counsel for defendant shall make a good faith effort to locate such records from plaintiff's electronic medical file as well as any hard copy physical file at both CSP-Solano and Old Folsom State Prison. If counsel for defendant is unable to locate such documents, she shall file a declaration setting forth her efforts to locate such documents.
3. Within thirty days, in response to Request No. 13, defendant is directed to file a declaration advising whether or not any documents have, to date, been received and, if so, what date they were produced to plaintiff.
4. Further, counsel for defendant shall work with the litigation coordinator and medical records supervisor, Mr. Weeks, at CSP-Solano, to provide plaintiff with meaningful access to his medical file, both on the computer and in hard copy format, along with a contemporaneous ability to obtain copies of pertinent documents, including those marked cancelled, voided, or modified, particularly in response to Request Nos. 9, 15, 16, 17, and 18. Meaningful access includes an ability to review the medical records and determine which record he needs to copy, as well as sufficient time to review and copy such records.
5. In all other respects, plaintiff's motion is denied.
