1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MALCOLM TANDY LAMON Case No. 1:17-cv-01659-JLT-BAM (PC) STROUD, 12 ORDER GRANTING DEFENDANTS’ MOTION Plaintiff, TO COMPEL PRODUCTION OF DOCUMENTS 13 (ECF No. 58) v. 14 ORDER GRANTING DEFENDANTS’ THIRD TED PRUITT, et al., REQUEST TO MODIFY SCHEDULING ORDER 15 Defendants. (ECF Nos. 58, 59) 16 Plaintiff’s Discovery Responses Due: November 17 8, 2024 Discovery Deadline: December 20, 2024 18 Dispositive Motion Deadline: February 18, 2025
19 20 I. Introduction 21 Plaintiff Malcolm Tandy Lamon Stroud, aka Treasure Stroud, (“Plaintiff”) is a state 22 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 23 § 1983. This action proceeds on Plaintiff’s first amended complaint against Defendant Pruitt for 24 sexual abuse in violation of the Eighth Amendment and against Defendants Pruitt and Smith for 25 discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. 26 Pursuant to the Court’s July 10, 2024 order granting Defendants’ second motion to modify 27 scheduling order, the deadline for completion of discovery was August 31, 2024, and the deadline 28 for filing all dispositive motions (including any second motion for summary judgment related to 1 the availability of administrative remedies) is October 25, 2024. (ECF No. 57.) 2 Currently before the Court is Defendants’ motion to compel production of documents and 3 third request to modify the scheduling order, filed August 22, 2024. (ECF No. 58.) Defendants 4 state that Plaintiff was served with a notice of deposition that included a request that Plaintiff 5 bring and produce documents at the deposition. Plaintiff appeared on August 19, 2024 for her 6 deposition with the requested responsive documents, made many references to the documents she 7 brought in response to the deposition notice as the evidence that supports her allegations in the 8 case, but was unable during the deposition to identify the documents specifically or locate any 9 specific document in the file she presented for production during the deposition. Plaintiff agreed 10 to provide the documents to the Litigation Coordinator for copying or scanning, and based on this 11 representation, defense counsel did not require Plaintiff to identify for the record each page of a 12 folder that was at least four inches deep. However, Plaintiff then left the deposition area without 13 providing the documents. The Litigation Coordinator went to Plaintiff’s housing unit to retrieve 14 the documents from Plaintiff for scanning, but Plaintiff refused to turn over her documents and 15 further stated that she was not going to give up her documents, was not going to give defendants a 16 “head-start” by turning her documents over on August 19, but would give her documents at a 17 future time. Defendants therefore request an order for Plaintiff to produce the documents relied 18 upon at her deposition, along with a declaration that confirms the documents produced are the 19 same documents that she brought to the deposition for production, that she claims support her 20 allegations in this case, and that she refused to provide on August 19, 2024. Defendants further 21 request a modification of the scheduling order to extend the discovery and dispositive motion 22 deadlines. (Id.) 23 Plaintiff did not file an opposition or otherwise respond to Defendants’ motion to compel. 24 On October 17, 2024, Defendants filed a motion to modify the relief requested in the August 22, 25 2024 motion, to further extend the discovery and dispositive motion deadlines following the 26 Court’s decision on the pending motion to compel. (ECF No. 59.) 27 Plaintiff has not yet had an opportunity to respond to Defendants’ motion to further extend 28 the discovery and dispositive motion deadlines, but the Court finds a response to this motion 1 unnecessary. The above-referenced motions are deemed submitted. Local Rule 230(l). 2 II. Motion to Compel 3 A. Legal Standards 4 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 5 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 6 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 7 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have 8 ‘broad discretion to manage discovery and to control the course of litigation under Federal Rule 9 of Civil Procedure 16.’” Hunt v. Cty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting 10 Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 11 The moving party bears the burden of informing the Court: (1) which discovery requests 12 are the subject of the motion to compel; (2) which of the responses are disputed; (3) why the 13 response is deficient; (4) why any objections are not justified; and (5) why the information sought 14 through discovery is relevant to the prosecution or defense of this action. McCoy v. Ramirez, 15 2016 WL 3196738 at *1 (E.D. Cal. 2016); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. 16 2008) (“Plaintiff must inform the court which discovery requests are the subject of his motion to 17 compel, and, for each disputed response, inform the court why the information sought is relevant 18 and why defendant’s objections are not justified.”). 19 Defendants are entitled to discovery regarding any nonprivileged matter relevant to the 20 claims and defenses in this action. Fed. R. Civ. P. 26(b)(1). In responding to requests for 21 production, including requests for production accompanying a notice of a deposition, Plaintiff 22 must produce documents or other tangible things which are in their “possession, custody, or 23 control.” Fed. R. Civ. P. 34(a). Responses must either state that inspection and related activities 24 will be permitted as requested or state an objection to the request, including the reasons. Fed. R. 25 Civ. P. 34(b)(2)(B). 26 Actual possession, custody or control is not required. “A party may be ordered to produce 27 a document in the possession of a non-party entity if that party has a legal right to obtain the 28 document or has control over the entity [that] is in possession of the document.” Soto v. City of 1 Concord, 162 F.R.D. 603, 619 (N.D. Cal.1995); see also Allen v. Woodford, 2007 WL 309945, at 2 *2 (E.D. Cal. Jan. 30, 2007) (“Property is deemed within a party’s ‘possession, custody, or 3 control’ if the party has actual possession, custody, or control thereof or the legal right to obtain 4 the property on demand.”) (citation omitted). 5 B. Discussion 6 In failing to oppose the motion, Plaintiff has provided no justification for her failure to 7 produce the documents relied upon at her deposition, and which documents she alleges provide 8 support for her allegations in this case.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MALCOLM TANDY LAMON Case No. 1:17-cv-01659-JLT-BAM (PC) STROUD, 12 ORDER GRANTING DEFENDANTS’ MOTION Plaintiff, TO COMPEL PRODUCTION OF DOCUMENTS 13 (ECF No. 58) v. 14 ORDER GRANTING DEFENDANTS’ THIRD TED PRUITT, et al., REQUEST TO MODIFY SCHEDULING ORDER 15 Defendants. (ECF Nos. 58, 59) 16 Plaintiff’s Discovery Responses Due: November 17 8, 2024 Discovery Deadline: December 20, 2024 18 Dispositive Motion Deadline: February 18, 2025
19 20 I. Introduction 21 Plaintiff Malcolm Tandy Lamon Stroud, aka Treasure Stroud, (“Plaintiff”) is a state 22 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 23 § 1983. This action proceeds on Plaintiff’s first amended complaint against Defendant Pruitt for 24 sexual abuse in violation of the Eighth Amendment and against Defendants Pruitt and Smith for 25 discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. 26 Pursuant to the Court’s July 10, 2024 order granting Defendants’ second motion to modify 27 scheduling order, the deadline for completion of discovery was August 31, 2024, and the deadline 28 for filing all dispositive motions (including any second motion for summary judgment related to 1 the availability of administrative remedies) is October 25, 2024. (ECF No. 57.) 2 Currently before the Court is Defendants’ motion to compel production of documents and 3 third request to modify the scheduling order, filed August 22, 2024. (ECF No. 58.) Defendants 4 state that Plaintiff was served with a notice of deposition that included a request that Plaintiff 5 bring and produce documents at the deposition. Plaintiff appeared on August 19, 2024 for her 6 deposition with the requested responsive documents, made many references to the documents she 7 brought in response to the deposition notice as the evidence that supports her allegations in the 8 case, but was unable during the deposition to identify the documents specifically or locate any 9 specific document in the file she presented for production during the deposition. Plaintiff agreed 10 to provide the documents to the Litigation Coordinator for copying or scanning, and based on this 11 representation, defense counsel did not require Plaintiff to identify for the record each page of a 12 folder that was at least four inches deep. However, Plaintiff then left the deposition area without 13 providing the documents. The Litigation Coordinator went to Plaintiff’s housing unit to retrieve 14 the documents from Plaintiff for scanning, but Plaintiff refused to turn over her documents and 15 further stated that she was not going to give up her documents, was not going to give defendants a 16 “head-start” by turning her documents over on August 19, but would give her documents at a 17 future time. Defendants therefore request an order for Plaintiff to produce the documents relied 18 upon at her deposition, along with a declaration that confirms the documents produced are the 19 same documents that she brought to the deposition for production, that she claims support her 20 allegations in this case, and that she refused to provide on August 19, 2024. Defendants further 21 request a modification of the scheduling order to extend the discovery and dispositive motion 22 deadlines. (Id.) 23 Plaintiff did not file an opposition or otherwise respond to Defendants’ motion to compel. 24 On October 17, 2024, Defendants filed a motion to modify the relief requested in the August 22, 25 2024 motion, to further extend the discovery and dispositive motion deadlines following the 26 Court’s decision on the pending motion to compel. (ECF No. 59.) 27 Plaintiff has not yet had an opportunity to respond to Defendants’ motion to further extend 28 the discovery and dispositive motion deadlines, but the Court finds a response to this motion 1 unnecessary. The above-referenced motions are deemed submitted. Local Rule 230(l). 2 II. Motion to Compel 3 A. Legal Standards 4 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 5 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 6 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 7 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have 8 ‘broad discretion to manage discovery and to control the course of litigation under Federal Rule 9 of Civil Procedure 16.’” Hunt v. Cty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting 10 Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 11 The moving party bears the burden of informing the Court: (1) which discovery requests 12 are the subject of the motion to compel; (2) which of the responses are disputed; (3) why the 13 response is deficient; (4) why any objections are not justified; and (5) why the information sought 14 through discovery is relevant to the prosecution or defense of this action. McCoy v. Ramirez, 15 2016 WL 3196738 at *1 (E.D. Cal. 2016); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. 16 2008) (“Plaintiff must inform the court which discovery requests are the subject of his motion to 17 compel, and, for each disputed response, inform the court why the information sought is relevant 18 and why defendant’s objections are not justified.”). 19 Defendants are entitled to discovery regarding any nonprivileged matter relevant to the 20 claims and defenses in this action. Fed. R. Civ. P. 26(b)(1). In responding to requests for 21 production, including requests for production accompanying a notice of a deposition, Plaintiff 22 must produce documents or other tangible things which are in their “possession, custody, or 23 control.” Fed. R. Civ. P. 34(a). Responses must either state that inspection and related activities 24 will be permitted as requested or state an objection to the request, including the reasons. Fed. R. 25 Civ. P. 34(b)(2)(B). 26 Actual possession, custody or control is not required. “A party may be ordered to produce 27 a document in the possession of a non-party entity if that party has a legal right to obtain the 28 document or has control over the entity [that] is in possession of the document.” Soto v. City of 1 Concord, 162 F.R.D. 603, 619 (N.D. Cal.1995); see also Allen v. Woodford, 2007 WL 309945, at 2 *2 (E.D. Cal. Jan. 30, 2007) (“Property is deemed within a party’s ‘possession, custody, or 3 control’ if the party has actual possession, custody, or control thereof or the legal right to obtain 4 the property on demand.”) (citation omitted). 5 B. Discussion 6 In failing to oppose the motion, Plaintiff has provided no justification for her failure to 7 produce the documents relied upon at her deposition, and which documents she alleges provide 8 support for her allegations in this case. Plaintiff also did not identify any objections to 9 Defendants’ deposition notice or the attached request that she bring with her and produce 10 documents related to her claims, either before or during the deposition. Only after the deposition 11 concluded and Plaintiff returned to her housing unit did she refuse to allow the documents to be 12 copied or scanned, state her unwillingness to provide Defendants a “head-start,” and assert that 13 she would provide the documents at an unspecified future date. 14 However, because Plaintiff failed to express her objections at an earlier time and agreed to 15 provide the documents to for copying or scanning, defense counsel permitted Plaintiff to 16 reference documents during her deposition without specifically identifying them for the record. 17 In spite of her personal reservations, Plaintiff remains obligated to comply with the Federal Rules 18 of Civil Procedure and produce documents in response to Defendants’ discovery request. Fed. R. 19 Civ. P. 34(b)(2)(B). Plaintiff has identified no objections that would alleviate her of this 20 responsibility, and Defendants are therefore entitled to the discovery and assurances they seek. 21 Accordingly, Plaintiff shall be required to provide the documents and declarations responsive to 22 Defendants’ requests without objections. 23 Specifically, Plaintiff shall produce to the Litigation Coordinator at her current institution, 24 for scanning, the documents that she brought to the August 19, 2024 deposition in response to the 25 July 7, 2024 notice of taking deposition. Plaintiff shall also produce a written declaration, signed 26 under penalty of perjury, stating that: (a) the documents produced are the same documents that 27 she brought to the deposition for production; (b) the documents produced are the documents that 28 she testified support her allegations in this case; and (c) the documents produced are the same 1 documents that she brought to the deposition and refused to provide on August 19, 2024. 2 III. Motion to Modify Scheduling Order 3 In light of the foregoing, and to allow time for Plaintiff to produce and Defendants to 4 review the documents at issue and for the filing of any dispositive motions, the Court finds good 5 cause to grant the requested modification of the scheduling order. Fed. R. Civ. P. 16(b)(4). 6 Defendants require sufficient time to complete discovery and to file dispositive motions following 7 resolution of the instant motion to compel. Defendants were diligent in filing the motion to 8 compel before expiration of the prior discovery deadline, and the requested extensions will allow 9 the parties to resolve this dispute prior to the filing of any dispositive motions. The extension of 10 the discovery deadline is limited to Plaintiff’s production of the documents that she brought to her 11 August 19, 2024 deposition, or motions related to the production of these same documents. 12 Finally, the Court finds that in light of Plaintiff’s failure to oppose the prior request for 13 extension of these deadlines or the motion to compel, Plaintiff will not be prejudiced by the 14 extensions granted here. 15 IV. Order 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Defendants’ motion to compel discovery, (ECF No. 58), is GRANTED, as follows: 18 a. On or before November 8, 2024, Plaintiff SHALL produce to the Litigation 19 Coordinator at her current institution, for scanning: 20 i. The documents that she brought to the August 19, 2024 deposition in 21 response to the July 7, 2024 notice of taking deposition; and 22 ii. A written declaration, signed under penalty of perjury, stating that: 23 1. The documents produced are the same documents that she brought 24 to the deposition for production; 25 2. The documents produced are the documents that she testified 26 support her allegations in this case; and 27 3. The documents produced are the same documents that she brought 28 to the deposition and refused to provide on August 19, 2024; 1 2. Defendants’ third request to modify the scheduling order, (ECF Nos. 58, 59), is 2 GRANTED, as follows: 3 a. The deadline for completion of all discovery, for the limited purpose of the 4 production of Plaintiff’s documents she brought to her deposition, is extended 5 from August 31, 2024 to December 20, 2024; and 6 b. The deadline for filing all dispositive motions (including any second motion for 7 summary judgment related to the availability of administrative remedies) is 8 extended from October 25, 2024 to February 18, 2025; 9 3. A request for an extension of a deadline set in this order must be filed on or before 10 the expiration of the deadline in question and will only be granted on a showing of 11 good cause; and 12 4. If Plaintiff fails to comply with this order, Defendants are not precluded from 13 seeking appropriate sanctions, up to and including terminating sanctions, pursuant 14 to Federal Rule of Civil Procedure 37(b)(2). 15 IT IS SO ORDERED. 16
17 Dated: October 18, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18
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