1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN WILHELM, No. 2:22-cv-02323 DJC SCR 12 Plaintiff, 13 v. ORDER 14 S. AUNG, 15 Defendant. 16 17 Plaintiff, a state prisoner, proceeds pro se with claims under 42 U.S.C. § 1983 for medical 18 deliberate indifference in violation of his Eighth Amendment rights. (ECF No. 8.) Presently 19 before the Court is Plaintiff’s motion to appoint counsel and two motions to compel discovery 20 under Federal Rule of Civil Procedure 37. (ECF Nos. 34, 35, 36.) For the reasons set forth below, 21 Plaintiff’s motions are denied. 22 I. Motion to Appoint Counsel 23 Before the Court is Plaintiff’s renewed motion to appoint counsel. (ECF No. 34.) As in his 24 previous motion to appoint counsel, Plaintiff argues that he is incarcerated, indigent, and cannot 25 afford counsel. (ECF Nos. 20 at 1, 34 at 1.) Plaintiff’s only new argument is that he will be 26 deposed on June 25, 2024, and does not have any experience dealing with a deposition. (ECF No. 27 34, at 1-2.) For the reasons previously stated, the Court does not find that Plaintiff’s renewed or 28 new arguments satisfy the exceptional circumstances standard. (See ECF No. 24.) Additionally, 1 Plaintiff’s deposition has since been taken, rendering that aspect of his argument moot. (ECF No. 2 39-1 at 2.) 3 II. Motions to Compel 4 On April 21, 2024, Plaintiff served Defendant with interrogatories and a request for 5 production of documents (“RFP”). (See ECF. No. 35 at 5-7, ECF No. 36, Exh. A.) Before the 6 Court are Plaintiff’s motions to compel further responses to Plaintiff’s Interrogatories Nos. 1 and 7 2 (ECF No. 35), and the production of documents. (ECF No. 36.) 8 A. Interrogatory No. 1 to Defendant Sung 9 Interrogatory No. 1 asks, “Do you have any prior grievances from any other inmate?” 10 Defendant’s response objected on several grounds. (ECF. No. 34.) Nonetheless, Defendant 11 responded that to the extent Plaintiff was seeking information regarding “grievances by non-party 12 inmates”, which have been classified as “prisoner staff complaints”, there had been no such 13 grievances, and that Defendant is not withholding any information based on their asserted 14 objections. (Id.) 15 Plaintiff argues that Defendant improperly objected and failed to respond adequately to 16 the interrogatory. (ECF No. 34.) In opposition, Defendant argues that they provided a sufficiently 17 narrowed answer and that Plaintiff’s request is not proportional to the needs of the case and 18 therefore impermissibly broad and burdensome. (ECF No. 39 at 3.) The Court agrees that 19 Defendant’s response is adequate with respect to this interrogatory. 20 Rule 33 of the Federal Rules of Civil Procedure, governing responses to interrogatories, 21 does not require a party to identify “whether any responsive materials are being withheld on the 22 basis of that objection”. Compare Fed. R. Civ. P. 33 (regarding interrogatories) & 34 (regarding 23 requests for production). However, where a party affirmatively represents that they have not 24 withheld any information based on their objections to an interrogatory, absent credible evidence 25 that the representation is inaccurate, courts have denied motions to compel further responses. See 26 Clay v. EquityExperts.org, LLC, No. 1:21-CV-02540 LMM JEM, 2023 WL 4401539, at *2 (N.D. 27 Ga. Mar. 23, 2023); Equal Emp. Opportunity Comm'n v. Texar Line Clearance, Inc., No. 4:21- 28 CV-04061, 2022 WL 4360878, at *1 (W.D. Ark. Sept. 20, 2022); Rudolph v. City of 1 Montgomery, No. 2:16-CV-57-RCL, 2020 WL 2366963, at *1–2 (M.D. Ala. May 11, 2020); see 2 also Alexander v. F.B.I., 192 F.R.D. 50, 52 n.1 (D.D.C. 2000) (recognizing that the dispute over 3 an interrogatory was largely moot where responding party’s supplemental response stated that 4 they did not withhold any information on the basis of their relevancy objection). Defendant 5 affirmatively asserted that they are not withholding information based on their objections to this 6 interrogatory. (ECF No. 35 at 6.) Accordingly, absent credible evidence to the contrary, no further 7 explanation is required. The motion to compel a further response to Plaintiff Interrogatory No. 1 8 is therefore denied. 9 B. Interrogatory No. 2 to Defendant Sung 10 Interrogatory No. 2 to Defendant Sung asks, “If you did not have an appointment with 11 Wilhelm on September 16, 2020, as you claim, then what is the name of the doctor who did?” 12 (ECF No. 35.) Defendant’s response objected based on lack of personal knowledge of the 13 requested information. (ECF No. 39 at 4.) Nonetheless, Defendant produced a copy of Plaintiff’s 14 medical record progress note for September 16, 2020. (ECF No. 39-1, Exh. B.) 15 Plaintiff argues that Defendant improperly objected and failed to respond adequately to 16 the interrogatory. (ECF No. 35 at 3.) In opposition, Defendant argues that the produced medical 17 record is a satisfactory response to Plaintiff’s interrogatory under Federal Rule of Civil Procedure 18 33(d). (ECF No. 39 at 4-5.) While the Court appreciates Defendant’s production of this 19 document, the Court disagrees that said production was an adequate response. 20 Federal Rule of Civil Procedure 33(d) allows a responding party to answer an 21 interrogatory by identification of a sufficiently detailed business record, if reasonable opportunity 22 is provided to the interrogating party to review the record “and the burden of deriving the answer 23 from the record is substantially the same for either party[.]” Fed. R. Civ. P. 33(d) (emphasis 24 added). Although Plaintiff’s medical record progress note for September 16, 2020, identifies a 25 “Daram,Vasuki” as having entered the Outpatient Progress Note, it is not clear to the Court, and 26 therefore not necessarily clear to the interrogating party, that “Daram, Vasuki” is the answer to 27 Interrogatory No. 2. It was not until Defendant filed their response to Plaintiff’s motion to compel 28 that it became apparent that “Daram, Vasuki” was the name of a doctor—not some other medical 1 || personnel—and, more specifically, the Plaintiffs “attending physician” on September 16, 2020. 2 || (See ECF. 39 at 5.) 3 Despite the inadequacy of Defendant’s initial response to Plaintiffs Interrogatory No. 2, 4 | Defendant’s response to the motion to compel resolves the issue. Accordingly, with respect to this 5 || interrogatory, the Court denies as moot the motion to compel. 6 C. RFP to Defendant Sung 7 On June 26, 2024, after receiving no response or production from Defendant, Plaintiff 8 | filed a motion to compel production. (ECF No. 36.) On June 28, 2024, Defendant simultaneously 9 || served Plaintiff by mail with their Responses to Plaintiff's RFP and filed a motion nunc pro tunc 10 || to extend their deadline to provide objections and responses to Plaintiff's RFP. (ECF Nos. 37, 39- 11 | 1.) On July 1, 2024, this Court granted Defendant’s motion, extending their deadline from June 12 | 10, 2024, to July 1, 2024. (ECF No. 38.) 13 Since Defendant’s timely response to Plaintiff’s RFP, Plaintiff has not argued that 14 | Defendant’s response was inadequate.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN WILHELM, No. 2:22-cv-02323 DJC SCR 12 Plaintiff, 13 v. ORDER 14 S. AUNG, 15 Defendant. 16 17 Plaintiff, a state prisoner, proceeds pro se with claims under 42 U.S.C. § 1983 for medical 18 deliberate indifference in violation of his Eighth Amendment rights. (ECF No. 8.) Presently 19 before the Court is Plaintiff’s motion to appoint counsel and two motions to compel discovery 20 under Federal Rule of Civil Procedure 37. (ECF Nos. 34, 35, 36.) For the reasons set forth below, 21 Plaintiff’s motions are denied. 22 I. Motion to Appoint Counsel 23 Before the Court is Plaintiff’s renewed motion to appoint counsel. (ECF No. 34.) As in his 24 previous motion to appoint counsel, Plaintiff argues that he is incarcerated, indigent, and cannot 25 afford counsel. (ECF Nos. 20 at 1, 34 at 1.) Plaintiff’s only new argument is that he will be 26 deposed on June 25, 2024, and does not have any experience dealing with a deposition. (ECF No. 27 34, at 1-2.) For the reasons previously stated, the Court does not find that Plaintiff’s renewed or 28 new arguments satisfy the exceptional circumstances standard. (See ECF No. 24.) Additionally, 1 Plaintiff’s deposition has since been taken, rendering that aspect of his argument moot. (ECF No. 2 39-1 at 2.) 3 II. Motions to Compel 4 On April 21, 2024, Plaintiff served Defendant with interrogatories and a request for 5 production of documents (“RFP”). (See ECF. No. 35 at 5-7, ECF No. 36, Exh. A.) Before the 6 Court are Plaintiff’s motions to compel further responses to Plaintiff’s Interrogatories Nos. 1 and 7 2 (ECF No. 35), and the production of documents. (ECF No. 36.) 8 A. Interrogatory No. 1 to Defendant Sung 9 Interrogatory No. 1 asks, “Do you have any prior grievances from any other inmate?” 10 Defendant’s response objected on several grounds. (ECF. No. 34.) Nonetheless, Defendant 11 responded that to the extent Plaintiff was seeking information regarding “grievances by non-party 12 inmates”, which have been classified as “prisoner staff complaints”, there had been no such 13 grievances, and that Defendant is not withholding any information based on their asserted 14 objections. (Id.) 15 Plaintiff argues that Defendant improperly objected and failed to respond adequately to 16 the interrogatory. (ECF No. 34.) In opposition, Defendant argues that they provided a sufficiently 17 narrowed answer and that Plaintiff’s request is not proportional to the needs of the case and 18 therefore impermissibly broad and burdensome. (ECF No. 39 at 3.) The Court agrees that 19 Defendant’s response is adequate with respect to this interrogatory. 20 Rule 33 of the Federal Rules of Civil Procedure, governing responses to interrogatories, 21 does not require a party to identify “whether any responsive materials are being withheld on the 22 basis of that objection”. Compare Fed. R. Civ. P. 33 (regarding interrogatories) & 34 (regarding 23 requests for production). However, where a party affirmatively represents that they have not 24 withheld any information based on their objections to an interrogatory, absent credible evidence 25 that the representation is inaccurate, courts have denied motions to compel further responses. See 26 Clay v. EquityExperts.org, LLC, No. 1:21-CV-02540 LMM JEM, 2023 WL 4401539, at *2 (N.D. 27 Ga. Mar. 23, 2023); Equal Emp. Opportunity Comm'n v. Texar Line Clearance, Inc., No. 4:21- 28 CV-04061, 2022 WL 4360878, at *1 (W.D. Ark. Sept. 20, 2022); Rudolph v. City of 1 Montgomery, No. 2:16-CV-57-RCL, 2020 WL 2366963, at *1–2 (M.D. Ala. May 11, 2020); see 2 also Alexander v. F.B.I., 192 F.R.D. 50, 52 n.1 (D.D.C. 2000) (recognizing that the dispute over 3 an interrogatory was largely moot where responding party’s supplemental response stated that 4 they did not withhold any information on the basis of their relevancy objection). Defendant 5 affirmatively asserted that they are not withholding information based on their objections to this 6 interrogatory. (ECF No. 35 at 6.) Accordingly, absent credible evidence to the contrary, no further 7 explanation is required. The motion to compel a further response to Plaintiff Interrogatory No. 1 8 is therefore denied. 9 B. Interrogatory No. 2 to Defendant Sung 10 Interrogatory No. 2 to Defendant Sung asks, “If you did not have an appointment with 11 Wilhelm on September 16, 2020, as you claim, then what is the name of the doctor who did?” 12 (ECF No. 35.) Defendant’s response objected based on lack of personal knowledge of the 13 requested information. (ECF No. 39 at 4.) Nonetheless, Defendant produced a copy of Plaintiff’s 14 medical record progress note for September 16, 2020. (ECF No. 39-1, Exh. B.) 15 Plaintiff argues that Defendant improperly objected and failed to respond adequately to 16 the interrogatory. (ECF No. 35 at 3.) In opposition, Defendant argues that the produced medical 17 record is a satisfactory response to Plaintiff’s interrogatory under Federal Rule of Civil Procedure 18 33(d). (ECF No. 39 at 4-5.) While the Court appreciates Defendant’s production of this 19 document, the Court disagrees that said production was an adequate response. 20 Federal Rule of Civil Procedure 33(d) allows a responding party to answer an 21 interrogatory by identification of a sufficiently detailed business record, if reasonable opportunity 22 is provided to the interrogating party to review the record “and the burden of deriving the answer 23 from the record is substantially the same for either party[.]” Fed. R. Civ. P. 33(d) (emphasis 24 added). Although Plaintiff’s medical record progress note for September 16, 2020, identifies a 25 “Daram,Vasuki” as having entered the Outpatient Progress Note, it is not clear to the Court, and 26 therefore not necessarily clear to the interrogating party, that “Daram, Vasuki” is the answer to 27 Interrogatory No. 2. It was not until Defendant filed their response to Plaintiff’s motion to compel 28 that it became apparent that “Daram, Vasuki” was the name of a doctor—not some other medical 1 || personnel—and, more specifically, the Plaintiffs “attending physician” on September 16, 2020. 2 || (See ECF. 39 at 5.) 3 Despite the inadequacy of Defendant’s initial response to Plaintiffs Interrogatory No. 2, 4 | Defendant’s response to the motion to compel resolves the issue. Accordingly, with respect to this 5 || interrogatory, the Court denies as moot the motion to compel. 6 C. RFP to Defendant Sung 7 On June 26, 2024, after receiving no response or production from Defendant, Plaintiff 8 | filed a motion to compel production. (ECF No. 36.) On June 28, 2024, Defendant simultaneously 9 || served Plaintiff by mail with their Responses to Plaintiff's RFP and filed a motion nunc pro tunc 10 || to extend their deadline to provide objections and responses to Plaintiff's RFP. (ECF Nos. 37, 39- 11 | 1.) On July 1, 2024, this Court granted Defendant’s motion, extending their deadline from June 12 | 10, 2024, to July 1, 2024. (ECF No. 38.) 13 Since Defendant’s timely response to Plaintiff’s RFP, Plaintiff has not argued that 14 | Defendant’s response was inadequate. Accordingly, the Court deems this motion resolved and 15 | denies the motion as moot. 16 Ill. Conclusion 17 In accordance with the above, IT IS ORDERED that Plaintiff’s motion to appoint counsel 18 | (ECF No. 34) is DENIED, Plaintiffs motion to compel (ECF No. 35) is DENIED, and Plaintiff’s 19 | other motion to compel (ECF No. 36) is also DENIED. 20 || DATED: August 19, 2024 mk 22 SEAN C. RIORDAN 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28