DISABILITY LAW CENTER, INC., Plaintiff, v. MASSACHUSETTS DEPARTMENT OF CORRECTION, et al., Defendants Civil Action No. 07-cv-10463-MLW United States District Court, D. Massachusetts Filed March 18, 2011 Boal, Jennifer C., United States Magistrate Judge ORDER ON DISABILITY LAW CENTER, INC.’S EMERGENCY MOTION FOR AN ORDER COMPELLING PRODUCTION OF PRISONER RECORDS INTRODUCTION *1 Plaintiff Disability Law Center, Inc. (“DLC”) has sued the Massachusetts Department of Corrections (“DOC”) along with several DOC officials, challenging the placement of mentally ill prisoners in segregation facilities run by DOC. DLC alleges that such placement constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and that the DOC’s failure to address the problem violates both the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the American with Disabilities Act, 42 U.S.C. § 12131, et seq. DLC, a not-for-profit Massachusetts corporation, has brought suit on behalf of all Massachusetts prisoners with mental illnesses. On October 1, 2010, Chief Judge Mark L. Wolf referred this case to this Court for discovery only. (Docket No. 146). This matter is now before the Court on DLC’s motion to compel production of prisoner records by DOC. By its motion, DLC seeks the production of certain prisoner records that the DOC has withheld until and unless DLC pays for the costs of searching, reviewing, and copying the records. For the following reasons, DLC’s motion is ALLOWED in part and DENIED in part, as set forth below. PROCEDURAL BACKGROUND DLC commenced this case on March 8, 2007. (Docket No. 1). Prior to commencing discovery in this matter, DLC sought prisoner records from DOC pursuant to releases signed by individual prisoners in accordance with the Fair Information Practices Act, Mass. Gen. L. c. 66A (“FIPA”). (Silveira Aff. at ¶ 2).[1] During the time period of June 2007 through February 2008, DLC sent ten separate requests seeking inmates’ medical and mental health records to DOC. (Anderson Aff. at ¶ 14 and Exhibits B-K to DOC Br.).[2] Those requests were sent directly to the superintendents of each of the correctional institutions and were processed according to the DOC’s procedures for processing requests pursuant to FIPA. (Anderson Aff. at ¶¶ 14, 16). On February 15, 2008, DLC served its First Request for Production of Documents to All Defendants (the “Rule 34 Request”). (Exhibit C to Silveira Aff.). Request No. 3 of the Rule 34 Request asked for: All documents concerning the mental health records, including without limitation, treatment plans, staff notes, progress reports, clinical case review, case conference reviews, self-injurious behavior reports, triage notes, mental health management plans, and Bridgewater State Hospital Evaluations, of: *2 a. all Prisoners with Mental Disorders who were or have been continuously housed in a Segregation unit or cell from no later than August 1, 2007, to February 1, 2008. For purposes of this Request, “Segregation” encompasses placement at Bridgewater State Hospital; b. the Exemplars; c. all prisoners transferred to Bridgewater State Hospital from Segregation or from Bridgewater State Hospital to Segregation; and d. all prisoners who committed suicide in Segregation. For records responsive to 3(a-c), please produce records only for the preceding five years. For records responsive to 3(d), please produce records from January 1, 1988. (Exhibit C to Silveira Aff. at 5). DLC states that it has sought records responsive to this Request only for specific prisoners identified by DLC and its experts and from whom DLC had obtained releases. (DLC Br. at 4).[3] After serving the Rule 34 Request, DLC sent two additional requests for several inmates’ medical and mental health records to DOC. (Exhibits L and M to DOC Br.). Those requests were also sent directly to the superintendents of each of the correctional institutions and were processed according to the DOC’s procedures for requests pursuant to FIPA. (Anderson Aff. at ¶¶ 14, 16). On March 22, 2009, the District Court stayed discovery in this case. (Docket No. 51). The District Court lifted the stay on February 10, 2010. Fact discovery closed on December 3, 2010. (Docket No. 119). On December 15, 2010, DLC sent a letter to DOC’s counsel requesting the production of individual inmate records. (Exhibit J to Silveira Aff.). Enclosed with the letter was a chart DLC prepared regarding the individual inmate records DLC was requesting. (Exhibit V to DOC Br.). DLC requested records for 179 inmates. (Id.). The column entitled “Date of Records Request” shows the date(s) on which each of the individual inmate’s records was originally requested by DLC. (Id.). On January 26, 2011, DLC sent DOC a new chart listing the inmates for which DLC was seeking records. The new chart increased the number of inmates whose records are being requested from 179 to 220. (Exhibit W to DOC Br.). As of February 16, 2011, DOC refused to produce the requested records unless DLC paid the labor costs of searching for the records as well as copying costs at the rate of 20 cents per page. (Silveira Aff. at ¶ 18 and Exhibit M thereto). DLC refused to pay labor costs and would agree to pay copying only at the rate of 10 cents per page. (Id.). DLC filed the instant motion to compel on February 28, 2011. (Docket No. 174). On March 14, 2011, DOC filed its opposition and DLC replied on March 16, 2011. (Docket Nos. 183, 185). This Court heard oral argument on March 17, 2011. ANALYSIS The parties dispute whether DOC is entitled to payment of the copying and labor costs for producing the inmates’ records at issue before it turns them over to DLC. The parties disagree whether the inmates’ records at issue were requested pursuant to FIPA and outside of the scope of discovery in this case or pursuant to DLC’s Rule 34 Request. Regardless, the Court finds that the records at issue are relevant and responsive to DLC’s Rule 34 Request. Accordingly, DOC must produce them. The Court also finds that DOC is not entitled to recover the cost of searching and reviewing the records for production, but is entitled to recover copying costs at the rate of 20 cents per page. I. Standard of Review *3 Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. (b)(1). Rule 26(b)(1) further provides that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Pursuant to Rule 34(a)(1), “[a] party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party ... to inspect [or] copy ... (A) any designated documents or electronically stored information ...” Fed. R. Civ. P. 34(a)(1)(A). Where one party fails to produce the requested documents and the requesting party has conferred and attempted to resolve the matter, the requesting party may file a motion to compel the party to disclose the requested documents. Fed. R. Civ. P. 37(a)(1); 37(a)(3)(B). In addition, Local Rule 26.6(B)(2) provides, in relevant part: ... upon request of any party, and upon that party’s agreement to pay the copying costs at the time of delivery, a party who produces documents pursuant to [Rules] 33(c) or 34 shall provide copies of all or any specified part of the documents. No party shall be entitled to obtain copies of documents produced by another party pursuant to [Rules] 33(c) or 34 without paying the costs thereof. LR 26.6(B)(2). II. DOC Must Produce The Requested Prisoners’ Records And DLC Shall Pay The Costs Of Copying The Records At A Rate Of 20 Cents Per Page DOC spends a significant portion of its brief arguing that the records at issue fall outside of the scope of discovery in this case because DLC requested them under FIPA and were treated as such by the DOC. This Court finds that issue to be of little consequence to the resolution of this dispute. The records at issue are responsive to Request No. 3 of the Rule 34 Request and they are relevant to this case. Indeed, the District Court found that similar records were relevant to this action and must be produced to the extent not privileged. See Docket No. 134.[4] Except for a number of documents regarding prisoners at MCI-Framingham, DOC does not dispute that the documents are relevant.[5] *4 DOC also objects to the production of some of the records requested on the basis that the request is untimely because DLC requested some records for specific inmates after the fact discovery deadline had expired. However, the Rule 34 Request was timely and DOC is under a continuing obligation to produce all non-objectionable documents responsive to the Rule 34 Request. Accordingly, because the requested documents are relevant and not otherwise objectionable, DOC must produce them. The only question remaining is whether DLC or DOC should bear the costs of production. Generally, “parties must satisfy their own costs in replying to discovery requests.” Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 148 (D. Mass. 2009) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978); Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 283 (S.D.N.Y. 2003)). “Courts will rarely shift costs to the requesting party ...” Id. However, this rule does not preclude the producing party from charging the requesting party a reasonable amount to photocopy the documents that it makes available for the requesting party to review. See Mezu v. Morgan State Univ., 269 F.R.D. 565, 575 (D. Md. 2010); Ares-Serono, Inc. v. Organon Int’l B.V., 151 F.R.D. 215, 220 (D. Mass. 1993). Also, Local Rule 26.6(B)(2) provides that a party is not entitled to obtain copies of documents produced by another party without first paying the costs of copying the documents. Accordingly, while DOC is not entitled to recover the expense of searching and reviewing records for production to DLC, DOC should recover the reasonable costs of copying the requested documents. Indeed, DLC does not appear to contend that it should not pay the costs of copying at all; rather, DLC and DOC disagree on what is a reasonable rate. DLC makes much of the fact that this Court previously ordered DLC to pay 10 cents per page to MHM to compensate MHM for the cost of copying documents to be produced in this action pursuant to a subpoena. See Docket No. 166. However, the Court’s order in that instance was not based on a determination that a rate of 10 cents per page is the only reasonable rate. Rather, MHM represented to the Court that its actual cost of copying was 10 cents per page, and DLC agreed at the hearing to pay that rate. See Docket No. 150. Reasonable copying costs may vary based on a number of factors. The Court finds that a rate of 20 cents per page, based on the statutory maximum allowed under FIPA, is reasonable under the circumstances.[6] Accordingly, the Court orders that DLC pay for the costs of copying the requested prisoners’ records at the rate of 20 cents per page. ORDER For the foregoing reasons, this Court GRANTS in part and DENIES in part, DLC’s motion to compel production of prisoner records (Docket No. 174) and it hereby ORDERS that: 1. DOC shall produce all individual prisoner records responsive to Request No. 3 of the Rule 34 Request (for whom releases have been submitted to DOC in accordance with the parties’ prior agreements) on a rolling basis. Production of these records must be completed by April 15, 2011. *5 2. DLC shall reimburse DOC for the costs of copying the documents at the rate of 20 cents per page. With each production, DOC shall provide DLC with an invoice reflecting copying charges for that production at the rate of 20 cents per page. DLC shall pay each invoice within one week of the receipt of the production and corresponding invoice. Footnotes [1] “Silveira Aff. __” refers to the Affidavit of Alison Hickey Silveira in Support of Plaintiff’s Emergency Motion for an Order Compelling Production of Prisoner Records (Docket No. 176). [2] “Anderson Aff. __” refers to the Affidavit of Charles W. Anderson Jr. Submitted in Support of Defendants’ Opposition to Plaintiff’s Emergency Motion for an Order Compelling Production of Prisoner Records (Docket No. 183-3 at Exhibit O). “DOC Br. __” refers to the Defendants’ Opposition to Plaintiff’s Emergency Motion for an Order Compelling Production of Prisoner Records (Docket No. 183). [3] “DLC Br. __” refers to the Memorandum in Support of Plaintiff’s Emergency Motion for an Order Compelling Production of Prisoner Records (Docket No. 175). [4] On August 12, 2010, the District Court found that suicide and suicide-related morbidity and mortality reviews in the possession of the University of Massachusetts Correctional Health Program (“UMCHP”), and all notes or other documentation related thereto, for inmates in segregation or segregation-like units were relevant for purposes of Fed. R. Civ. P. 26(b)(1). See Docket No. 134 at 1. Similar to the documents at issue in this motion, the UMCHP’s records included mental health records of certain inmates in segregation. [5] DOC argues that a number of the records requested are irrelevant because they concern inmates at MCI-Framingham. According to DOC, the Complaint does not contain any allegations specific to MCI-Framingham and no employees of MCI-Framingham are named as defendants in this case. (DOC Br. at 14). The Court does not find this argument persuasive. While it appears that no employees of MCI-Framingham were named as defendants, the Complaint does make allegations regarding the conditions at MCI-Framingham. See, e.g., Complaint at ¶¶ 12 and 19. Moreover, DLC’s Complaint challenges system-wide practices by the DOC. [6] By finding that the maximum statutory rate under FIPA regulations is reasonable under the circumstances, the Court does not find that the records at issue were requested under FIPA or that they fall outside of the scope of discovery in this case. The Court simply finds that the regulations provide a useful reference point regarding what constitutes a reasonable copying cost for the DOC for purposes of deciding the instant motion.