Foster v. Baca
Foster v. Baca
2016 WL 11746157 (C.D. Cal. 2016)
May 3, 2016
Wistrich, Andrew J., United States Magistrate Judge
Summary
The court granted the motion to compel further responses to deposition questions and for an order directing plaintiff to appear at a second session of his deposition. The court also denied the motion to quash a subpoena for the production of plaintiff's California Department of Corrections and Rehabilitation (“CDCR”) records and ordered defendant to file and serve a proposed protective order limiting the use, disclosure, and dissemination of plaintiff's medical and healthcare information produced in response to the subpoena.
Melvyn Foster
v.
Sheriff Leroy Baca, et al
v.
Sheriff Leroy Baca, et al
CASE NO. CV 14-4701 CAS (AJW)
United States District Court, C.D. California
Filed May 03, 2016
Counsel
Melvyn K. Foster, Lancaster, CA, Pro Se.Alexandra B. Zuiderweg, Office of the County Counsel, Amber A. Logan, Rina Michelle Mathevosian, Nelson and Fulton, Los Angeles, CA, for Sheriff Leroy Baca, et al.
Wistrich, Andrew J., United States Magistrate Judge
Order: (1) Granting in Part and Denying in Part Defendants' Motion to Compel Further Responses to Deposition Questions and Request for Expenses [Docket No. 40]; (2) Granting Defendants' Ex Parte Application to Continue the Deadline for Filing Substantive Motions [Docket No. 48]; and (3) Denying Plaintiff's Motion to Quash Subpoena [Docket No. 44] and Setting Deadlines Regarding Filing of Proposed Protective Order.
Defendants (1) Motion to Compel and (2) Ex Parte Application
*1 Defendants Ngai and Himaka filed a motion to compel further responses to deposition questions, for an order directing plaintiff to appear for a second session of his deposition, and for an award of expenses. [Docket No. 40]. Plaintiff filed opposition to the motion. [Docket No. 46]. Defendants filed a reply. [Docket No. 47]. Defendants also filed an ex parte application to continue the substantive motion filing deadline in light of the pendency of their motion to compel and the time that will be needed to schedule and complete plaintiff's in-custody deposition if their motion to compel is granted. [Docket No. 48].
For the reasons described below, defendants' motion to compel further responses to deposition questions and for an order directing plaintiff to appear at a second session of his deposition is granted. Defendant's request for an award of expenses is denied on the ground that such an award would be unjust in light of plaintiff's pro se prisoner status and the lack of evidence suggesting that plaintiff knowingly or willfully violated the discovery rules. Plaintiff is cautioned, however, that he is obliged to comply with the discovery rules and other court rules to the same extent as a party who is represented by counsel, and that his failure to do so could result in the imposition of sanctions, possibly including dismissal. See C.D. Cal. Local R. 83-2.2.3, 83-2.2.4.
Plaintiff's deposition transcript indicates that he provided incomplete and evasive responses to the questions identified in defendant' motion to compel, which concern: (1) plaintiff's conduct on the date of the December 29, 2010 incident alleged in his complaint; (2) plaintiff's treatment for his claimed physical and emotional injuries and his previously diagnosed conditions; (3) plaintiff's criminal and disciplinary history; (4) potential witnesses regarding his claims and damages; and (4) background questions concerning plaintiff's past employment, past residence addresses, health insurance information, and past lawsuits. Plaintiff objected to some of those questions on the ground that they were irrelevant or were “personal questions.” He refused to provide complete, nonevasive answers to other questions without stating a specific objection.
In general, parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Plaintiff was not entitled to refuse to provide nonprivileged answers to deposition questions because he contended they were irrelevant or because he asserted that they were “personal.” See Fed. R. Civ. P. 30(c)(2) (stating that an objection must be noted on the record, “but the examination still proceeds; the testimony was is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)”).
*2 Plaintiff's contentions in his opposition lack merit. Plaintiff contends that he is not obliged to answer questions about his conduct during the alleged December 29, 2010 incident on “collateral estoppel” grounds because the questions concern facts that were “necessarily included” in criminal charges that were dismissed or that resulted in his acquittal. Plaintiff filed this civil rights damages action alleging excessive force claims arising from the December 29, 2010 incident. Defendants are entitled to discover nonprivileged information regarding that incident. See Barren v. Coloma, 2012 WL 1190838, at *2 (D. Nev. Apr. 10, 2012) (“Criminal charges may be dismissed for a variety of reasons, including the prosecutor's belief that charges cannot be proven beyond a reasonable doubt or because a material witness is unavailable to testify at trial. Plaintiff is not excused from meeting his burden of proof [in a civil rights action] because the criminal charges were dismissed.”).
Plaintiff's contention that defendants' counsel engaged in bad-faith litigation tactics by asking the questions plaintiff refused to answer and by filing a motion to compel are not supported by plaintiff's deposition transcript, and plaintiff has not pointed to any other facts supporting that contention.
Plaintiff's argument that he was not obliged to answer because the information defendants sought was reasonably available to them and they have had ample opportunity to obtain it from other sources are more convenient and less burdensome is unavailing. Plaintiff was a percipient witness to the events underlying his claims and also has, or should have, personal knowledge of other facts responsive to defendants' deposition questions. Requiring plaintiff to answer deposition questions seeking discoverable, nonprivileged information is not unduly burdensome or otherwise objectionable. See Computer Task Grp., Inc. v. Brotby, 364 F.3d 1112, 1117 (9th Cir. 2004) (holding that even if the plaintiff already had some of the information it sought from the defendant or could have obtained it from other sources, this did not excuse the defendant's failure to respond to the discovery requests that “were not unjustified, oppressive or designed to harass” the defendant).
A party to a lawsuit has an obligation to appear and testify at deposition. Absent extraordinary circumstances, the failure to answer deposition questions will result in the imposition of sanctions, possibly including dismissal or entry of judgment by default. Plaintiff has an obligation to cooperate fully in the taking of his deposition, and to answer all unprivileged questions, regardless of whether he deems them to be relevant. The admissibility of deposition testimony will be determined by the Court at a later time, if necessary. Plaintiff is cautioned that if he does not answer all unprivileged questions asked during his deposition and otherwise fully cooperate in the taking of his deposition, plaintiff will be subjecting himself to imposition of sanctions, including dismissal of this case with prejudice. See Fed. R. Civ. P. 30(d)(2), 37(a)(5), 41(b).
(3) Plaintiff's Motion to Quash Subpoena
Plaintiff filed a motion to quash a subpoena for the production of plaintiff's California Department of Corrections and Rehabilitation (“CDCR”) records that was directed to the Custodian of Records at California State Prison-Los Angeles County (“CSP-LAC”), where plaintiff is incarcerated. [Docket No. 44]. Defendants Ngai and Himaka filed opposition to the motion. [Docket No. 45].
For the reasons described below, plaintiff's motion is denied. Within fourteen (14) days from the date of this order, defendant shall file and serve a proposed protective order limiting the use, disclosure, and dissemination of plaintiff's medical and healthcare information produced in response to the subpoena. Plaintiff shall have twenty-one days (21) days thereafter in which to file and serve any objections to the proposed protective order. Defendants shall have fourteen (14) days after issuance of a protective order in which to serve a new subpoena seeking production of plaintiff's CDCR records on the Custodian of Record of CSP-LAC, and the new subpoena shall require compliance within no more than twenty-one (21) days from the date of issuance.
*3 Plaintiff contends that the subpoena is untimely under the Court's Case Management Order (“CMO”) [Docket No. 38] because it was served on or about November 5, 2015, after the October 30, 2015 discovery cut-off date. Plaintiff also contends that the subpoena is defective in other respects, and that it improperly calls for the production of protected and irrelevant health care information.
Defendant does not dispute that the subpoena was untimely. Although defendants' counsel was responsible for timely service of the subpoena, she was not entirely at fault for its untimely service since she requested that the subpoena be served by October 8, 2015. The subpoena service handling that request, Macro-Pro, Inc. (“Macro-Pro”) erroneously failed to serve it until November 5, 2015. [See Docket No. 45 at 5-8]. Furthermore, plaintiff testified during his October 2, 2015 deposition that he would sign a HIPAA waiver and release of his prison medical records to defendants. [Docket No. 45. Ex. A at 155:20-156:13 (“[I]f you want me to sign a HIPO [sic] for me to release that, then I'll do it like that ....If you want me to sign a HIPO [sic] form to release all my county medical records to you, there's about a thousand pages, and to release all my state records to you, I got no problem with that. And then you can find out everything you want to find out or what the state say[s] and what the county say[s] about me medically and about me mentally.”)]. Plaintiff subsequently refused to sign an authorization for the release of those documents. [Docket No. 44 at 4-5]. Defendants' counsel detrimentally relied on plaintiff's testimony because she reasonably concluded that it would not be necessary to file an ex parte application requesting leave to serve the subpoena after the discovery cut-off date. [See Docket No. 45 at 5-6].
Plaintiff's remaining objections to the form and service of the subpoena lack merit. It was properly issued and electronically signed by defendants' counsel. See Fed. R. Civ. P. 45(a)(3). The proofs of service are not objectionable in form or content. See Fed. R. Civ. P. 45(b)(4) (“Proof of Service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.”).
The CMO did not require subpoenas to be served 45 days before the discovery cut-off date. [See Docket No. 38]. Production of documents responsive to the subpoena could have been completed by the discovery cut-off date as the CMO requires if the subpoena had been served by October 8, 2015, as requested by defendants' counsel. Defendants did not illegally delegate its right to production of documents responsive to the subpoena to Macro-Pro; instead, defendants properly designated a Macro-Pro office in Long Beach, California as the “place of compliance” for production of the subpoenaed documents to defendants. See Fed. R. Civ. P. 45(c)(2) (“A subpoena may command:(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person[.]”).
Contrary to plaintiff's contentions, his medical records are relevant because he has placed his medical condition and treatment in issue by alleging that defendants' use of excessive force caused him physical and mental injury and entitle him to damages. See, e.g., Benyamini v. Blackburn, 2014 WL 4795187, at *2 (E.D. Cal. Sept. 25, 2014) (granting a motion to compel responses to interrogatories seeking “to identify the injuries [plaintiff] sustained as a result of the alleged use of excessive force, any subsequent medical treatment he received for said injuries, and the factual basis for his requests for compensatory and punitive damages”).
*4 IT IS SO ORDERED.
cc: Parties