*1 Before the Court is Plaintiff's Motion to Compel (Motion). See ECF No. 98.[1] Defendant Kaiser Foundation Health Plan, Inc. (erroneously named as Kaiser Permanente Wailuku Medical Clinics) (Kaiser) filed an Opposition to the Motion. See ECF No. 108. Plaintiff filed a Reply. See ECF No. 112. On the same day that Plaintiff filed her Reply, she also filed a separate “Motion for Order Directing Service of Subpoenas and Depositions.” See ECF No. 111. Because that filing relates to issues raised in Plaintiff's Motion to Compel, the Court construes these filings collectively as Plaintiff's Motion.

The Court held a hearing on the Motion on January 28, 2022. After consideration of the record in this action and the relevant legal authority, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion.

Plaintiff brings a medical negligence claim against Kaiser. See ECF No. 11. Her Motion raises a number of discovery-related issues. At the outset, the Court notes that it denied prior, discovery-related motions because Plaintiff failed to comply with the requirements under Federal Rule of Civil Procedure 37 and Local Rule 37.1 to meet and confer in good faith regarding the issues raised in any discovery motion. See ECF No. 71. Kaiser's Opposition raises doubts that Plaintiff has fulfilled these requirements for this Motion despite this Court's prior warnings, including during a Status Conference in this matter. See ECF Nos. 108 at 11, 14; ECF No. 108-1 ¶ 5. Nonetheless, in the interest of resolving the issues presented—to the extent the submissions before the Court permit it to do so—and because further discussions among the parties on certain issues appear to be futile, the Court will proceed to the merits of Plaintiff's Motion. See, e.g., ECF No. 111-1 at 7.

A. Initial Disclosures

Plaintiff objects that Kaiser's initial disclosures did not contain information about the nurses and assistants who treated Plaintiff in March 2019. See ECF 98 at 2. Under Rule 26, a party must disclose the name of each individual likely to have discoverable information, and the subject of that information, that it may use to support its defenses, unless the use would solely be for impeachment. See Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 37 authorizes sanctions for violations of these disclosure requirements. See Fed. R. Civ. P. 37(c). Specifically, Rule 37(c) states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Rule 37(c) also provides that a court may impose other sanctions “[i]n addition to or instead of this sanction.” Fed. R. Civ. P. 37(c)(1)(A)–(C) (stating that a court may order payment of reasonable expenses caused by the failure, inform the jury of the party's failure, and impose other appropriate sanctions).

*2 Here, Plaintiff has not directed the Court to anything indicating Kaiser has relied or will rely on testimony from such nurses or assistants to support any defense in this action. Plaintiff's Motion on this basis is thus DENIED at this time.

B. Medical Inquiry and Conciliation Panel (MICP)

Plaintiff's Motion makes references to an MICP and her interest in submitting an inquiry regarding additional liable entities. See ECF No. 98 at 3, 6. Hawai‘i law provides that a person with concerns about a medical tort must submit an inquiry to the MICP before filing a lawsuit “in any court of this State.” HRS § 671-12(a). “[R]eview by the MICP is generally required prior to commencing suit in state court on claims concerning a medical tort.” Krizek v. Queens Med. Ctr., 2019 WL 3646567, at *4 (D. Haw. Aug. 6, 2019) (citing Campos v. Marrhey Care Home, LLC, 128 Haw. 405, 408 n.5, 289 P.3d 1041, 1044 n.5 (Haw. Ct. App. 2012)).

To the extent Plaintiff seeks an order from this Court directing the parties to pursue this procedure, she provides no support that this Court has such authority. To the extent Plaintiff intends to pursue this procedure so as to support a future motion to amend her pleading, the Court notes that it has already denied Plaintiff's requests to amend her pleading, and in doing so explained that the deadline for Plaintiff to amend her pleading expired and that Plaintiff had not shown good cause to modify the scheduling order in this case. See ECF No. 102. Thus, to the extent Plaintiff's Motion seeks relief related to an MICP, it is DENIED.

C. Requests for Production of Documents

Plaintiff appears to seek an order compelling Kaiser to produce documents responsive to certain requests served pursuant to Federal Rule of Civil Procedure 34. See ECF No. 98 at 6. She appears to contend that Kaiser only responded through objections and by demanding that documents be produced subject to a protective order, but waited until on or around 30 days after being served with the requests to propose a protective order that was, in any event, confusing to Plaintiff. See id.

Federal Rule of Civil Procedure 26(b) provides that “[p]arties 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[.]” Fed. R. Civ. P. 26(b)(1). In determining whether the discovery is “proportional to the needs of the case,” the court should consider “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.” Id. A party may move for an order compelling discovery if a party fails to produce documents. See Fed. R. Civ. P. 37(a)(3)(B)(iv). Local Rule 26.2(c) requires that the moving party set forth “the pertinent interrogatories, requests for production, or requests for admissions, and answers or objections” in any motion to compel. See LR 26.2(c).

Here, Plaintiff's Motion failed to provide the Court either with the requests that she served on Kaiser or Kaiser's responses and objections. The Court thus cannot compel compliance without being able to assess the propriety of Plaintiff's requests and Kaiser's objections or responses. See Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 34.[2] Even if Plaintiff's position is that all of Kaiser's responses are deficient, it remains Plaintiff's obligation to provide the Court with her requests and those responses, and to set forth the legal and factual arguments supporting her request to compel. See Franklin v. Smalls, 2012 WL 5077630, *31 (S.D. Cal., Oct. 18, 2012) (denying motion to compel where plaintiff failed to satisfy his “minimum” burden of “informing the court which discovery requests are the subject of his motion to compel, which of defendants’ responses are disputed, why he believes defendants’ responses are deficient, why defendants’ objections are not justified, and why the information he seeks through discovery is relevant to the prosecution of this action”) (citation omitted). Because Plaintiff fails to meet this minimum burden, Plaintiff's Motion on this basis is DENIED.[3]

D. Subpoenas and Written Depositions

*3 Plaintiff objects that Defendant has not yet complied with certain subpoenas or provided certain written deposition questions to individuals; however, she again fails to attach either the subpoenas or written deposition requests or Defendant's responses to the present Motion.

To the extent Plaintiff is referring the Court back to the parties’ prior dispute regarding service of subpoenas or written deposition requests, see ECF Nos. 62, 63, 65, 66, 69, the Court is not inclined to reconsider those documents in their entirety. Nor is Plaintiff's attachment of new, incomplete subpoenas or deposition notices, see ECF No. 111-1, the appropriate mechanism to conduct discovery or seek an order compelling discovery. See, e.g., Fed. R. Civ. P. 45(a)(3) (indicating that the clerk must issue a subpoena to a party who requests it), (b); Fed. R. Civ. P. 31.[4]

The Court notes that, in prior briefing, Kaiser correctly raised certain deficiencies with Plaintiff's subpoenas and deposition notices. See ECF Nos. 62, 65, 69. The Court is therefore not inclined to grant Plaintiff's request to compel compliance with these subpoenas or notices or to require Kaiser to complete the necessary information to bring them into compliance with the applicable procedural rules.

As to the subpoenas, for example, Plaintiff does not dispute that she emailed the subpoenas to defense counsel. See ECF No. 62 at 2; Fed. R. Civ. P. 45(b)(1) (requiring service by non-party); see also Tiki Shark Art Inc. v. CafePress, Inc., 2014 WL 3928799, at *5 (D. Haw. Aug. 12, 2014) (“Personal service of a subpoena is generally required to compel the testimony or documents from a non-party witness who is not controlled by a party to the action.”); Williams v. Paramo, 2017 WL 5001286, at *4 (S.D. Cal. Nov. 2, 2017) (denying motion to compel compliance with subpoenas that plaintiff proceeding in forma pauperis herself served). Or that the subpoenas failed to sufficiently identify a location for the depositions or indicate how they would be recorded. See ECF No. 62 at 2-3; Fed. R. Civ. P. 45(a)(1)(A)(iii), (a)(1)(B). Nor does she persuasively dispute that the deposition notices failed to identify any deponent or include any written questions, and also failed to include either the name or title and address of the officer before whom the deposition would be taken. See ECF No. 62 at 5; Fed. R. Civ. P. 31.

*4 In an effort to advance discovery in this matter, though, and as discussed at the January 28, 2022 hearing, the Court will direct the parties as follows:

First, the parties are directed to submit a stipulated protective order to the Court by no later than January 31, 2022.

Second, upon the Court's approval of any such stipulated protective order, Kaiser shall promptly (and by no later than February 7, 2022) produce the documents it has already indicated it will produce. See, e.g., ECF No. 108 at 16; ECF No. 108-5 at 2-3.

Third, by February 14, 2022, Kaiser is directed to produce—to the extent it has not already done so—any of Plaintiff's medical records for the medical care that is alleged as the basis for her medical negligence claim within the operative pleading and that is within Kaiser's possession, custody, or control. See, e.g., Seifi v. Mercedes-Benz U.S.A., LLC, 2014 WL 7187111, at *2 (N.D. Cal. Dec. 16, 2014) (“In the Ninth Circuit, a ‘practical ability to obtain the requested documents’ from a related organization is not enough to constitute control because the related organization ‘could legally—and without breaching any contract—[ ] refuse to turn over such documents.’ In re Citric Acid Litig., 191 F.3d 1090, 1107–08 (9th Cir. 1999). Instead, ‘control’ is defined as ‘the legal right to obtain documents upon demand.’ Id. at 1107–08.”).[5]

Fourth, to the extent this information is “available to” Kaiser, see Fed. R. Civ. P. 33(b), and to the extent it has not already done so, it must also by February 14, 2022: identify any individual who provided Plaintiff with the medical care that forms the basis for her medical negligence claim within the operative pleading and identify any entity that individual is affiliated with whether as its employee, independent contractor, or otherwise. See Fresenius Medical Care Holding Inc. v. Baxter International, Inc., 224 F.R.D. 644, 651 (N.D. Cal. 2004) (“When responding to interrogatories, a party has a duty to respond with all the information under its custody and control.”); see also Morgan v. Haviland, 2011 WL 2433648, at *1 (E.D. Cal. June 14, 2011) (noting that courts reject the objection that the information sought is equally available to the requesting party or publicly available).[6]

*5 Finally, the parties are directed to meet and confer regarding arranging the written depositions of those witnesses identified in Kaiser's initial disclosures as being represented by defense counsel—based on defense counsel's explicit representation to Plaintiff that such witnesses need not be subpoenaed. See ECF No. 65-3 at 3 (“Regarding the below listed witnesses, to the extent I do not represent MMMC, or its employees, or other ind. physicians and providers, I cannot provide you with the requested information. For the witnesses identified in KFHP's Initial Disclosures as being represented by me, you will not need to subpoena those witnesses.”); see also ECF No. 108 at 17 (noting Kaiser “is generally not opposed to offering certain employed physicians for deposition”).

The Court cautions Plaintiff that, unless otherwise agreed by the parties, she must still retain a court reporter or other person sanctioned to take depositions pursuant to Federal Rule of Civil Procedure 28(a), and conduct the deposition in accordance with Federal Rule of Civil Procedure 31. This includes complying with the requirements to provide proper notice, identify the officer before whom the deposition will be taken, and properly serve the written questions.[7] See Fed. R. Civ. P. 31.[8]

Plaintiff is also reminded that she is responsible for the costs associated with these depositions, even if she is proceeding in forma pauperis in this action. See, e.g., Shepherd, 2021 WL 1172915, at *7 (“Plaintiff's in forma pauperis status does not entitle [her] to a waiver of any of the costs associated with this form of deposition; instead, [she] must pay the necessary deposition officer fee, court reporter fee, and costs for a transcript.”); Fabricant v. Shinn, 2021 WL 4459661, at *2 (C.D. Cal. June 16, 2021) (“Plaintiff cannot rely on Defendants or the Court to advance any costs associated with these discovery procedures. Plaintiff himself is responsible for his own discovery costs, notwithstanding his in forma pauperis status.”); Emrit v. Cent. Payment Corp., 2014 WL 1028388, at *2 (N.D. Cal. Mar. 13, 2014) (“Congress has not authorized the courts to pay for the costs of an indigent plaintiff to conduct discovery[.]”); see also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1992).[9]

E. Plaintiff's Conduct

*6 Finally, aside from discovery-specific issues, Defendant's opposition objects to Plaintiff's conduct in this action and other actions pending in this District. Defense counsel contends Plaintiff has: (1) made false accusations in this case about defense counsel's family members;[10] and (2) made false accusations in another case that defense counsel in this case sexually assaulted Plaintiff. See ECF No. 108 at 18-19; ECF No. 108-1 ¶ 6; ECF No. 108-10. Plaintiff offers no explanation for this conduct; instead, she makes additional accusations against defense counsel. See ECF No. 111 at 3 (seemingly accusing defense counsel of directing slurs and other harassing conduct at Plaintiff). The Court takes notice of the fact that Plaintiff has made similar allegations against other defense counsel in other cases. See Scutt v. Norton, 2021 WL 5989107, at *5 (D. Haw. Dec. 17, 2021).

At this time, the Court declines to impose Kaiser's requested sanction of requiring Plaintiff to seek leave before filing any future motions. However, Plaintiff is hereby cautioned that the Court will impose sanctions for continued misconduct in this action—both her failure to follow this District's Local Rules (such as those mandating thorough telephonic meet-and-confers prior to filing any discovery-related motions) and for harassing defense counsel by making false accusations in Court filings. Plaintiff is further cautioned that such sanctions may include a recommendation that this case be dismissed with prejudice. See LR 81.1; Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988) (“Dismissal under a court's inherent powers is justified in extreme circumstances, in response to abusive litigation practices, and to insure the orderly administration of justice and the integrity of the court's orders.”) (citations omitted); see also Fathi v. Saddleback Valley Unified Sch. Dist., 2020 WL 7315462, at *6 (C.D. Cal. Oct. 28, 2020) (“Pro se parties are not permitted to harass opposing counsel.”); Nguyen v. Biter, 2015 WL 366932, at *7 (E.D. Cal. Jan. 27, 2015) (“Plaintiff is mistaken that proceeding pro se shields him from the consequences of his actions or excuses misbehavior. It does not. Parties and counsel have a duty to behave civilly and respectfully toward one another, and conduct to the contrary is sanctionable where it undermines the integrity of judicial proceedings.”).

For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Compel as detailed above.

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, JANUARY 28, 2022.

The Court denied Plaintiff's motion to amend her pleading, which was contained within the same filing as the present Motion to Compel, in a separate order. See ECF No. 102.

This also means the Court is unable to assess Plaintiff's objection to Kaiser's timing in seeking a protective order. See Fed. R. Civ. P. 34(b)(2)(A)-(C). Moreover, although Plaintiff complains that the protective order Kaiser proposed was “full jargon that is beyond Plaintiff's understanding,” ECF No. 98 at 6, Kaiser contends it proposed the “standard Federal Court form,” ECF No. 108 at 16. Plaintiff has stated that she was at one time a “lead auditor for multiple federally funded and private Christian Organizations” at an accounting firm. See ECF No. 11 at 5 n.2. The Court is thus not persuaded that it would be burdensome for Plaintiff to review, comprehend, and either agree to or make appropriate amendments to a standard protective order.

This is so even though Plaintiff attached some of her requests and Kaiser's responses to her Reply. See ECF No. 112-1. The Court declines to consider new evidence or new arguments raised for the first time in Reply. See LR 7.2 (“Any argument raised for the first time in the reply shall be disregarded.”). The denial is without prejudice; however, any renewed motion related to Plaintiff's discovery requests must include a declaration that the parties thoroughly and in good faith conferred telephonically regarding the specific document request, interrogatory, or request for admission at issue. See LR 37.1. In addition, any renewed motion must (a) identify which discovery requests are the subject of her motion to compel; (b) which of Kaiser's responses are disputed; (c) why she believes Kaiser's responses are deficient or objections are not justified; and (d) why the information she seeks through discovery is relevant to the prosecution of this action.

While some courts have directed the U.S. Marshals Service to personally serve a subpoena on a third party where a plaintiff is proceeding in forma pauperis, Plaintiff has not requested that relief here—nor does the Court decide herein whether that is permitted under 28 U.S.C. § 1915(d). Should Plaintiff move for this relief in the future, the Court notes such “a motion for issuance of a subpoena duces tecum must be supported by a clear indication of the documents sought and a showing that the records are obtainable only through the identified third party” as opposed to through discovery from a defendant. Sanders v. Los Angeles Cty., 2018 WL 8016187, at *1 (C.D. Cal. July 5, 2018). The Court also cautions Plaintiff that it is her responsibility to provide sufficient information on the subpoenas to effect service: “the U.S. Marshal has no duty to locate persons for purposes of service. It is Plaintiff's responsibility to provide the U.S. Marshal with accurate and sufficient information to effect service. Plaintiff must use [her] own methods such as an electronic search or [a] Public Records Act request in order to determine the location of the witness [s]he seeks to depose.” Golez v. Potter, 2011 WL 3021045, at *1 (S.D. Cal. July 21, 2011).

The issue of what entities or individuals Kaiser may have “control” over for purposes of its discovery obligations is not properly before the Court—and so this order shall not be construed as making any ruling on that issue. See United States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (“The party seeking production of the documents [ ] bears the burden of proving that the opposing party has such control.”)

To the extent this information is contained within documents Kaiser has already produced, it may specify in detail to Plaintiff where this information can be located within those documents. See Fed. R. Civ. P. 33(d). And to be clear, the Court is not requiring Kaiser to offer any legal conclusions regarding whether, e.g., an individual is an employee or independent contractor of a particular entity; instead, the Court is directing Kaiser merely to identify any affiliated entity based on information within its control and custody.

The parties have not sufficiently briefed or placed in dispute the questions that have been included as attachments to various filings in this action and that are purportedly Plaintiff's intended written deposition questions. See, e.g., ECF No. 63-2. The Court therefore declines to issue any advisory ruling regarding those proposed questions.

See Shepherd v. Neuschmid, 2021 WL 1172915, at *7 (E.D. Cal. Mar. 29, 2021) (“Under Rule 31,[t]he deposition upon written questions basically would work as follows: The [plaintiff] would send out a notice of deposition that identifies (a) the deponent (i.e., the witness), (b) the officer taking the deposition, (c) a list of the exact questions to be asked of the witness, and (d) the date and time for the deposition to occur. The defendant would have time to send to the [plaintiff] written cross examination questions for the witness, the [plaintiff] would then have time to send to defendant written re-direct questions for the witness, and the defendant would have time to send to the [plaintiff] written recross-examination questions for the witness[.]” (citation omitted)).

For this additional reason, the Court would not be inclined to direct service of subpoenas on third parties to compel their attendance at a deposition. Should Plaintiff file any renewed request, she must show that she can conduct each deposition by written questions by demonstrating that she “can find a time and place for those depositions, arrange for a court reporter, and pay the deposition officer fee, court reporter fee, and costs for a transcript.” Shepherd, 2021 WL 1172915, at *7; see also Schultz v. California Dep't of Corr. & Rehabiltation, 2014 WL 2526505, at *1 (E.D. Cal. June 4, 2014) (requiring plaintiff to “make a showing, under penalty of perjury, that he is able and willing to retain and compensate an officer to take written or oral responses and prepare the record”). If Plaintiff is able to make this showing, the Court will consider a renewed request to issue a subpoena to compel the attendance of a non-party witness provided Plaintiff also remedies the deficiencies addressed above.

See ECF No. 98 at 10 (“Counsel for Defendant also mentioned a potential personal conflict of interest – a ‘sister’ or other relative known to Plaintiff that expressed right wing (or similar beliefs) and collects Nazi or similar type memorabilia”).