*1 Plaintiff has filed (1) a Motion seeking an order compelling the Riverside County Sheriff's Department to produce documents responsive to Plaintiff's subpoena (“Motion to Compel Subpoena Responses”), ECF docket no. (“dkt.”) 113; (2) a Motion seeking an order sanctioning defendant Deputy Saidleman (“Defendant”) based on the Riverside County Sheriff's Department's alleged failure to comply with the subpoena (“Motion for Sanctions”), dkt. 127; and (3) a Motion seeking an order compelling Defendant to further respond to Plaintiff's First Set of Requests for Production (“Motion to Compel RFP Responses”), dkts. 118, 119. For the reasons set forth below, Plaintiff's Motion to Compel Subpoena Responses is GRANTED IN PART and DENIED IN PART, Plaintiff's Motion for Sanctions is DENIED, and Plaintiff's Motion to Compel RFP Responses is DENIED.

On May 1, 2022, Plaintiff, who is currently an inmate at Richard J. Donovan Correctional Facility, constructively filed[1] the operative Second Amended Complaint (“SAC”). Dkt. 17. In his sole remaining claim, Plaintiff alleges Defendant violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by unleashing a K-9 dog on Plaintiff after Plaintiff was apprehended following his escape from custody on July 18, 2020. Id.

On January 6, 2023, Defendant filed an Answer to the SAC. Dkt. 70.

On January 9, 2023, the Court issued a Case Management and Scheduling Order setting a discovery cut-off on August 10, 2023 and a substantive motion cut-off on September 7, 2023. Dkt. 72.

On April 2, 2023, Plaintiff constructively filed a motion requesting issuance of a subpoena directed to the Riverside County Sheriff's Department commanding the production of documents, electronically stored information, or tangible things. Dkt. 86. Specifically, Plaintiff sought: (1) documents relating to the July 18, 2020 incident and Plaintiff's alleged resulting injuries, including “written statements,” “incident packages,” police reports, dispatch “calls and responses,” body-worn camera footage, “dash cam” recordings, and photographs; (2) Plaintiff's medical records, (3) the Riverside County Sheriff's Department K-9 unit's “rules, regulations, and policies” pertaining to the “treatment of handcuff[e]d inmates”; (4) documents relating to Defendant's training on “how to handle his K-9 dog[,]” “use of force,” and “use of force by K-9 dog[s]”; and (5) documents relating to allegations of excessive use of force against Defendant during his employment as “a K-9 officer.” See id. at 3-6.

On April 18, 2023, the Court granted Plaintiff's motion requesting issuance of the subpoena and ordered the Clerk of Court to issue a signed subpoena directed to the Riverside County Sheriff's Department. Dkt. 89.

*2 On May 9, 2023, Defendant filed a Motion to Quash Subpoena and Motion for Protective Order (“Motion to Quash”), requesting an order quashing Plaintiff's subpoena in its entirety and a protective order (1) barring Plaintiff from “service of further subpoenas seeking [Defendant's] employment or personnel file records[,]” (2) barring the County of Riverside “from producing any of [Defendant's] or any other non-party deputy's personnel file records[,]” and (3) requiring Plaintiff “to establish his reasonable ability to comply with a protective order and maintain the privacy and confidentiality of, and prevent (un)intended disclosure to third parties of any privileged or confidential documents that may subsequently be produced to him[.]” Dkt. 93 at 2, 7.

On June 9, 2023, the Court issued an Order granting in part and denying in part Defendant's Motion to Quash. Dkt. 106. The Court denied Defendant's request for an order quashing Plaintiff's subpoena, reasoning the subpoena would not subject the County of Riverside to “undue burden” and issuance of a protective order struck “the appropriate balance between Plaintiff's need for information and Defendant's privacy concerns.”[2] Id. at 3-5. The Court further noted, despite Defendant's assertion that “federal privileges may [ ] be implicated by” Plaintiff's subpoena, Defendant “offer[ed] no argument with respect to this assertion apart from the conclusory statement that officer personnel file records ‘are usually subject to other various federal privileges: including the official information, deliberative-executive process, and/or ongoing investigation privileges.’ ” Id. at 5 n.4 (quoting dkt. 93 at 20). The Court found it could not “conclude ... that the requested documents are protected from disclosure pursuant to the privileges cited by Defendant[ ]” based on Defendant's “vague and wholly insufficient briefing[.]” Id.

On June 20, 2023, the Court issued a Protective Order in this matter. Dkt. 109.

On June 22, 2023, the Court issued an Order requiring the County of Riverside to respond to Plaintiff's subpoena no later than June 29, 2023. Dkt. 110. The Court stated “[a]ny responsive documents that are subject to the protective order may be produced to Plaintiff via the [California Department of Corrections and Rehabilitation (“CDCR”)] Litigation Coordinator for the Richard J. Donovan Correctional Facility.” Id.

On July 18, 2023, Plaintiff constructively filed the instant Motion to Compel Subpoena Responses, stating he had not received “anything” from the County of Riverside in response to his subpoena. Dkt. 113.

On July 23, 2023, Plaintiff constructively filed the instant Motion to Compel RFP Responses, stating Defendant “produced nothing” in his responses to Plaintiff's First Set of Requests for Production. Dkts. 118, 119.

On July 26, 2023, the Court issued an Order continuing the substantive motion deadline to thirty days after issuance of the Court's ruling on the Motion to Compel Subpoena Responses. Dkt. 114.

On August 2, 2023, Defendant filed an Opposition to the Motion to Compel Subpoena Responses, asserting “the County of Riverside complied with the Court's Order to respond to [P]laintiff's subpoena and produced documents to plaintiff via the CDCR Litigation Coordinator for the Richard J. Donovan Correctional Facility.” Dkt. 116.

On August 17, 2023, Defendant filed an Opposition to the Motion to Compel RFP Responses, asserting “[n]one of the documents listed in [P]laintiff's [Motion to Compel RFP Responses] are in [Defendant's] possession, custody or control.” Dkt. 123.

*3 On August 20, 2023, Plaintiff constructively filed the instant Motion for Sanctions seeking unspecified “discovery sanctions” against Defendant based on the Riverside County Sheriff's Department's alleged failure to comply with Plaintiff's subpoena. Dkt. 127.

On September 3, 2023, Plaintiff constructively filed a Reply in support of his Motion to Compel Subpoena Responses. Dkt. 129. Plaintiff indicated he received “police reports” relating to the July 18, 2020 incident. Id. However, Plaintiff stated he did not receive: (1) dispatch “calls and responses,” body-worn camera footage, or “dash cam” recordings relating to the July 18, 2020 incident, (2) his medical records, (3) the Riverside County Sheriff's Department K-9 unit's “rules, regulations, and policies” pertaining to the “treatment of handcuff[e]d” inmates and use of force; (4) documents related to Defendant's training on “how to handle his K-9 dog,” “use of force,” and “use of force by K-9 dog[s],” or (5) documents related to allegations of excessive use of force against Defendant during his employment as “a K-9 officer. Id.

Plaintiff has not filed a Reply in support of his Motion to Compel RFP Responses.

On September 28, 2023, defense counsel Andrea K. Kornblau filed a declaration regarding her September 20, 2023 “discussion with Plaintiff” as to the subpoena directed to the Riverside County Sheriff's Department and the First Set of Requests for Production propounded on Defendant. Dkt. 135, Declaration of Andrea K. Kornblau (“Kornblau Decl.”).

First, regarding Plaintiff's subpoena, Ms. Kornblau stated she informed Plaintiff that the County of Riverside had “previously provided” the Riverside County Sheriff's Department's “policies regarding the use of canines” and “dispatch audio[.]” Id., ¶¶ 3, 6-8, 14-15. In light of Plaintiff's apparent non-receipt of these documents, Ms. Kornblau indicated the County of Riverside would provide “duplicate” copies. Id. Ms. Kornblau further indicated no body-worn camera or “dash cam” recordings relating to the July 18, 2020 incident exist. Id., ¶¶ 11-13. With respect to Plaintiff's request for documents related to allegations of excessive use of force against Defendant, Ms. Kornblau stated she informed Plaintiff that “personnel records of a retired officer would not be produced.” Id., ¶¶ 9-10. Nevertheless, Ms. Kornblau indicated no such documents exist. Id. With respect to Plaintiff's request for his medical records, Ms. Kornblau stated “medical records are protected by federal law and require a release or subpoena.” Id., ¶ 2. Finally, Ms. Kornblau stated, “Plaintiff was informed that the Riverside County Sheriff's Department cannot produce sensitive information regarding operations by the emergency services team (EST) in order to preserve and protect tactics used in fugitive recovery situations. Producing such information would create a significant safety risk to the public, inmates, and law enforcement officers.” Id., ¶¶ 3-8, 11-13, 16-17.

Second, regarding Plaintiff's First Set of Requests for Production, Ms. Kornblau stated she “informed Plaintiff that [Defendant] is retired and does not have any documents within his possession, custody, or control that are responsive to any of the requests.” Id. at 2.

The matter thus stands submitted.

*4 Rule 26(b) provides that parties may obtain discovery regarding:

FED. R. CIV. P. 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).

A. PLAINTIFF'S SUBPOENA DIRECTED TO THE COUNTY OF RIVERSIDE

1. Applicable Law

A party seeking discovery from a nonparty may obtain a subpoena pursuant to Federal Rule of Civil Procedure 45 (“Rule 45”). Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014). The scope of discovery allowed under a Rule 45 subpoena is the same as that allowed under Federal Rule of Civil Procedure 26. Miller v. Ghirardelli Chocolate Co., No. C 12-4936 LB, 2013 WL 6774072, at *2 (N.D. Cal. Dec. 20, 2013).

A person commanded to produce documents pursuant to a Rule 45 subpoena may serve objections to production “before the earlier of the time specified for compliance or 14 days after the subpoena is served.” FED. R. CIV. P. 45(d)(2)(B). If an objection is made, “the serving party may move ... for an order compelling production[.]” Id. “Failure to serve timely objections waives all grounds for objection, including privilege[.]” McCoy v. Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002). However, “[i]n unusual circumstances and for good cause, ... the failure to act timely will not bar consideration of objections [to a Rule 45 subpoena].” Id. at 384 (quoting Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Oh. 1999)). Courts have found “unusual circumstances” where “(1) the subpoena is overbroad on its face and exceeds the bounds of fair discovery; (2) the subpoenaed witness is a non-party acting in good faith; and (3) counsel for the witness and counsel for the subpoenaing party were in contact concerning the witness' compliance prior to the time the witness challenged the legal basis for the subpoena.” Id. (quoting Am. Elec. Power Co., 191 F.R.D. at 136-37).

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C), when a motion to compel discovery is granted in part and denied in part, the Court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” In addition, the Court “may hold in contempt a person who, having been served” with a Rule 45 subpoena, “fails without adequate excuse to obey the subpoena or an order related to it.” FED. R. CIV. P. 45(g).

2. Plaintiff's Motion to Compel Subpoena Responses Is Granted in Part and Denied in Part

*5 As an initial matter, Plaintiff appears to concede in his Reply in support of his Motion to Compel Subpoena Responses that he received written statements, incident packages, police reports, and photographs relating to the July 18, 2020 incident and his alleged resulting injuries. See dkt. 129 (excluding written statements, incident packages, police reports, and photographs from the list of documents Plaintiff had not received). Accordingly, Plaintiff's request for an order compelling production of written statements, incident packages, police reports, and photographs relating to the July 18, 2020 incident and his alleged resulting injuries is DENIED as MOOT.

In addition, although Plaintiff states he did not receive any of the Riverside County Sheriff's Department K-9 unit's “rules, regulations, and policies” pertaining to the “treatment of handcuff[e]d” inmates and use of force, any documents related to Defendant's training on “how to handle his K-9 dog,” “use of force,” and “use of force by K-9 dog[s],” or any dispatch “calls and responses” relating to the July 18, 2020 incident, see dkt. 129, defense counsel filed a declaration indicating the County of Riverside “previously provided” the Riverside County Sheriff's Department's “policies regarding the use of canines” and “dispatch audio” to Plaintiff and would provide “duplicate” copies of these documents, Kornblau Decl., ¶¶ 3, 6-8, 14-15. Accordingly, Plaintiff's request for an order compelling production of the Riverside County Sheriff's Department K-9 unit's “rules, regulations, and policies” pertaining to the “treatment of handcuff[e]d” inmates and use of force, documents related to Defendant's training on “how to handle his K-9 dog,” “use of force,” and “use of force by K-9 dog[s],” and dispatch “calls and responses” relating to the July 18, 2020 incident is DENIED as MOOT.

Moreover, while Plaintiff states he did not receive any body-worn camera footage or “dash cam” recordings relating to the July 18, 2020 incident, or any documents relating to allegations of excessive force against Defendant, see dkt. 129, defense counsel filed a declaration indicating no such body-worn camera footage, “dash cam” recordings, or allegations of excessive force against Defendant exist, Kornblau Decl., ¶¶ 9-13. Accordingly, Plaintiff's request for an order compelling production of such documents is DENIED.[3]

Plaintiff also states he did not receive the medical records requested in the subpoena. Dkt. 129. Defense counsel filed a declaration stating “medical records are protected by federal law and require a release or subpoena.” Kornblau Decl., ¶ 2. However, Defendant did not raise this issue in his Motion to Quash. See dkt. 93. Moreover, the County of Riverside did not file a motion seeking to quash or modify the subpoena with respect to Plaintiff's request for his medical records and does not appear to have served objections to the subpoena. Neither Defendant nor the County of Riverside present any argument to excuse these belated objections. The Court, therefore, does not find good cause or unusual circumstances exist for considering the County of Riverside's untimely objection to Plaintiff's request for medical records. See McCoy, 211 F.R.D. at 384-85. Accordingly, Plaintiff's request for an order compelling production of his medical records is GRANTED. IT IS FURTHER ORDERED that the County of Riverside shall, within three (3) days of the date of this order, provide Plaintiff with a form permitting release of Plaintiff's medical records to the County of Riverside. Within two (2) days of receiving the completed release from Plaintiff, the County of Riverside shall request Plaintiff's medical records from CDCR. Within two (2) days of receiving Plaintiff's medical records from CDCR, the County of Riverside shall produce the medical records to Plaintiff.

*6 Finally, defense counsel's declaration suggests the County of Riverside has withheld unidentified documents on the basis of an unspecified privilege. Specifically, defense counsel states, “Plaintiff was informed that the Riverside County Sheriff's Department cannot produce sensitive information regarding operations by the emergency services team (EST) in order to preserve and protect tactics used in fugitive recovery situations. Producing such information would create a significant safety risk to the public, inmates, and law enforcement officers.” Kornblau Decl., ¶¶ 3-8, 11-13, 16-17. However, the County of Riverside did not file a motion seeking to quash or modify the subpoena based on any privilege and does not appear to have served objections to Plaintiff's subpoena. See McCoy, 211 F.R.D. at 385 (stating untimely objections to a Rule 45 subpoena, including objections based on privilege, are waived). Although Defendant asserted in his Motion to Quash that “federal privileges may [ ] be implicated by” Plaintiff's subpoena, dkt. 93 at 20, the Court found Defendant's “vague and wholly insufficient briefing” regarding the applicability of the cited privileges insufficient to permit the Court to “conclude ... that the requested documents are protected from disclosure[,]” dkt. 106 at 5 n.4. Moreover, to the extent the County of Riverside has withheld any documents on the basis of privilege, the County of Riverside appears to have failed to comply with Rule 45's requirement that a respondent “withholding subpoenaed information under a claim that it is privileged ... (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” See FED. R. CIV. P. 45(e)(2)(A). Nevertheless, defense counsel's declaration does not permit the Court to determine whether the County of Riverside has, in fact, withheld any documents on the basis of privilege. Accordingly, IT IS HEREBY ORDERED that the County of Riverside shall, within seven (7) days of the date of this order, file (1) a notice indicating whether any documents have been withheld on the basis of privilege and, if so, identifying the applicable privilege(s) and supporting legal authority, and (2) a privilege log.

3. Plaintiff's Motion for Sanctions Is Denied

Plaintiff requests unspecified “discovery sanctions” against Defendant based on the County of Riverside's alleged failure to comply with the Court's June 22, 2023 Order requiring the County of Riverside to respond to Plaintiff's subpoena. Dkt. 127. However, the Court cannot sanction Defendant based on the discovery conduct of another party. See FED. R. CIV. P. 37(a)(5) (providing only for sanctions against “the party ... whose conduct necessitated the [discovery] motion” or “the party or attorney advising that conduct”); FED. R. CIV. P. 45(g) (providing only for sanctions against party served with subpoena); Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001) (holding a federal court cannot sanction a party under its inherent power absent a finding of bad faith conduct by the party). Furthermore, in light of the Court's partial denial of Plaintiff's Motion to Compel Subpoena Responses, the Court declines to sanction the County of Riverside at this time. See FED. R. CIV. P. 37(a)(5)(C); see also rePlanet Holdings, Inc. v. Fed. Ins. Co., No. 1:19-CV-0133-LJO-EPG, 2019 WL 4917751, at *5 (E.D. Cal. Oct. 4, 2019) (stating, “where a motion to compel is granted in part and denied in part, the Court has discretion whether or not to” award sanctions). Accordingly, Plaintiff's Motion for Sanctions is DENIED.

B. PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION

1. Applicable Law

Federal Rule of Civil Procedure 34 governs requests for production of documents. FED. R. CIV. P. 34. A party may request documents “in the responding party's possession, custody, or control.” FED. R. CIV. P. 34(a)(1). The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. FED. R. CIV. P. 34(a). Alternatively, a party may state an objection to a request, including the reasons. FED. R. CIV. P. 34(b)(2)(A)-(B). In responding to a request to produce documents, the responding party must affirmatively state whether any responsive materials are being withheld on the basis of that objection. FED. R. CIV. P. 34(b)(2)(C).

“A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” FED. R. CIV. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4).

2. Plaintiff's Motion to Compel RFP Responses Is Denied

Here, although Plaintiff states Defendant “produced nothing” in his responses to Plaintiff's First Set of Requests for Production, dkt. 118, defense counsel filed a declaration indicating Defendant “is retired and does not have any documents within his possession, custody, or control that are responsive” to Plaintiff's First Set of Requests for Production, Kornblau Decl. at 2. The Court cannot compel a party to produce documents that are not in the party's possession, custody, or control. See Bryant v. Armstrong, 285 F.R.D. 596, 607 (S.D. Cal. 2012) (finding former correctional officer could not be compelled to produce documents from former employer because “the records [were] not in her custody, possession, or control”). Accordingly, Plaintiff's Motion to Compel RFP Responses is DENIED.

*7 For the reasons set forth above, Plaintiff's Motion to Compel Subpoena Responses is GRANTED IN PART and DENIED IN PART, Plaintiff's Motion for Sanctions is DENIED, and Plaintiff's Motion to Compel RFP Responses is DENIED.

IT IS FURTHER ORDERED: