*1 On May 22, 2024, Defendant filed a Motion to Compel. ECF Docket No. (“Dkt.”) 48. Defendant did not file a joint stipulation pursuant to Local Rule 37-2, but complied with Local Rule 37-2.4 by filing a declaration establishing that opposing counsel failed to confer in a timely manner under Local Rule 37-1. Id. at 5–6. On June 26, 2024, Plaintiff filed an Opposition. Dkt. 57. Plaintiff filed a Reply on August July 2, 2024 Dkt. 58. The Court finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons set forth below, Defendant's Motion to Compel is GRANTED in part and DENIED in part.

On December 30, 2022, Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. 1 (“Compl”). The Complaint brings a single retaliation claim against Defendants, who are staff at Smith Correctional Facility (“SCF”). Id. at 6. Defendants filed a pre-answer motion for summary judgment on the issue of exhaustion, which the Court denied. Dkts. 21 (motion), 33 (report and recommendation), 35 (order accepting report and recommendation). Defendants filed an Answer on December 22, 2023. Dkt. 36.

On January 16, 2024, Defendants served Plaintiff with Interrogatories, Requests for Admission, and Demands for Production of Documents. Dkt. 48-1, Declaration of Nicole R. Roggeveen (“Roggeveen Decl.”) ¶¶ 2–4, Exs. 1–3. Defendants served the discovery requests on Plaintiff via mail to John Benoit Detention Center, where Plaintiff was housed at the time. Id. However, at some point after, Plaintiff was transferred to Cois Byrd Detention Center, which resulted in a delay for Plaintiff to receive the requests. Opp. at 3; Declaration of Royal Dl Bond (“Bond Decl.”) ¶ 6.

On February 12, 2024, counsel appeared for Plaintiff in this action. Dkt. 38. Plaintiff's counsel served unverified responses on Defendants on February 22, 2024. Roggeveen Decl. ¶¶ 5–7; Bond Decl. ¶¶ 10–11. On February 29, 2024, Defendants' counsel sent a lengthy meet and confer letter to Plaintiff's counsel and inquired about availability for a conference call. Roggeveen Decl. ¶ 8. On March 15, 2024, counsel participated in a conference call, where Plaintiff's counsel agreed to provide verified responses to all Interrogatories and Demands for Production of Documents by April 1, 2024. Id. ¶ 10. Plaintiff's counsel supplemented responses on April 2, 2024. Bond Decl. ¶ 12, Exs. 1–2. The responses were still not verified and did not satisfy Defendants' counsel substantively; accordingly, on April 3, 2024, Defendants' counsel requested an informal discovery conference with the Court. Roggeveen ¶ 11.

On April 19, 2024, the undersigned held an informal discovery conference where the parties were ordered to meet and confer regarding a date of production of Plaintiff's verified responses to Defendants' discovery; the undersigned gave the parties leave to file a discovery motion if no agreement could be achieved. Dkt. 44. On the same day, Defendants' counsel inquired as to whether verified, substantive responses could be provided by April 26, 2024. Id. ¶ 12. Plaintiff's counsel said they would be unavailable to provide responses until May 10, 2024. Id. As of May 22, no responses had been provided. Id. ¶ 13.

*2 On May 22, 2024, Defendants filed the instant motion to compel, setting the hearing for June 12, 2024. Dkt. 48 (“Motion”). On May 24, 2024, Plaintiff's counsel “reformatted” Plaintiff's prior discovery responses and served them with Plaintiff's wet signature on the verification pages. Bond Decl. ¶ 13, Ex. 3.

On June 6, 2024, the parties filed a joint stipulation to continue the hearing date to allow Plaintiff to file an opposition to the motion to compel. Dkt. 49. The Court granted the stipulation, and vacated the hearing. Dkt. 50. On June 26, 2024, Plaintiff filed an opposition. Dkt. 57 (“Opp.”). Defendants filed a reply on July 2, 2024. Dkt. 58 (“Reply”). Thus, the matter stands submitted.

A. APPLICABLE LAW

Federal Rule of Civil Procedure 33 (“Rule 33”) allows parties to serve on another party “no more than 25 written interrogatories” relating “to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a). “The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4).

Federal Rule of Civil Procedure 34 (“Rule 34”) allows parties to serve on another party “a request within the scope of Rule 26(b)” for production of documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). “The party to whom the [Request for Production] is directed must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). The requesting party “is entitled to individualized, complete responses to each of the [Requests for Production] ..., accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced.” Louen v. Twedt, 236 F.R.D. 502, 505 (E.D. Cal. 2006).

Untimely service of a response to interrogatories or requests for production of documents typically waives objections. Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (holding that untimely service of response to interrogatories waives objections); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (stating that “[f]ailure to object to [documents] requests within the time required constitutes a waiver of any objection.”), cert. denied, 506 U.S. 948 (1992). However, “[c]ourts have the discretion to relieve a late-responding party from the potentially harsh consequences of waiver.” Shacar v. Trans Union LLC, Case No. CV20-11115 AB (RAOx), 2021 WL 6496405, at *3 (C.D. Cal. Sept. 22, 2021). “To determine whether there is good cause to find objections are not waived, courts consider (1) the length of delay, (2) the reason for delay, (3) the existence of bad faith, (4) the prejudice to the party seeking waiver, (5) the nature of the request, and (6) the harshness of imposing sanctions.” Id. (internal quotation marks and citations omitted).

Similarly, even a timely objection may be deemed waived if it is not sufficiently specific. See Gorrell v. Sneath, 292 F.R.D. 629, 635 (E.D. Cal. 2013) (citing Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D. Md. 2008), for the proposition that “boiler-plate objections waive any legitimate objections responding party may possess”); Cengage Learning, Inc. v. Davis Textbooks, No. 2:15-CV-2401 TLN AC, 2016 WL 8730880, at *2 (E.D. Cal. Sept. 16, 2016) (citing Gorrel to hold that “[e]xclusive reliance on such boilerplate objections waives any legitimate objection that could have been raised.”). However, this waiver is not necessarily automatic. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1147–49 (9th Cir. 2005) (noting Rule 34 “does not contain an explicit prohibition against boilerplate objections” and rejecting a “per se waiver rule” that deems a privilege waived if it is asserted through a boilerplate objection and not otherwise timely asserted). For example, where a party has attempted to clarify boilerplate objections—and thus has not “exclusively” relied on boilerplate objections—courts often decline to find objections waived and proceed to review the merits of the objections. See Anson v. Weinstein, No. CV 17-8360-GW (KSX), 2019 WL 6682167 (C.D. Cal. Aug. 27, 2019) (“Here, however, the deficiencies in Miramax's written responses can be remedied by supplementation. Therefore, the Court declines to grant Plaintiff's request that all Miramax's [boilerplate] objections to Plaintiff's First Set of RFPs be deemed waived.”); Del Socorro Quintero Perez v. United States, No. 13 CV 1417-WQH-BGS, 2016 WL 304877, at *2 (S.D. Cal. Jan. 25, 2016) (rejecting Plaintiffs request for automatic waiver, noting that “the proper procedure when in receipt of seemingly boilerplate objections is to challenge them on their merits.”); Gersh v. Anglin, No. CV 17-50-M-DLC-JCL, 2019 WL 265800, at *3 (D. Mont. Jan. 18, 2019) (reviewing merits of boilerplate objections and citing Nei v. Travelers Home and Marine Insurance Company, 326 F.R.D. 652, 657 (D. Mont. 2018) for the proposition that “even when the objecting party fails to carry its burden, the Court has an obligation to review the discovery requests to ensure that they are not frivolous”).

B. ANALYSIS

*3 As an initial matter, the Court must address the timeliness of Plaintiff's responses and objections. Plaintiff served their initial, unverified responses on February 22, 2024. Roggeveen Decl. ¶¶ 5–7; Bond Decl. ¶¶ 10–11. Defendants argue that the deadline for Plaintiff to serve his responses was February 20, 2024—thirty days from January 16, plus an extra three for mail service pursuant to Fed. R. Civ. P. 6(d), plus another two due to February 18 and 19 landing on a weekend and holiday. Mot. at 4. Accordingly, Defendants argue that Plaintiff's initial responses were untimely by two days. Plaintiff argues that the due date should have been calculated from the date when he actually received the discovery requests, which was much later than January 16 due to his transfer to a new facility. Opp. at 3. However, Plaintiff does not cite to any authority for this proposition, nor does he even specify the date on which he received Defendants' discovery requests. Id. In any case, the Court would likely find that the transfer of facilities and Plaintiff's counsel's appointment on February 12 would establish good cause to excuse Plaintiff's timeliness, were it only the two days between February 20 and February 22.

However, Defendants argue that these February 22 responses were substantively inadequate, in addition to being unverified. Mot. at 4. Defendants argue that Plaintiff failed to serve verified responses until three months later, after this Motion had already been filed, and has yet to serve any substantive responses at all. Id. at 4–5. In other words, Defendants argue that neither Plaintiff's February 22 response nor his April 2 supplemental responses are adequate, and thus Plaintiff's responses remain due even now, over four months after the requests were served. Accordingly, Defendants conclude, Plaintiff should be ordered to fully respond without objections and be subject to sanctions in the form of attorneys' fees. Id. at 7–8.

The Court would tend to agree that, if Plaintiff's February 22 responses and April 2 supplemental responses were inadequate, Plaintiff's incarceration and Plaintiff's counsel's late appointment would not alone justify good cause to excuse Plaintiff's failure to serve substantive responses for an additional two to four months. Indeed, Plaintiff's counsel cannot fairly argue that Defendants did not give them an opportunity to supplement their responses before resorting to the instant Motion. Defendants have documented several attempts to meet and confer on substantive issues, and waited over four months from their initial requests to finally file a motion. See Roggeveen Decl.; Reply at 2–3 (timeline of events).

In any case, it is clear that any objections not properly raised in the February 22 responses or April 2 supplemental responses would be waived, particularly where Plaintiff has not raised them in subsequent meet and confer proceedings or in their opposition to this motion. See Medina v. Cnty. of San Diego, No. 08-cv-1252 BAS (RBB), 2014 WL 4793026, at *16 (S.D. Cal. Sept. 25, 2014) (“When ruling on a motion to compel, a court generally considers only those objections that have been timely asserted in the initial response to the discovery request and that are subsequently reasserted and relied upon in response to the motion to compel. If a party fails to continue to assert an objection in opposition to a motion to compel, courts deem the objection waived.” (internal quotations and citations omitted)). Indeed, Plaintiff appears to rest on their prior responses, as they do not manifest any intent to further supplement their responses or production. Accordingly, the Court must examine Plaintiff's February 22 responses April 22 supplemental responses. To the extent any of Plaintiff's objections in those responses are valid, the Court is inclined to find them timely. To the extent the responses and accompanying objections are improper, Plaintiff should be ordered to fully respond without objection.

1. Interrogatories

Plaintiff's responses to Defendants' interrogatories are fairly brief and replete with claims that Plaintiff is unable to recall specific statements made or the exact dates of relevant events. Roggeveen Decl., Ex. 4. In several instances, Plaintiff directs Defendants to video surveillance evidence that he believes Defendants should possess. Id. The Court notes that Defendants do not acknowledge Plaintiff's April 2 supplemental responses anywhere in their motion or reply. While the supplemental responses remain brief, Plaintiff provides more detail to many of his interrogatory responses, including specific dates and statements. Bond Decl., Ex. 2. Plaintiff still avers that he is unable to recall specific times because “[c]locks are not available or easily accessible to inmates” and continues to direct Defendants to video surveillance to confirm precise statements. Id.

*4 Typically, if a party is unable to respond to an interrogatory based solely on their recollection, they have a responsibility to make a reasonable inquiry into the matter and furnish information that is available to the party without significant burden or expense. See Paresa v. HSBC Bank USA, N.A., No. CV 17-00248 DKW-RLP, 2018 WL 6521507, at *2 (D. Haw. Aug. 3, 2018); see also Milke v. City of Phoenix, 497 F. Supp. 3d 442, 446 (D. Ariz. 2020), aff'd, No. 20-17210, 2022 WL 259937 (9th Cir. Jan. 27, 2022) (noting that party had “an obligation to review appropriate materials and ‘respond to the fullest extent possible’ ” but was not required to “conduct extensive research in order to answer an interrogatory[.]”); Stolz v. Travelers Com. Ins. Co., No. 2:18-cv-1923 KJM KJN, 2019 WL 4392446, at *6 (E.D. Cal. Sept. 13, 2019) (collecting cases). However, if a party cannot recall or readily obtain information that is responsive to an interrogatory, a court cannot compel a party to remember what they do not recall. See Gilmore v. Augustus, No. 1:12-CV-00925-LJO-GS, 2014 WL 4354656, at *4 (E.D. Cal. Sept. 2, 2014) (“The court finds Defendant's response, that he is unable to recall particular information, adequate. Plaintiff must accept Defendant's response that he is unable to recall the details of what occurred during the incident at issue, given the passage of time. Defendant cannot be compelled to remember what he has forgotten.”); Clagett v. Woodring, No. CV 08-6251-JFW (MAN), 2012 WL 13123704, at *5 (C.D. Cal. July 13, 2012) (“If, in fact, Young does not recall having done something that is the subject of a particular Interrogatory, he is entitled to so respond. Plaintiff's apparent disagreement with Young's recollection is not a basis for compelling a further response. There is no basis for compelling Young to provide further responses.”); Williams v. Romero, No. 2:17-CV-1884-TLN-DBP, 2023 WL 2466237, at *4 (E.D. Cal. Mar. 10, 2023) (“Plaintiff argues that Abarca should not be permitted to claim he does not recall. Abarca verified under penalty of perjury that his interrogatory responses are ‘true and correct.’ ... This court cannot compel Abarca to respond to something he does not recall.”); Heilman v. Lyons, No. 2:09-CV-2721 KJN P, 2011 WL 2415032, at *1 (E.D. Cal. June 10, 2011) (“Plaintiff is advised that defendants cannot be compelled to provide answers they do not recall.”).

Here, the Court is satisfied that Plaintiff has answered the interrogatories to the best of his ability. Considering that Plaintiff is incarcerated, he obviously has significantly less hard evidence “readily available” to reference in responding to Defendants' interrogatories. Accordingly, he must primarily rely on his memory of incidents that occurred nearly two years ago. Furthermore, while the initial responses had little to no detail, Plaintiff's supplemental responses include many more specific dates and statements. This improvement demonstrates Plaintiff's efforts to recall as many details as possible. Indeed, this is not a case where Plaintiff has only responded with a boilerplate objection that he does not recall—he has provided at least some specific dates and statements in response to nearly all of the interrogatories. See Ferguson v. Wilcher, 2019 WL 3017670 at *2 (C.D. Cal. April 3, 2019) (finding interrogatory responses were inadequate because party only responded with boilerplate objections that stated “does not recall”); Vena v. Moore, Schulman & Moore, APC, No. 22-CV-437-W-BLM, 2023 WL 6771544, at *3 (S.D. Cal. Oct. 12, 2023) (distinguishing case from Ferguson because party responded to some interrogatories with “does not recall,” but provided substantive responses to others). Ultimately, under these circumstances, the Court finds that Plaintiff has satisfied his obligation under Rule 33. To the extent Plaintiff maintains that he cannot remember specific times of events or the specific words spoken, the Court cannot compel Plaintiff to respond differently. Accordingly, Defendants' motion to compel is DENIED with respect to the interrogatories.

2. Requests for production

In both the initial and supplemental responses, Plaintiff responds to all requests for production with essentially the same boilerplate response:

See Roggeveen Decl., Ex. 4; Bond Decl., Ex. 2. As Defendants note, this objection is confusing—Plaintiff appears to imply that he does have copies of several responsive documents, but that they are not legible; accordingly, Plaintiff directs Defendants to their own copies, which are presumably more legible. However, “[c]ourts have unambiguously stated that [the ‘equally available’] objection is insufficient to resist a discovery request.” Nat'l Acad. of Recording Arts & Scis., Inc. v. On Point Events, LP, 256 F.R.D. 678, 682 (C.D. Cal. 2009) (citations and quotation marks omitted); see also Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal. 1996) (A responding party “is required to produce documents he has in his possession, custody or control, regardless of whether he believes [the requesting party] already has those documents.”). Indeed, whether there are differences between what Plaintiff has and what Defendants have may be relevant to resolving key factual disputes, particularly those related to exhaustion. Therefore, the fact that Plaintiff believes that Defendants may have the same documents in better condition does not wholly absolve Plaintiff of his responsibility to produce copies of the documents that he does have in his possession, custody, or control.

*5 Accordingly, Defendants' motion is GRANTED with respect to the requests for production. To the extent Plaintiff has responsive documents, he must produce them, without objection. To the extent that, after a diligent search, Plaintiff honestly claims that they have no further responsive documents under their control, Plaintiff may satisfy their obligations with respect to this order by certifying that no further responsive documents exist, explaining their search methodology, and providing a brief explanation rebutting Defendants' contention that such documents are likely to exist. In this case, if Defendants maintain that Plaintiff is still withholding documents, Defendants remedy will be to impeach Plaintiff at trial or in dispositive motions; in other words, further discovery motions on this issue are not likely to be successful.[1]

A. APPLICABLE LAW

Fed. R. Of Civ. P. 37(a)(5)(C) provides that “if the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C) (emphasis added).

In addition, the Local Rules provide strict procedures with which counsel must comply in bringing or opposing a discovery motion, including requiring a pre-filing conference of counsel and joint stipulation. L.R. 37 et seq. Local Rule 37-4 specifically provides “[t]he failure of any counsel to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions.” Id.

B. ANALYSIS

Here, Defendants request costs totaling $6,227.50. Mot. at 8. The Court notes that Plaintiff has been fairly uncommunicative in responding to Defendants' discovery requests and Defendants' counsel's attempts to comply with Local Rule 37. However, given the fact that the motion is being granted in part and denied in part and the logistical difficulties presented by Plaintiff's incarceration, the Court declines to require that Plaintiff's counsel pay Defendants' expenses at this time.

However, the Court admonishes Plaintiff's counsel to be prompt in their communication and the production required by this order. The Court will not treat them so graciously should these matters come before the Court a second time.

Based upon the foregoing reasons, IT IS THEREFORE ORDERED that:

IT IS SO ORDERED.