*1 Plaintiff Greg Hess, who is confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Second Amended Complaint pursuant to 42 U.S.C. § 1983. On January 11, 2024, Plaintiff filed a “motion for an order to compel discovery” (Doc. 163). In his motion, Plaintiff seeks the following discovery responses from Defendants Thornell and the State of Arizona: Interrogatory No. 13 (Defendant Thornell); Request for Production Nos. 1, 3, 4, 5, and 8 (Defendant Thornell); Interrogatory No. 1 (State of Arizona); and Request for Production No. 3 (State of Arizona). Plaintiff also seeks responses to all his discovery requests from Defendants Centurion, Whisler, Lawsen, Oplinger, Fife, Naphcare, Karanja-Adams, and McCray.

On January 31, 2024, the Court issued an Order stating, “no later than 14 days from the date of this Order, and after meeting with Plaintiff in attempting to resolve this dispute through personal or telephonic consultation and sincere effort as required the federal and local rules of procedure, Defendants shall file a response to Plaintiff's motion to compel.” (Doc. 170.) Defendants Centurion, Whisler, Lawsen, Oplinger, Fife, Naphcare, Karanja-Adams, and McCray filed their response to Plaintiff's motion on February 14, 2024 (Doc. 178) and Defendants Thornell and the State of Arizona filed their response on that same date (Doc. 179).

District courts have broad discretion to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). A motion to compel discovery “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1); LRCiv 7.2(j); see also Lathan v. Ducart, No. 16-15633, 2017 WL 4457198, at *1 (9th Cir. Oct. 4, 2017) (“The district court did not abuse its discretion by denying [plaintiff's] motion to compel discovery because [plaintiff] failed to meet and confer with defendants.”) (citation omitted). Furthermore, Rule 37.1 of the Local Rules of Civil Procedure provides that a motion to compel discovery:

LRCiv 37.1(a). Additionally, this Court's Scheduling Order at Doc. 80 states the following:

*2 (Doc. 80.)

A. Plaintiff's Motion as to Defendants Centurion, Whisler, Lawsen, Oplinger, Fife, Naphcare, Karanja-Adams, and McCray

Plaintiff seeks responses to his Non-Uniform Interrogatories, Request for Production, and Request for Admissions. The record reflects that Plaintiff filed his Notice of Service of Discovery on December 11, 2023. (Doc. 142.) Counsel appeared in this action on behalf of Defendants on January 8, 2024, and Defendants filed their Answer to Plaintiff's Second Amended Complaint on that same date. (Docs. 155, 156.)

The record also reflects that the responses to Plaintiff's discovery requests were not due until February 12, 2024 – more than one month after Plaintiff filed his motion to compel. (Doc. 164.) Thus, to the extent Plaintiff's motion to compel takes issue with not having received responses to his requests, the record indicates that Defendants timely served their responses on February 12, 2024. (Doc. 175.) Although Plaintiff fails to make any specific objection to the substance of Plaintiff's responses in his motion, to the extent he now argues in his reply that the responses he has received are insufficient, Plaintiff has failed to certify that he has met and conferred with counsel as to any specific discovery request pursuant to the local and federal rules, and this Court's Scheduling Order.

Thus, the Court will deny Plaintiff's motion to compel as to these Defendants.

B. Plaintiff's Motion as to Defendants Thornell and the State of Arizona (collectively, the “State Defendants” or “Defendants”)

Plaintiff seeks the following discovery responses from the State Defendants: Interrogatory No. 13 (Defendant Thornell); Request for Production Nos. 1, 3, 4, 5, and 8 (Defendant Thornell); Interrogatory No. 1 (State of Arizona); and Request for Production No. 3 (State of Arizona). The Court will address each request below.

1. Interrogatory No. 13 (Defendant Thornell)

Plaintiff seeks information regarding the medical training and certification the Arizona Department of Corrections, Rehabilitation and Reentry (“ADC”) offers its contracted employees. Plaintiff argues that he has received no information from ADC that could be considered responsive to this interrogatory.

In response, the State Defendants contend that they have produced the Medical Services Technical Manual, which Plaintiff has used to support his argument. Defendants also state that despite a review of records conducted by counsel in connection with questions about relevant medical training or certification, such review did not locate any additional materials. Thus, Defendants contend they have produced all documents in their possession, custody, or control that could supply responsive or discoverable information to Interrogatory 13. In any event, Defendants argue that part of ADC's contractual expectation is that the contracted health care service company is supplying trained and certified health care professionals to the ADC prison system. Defendants state the idea that ADC provides extra medical training and certification to these contracted providers is not logical.

*3 The Court finds the State Defendants’ response to Interrogatory 13 is sufficient. A party is only obligated to produce during discovery those documents which are in the “possession, custody, or control” of the party upon whom the request is served. Fed. R. Civ. P. 34(a). A party moving for an order compelling discovery has the burden of proving that the other party has possession, custody, or control of the requested item. U.S. v. International Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). Further, a party cannot be compelled to produce documents and other items which do not exist. See Steil v. Humana Kansas City Inc., 197 F.R.D. 445, 448 (D. Kan. 2000) (explaining that a party cannot be compelled to produce documents which do not exist or which the party does not possess or control); Alexander v. F.B.I., 194 F.R.D. 305, 310 (D. D.C. 2000) (stating that “Rule 34 only requires a party to produce documents that are already in existence”).

2. Request for Production Nos. 1, 3, 4, 5, and 8 (Defendant Thornell)

Plaintiff seeks the production of personnel file records (including medical records, Health Needs Requests, ACIS records, and Incident Command System (“ICS”) and IR reports). Plaintiff claims “the limited records already part of the record are only a small piece of the Plaintiff's entire record and do not reflect all of the secondary revisions, case notes, authorizations, refusals, and administrative notations.”

In response, Defendants contend they have identified for Plaintiff all the prior filings or productions that included medical records from Plaintiff's prison medical file responsive to his request. Defendants also provided Plaintiff with his public ACIS inmate report, and updated their production with copies of Plaintiff's medical records from the time he was incarcerated through December 12, 2023. Defendants state they have worked with ADC staff to collect all relevant, discoverable information to respond to his discovery requests, and have produced a broad array of records concerning Plaintiff's claimed medical needs. They contend that they are unable to identify any additional materials related to Plaintiff's claims regarding the denial of a CPAP machine, portable TENS unit, and eggshell mattress pad beyond the records already produced. However, Defendants aver they will timely supplement discovery if new responsive records are created.

The Court finds the State Defendants’ response to Request for Production No. 1 is sufficient. Again, a party is only obligated to produce during discovery those documents which are in the “possession, custody, or control” of the party, Fed. R. Civ. P. 34(a), and a party cannot be compelled to produce documents and other items which do not exist. See Steil, 197 F.R.D. at 448.

Plaintiff seeks the production of all medical equipment distribution logs, inventory logs, and service/maintenance/security logs for every inmate in the ADC system. Plaintiff alleges Defendants “refused” to provide any records responsive to his request.

Defendants objected arguing that the terms of his request are highly ambiguous and undefined. Defendants also argued that the request is unduly burdensome and the expense and effort of compliance with the request is disproportionate to the needs of the case and outweighs the benefit and potential relevance. Lastly, Defendants contend that Plaintiff's claims relate to whether he had a medical need for three pieces of equipment – CPAP, TENS unit, and mattress topper – and whether he was unlawfully denied the equipment in violation of his federal rights. Defendants argue that how other unrelated inmates were treated does not answer the claims about Plaintiff.

*4 The Court agrees with Defendants and finds they have sufficiently answered and/or properly objected to Plaintiff's request. Here, Plaintiff is not complaining that Defendants treated him differently and less favorably than other, non-disabled employees. He is not comparing his treatment to that of any other. His complaint relates solely to Defendants’ failure to reasonably accommodate his disability. The party seeking to compel discovery “bears the burden of demonstrating that the information it seeks is relevant and that the responding party's objections lack merit.” Hancock v. Aetna Life Ins. Co., 321 F.R.D. 383, 390 (W.D. Wash. 2017). Plaintiff has not met his burden.

Plaintiff seeks the complete Cook unit grievance logs for each month April 2022-present and for every other ADC unit from October 2022-present. Plaintiff claims the requested records “will show an abhorrent pattern of medical negligence, deliberate indifference, and a wealth of evidence necessary for the trier of fact in this case to fully be aware of the full disclosure of facts.”

In response, Defendants state they have referred Plaintiff to documents that had been previously filed or disclosed, related to Plaintiff's own grievances. They also state they have provided Plaintiff with his public ACIS inmate report, and his medical records from the time he was incarcerated in April 2022 through December 12, 2023. Defendants aver they have produced all responsive and relevant documents and do not have any further responsive documents in their possession, custody, or control. To the extent Plaintiff requests other inmates’ grievance records, Defendants argue that Plaintiff's request is overbroad and not relevant to his claims.

The Court again agrees with Defendants and finds that they have sufficiently answered and/or properly objected to Plaintiff's request. A party cannot be compelled to produce documents or other items which do not exist, see Steil, 197 F.R.D. at 448, and the party seeking to compel discovery “bears the burden of demonstrating that the information it seeks is relevant and that the responding party's objections lack merit.” Hancock, 321 F.R.D. at 390.

Plaintiff seeks every correspondence between all ADC grievance coordinators, grievance investigators, and the contract facility health administrators pertaining to Plaintiff. Plaintiff argues that the communication between these parties demonstrates knowledge and action taken by Defendants.

In response, Defendants state that they have produced records related to grievances of Plaintiff concerning the three medical equipment requests – the CPAP, TENS unit, and mattress topper – and have also objected to the request as overly broad and seeking records that are irrelevant, disproportionate to the needs of the case, and not likely to lead to the discovery of admissible evidence. Specifically, Defendants claim they have explained to Plaintiff that he has raised complaints and allegations against contracted medical care provider staff at the Eyman-Cook Complex that are unrelated to the CPAP machine, TENS unit, and mattress pad requests, and made clear their objection to those unconnected complaints. Defendants aver that they have produced all responsive, discoverable documents that are not subject to an objection.

The Court finds the State Defendants’ response to this request is sufficient. See Steil, 197 F.R.D. at 448 (a party cannot be compelled to produce documents or other items which do not exist).

Plaintiff seeks video footage of Plaintiff outside of his cell from April 28, 2022 – May 18, 2022. Plaintiff states that Defendants have refused to provide the requested footage.

*5 In response, Defendants contend that the requested footage covers a 21-day period of time (totaling 504 hours of video). As such, Defendants have objected, contending the request is overbroad, disproportionate to the needs of this case, and not likely to lead to the discovery of admissible evidence. Defendants also state that video footage spanning 21 days would implicate privacy concerns of other prisoners and staff, as well as, prison security concerns. Lastly, Defendants claim that although they have expressed their willingness to try and locate portions of video footage responsive to Plaintiff's request, Plaintiff has failed to narrow his request to specific days and relevant time periods or identify any particulars the video may have captured.

The Court finds the State Defendants’ response to this request is sufficient, finding that the requested footage covering a 21-day period of time and totaling 504 hours is overbroad and burdensome. Plaintiff has not made a specific showing that the burden to Defendants would be minimal or that the video would lead to relevant evidence. Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992) (a discovery request may be deemed burdensome and overly broad if the requesting party fails to make a “specific showing that the burdens of production would be minimal and that the requested documents would lead to relevant evidence”), quoting Sorosky v. Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987); see also Waterbury v. Scribner, 2008 WL 2018432, at *6 (E.D. Cal. May 8, 2008) (Defendants objected on the grounds the production requests numbers five and six were overbroad, overly burdensome, immaterial and not reasonably calculated to lead to the discovery of admissible evidence; plaintiff's motion to compel as to these production requests was denied on those bases); Dasenbrook v. Enenmoh, 2014 WL 5304955, at *30 (E.D. Cal. Oct. 15, 2014) (In denying Plaintiff's request, the Court stated: “The request is overly broad and burdensome as the request asks Defendants to look through all CDCR policies and regulations to locate all responsive documentation.”).

3. Interrogatory No. 1 (State of Arizona)

Plaintiff seeks information regarding any drawings, diagrams, photos, motion pictures, digital images, or video tapes that have been prepared “of any object or person involved with the ADA compliance issue at Cook unit.” Plaintiff seeks an explanation as to what each image depicts and other information regarding the date, creator, and custodian of each image. Plaintiff argues that “at a minimum, a yearly ADA compliance report should be conduct[ed] and within that report should be examples of each item requested by the Plaintiff.”

In response, Defendants objected claiming that the request was ambiguous as it did not define the term “ADA compliance issue,” and did not specify any particular time period. Defendants also argued that the request failed to clarify what it meant by the term “involved,” rendering it impossible to answer the interrogatory. Defendants also objected claiming that the request is speculative in that it seeks a record about ADA compliance issues that does not exist.

The Court finds the State Defendants’ response is sufficient. A party moving for an order compelling discovery has the burden of proving that the other party has possession, custody, or control of the requested item, see International Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d at 1452, and a party cannot be compelled to produce documents or other items which do not exist. See Steil, 197 F.R.D. at 448.

4. Request for Production No. 3 (State of Arizona)

Plaintiff seeks all ADA compliance evaluations conducted by a certified agent not affiliated with Defendants. Plaintiff cites Department Order 108, ADA Titles I-V, the Rehabilitation Act of 1973, and A.R.S. § 41-1492 arguing that Defendants have not updated Department Order 108.

*6 In response, Defendants state that after a reasonable and diligent search it does not have any documents responsive to this request in its possession, custody, or control. Defendants also state that Plaintiff's assumption that ADC tracks and updates an ADA compliance evaluation record, which would support his ADA claim is purely speculative.

The Court finds the State Defendants’ response is sufficient. See International Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d at 1452 (A party moving for an order compelling discovery has the burden of proving that the other party has possession, custody, or control of the requested item.); Steil, 197 F.R.D. at 448 (a party cannot be compelled to produce documents or other items which do not exist).

Accordingly, the Court, having considered Plaintiff's motion to compel and Defendants’ responses thereto,

IT IS ORDERED denying Plaintiff's “motion for an order to compel discovery” (Doc. 163).