(PC) Kindred v. Dike ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No.: 1:19-cv-00955-AWI-JLT (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO COMPEL AND DENYING 13 v. DEFENDANT’S MOTION FOR A PROTECTIVE ORDER 14 A. DIKE, (Docs. 42-45) 15 Defendant. 16 17 Before the Court are Plaintiff’s motion to compel responses to his discovery requests1 and 18 Defendant’s motion for a protective order.2 (Docs. 42-44.) For the reasons set forth below, the 19 Court denies both motions. 20 I. LEGAL STANDARDS 21 Parties may seek “discovery regarding any nonprivileged matter that is relevant to any 22 party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 23 Within this general scope, a party may serve on any other party an interrogatory, a request to 24 admit the truth of a matter, or a request to produce documents, electronically stored information, 25 26 1 Plaintiff filed two identical motions to compel. (Compare Doc. 42 with Doc. 44.) It appears that Plaintiff filed the second motion mistakenly. 27 2 On December 7, 2020, Plaintiff filed a document titled “Opposition to Defendant’s Response to Plaintiffs’ [sic] Motion to Compel …; Request for Protective Order.” (Doc. 45.) The Court construes the document as a reply to 1 or tangible things. Fed. R. Civ. P. 33(a), 34(a), 36(a). Pursuant to the Court’s Discovery and 2 Scheduling Order, “[r]esponses to written discovery requests shall be due 45 days” after the 3 requests are served. (Doc. 24 at 2.) 4 If a party fails to produce requested documents or to answer an interrogatory or request for 5 admission, the party seeking discovery may file a motion with the Court to compel a response. 6 Fed. R. Civ. P. 37(a)(3)(B). The moving party must “state the relief sought” and provide “with 7 particularity the grounds for seeking” the relief. Fed. R. Civ. P. 7(b)(1). Generally, the moving 8 party must certify that she has conferred or attempted to confer in good faith with the responding 9 party to resolve the dispute without court action. Fed. R. Civ. P. 37(a)(1); Local Rule 251(b). 10 However, in cases involving civilly detained, pro se plaintiffs, the meet-and-confer requirements 11 of Rule 37 and Local Rule 251 do not apply; though they are still encouraged. (See Doc. 14 at 2.) 12 If the Court denies a motion to compel, it may issue a protective order pursuant to Rule 13 26(c). Fed. R. Civ. P. 37(a)(5)(B). Rule 26(c), in turn, provides that the Court “may, for good 14 cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or 15 undue burden or expense.” “For good cause to exist, the party seeking protection bears the burden 16 of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. 17 Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002) (citation omitted). 18 “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not 19 satisfy the Rule 26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 20 1992) (internal quotation marks and citation omitted). 21 II. DISCUSSION 22 Plaintiff submits his motion to compel on the ground that Defendant failed to timely 23 respond to his requests for production of documents. (See Doc. 42 at 1.) According to the proof of 24 service attached to his requests for production, Plaintiff served the requests on Defendant on 25 October 16, 2020. (Id. at 9.) 26 Applying the 45 days provided by the Court’s Discovery and Scheduling Order, as well as 27 the additional time afforded by Federal Rule of Civil Procedure 6(d), Defendant’s responses to 1 attached proof of service are dated November 13, 2020. (Doc. 42 at 2, 10.) The Court filed the 2 motion on November 19, 2020. Plaintiff’s motion was therefore premature. 3 In his reply to Defendant’s opposition to his motion, Plaintiff contends that Defendant had 4 still not responded to his requests for production. (Doc. 45 at 1-2.) Plaintiff’s reply is dated 5 December 2, 2020, and the proof of service attached to the reply is dated December 3, 2020. (Id. 6 at 3, 4.) As explained above, December 3 was the final day for Defendant to serve his responses. 7 Thus, even if the Court were to construe Plaintiff’s reply as a separate motion, the motion would 8 still be premature. Accordingly, the Court will deny Plaintiff’s motion to compel. 9 In his opposition, Defendant moves for a protective order prohibiting Plaintiff from 10 propounding additional production requests or requiring that Plaintiff seek leave from the Court 11 before doing so.3 (Doc. 43 at 2.) Defendant makes this motion on the ground that the production 12 requests at issue concern documents that are equally available to Plaintiff or that are in the 13 possession of the Department of State Hospitals, and not Defendant. (Id.) 14 The Court does not find good cause to issue the requested protective order. As an initial 15 matter, the Court does not deny Plaintiff’s motion to compel based on the substance of his 16 production requests, but because it is premature. Second, Defendant does not make any showing 17 of specific prejudice or harm that will result without the protective order. See Phillips ex rel. 18 Estates of Byrd, 307 F.3d at 1210–11. Third, the Court does not find that Plaintiff’s single set of 19 only seven production requests, (Doc. 42 at 4-8), will cause undue “annoyance, embarrassment, 20 oppression, … burden or expense.” If Defendant believes he has grounds to object to Plaintiff’s 21 production requests, he can serve such objections on Plaintiff in response to those requests. 22 III. ORDER 23 For the reasons set forth above, the Court ORDERS: 24 1. Plaintiff’s motion to compel (Docs. 42, 44) is DENIED; 25 2. Defendant’s motion for a protective order (Doc. 43) is DENIED; 26 3. The Clerk of the Court is directed to administratively terminate the motion/“Request 27 for Protective Order” filed by Plaintiff (Doc. 45), since the Court construes the filing 1 as an opposition to Defendant’s motion for a protective order. 2 IT IS SO ORDERED. 3 4 Dated: January 13, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27