Lough v. Washington State Department of Social and Health Services ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA 9 ROBERT LOUGH, 10 CASE NO. 3:20-CV-5894-JCC-DWC Plaintiff, 11 ORDER ON MOTION TO COMPEL v. 12 WASHINGTON STATE 13 DEPARTMENT OF SOCIAL AND HEALTH SERVICES, et al., 14 Defendants. 15 Plaintiff Robert Lough, proceeding pro se and in forma pauperis, initiated this civil rights 16 Complaint pursuant to 42 U.S.C. § 1983. See Dkt. 1, 10. Currently before the Court are 17 Plaintiff’s Motion to Compel Discovery from the Defendants and Defendants’ Response to 18 Plaintiff’s Motion to Compel Discovery, Demand for Attorney Fees Pursuant to F.R.C.P. 37, and 19 Motion for a Protective Order Regarding Discovery. Dkt. 39, 40. After consideration of the 20 record and the Motions, the Motions (Dkt. 39, 40) are denied. 21 I. Motion to Compel (Dkt. 39) 22 On May 17, 2021, Plaintiff filed the Motion to Compel, wherein Plaintiff requests the 23 production of documents. Dkt. 39. A party may obtain discovery regarding any nonprivileged 24 1 information that is relevant to any claim or defense in his or her case. Fed. R. Civ. P. 26(b)(1). 2 Once the party seeking discovery has established the request meets this relevancy requirement, 3 “the party opposing discovery has the burden of showing that the discovery should be prohibited, 4 and the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 5 1390794, at *1 (S.D. Cal. May 14, 2009). When a party believes the responses to his discovery 6 requests are incomplete, or contain unfounded objections, he may move the court for an order 7 compelling disclosure. Fed. R. Civ. P. 37. 8 Pursuant to Federal Rule of Civil Procedure 37(a)(1): 9 . . . The motion 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 10 or discovery in an effort to obtain it without court action. 11 See also LCR 37(a)(1). “A good faith effort to confer with a party or person not making a 12 disclosure or discovery requires a face-to-face meeting or a telephone conference.” LCR 13 37(a)(1). If the movant fails to include such a certification, the court may deny the motion 14 without addressing the merits of the dispute. Id. 15 In the Motion to Compel, Plaintiff requests the Court compel Defendants to provide 16 documents related to Defendants and related to technology equipment and policies at the Special 17 Commitment Center. Dkt. 39. It does not appear Plaintiff properly severed the discovery request 18 on Defendants and now simply seeks to have the requested discovery produced. See Dkt. 39, 40, 19 41 at p. 3 (“Plaintiff is simply requesting discovery from the Defendants[.]”). 20 Plaintiff failed to provide a certification that he conferred with Defendants’ counsel 21 regarding this discovery dispute. See Dkt. 39. He has also failed to attach any documentation 22 showing he requested a meet and confer with Defendants’ counsel. See id. Therefore, the Court 23 24 1 finds Plaintiff has failed to certify he conferred or attempted to confer with Defendants’ counsel 2 regarding the requested discovery prior to filing the Motion to Compel. 3 To the extent Plaintiff is attempting to serve a discovery request on Defendants through 4 the Court, this request is improper. Under Federal Rule of Civil Procedure 34(a)(1), “[a] party 5 may serve on any other party a request . . . to produce[.]” Plaintiff may not serve discovery 6 requests through the Court. See Local Civil Rule (“LCR”) 5 (“discovery requests and responses 7 must not be filed until they are used in the proceedings or the court orders filing”). Plaintiff must 8 mail proper discovery requests to Defendants’ counsel.1 9 For the above stated reasons, Plaintiff’s Motion to Compel (Dkt. 39) is denied. The 10 Court, however, directs the Clerk to provide Plaintiff with a signed, blank subpoena. 11 II. Motion to Stay (Dkt. 40) 12 In their Response to the Motion to Compel, Defendants move to stay discovery until the 13 issue of qualified immunity is decided. Dkt. 40. Defendants raised qualified immunity in their 14 Answer and state that they are currently drafting a 12(c) motion that will address the issue of 15 qualified immunity. See id. at pp. 4-5. 16 The Court has broad discretionary powers to control discovery. Little v. City of Seattle, 17 863 F.2d 681, 685 (9th Cir. 1988). A court may relieve a party of the burdens of discovery while 18 a dispositive motion is pending. DiMartini v. Ferrin, 889 F.2d 922 (9th Cir. 1989), amended at 19 906 F.2d 465 (9th Cir. 1990) Rae v. Union Bank, 725 F.2d 478 (9th Cir. 1984); see also 20 Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev. 2013) 21 22 1 Federal Rule of Civil Procedure 45(a)(3) provides that: “[t]he clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service.” Any person over the age 23 of 18 and not a party may serve a subpoena but the party responsible for serving the subpoena must take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. See Fed. R. Civ. P. 45(b) 24 and (d). 1 (permitting a stay of discovery where a pending dispositive motion is (1) “potentially dispositive 2 of the entire case or at least dispositive of the issue on which discovery is sought” and (2) can be 3 decided without additional discovery). 4 Here, Defendants have not filed a dispositive motion. As there is no dispositive motion 5 pending before the Court, Defendants have not shown a stay of discovery is warranted at this 6 time. Accordingly, the Motion to Stay (Dkt. 40) is denied without prejudice. 7 III. Request for Attorney’s Fees 8 Defendants’ counsel requests attorney’s fees for responding to the Motion to Compel. 9 Dkt. 40. Plaintiff has filed several lawsuits in this Court and has been provided with information 10 about serving subpoenas in a previous action. See Lough v. Talbot, Case No. 3:19-CV-5280- 11 RBL-DWC. However, the information regarding serving subpoenas was in a footnote. See id. at 12 Dkt. 36. Plaintiff is also a civil detainee and indigent. Therefore, at this time, the Court declines 13 to award attorney’s fees to defense counsel. 14 The Court warns Plaintiff that a failure to follow the Federal Rules of Civil Procedure, 15 the Local Civil Rules, or this Court’s orders may result in sanctions, including payment of 16 Defendants’ counsel’s fees. 17 IV. Conclusion 18 For the above stated reasons, Plaintiff’s Motion to Compel (Dkt. 39) and Defendants’ 19 request to stay and demand for attorney’s fees (Dkt. 40) are denied. The Clerk is directed to issue 20 a signed, blank subpoena and send it to Plaintiff. 21 Dated this 10th day of June, 2021. 22 A 23 David W. Christel United States Magistrate Judge 24