United States District Court, D. Arizona
K. Jorgenson, United States District Judge.
before the Court is the Motion to Compel for Failing to
Object or Respond (Doc. 33) filed by Plaintiff Felipe
Sandoval (“Sandoval”). Defendants have filed a
response and Sandoval has filed a reply.
assert Plaintiff has not complied with Fed.R.Civ.P. 37(a)(1)
or LRCiv 7.2(j). Indeed, the Local Rules for the District
Court of Arizona provide that “[n]o discovery motion
will be considered or decided unless a statement of moving
counsel is attached thereto certifying that after personal
consultation and sincere efforts to do so, counsel have been
unable to satisfactorily resolve the matter. Any discovery
motion brought before the Court without prior personal
consultation with the other party and a sincere effort to
resolve the matter, may result in sanctions.” LRCiv
7.2(j); see also Fed.R.Civ.P. 37(a); Patch v.
Arpaio, No. CV 08-0388-PHX-GMS (DKD), 2010 WL 432354, at
*10 (D. Ariz. Feb. 2, 2010) (holding that “[p]ro se
[inmate] litigants must follow the same rules of procedure
that govern other litigants.”) (citing King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on
other grounds by Lacey v. Maricopa Cnty., 693 F.3d
896 (9th Cir. 2012) (en banc))).
Sandoval asserts in his reply that he contacted counsel and
did not receive a response, Sandoval provides no affidavit,
declaration, or certification signed under penalty of
perjury, detailing his good faith attempts with opposing
counsel to resolve the discovery dispute prior to seeking a
judicial resolution of the issue.
Defendants assert Sandoval has failed to identify which of
his discovery requests are the subject of his Motion to
Compel (as he similarly failed to do in his Notice of
Non-Compliance and Waiver (Doc. 32)).
the Court will consider the motion.
to Compel for Failing to Object or Respond
in civil cases is permitted as follows:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed.R.Civ.P. 26(b)(1). Furthermore, Rule 26 permits the
discovery of information which may relate “to the
credibility of a witness or other evidence in the
case[.]” Schwarzer, Tashima & Wagstaff, Federal
Civil Procedure Before Trial § 11.624.
Additionally, the Court is to limit the extent of discovery
if it is “outside the scope permitted by Rule 26(b)(1).
purpose of discovery is to “reveal what evidence the
opposing party has, thereby helping determine which facts are
undisputed - perhaps paving the way for a summary judgment
motion - and which facts must be resolved at trial.”
Computer Task Group, Inc. v. Brotby, 364 F.3d 1112,
1117 (9th Cir. 2004). Indeed, “[t]he purpose of
discovery is to provide a mechanism for making relevant
information available to the litigants . . . Thus the spirit
of the rules is violated when advocates attempt to use
discovery tools as tactical weapons rather than to expose the
facts and illuminate the issues . . .” Burlington
Northern & Santa Fe Ry. Co. v. United States, 408
F.3d 1142, 1148-49 (9th Cir. 2005) (citation omitted).
asserts Defendants have failed to object to, answer, or seek
more time to respond to his discovery requests. Sandoval
requests the Court find that all objections are waived and
order Defendants to provide the discovery. Defendants assert,
however, that some discovery requests are irrelevant in light
of the Court's previous order striking allegations not
related to medical care provided to Sandoval and striking
Sandoval's Notice of Other Acts. In other words,
Defendants argue that the discovery requests are outside the
scope of discovery as permitted by Fed.R.Civ.P. 26(b)(1)
(“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.”). See also Fed.R.Civ.P. 33(a)(2),
34(a)(1). Additionally, Defendants implicitly argue that when
the Court struck Sandoval's allegations and Notice of
Other Acts, Defendants reasonably believed Sandoval's
requests related to the stricken allegations were mooted.
While Defendants do not provide any reason why they failed to
respond to the discovery requests with objections regarding
relevance or mootness of the issues in light of the
Court's ruling rather than just ignore the requests, the
Court nonetheless finds Defendants' conduct to be
the Court has struck Sandoval's allegations regarding
conduct not related to Sandoval's medical care. The
parties have not provided the Court with copies of all of the
discovery requests. The Court, therefore, cannot review the
requests to determine whether the Court agrees with
Defendants that the requests seek discovery of information
outside the scope of Fed.R.Civ.P. 26. However, a review of
the discovery requests that are the subject of the Motion to
Compel and for which a copy has been provided to the Court
shows that Sandoval's requests are outside the scope of
discovery as irrelevant. See June 22, 2017 Order
(Doc. 29) (discussing conduct relevant to Sandoval's
claims). Additionally, the Court does consider that, although
Sandoval's reply states that the discovery is relevant to
his claims, he does not clarify how or why. Rather, his reply
further states, “In the fact of clear and convincing
evidence that Corizon is not providing us with adequate
healthcare the motion to compel should be granted.”
Reply (Doc. 35), p. 2. It appears Sandoval maintains, despite
the Court's prior ruling, that other ...