Opinion
Case No. 2:07-cv-00964 ALA (P).
August 28, 2009
ORDER
On August 28, 2009, Plaintiff filed a reply (doc. 85) to Warden Mike McDonald's response to this Court's subpoena duces tecum served on Warden Mike McDonald. (Doc 70.) The subpoena demanded that Warden McDonald produce "All documents from personnel files of Officers Edward Simmerson and Scott Norton that concern or relate to: the alleged Jan. 12, 2006 assault on Inmate Jarmaal Smith, as documented in CDC 602 inmate grievance log no. HDSP3-06-248; any investigation into this alleged assault; any adverse action taken against either officer for excessive use of force" by mailing them to Plaintiff by August 10, 2009.
In his reply, Plaintiff argues that documents relating to the grievance he filed indicate that an investigation was conducted into the alleged January 12, 2006 assault on Plaintiff. Attached as Plaintiff's Exhibit A to Palintiff's reply is a memorandum dated March 1, 2006 concerning Plaintiff's Appeal Log #HDSP-Z-06-00248, First Level Response, wherein Associate Warden R. K. Wong indicated that Plaintiff's "request to have [his] allegations investigated is granted." (Doc. 85, Exh. A). Also attached is a memorandum dated May 3, 2006, signed by "Warden/CDW/HCM (Second Level) AW/Med. Mgr. (First Level) [signature illegible], indicating that an investigation was conducted into Plaintiff's grievance concerning the alleged assault that is the subject of this lawsuit and that four correctional officers, including Officers Norton and Simmerson, were interviewed as part of that investigation. Id. Plaintiff's appeal was partially granted and that "results of any inquiry/investigation will not be shared with staff, members of the public, or inmates." Id. Also attached is a memorandum entitled Director's Level Appeal Decision, dated September 14, 2006 and signed by Inmate Appeals Branch Chief, N. Grannis. It states as follows:
III. Director's Level Decision: Appeal is denied.
A. Findings: Upon review of the documentation submitted, it is determined that the appellant's allegations have been reviewed and evaluated by administrative staff, and an appeals inquiry has been completed. The appellant has been transferred to the California State Prison, Sacramento (SAC) since filing this appeal. The finding of the staff complaint inquiry is confidential and will not be disclosed. There is no avenue in the inmate appeals process to award monetary compensation.
Id. Thus, Plaintiff argues, "[d]ocumentation of an investigation into this matter exist somewhere within High Desert State Prison even if the documentation is not located within officers Norton and Simmerson's personnel files." Id. This Court tends to agree.
The attached subpoena duces tecum requests "All documents that concern or relate to any investigation into the alleged January 12, 2006 assault on Inmate Jarmaal Smith, as documented in CDC 602 inmate grievance log no. HDSP3-06-248 and related appeals, including any adverse action that was taken against either officer for excessive use of force, regardless of where such documents are located." Warden McDonald is ORDERED to produce any and all documents responsive to the attached subpoena directly to the Court for in camera review by the Court, on or before September 4, 2009. Any responsive documents should not be filed on the CM/ECF system, but should be delivered to the Court "UNDER SEAL." Failure to comply with this Court's order may result in sanctions.
The Clerk of this Court is ordered to send a copy of this order, along with the attached subpoena duces tecum to:
Mike McDonald, Warden
High Desert State Prison
P.O. Box 750
Susanville, CA 96127-0750
The Clerk of this Court is ordered to forward all copies of these sealed documents, upon receipt from Warden McDonald, to the Chamber of Judge Alarcón for in camera review. Issued by the SUBPOENA IN A CIVIL CASE 30 45
If action is pending in district other than district of issuance, state district under case number.
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on ________________________________ ________________________________________________________ DATE SIGNATURE OF SERVER ________________________________________________________ ADDRESS OF SERVER ________________________________________________________Federal Rule of Civil Procedure 45(c), (d), and (e), as amended on December 1, 2007: (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial
(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) DUTIES IN RESPONDING TO A SUBPOENA.
(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:
(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
(e) CONTEMPT.
The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).