(PC) Bishop v. Lopez, 1:15-cv-00273

Background

Plaintiff Robert Bishop, a pro se state prisoner, sued under 42 U.S.C. § 1983 and served exhaustion-related discovery after defendants moved for summary judgment on exhaustion.
The Court previously deferred ruling on defendants’ exhaustion-based summary judgment to allow plaintiff limited discovery.
Plaintiff moved to compel further responses to three requests for production from his third set of requests; defendants opposed and also moved for a second protective order staying further discovery.
Defendants had responded to numerous discovery requests and objected to merit-based discovery as outside the scope of permitted exhaustion-related discovery; plaintiff later served many additional requests for admissions and another production request.
The Court reviewed whether (1) particular production requests were justified and (2) further discovery should be stayed pending resolution of the exhaustion motion.
The Court denied two of plaintiff’s production compulsion requests, granted one (for a 2010–2011 Appeals Coordinator duty document, if it exists), and granted defendants’ motion to stay all further discovery related to their exhaustion motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants must produce the 4B-1R inmate appeals log (Req. No. 1)	The log must exist and is relevant; defendants should produce it	The log was not retained per records-retention; cannot produce what does not exist	Denied — defendant stated the log was not retained; court will not order production of non-existent docs
Whether defendants must produce CDCR orders/directives re: appeals coordinators (Req. No. 3)	These policies are relevant and defendants’ objections are boilerplate; compel further response	Defendants produced applicable Title 15 and DOM excerpts and objected as overbroad/not relevant	Denied — defendants already produced applicable materials; no basis to compel more
Whether defendants must produce the Appeals Coordinator Authority/Responsibilities (Req. No. 4)	This duty statement is relevant to exhaustion and whether an appeal was improperly screened/denied	Defendants say a duty statement is not relevant to exhaustion; raised boilerplate objections	Granted — if such 2010–2011 duty statement exists and is in defendants’ control, produce within 15 days
Whether discovery should continue or be stayed pending exhaustion ruling	Plaintiff seeks more discovery (many new RFA/prod requests) to oppose summary judgment	Defendants request protective order: stay all discovery pending exhaustion resolution; argue prior limited discovery completed and additional requests are fishing	Granted — second protective order staying ALL further discovery related to exhaustion; defendants relieved of obligation to respond to specified March 2016 discovery

Key Cases Cited

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (recognizing privacy/interests in Rule 26(c) protective orders)
Burlington N. & Santa Fe Ry. Co. v. United States Dist. Court for the Dist. of Montana, 408 F.3d 1142 (discussing discovery objections and privilege)
Albino v. Baca, 747 F.3d 1162 (en banc) (addressing stays of merits discovery pending exhaustion determinations)
Little v. City of Seattle, 863 F.2d 681 (staying discovery pending resolution of potentially dispositive issues furthers efficiency)
Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242 (discovery subject to good-faith obligations)
United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450 (party seeking production bears burden to show opponent’s control)
Calderon v. U.S. Dist. Court for the Northern District of California, 98 F.3d 1102 (courts should not allow prisoners to use discovery as fishing expeditions)
Rivera v. NIBCO, Inc., 364 F.3d 1057 (district courts need not permit fishing expeditions in discovery)
Tatum v. City & County of San Francisco, 441 F.3d 1090 (nonmovant must explain why additional discovery would preclude summary judgment)