United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL (ECF NO. 83)
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. The action proceeds on Plaintiff's Eighth
Amendment excessive force claim against Defendants Cope,
Gonzales, Lozano, Smith, and Stane, and on a Fourteenth
Amendment due process claim against Defendant Crounse.
January 31, 2017, Plaintiff filed a motion to compel. (ECF
No. 83.) Defendants filed oppositions. (ECF Nos. 85-89.)
Plaintiff filed a belated reply. (ECF No. 99.) On March 3,
2017, the Court ordered Defendants to submit specified
materials for in camera review in relation to the motion to
compel. (ECF No. 94.) They did so on March 15, and March 16,
2017. (See ECF Nos. 96, 97.)
March 7, 2017, the Court denied without prejudice the motion
to compel as to Defendant Crounse. (ECF No. 95.) The C ourt
took under submission the motion to compel as to other
Defendants. The Court herein states its ruling on
Plaintiff's motion to compel as to Defendants Cope,
Gonzales, Lozano, Smith, and Stane.
discovery process is subject to the overriding limitation of
good faith. Asea, Inc. v. S. Pac. Transp. Co., 669
F.2d 1242, 1246 (9th Cir.1981). “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.”
Fed.R.Civ.P. 26(b)(1). Relevant information need not be
admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
if the responding party objects to a discovery request, the
party moving to compel bears the burden of demonstrating why
the objections are not justified. E.g., Grabek
v. Dickinson, No. CIV S-10-2892 GGH P., 2012 WL 113799,
at *1 (E.D. Cal. Jan. 13, 2012); Ellis v. Cambra,
No. 1:02-cv-05646-AWI-SMS (PC), 2008 WL 860523, at *4 (E.D.
Cal. Mar. 27, 2008). This requires the moving party to inform
the Court which discovery requests are the subject of the
motion to compel, and, for each disputed response, why the
information sought is relevant and why the responding
party's objections are not meritorious. Grabek,
2012 WL 113799, at *1; Womack v. Virga, No. CIV
S-11-1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec.
objected to many of Plaintiff's requests on the ground
that the requested information is privileged. In support of
their assertion of privilege, Defendants relied largely on
state law privilege grounds that are not binding on federal
courts in this type of case. Kelly v. City of San
Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987).
the Court will discuss only Defendants' reliance on the
official information privilege.
Legal Standard - Official Information Privilege The
Supreme Court has long noted that privileges are disfavored.
Jaffee v. Redmond, 518 U.S. 1, 9 (1996). “The
party asserting an evidentiary privilege has the burden to
demonstrate that the privilege applies to the information in
question.” Tornay v. United States, 840 F.2d
1424, 1426 (9th Cir. 1988). Privileges are to be
“strictly construed” because they “impede
full and free discovery of the truth.” Eureka Fin.
Corp. v. Hartford Acc. and Indem. Co., 136 F.R.D. 179,
183 (E.D. Cal. 1991). “If the privilege is worth
protecting, a litigant must be prepared to expend some time
to justify the assertion of the privilege.”
civil rights cases brought under section 1983, questions of
privilege are resolved by federal law. Kerr v. U.S.
District Court for the Northern District of California,
511 F.2d 192, 197 (9th Cir. 1975). “State privilege
doctrine, whether derived from statutes or court decisions,
is not binding on federal courts in these kinds of
cases.” Kelly v. City of San Jose, 114 F.R.D.
653, 655-56 (N.D. Cal. 1987).
“[f]ederal common law recognizes a qualified privilege
for official information.” Sanchez v. City of Santa
Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing
Kerr, 511 F.2d at 198). The official information
privilege ensures disclosure of discoverable information
without compromising the state's interest in protecting
the privacy of law enforcement officials and in ensuring the
efficacy of its law enforcement system. Kelly, 114
F.R.D. at 662-63.
determine whether the information sought is privileged,
courts must weigh the potential benefits of disclosure
against the potential disadvantages. If the latter is
greater, the privilege bars discovery.”
Sanchez, 936 F.2d at 1033-34. “In the context
of civil rights suits against [corrections officials], this
balancing approach should be 'moderately pre-weighted in
favor of disclosure.'” Soto v. City of
Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) (quoting
Kelly, 114 F.R.D. at 661).
party invoking the privilege must at the outset make a
“substantial threshold showing” by way of a
declaration or affidavit from a responsible official with
personal knowledge of the matters attested. Soto,
162 F.R.D. at 613. “The claiming official must
'have seen and considered the contents of the documents
and himself have formed the view that on grounds of public
interest they ought not to be produced' and state with
specificity the rationale of the claimed privilege.”
Kerr, 511 F.2d at 198 (citation omitted). The
affidavit must include: (1) an affirmation that the agency
generated or collected the material in issue and has
maintained its confidentiality; (2) a statement that the
official has personally reviewed the material in question;
(3) a specific identification of the governmental or privacy
interests that would be threatened by disclosure of the
material to plaintiff and/or his lawyer; (4) a description of
how disclosure subject to a carefully crafted protective
order would create a substantial risk of harm to significant
governmental or privacy interests, and (5) a projection of
how much harm would be done to the threatened interests if
disclosure were made. Soto, 162 F.R.D. at 613. In
addition, “[t]he asserting party, as in any case where
a privilege is claimed, must sufficiently identify the
documents so as to afford the requesting party an opportunity
to challenge the assertion of privilege.” Miller v.
Panucci, 141 F.R.D.292, 300 (C.D. Cal. 1992).
Stane's Letter of Instruction The Court has
reviewed the letter of instruction and determined that it is
not relevant to this action, nor is it likely to lead to the
discovery of relevant evidence. Plaintiff has no discernible
need for discovery of this material. In this circumstance,
the balance tips against disclosure. The letter need not be
Smith's Employee Counseling Records
Defendant Stane's letter of instruction, the Court has
reviewed Defendant Smith's employee counseling records
and is satisfied that they are not relevant to this action,
nor are they likely to lead to the discovery of relevant
evidence. The records need not be produced.
Inmate Housing Roster
No. 30 seeks the inmate housing roster for Plaintiff's
housing unit for the date of the incident at issue in this
case. Defendants objected to this request on grounds of
confidentiality, safety and security, and third party
privacy. The declaration submitted by Defendants in support
of their privilege log addressed only the defendant
officers' confidential information; it articulated no
basis for withholding the inmate housing roster. In their
opposition to the motion to compel, Defendants cite only to
generalized concerns regarding the release of confidential
inmate information to other inmates.
declaration is insufficient to support Defendants' claim
of privilege. Additionally, the only asserted basis for
maintaining the confidentially of these documents is state
law concerning confidentiality and privacy. The Court finds
these justifications unpersuasive grounds for withholding
discovery. Moreover, the Court concludes that a roster of
inmates housed on Plaintiff's unit at the time the
incident occurred may be relevant and necessary for the
identification of potential inmate witnesses. There appears
to be no alternative means available to Plaintiff to obtain
this information. Accordingly, the Court concludes that the
housing roster must be produced to Plaintiff.
to the extent the roster contains confidential inmate
information beyond the inmate's first initial, last name,
and CDCR number, such information may be redacted, without
prejudice to Plaintiff seeking disclosure of the redacted
information upon a showing of good cause.
Use of Force Critique Package
Court has reviewed the Use of Force Critique Package in
camera. The information contained therein generally is
unhelpful to Plaintiff's case and instead is supportive
of Defendants' version of the facts. None of the
documents contain findings that excessive force was used.
Nevertheless, the Court finds that some of the documents
contain accounts of the incident in a level of detail that
may lead to the discovery or relevant evidence or assist
Plaintiff in identifying witnesses.
Court has weighed the potential benefits of disclosure of
these documents against the potential disadvantages,
Sanchez, 936 F.2d at 1033-34, and concludes that, in
the specific instances described below, the balance tips in
favor of disclosure. The Court is sensitive to
Defendant's need to maintain institutional safety and
security. Similarly, the Court appreciates the benefit to
society and institutions within it of promoting thorough and
accurate investigations. However, these records contain
relevant information bearing directly on the incident at
issue that otherwise may be unavailable to Plaintiff.