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Sahibi v. Gonzales

United States District Court, E.D. California

April 4, 2002

OUSSAMA SAHIBI, Plaintiff,
v.
BORJAS GONZALES, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (ECF NO. 83)

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         On 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.)

         On 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.

         I. Legal Standard

         The 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. Id.

         Generally, 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. 21, 2011).

         II. Discussion

         A. Privilege Log

         Defendants 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).

         Accordingly, the Court will discuss only Defendants' reliance on the official information privilege.

         1. 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.” Id.

         In 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).

         Nevertheless, “[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.

         “To 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).

         The 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).

         2. 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 produced.

         3. Smith's Employee Counseling Records

         As with 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.

         4. Inmate Housing Roster

         Request 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.

         This 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.

         However, 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.

         5. Use of Force Critique Package

         The 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.

         The 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. ...


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