Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently under consideration is plaintiff's July 29, 2008, motion to compel discovery. For the reasons explained below, the motion is granted in part and denied in part.
This action proceeds on the June 21, 2006, third amended complaint.*fn1 Plaintiff alleges that on December 30, 2002, the warden of High Desert State Prison ordered a "sweep" of African American prisoners. Third Amended Complaint (hereafter, "Third Am. Comp."), at 9. Plaintiff does not explain what he means by "sweep," but the court construes the term as ordering that prisoners be placed on "lockdown."*fn2 Plaintiff alleges that in the course of instituting the lockdown, he was subjected to a violent cell extraction. He also alleges that after the lockdown was imposed, he was subjected to inhumane conditions of confinement, including beatings, denial of medical care, denial of personal hygiene supplies and confinement to a filthy, freezing cell with blankets and sheets stained with feces. These conditions lasted, he says, until January 9, 2003.
Plaintiff served on defendants two sets*fn3 of requests for the production of documents. Defendants served responses and objections. Dissatisfied with these responses, plaintiff moves to compel further responses and production of the documents..
II. Discovery Rules for Production of Documents
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1). Information is relevant for purposes of discovery if "it is reasonably calculated to lead to the discovery of admissible evidence." Id. Relevant information encompasses "any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Since discovery is designed to define and clarify the issues in the case, it is not limited to the precise issues raised in the pleadings. Id., at 350-51.
"The question of relevancy should be construed "liberally and with common sense" and discovery should be allowed unless the information sought has no conceivable bearing on the case." Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)(quoting Miller v. Panuci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)). The court may limit discovery if it determines the discovery sought is unreasonably cumulative or obtainable from a more convenient or less expensive source, the party seeking discovery had ample opportunity to obtain the information sought, or the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2). A party has a continuing duty to supplement, correct or amend discovery responses if the court so orders or if the party learns the responses were in some material respect incorrect or incomplete and the information has not otherwise been made available to other parties. Fed. R. Civ. P. 26(e)(2).
Any party may request any other party produce for inspection documents including writings, drawings, graphs, charts or data compilations. Fed. R. Civ. P. 34(a). The requesting party must identify the items to be produced and the party upon whom the request is made must make a written response stating that inspection will be permitted as requested, unless the party objects and states the basis therefor. Fed. R. Civ. P. 34(b).
A party may move for an order compelling discovery with respect to objections or other failure to respond to requests to produce documents. Fed. R. Civ. P. 37(a)(2)(B), 34(b).
Defendants contend that plaintiff's motion to compel is procedurally defective and should be denied in its entirety because plaintiff "fails to specifically state why each response is insufficient or in need of compulsion." Defs.' Opp'n to Pl.'s Mot. to Compel, at 2. While plaintiff's motion could be better explained, it is possible to discern what information is being sought. Moreover, "the party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining any supporting its objections." DirectTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002). Accordingly, this general objection is overruled and the court turns to plaintiff's specific requests and defendants' objections.
A. Plaintiff's Requests for Production of Documents, Set 1
Plaintiff seeks: "Duty Roster: Relevant to Defendant Martinez's identity at building location assignment at High Desert State Prison from 12-29-02 thru 2-30-03, re: knowledge and opportunity also, alleged by the Plaintiff." Pl.'s Decl. in Supp. of Mot. to Compel, filed July 29, 2008, at 5. Defendants object on several grounds, but state that they "will provide these documents to Plaintiff upon receipt from High Desert State Prison." Defs.' Opp'n at 3. Although plaintiff asserts that at the time of his deposition on August 5, 2008, he had not received all records responsive to this request, nowhere in his motion does he assert he still has not received them. Thus, it appears that the motion as to this request is moot and it is therefore denied.
Request Number 2 seeks: "Personnel Record: Relevant to defendant's track record reputation and specific instances of conduct in performance standards alleged by the Plaintiff at High Desert State Prison from the year 2001 thru 2003." Pl.'s Decl., at 5. Defendants object that the request seeks "confidential documents not relevant to any claim or defense in this action, and therefore is unlikely to lead to the discovery of admissible evidence." Pl.'s Decl., Ex. 3 at 5. They also object that the request is vague, ambiguous and overbroad. Id. at 5-6. Defendants argue that the confidentiality objection is rooted in the official information privilege. Defs.' Opp'n at 3. The court considers each objection in turn.
The personnel records of police officers defending civil rights actions for the excessive use of force, while containing sensitive information, are within the scope of discovery. Soto v. City of Concord, 162 F.R.D. at 614-15; Hampton v. City of San Diego, 147 F.R.D. 227, 230-31 (S.D. Cal. 1993); Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992). Information such as records of training, conduct, performance, and evaluation may be relevant to credibility, knowledge, motive, preparation, opportunity, identity or absence of mistake or accident. Soto, 162 F.R.D. at 615; Miller, 141 F.R.D. at 296 fn. 3. The personnel records of the defendants in this action are relevant under Rule 26(b) for the same reasons. The court finds, however, that at least initially only documents spanning the time of the alleged constitutional violations, i.e., December 31, 2002, through January 9, 2003, are discoverable subject to certain protective limitations discussed below.
Defendants also allege that plaintiff seeks information subject to the "official information privilege." Yet, defendants failed to prepare and submit a privilege log. A party objecting to production or inspection of part of a document must explain that objection and permit inspection or production of the remainder. Fed. R. Civ. P. 35(b)(2)(C.). A party objecting based on a claim of privilege must make the objection and explain it "as to each record sought to allow the court to rule with specificity." Clarke v. American Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (noting that "blanket assertions of [a] privilege are extremely disfavored); Fed. R. Civ. P. 26(b)(5).*fn4 The failure to do so may result in the privilege being waived. The Ninth Circuit has declined to adopt a rule that failure to produce a privilege log automatically waives the privilege. Burlington Northern & Santa Fe etc. v. U.S.D.C. Montana (Kapsner), 408 F.3d 1142, 1149 (9th Cir. 2005). Instead, when a party opposing requests for production of documents fails to submit a privilege log with his discovery responses, a court entertaining a motion to compel must evaluate several factors. Id. at 1149. Those include whether the objections to producing documents were timely, whether the number of responsive documents to be reviewed by the party opposing discovery imposes a burden that could justify delay in producing a privilege log and whether the objection or assertion of privilege enables other parties and the court to evaluate the claim of privilege. Id. Here, defendants timely responded to plaintiff's discovery requests, but as noted they did not submit a privilege log. Their opposition to plaintiff's motion to compel also was timely, but they still failed to submit a privilege log. It is impossible to tell whether the number of responsive records contributed to this omission because defendants' assertions of burdensomeness, as noted below, lack any explanation of what it would entail to produce the requested documents. Thus, while the first consideration weighs in defendants' favor because they did not seek to avoid disclosure by dragging their feet, the second consideration does not weigh in their favor. The court now turns to the question of whether defendants' response has enabled plaintiff and the court to evaluate the claim of privilege.
"Federal common law recognizes a qualified privilege for official information. Government personnel files are considered official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). The official information privilege exists to ensure 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 v. City of San Jose, 114 F.R.D. 653, 662-63 (N.D. Cal. 1987). "In the context of civil rights suits against [corrections officials], ths balancing approach should be 'moderately pre-weighted in favor of disclosure." Soto, 162 F.R.D. at 613 (quoting Kelly, 114 F.R.D. at 661). Whether personnel files are privileged depends upon the balance of "potential benefits of disclosure against potential disadvantages; if the latter is greater, the official information privilege may bar discovery." Miller, 141 F.R.D. 299. Because "privileges operate in derogation of the truth finding process the law places the burden of proving all elements essential to invoking any privilege on the party seeking its benefits." Kelly, 114 F.R.D. at 662; Fed. R. Civ. P. 26(b)(5). In this regard, it is troubling that defendants have not complied with their obligation to prepare a proper privilege log to assert their claims of privilege here. The party asserting the privilege must identify the documents it believes are protected in order to afford the requesting party an opportunity to challenge the assertion of the privilege. Miller, 141 F.R.D. at 300.
To invoke this privilege the party opposing discovery must, in addition to a privilege log, submit an affidavit from an official of the agency in control of the materials sought addressing the following concerns: (1) an affirmation that the agency has maintained the confidentiality of the materials it refuses to disclose; (2) a statement that the affiant personally has reviewed the material in question; (3) a specific identification of the privacy interests that would be threatened by disclosure to the plaintiff; (4) a description of how disclosure pursuant to a "carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests;" and (5) a projection of the extent of harm that would befall the threatened interests if disclosure were ordered. Kelly, 114 F.R.D. at 670. In Kelly, the court emphasized that the reason for requiring this sort of showing, is to provide the court with the information it needs ...