The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a state prisoner proceeding with appointed counsel, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion to compel production of documents (Doc. 258), Defendant's motion to compel expert witness disclosure (Doc. 262), Plaintiff's motion to compel Defendant's deposition (Doc. 267), a motion for protective order (Doc. 271), and Plaintiff's request for authority to incur costs (Doc. 257). A hearing on all of these pending motions was held on June 11, 2009, before the undersigned. Attorney Carter White, appeared telephonically for Plaintiff; attorney Carrie Fredrickson appeared telephonically for Defendant. Also present by telephone was attorney Tamera Colson from the Office of the Inspector General and attorney Kevin Hosn from the Attorney General's office.
I. PRODUCTION OF DOCUMENT REQUEST
Plaintiff propounded a request for production of documents on Defendant, who responded with objections as to eight of the requests. The requests at issue in the motion to compel are as follows:
No. 1: "Any and all documents relating to the course of action taken by the California Department of Correction and Rehabilitation ('CDCR') against DEFENDANT mentioned in the Director's Level Appeal Decision Local Log No. 0207480, dated February 11, 2003. See attached."
No. 2: "Any and all documents relating to the investigative measures taken by CDCR that support the statement in the Director's Level Appeal Decision Local Log NO. 0207489, dated February 11, 2003, that the complaint of employee misconduct against DEFENDANT was substantiated."
No. 3: "Any and all documents relating to the investigations conducted by the Office of Internal Affairs regarding DEFENDANT's conduct referred to in the Second Level Appeal Decision, Log No. HDSP-S-02-1257 dated December 3, 2002."
No. 4: "Any and all investigative notes and documents that support the assertion that the complaint of misconduct by DEFENDANTS was substantiated mentioned in the First Level Appeal Decision, Log No. HDSP-S-02-1257 dated October 29, 2002."
No. 6: "Any and all documents from the DEFENDANT's personnel file with CDCR that are in the DEFENDANT or her agent's control."
No. 7: "The deposition and any recorded statements of Mr. Paul Magnan given in connection with the related lawsuit Holtsinger v. Briddle, CIV-S- 03-0732 MCE-GGH-P."*fn1
No. 8: "All documents relating to the medical care Plaintiff received from June 22, 2002, until present."
No. 9: "All requests for medical care submitted by Plaintiff, including but not limited to the CDCR Healthcare Service Request form 7362 submitted by Plaintiff Michael Holtsinger dated June 22, 2002 and June 25, 2002."
Defendant raised a number of objections to these requests including that they were vague, ambiguous, and called for speculation; requested privileged information; are overly broad; calls for irrelevant information not reasonably calculated to lead to the discovery of admissible evidence; requests information protected by Defendant's right to privacy; requests documents not within Defendant's possession, custody or control; and the documents requested are equally available to Plaintiff.
1. Requests One Through Four
The parties were previously ordered to meet and confer on the disputed discovery issues. As a result of the parties' meet and confer efforts, they were able to enter into a stipulation whereby Defendant will produce a copy of the CDCR's internal affairs investigation report, subject to certain protections. In addition, at the hearing of these motions, the parties agreed to stipulate that a copy of the crime incident report (form 837) would also be produced, subject to the same protections. The parties agreed to draft the stipulation and submit it to the court for approval. However, the court agreed to rehear this matter if the parties experience any difficulties, such as if the documents exchanged have too much information redacted, and conduct an in camera review of the unredacted version of the reports.
The agreement the parties have reached in regards to these two documents, was in response to requests one through four, listed above. Defendant argues these reports are the only documents she has that could be responsive to Plaintiff's requests one through four. Plaintiff is asking the court for an order requiring Defendant to make any possible and necessary requests to the CDCR in order to obtain additional documents. Defendant maintains that she has made such requests, and has been unable to obtain any additional documents that Plaintiff himself could not and has not obtained.
Plaintiff believes, and has articulated to the court, that additional documents including some of the supporting documents used in the internal investigation, are or should be included in Defendant's personnel file. Plaintiff has requested Defendant produce a copy of her entire personnel file. It also appears that Plaintiff has subpoenaed Defendant's personnel file directly from the CDCR, and subpoenaed documents relating to the investigations conducted by the Office of the Inspector General (OIG) in relation to the allegations of staff misconduct arising from the June 22, 2002, incident. Plaintiff argues that Defendant's personnel file may lead to admissible evidence, such as documents addressing her job performance, attitude toward inmates, and employee misconduct. Defendant maintains that her entire personnel file is not relevant, is protected by her right to privacy and is privileged under California law protecting the personnel files of peace officers. She proposes that if the court finds that her personnel file may be subject to production, that the court conduct an in camera review of the entire file so that only those documents which are relevant and not privileged are actually produced.
The OIG has also filed a motion for a protective order on the subpoena for documents related to their internal investigation. The OIG argues that the reports include medical information about other inmates, administrative records (such as timekeeping and case aging reports), as well as portions of Defendant's personnel file. The OIG objects to producing the documents as they are confidential and privileged. The OIG further argues that the OIG would be subject to sanctions by producing the documents without a court order. In addition, it maintains that disclosing the documents and information contained therein may jeopardize the safety and security of the prison officials, other inmates and the institutions, and that the information contained therein could be used for improper purposes, including blackmail, harm to families, or discrediting officers during the performance of their duties. The OIG recommends that if the court decides disclosure is appropriate, that the court conduct an in camera review first, and only require production of those documents which are relevant, and then subject to a protective order and appropriately redacted.
Plaintiff opposes the motion for a protective order, arguing the OIG fails to show good cause for keeping the material under seal, and that the OIG has not met their burden of proving risk.
3. Requests Eight and Nine
In addition to Defendant's personnel file, and the internal investigation records, Plaintiff has also requested Defendant produce documents relating to his medical care (request eight) and any requests for medical care he submitted (request nine). Plaintiff previously subpoenaed his entire medical and c-file from CDCR. Defendant claims that although she received copies of Plaintiff's files pursuant to ...