The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Plaintiff Jarmaal Laronde Smith is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint filed March 23, 2007, against Defendants Norton and Simmerson for the alleged use of excessive force against and failure to protect Plaintiff from an alleged assault, in violation of the Eighth Amendment. This matter is set for jury trial on August 4, 2009.
On June 17, 2009, Plaintiff filed a motion seeking leave to file a motion to compel discovery. (Doc. 55). Plaintiff correctly points out that the deadline for filing a motion to compel discovery preceded the due date for Defendants to produce responses to Plaintiff's discovery requests. Therefore, Plaintiff was not aware of any deficiencies in Defendants' discovery responses until after the deadline for filing a motion to compel had passed.
Plaintiff argues in his motion that Defendants have improperly withheld certain documents he has requested as privileged. Plaintiff also argues that if he is granted leave to file a motion to compel he will "attempt to show why the High Desert State Prison's warden should be ordered to produce the documentation [he] seeks." Doc. 55.
For the reasons set forth below, the Court will construe Plaintiff's motion filed June 17, 2009, as a motion to compel discovery and will order Defendants to respond to the motion on or before June 30, 2009. As to the discovery Plaintiff is seeking that may be in the possession, custody or control of the High Desert State Prison's warden, the Court will construe Plaintiff's motion filed June 17, 2009, as a request for leave to file a motion for the issuance of a subpoena duces tecum directing the current Warden of High Desert State Prison, Warden Mike McDonald, to produce the requested documents relating to the assault Plaintiff alleges occurred against him on January 12, 2006 and grant the request.
Plaintiff seeks, by way of discovery, information concerning an assault he alleges occurred on him at the High Desert State Prison's administrative Segregation Unit on January 12, 2006. This alleged assault is the subject of his complaint. (Doc. 1). In his complaint, in addition to naming Corrections Officers Norton and Simmerson as defendants, Plaintiff also named as defendants "LeAnn Crones, Director of Corrections," and "Tom Felker, Warden of High Desert Prison." Pursuant to 28 U.S.C. § 1915A(a), this Court screened the complaint and dismissed Crones and Felker from the case because Plaintiff failed to allege that either of these defendants participated in, directed or was aware of the alleged assault. Therefore, Plaintiff's requests for discovery were directed only at Defendants Norton and Simmerson.
Plaintiff alleges that Defendants' responses to his discovery requests are deficient in the following respects: (1) Defendants have claimed that all documents from their personnel files are protected by state and federal privileges and California statutes; (2) Defendants "invoked 'privilege' as a response to the Plaintiff's request the names and addresses of all correctional staff be provided him who was on duty in High Deserts Z-Unit on the day of January 12, 2006 between the hours of 6:00 a.m. thru 2:00 p.m."; and, (3) Defendants have claimed that privilege protects "[a]ny and all documents and reports concerning [the alleged assault on Plaintiff] in High Desert State Prison's Z-Unit on January 12, 2006 and January 13, 2006, including, but not limited to use of force reports, disciplinary charges, (against officer Norton or officer Simmerson), statements of any witnesses, (to any assault on that day), findings and conclusions of disciplinary hearings (of officer Norton, Simmerson, or any other officer who may have witnessed the assault)."
"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).*fn1 "The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd., 179 F.R.D 281, 283 (C.D. Cal. 1998).
Privilege is a valid objection to discovery under Fed. R. Civ. P. 26(b)(5). Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 283 (C.D. Cal. 1996). To the extent privacy is a matter of privilege under state law, federal courts will honor the privilege and protect the responding party from discovery. Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, § 11:77 (1996 revised). In California, the right to privacy is set forth in Article I, Section I of the California Constitution. It is not an absolute right, but a right subject to invasion depending upon the circumstances. Hill v. Nat'l College Athletic Ass'n, 7 Cal. 4th 1, 37, 26 Cal. Rptr. 2d 834, 857, 865 P.2d 633 (1994). Moreover, the courts have frequently found that a party's need for the information may outweigh whatever privacy rights, if any, another party may have. Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 552 (E.D. Cal. 1990).
In actions brought under 42 U.S.C. § 1983, personnel files of law enforcement officers are relevant and discoverable. See Voth v. Albright, 2006 U.S. Dist. LEXIS 79128 (E.D. Cal. 2006); Green v. Baca, 226 F.R.D. 624, 643-44 (C.D. Cal. 2005). Questions of evidentiary privilege that arise in the course of adjudicating federal rights are governed by principles of federal common law. See United States v. Zolin, 491 U.S. 554 (1989) (citing Rule 501 of the Federal Rules of Evidence). Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for ND. Cal., 511 F.2d 192, 198 (9th Cir. 1975). Government personnel files are considered official information. See, e.g., Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990); see also Zaustinsky v. Univ. of Cal., 96 F.R.D. 622, 625 (N.D. Cal. 1983).
The discoverability of official documents is determined under the "balancing approach that is moderately pre-weighted in favor of disclosure." Kelly v. City of San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987). The party asserting the privilege must properly invoke the privilege by making a "substantial threshold showing." Id. at 669. The party must file an objection and submit a declaration or affidavit from a responsible ...