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Gorton v. Bick

September 27, 2010

CHARLES GORTON, PLAINTIFF,
v.
BICK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (DOC. 86)

Plaintiff Charles Gorton ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is 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 second amended complaint against Defendant Miller for failure to protect in violation of the Eighth Amendment. Pending before the Court is Plaintiff's motion to compel, filed February 8, 2010.*fn1 (Pl.'s Mot. Compel, Doc. 86.) Defendant filed his opposition on February 25, 2010. (Def.'s Opp'n, Doc. 87.) No reply was filed. The matter is submitted pursuant to Local Rule 230(l).

I. Motion To Compel

Plaintiff submits a motion to compel further response from Defendant to seventeen requests for production of documents. The Court addresses each in turn.

A. Request For Production No. 1

Pl.'s Request: A copy of Defendant P. G. Miller's employment disciplinary record from the Human Resources Department of the California State Department of Corrections and Rehabilitation. This record shall include any and all disciplinary actions or warnings, Citizen's complaints, Staff complaints, Inmate Complaints, as well as any and all Inmate Appeal CDC-602 actions against or referring to, Officer Miller during his entire time of employment as a CDC Correctional Officer. These records are critical evidence to demonstrate the defendant's moral character and conduct as a citizen of the United States of America.

Def.'s Response: Defendant objects to this request because it is overbroad, burdensome, vague, ambiguous, and confusing as to "employment disciplinary record," and "any and all disciplinary actions or warnings, Citizen's complaints, Staff complaints, Inmate Complaints, as well as any and all Inmate Appeal CDC-602 actions against or referring to." Defendants further object that the request is irrelevant, because it is not calculated to lead to the discovery of admissible evidence, and seeks inadmissible character evidence. And Defendants object that Plaintiff's request calls for information protected by privacy rights of staff and inmates guaranteed by the United States Constitution, the California Constitution, and the applicable statutes, such as Penal Code § 832.7 and 6126.3, Government Code § 6254, Evidence Code section 1043.

Plaintiff amended his request to pertain to only Defendant Miller's conduct towards inmate sex offenders. (Pl.'s Mot. Compel 3:14-28.) Defendant objects that it is vague and ambiguous as to what "disciplinary actions or warnings" pertain to this action. (Def.'s Opp'n 4:5-8.) The Court overrules Defendant's objection of vague or ambiguous, as Plaintiff is requesting a record of any disciplinary actions taken against Defendant for his conduct towards inmate sex offenders, within the 8 years preceding the date of the events alleged in this action. This action is proceeding against Defendant Miller for failure to protect Plaintiff, who is a sex offender. (Pl.'s Second Am. Compl. 6-8.)

Defendant objects that the request is overbroad because Plaintiff request documents that relate to events that are not relevant to this action. (Def.'s Opp'n 4:8-9.) This objection is without merit. The scope of discovery permits discovery if it "appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Plaintiff contends that the discovery of these documents may go towards Defendant's motive in failing to protect him from harm. (Pl.'s Mot. Compel 4:10-14.) Defendant contends that Plaintiff has failed to lay the foundation for this material, and that Plaintiff's request is an improper fishing expedition.

(Def.'s Opp'n 4:9-13.) Foundation goes towards the admissibility of evidence, which is not a limitation in discovery. Fed. R. Civ. P. 26(b)(1) (relevant information in discovery need not be admissible); United States v. City of Torrance , 163 F.R.D. 590, 592 (C.D. Cal. 1995).

Defendant finally contends that the documents are subject to federal common law privilege of privacy. Federal law regarding privilege applies to federal question cases. Fed. R. Evid. 501; see United States v. Zolin , 491 U.S. 554, 562 (1989). State law may provide guidance, but it is not the law of the circuit. Green v. Baca , 226 F.R.D. 624, 643-44 (C.D. Cal. 2005). Federal common law recognizes a qualified privilege for official information, including government personnel files. Kerr v. United States Dist. Ct. for N.D. Cal. , 511 F.2d 192, 198 (9th Cir. 1975), aff'd , 426 U.S. 394 (1976); Soto v. City of Concord , 162 F.R.D. 603, 613 (N.D. Cal. 1995). In determining whether information sought is privileged, the Court must weigh the potential benefits of disclosure against the potential disadvantages to the party asserting the privilege. Sanchez v. City of Santa Ana , 936 F.2d 1027, 1033-34 (9th Cir. 1990).

Defendant further contends that there are no documents responsive to this request. (Def.'s Opp'n 6:14-16.) It would be difficult to weigh the benefits of disclosure against potential disadvantages if the documents do not exist. Defendant, however, did not actually respond to Plaintiff's discovery request by stating that the documents do not exist. The Court thus declines to address Defendant's privilege objection at this time. Plaintiff's motion to compel further response to Request For Production No. 1 is granted. Defendant is ordered to file further response to Plaintiff's Request For Production No. 1, within thirty days from the date of service of this order. If, after a reasonable inquiry, these documents do not exist, Defendant should so respond.

B. Request For Production No. 2

Pl.'s Request: P.G. Miller's criminal record, to include, but not limited to, Misdemeanors, Felonies, and DMV records. These records are critical evidence to prove Officer Millers personal and professional moral character and conduct as a citizen of the United States.

Def.'s Response: Defendant objects to this request because it is overbroad, burdensome, vague, ambiguous, and confusing as to "P.G. Miller's criminal record, to include, but not limited to, Misdemeanors, Felonies, and DMV records."

Defendants further object that the request is irrelevant, because it is not calculated to lead to the discovery of admissible evidence. And Defendants object that Plaintiff's request calls for information protected by privacy rights of staff and inmates guaranteed by the United States Constitution, the California Constitution, and the applicable statutes, such as Penal Code § 832.7 and 6126.3, Government Code § 6254, Evidence Code section 1043.

Plaintiff amended his request to refer to Defendant's actions against sex-offender inmates. (Pl.'s Mot. Compel 5:14-18.)

Defendant's objections as to vagueness and ambiguity are overruled. Plaintiff seeks a copy of Defendant's "police record," which the Court interprets as a record of any criminal actions by Defendant. Defendant's objection as to foundation is overruled as stated above.

Defendant contends that he has not been convicted of any felony or misdemeanor concerning any actions against sex-offenders, and that no such records exist. (Opp'n 9:24-28.) Defendant, however, did not actually respond to Plaintiff's discovery request by stating that the records do not exist. The Court thus declines to address Defendant's privilege objection at this time. Plaintiff's motion to compel further response to Request For Production No. 2 is granted. Defendant is ordered to file further response to Plaintiff's Request For Production No. 2, within thirty days from the date of service of this order. If, after a reasonable inquiry, these documents do not exist, Defendant should so respond.

C. Request For Production No. 3

Pl.'s Request: Officer Miller's entire Written Report concerning Inmate Pina's conversation with Officer Miller, as referenced to in Officer Miller's Interrogatory Response No. 17.

Def.'s Response: Defendant objects to Plaintiff's request as it is vague and ambiguous as to "Officer Miller's entire Written Report concerning Inmate Pina's conversation with Officer Miller, as referenced to in Officer Miller's Interrogatory Response No. 17." Without waiving objections, Defendant cannot produce this document as this document does not exist.

Defendant responded by stating that the document does not exist. The Court cannot compel the production of non-existent documents. Plaintiff argues that a lack of response indicates "an over-familiarity relationship with Inmate Pina." (Pl.'s Mot. Compel 6:20-22.) This argument is unsupported. Absent a showing by Plaintiff that such a document does exist, Plaintiff's motion to compel further response to Request For Production No. 3 is denied.

D. Request For Production No. 4

Pl.'s Request: Provide the names and addresses of witnesses to the extent known to Defendant Miller, including, but not limited to, those intended to be called to testify at the trial of this action.

Def.'s Response: Defendant objects to Plaintiff's request because it is overbroad, vague, and ambiguous as to "names and addresses of witnesses to the extent known to Defendant Miller." Defendant further objects that the request seeks information protected by attorney-client privilege and is attorney work product. Moreover, Plaintiff's request is an interrogatory and not a request for production of documents. Without waiving objections, Defendant does not know the names and addresses of any "witnesses" nor know of the existence of a document that lists them.

Plaintiff contends that his requests are not ambiguous - the names and addresses of witnesses intended to be called to testify at trial. (Pl.'s Mot. Compel 7:16-22.) Defendant contends Plaintiff is unclear as to the use of "known" in the request. (Def.'s Opp'n 12:11-13.) Defendant further contends that the disclosure of potential witnesses is attorney-client privilege and work product, and will not be disclosed until ordered by the Court in the pretrial statement. (Def.'s Opp'n 12:13-15, 20-22.)*fn2

The Court sustains Defendant's objection that Plaintiff seeks work product. The witnesses who may testify at trial are part of Defendant's defense strategy, and do not need to be disclosed at this time. See Fed. R. Civ. P. 26(b)(3) (party may not generally discover documents that are prepared in anticipation of trial). Plaintiff fails to demonstrate substantial need and undue hardship to obtain this information. However, Plaintiff is entitled to the identity of of all witnesses to the events described in the complaint, regardless of whether they will be called as witnesses, who are know to defendant. Plaintiff's motion for further response to Request For Production No. 4 is granted in part.

E. Request For Production No. 5

Pl.'s Request: Statements of witnesses then proposed to be called by defendant miller and of other persons having personal knowledge of the acts, omissions or events which are the basis for defense concerning this action.

Def.'s Response: Defendant objects to Plaintiff's request because it is overbroad, vague, and ambiguous as to "statements of witnesses then proposed to be called by Defendant Miller and of other persons having personal knowledge of the acts, omissions or events which are the basis for defense concerning this action." Defendant further objects that the request seeks information protected by attorney-client privilege and is a request for attorney work ...


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