The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER PARTIALLY GRANTING MOTION TO COMPEL (Doc. 39)
Plaintiff Barry Louis Lamon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 9, 2010, Plaintiff filed a motion to compel. (Doc. #39.) Defendants Adams, Junious, Callow, Lee, Ponce, Purvis, Baer, Valdez, and Bueno ("Defendants") filed an opposition to Plaintiff's motion to compel on June 28, 2010. (Doc. #41.) Plaintiff filed a reply to Defendants' opposition on July 14, 2010. (Doc. #42.)
This action proceeds on Plaintiff's February 2, 2009 complaint. Plaintiff claims that Defendants Baer, Valdez, and Buenos violated his Eighth Amendment rights by pummeling and pepper spraying Plaintiff in an unnecessary and excessive manner. Plaintiff also claims that Defendants Baer, Valdez, Buenos, Lee, Ponce, and Purvis violated his Eighth Amendment rights by housing Plaintiff with inmates that were known to be gang enemies. Plaintiff further claims that he was housed with known gang enemies in retaliation against Plaintiff's exercise of his First Amendment right to file grievances against the government. Finally, Plaintiff claims that supervisory Defendants Adams, Junious, Da Viaga, and Callow violated Plaintiff's Eighth Amendment rights by failing to adequately respond to Plaintiff's administrative complaints, thereby exposing Plaintiff to a risk of further harm.
Plaintiff contends that he propounded two sets of document production requests, a set of interrogatories, and a set of requests for admissions on Defendants. Plaintiff argues that Defendant Adams is the only defendant who responded to the requests. Plaintiff further argues that Defendant Adams' responses were deficient.
The Court notes that there appears to be some confusion regarding to whom the discovery requests were sent and which of the individual defendants were to respond to them. Defendants noted that Plaintiff did not direct his document production requests to any particular defendant and, therefore, only one response was prepared on behalf of all the defendants. Plaintiff has not objected to this. Thus, there is no apparent dispute regarding who prepared the responses.
Defendants also note that the combined interrogatories and request for production of documents and the requests for admission appeared to be directed only to Defendant Adams and, therefore, none of the other defendants prepared a response to those requests. In his reply to Defendants' opposition, Plaintiff has not objected to the fact that the other defendants did not prepare a response. Accordingly, the Court will not direct any other defendants to prepare a response to Plaintiff's discovery requests.
A. Requests for Production of Documents, Set One
Plaintiff argues that Defendant Adams' responses to items 1, 3, 4, 5, 6, 7, and 8 from Plaintiff's first set of document production requests were deficient.
1. Request for Production of Documents No. 1
Plaintiff's Request for Production of Documents No. 1 states:
Any and all grievances, complaints, or other documents received by the defendants or their agents at Corcoran concerning an allegation of unnecessary and/or excessive use of force on inmates by Defendants Adams, Junious, Callow, Lee, Ponce, Purvis, Baeri, Valdez, or Buenoes and any memoranda, investigative files, or other documents created in response to such documents, since June 21, 2003.
Defendant Adams' response states:
Objection. Compound, overly broad, and burdensome. This request also seeks information which could invade other inmates' right to privacy. Additionally, this request seeks information protected by the attorney-client privilege and work product doctrine. Without waiving the objections, the responding party hereby produces: (1) Inmate Appeal Form (Log No. 08-3268), (2) Staff Complaint Response (Log No. 08-3268), and (3) Director's Level Appeal Decision (Log No. 08-3268).
Plaintiff argues that the documents sought are highly relevant to his claims. Plaintiff further argues that the documents do not contain information that would violate any inmate's privacy because Plaintiff is not seeking any personnel records, or any medical information.
Defendants contend that Plaintiff's request is overly broad because Plaintiff failed to sufficiently narrow his request. Defendants contend that "[t]here is simply no reason to believe that every grievance concerning the use of force by all nine defendants in this action within a 6-year time period is relevant to this action." (Defs. Adams, Junious, Callow, Lee, Ponce, Purvis, Baer, Valdez and Bueno's Opp'n to Pl. Lamon's Mot. to Compel 6:13-15, ECF No. 41)
Plaintiff is entitled to "obtain discovery regarding any non privileged matter that is relevant to any party's claim or defense." Federal Rule of Civil Procedure 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." Federal Rule of Civil Procedure 26(b)(1). The Court finds that the discovery sought by Plaintiff is relevant to his claims. Although Federal Rule of Evidence 404 would normally prohibit Plaintiff from introducing evidence of prior use of excessive force incidents for the purpose of proving that Defendants used excessive force against Plaintiff, the grievances may be introduced for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Federal Rule of Evidence 404(b). The requested discovery may also lead to the discovery of other admissible evidence. Courts have permitted the discovery of prior administrative complaints or lawsuits when the previous complaints are sufficiently similar to the claims made in the complaint. See Cox v. McClellan, 174 F.R.D. 32, 34 (W.D.N.Y. 1997) ("Prior civilian complaints made against the defendants and incidents of excessive force by individual defendants are clearly discoverable; Renshaw v. Ravert, 82 F.R.D. 361, 363 (E.D. Penn. 1979); Martinez v. Cornell Corrections of Texas, 229 F.R.D. 215, 223 (D.N.M. 2005). Finally, the Court notes that Plaintiff's claims against supervisory defendants are premised on his allegation that they were deliberately indifferent to a known risk to Plaintiff's safety. The grievance records may be admissible for the purpose of demonstrating that supervisory defendants were aware that the subordinate defendants had a history of using excessive force against inmates, and therefore posed a risk to Plaintiff's safety.
Defendants' main argument is that production of the requested documents would be extraordinarily burdensome. The scope of discovery may be limited if "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Federal Rule of Civil Procedure 26(b)(2)(C)(iii).
Defendants note that because of the manner in which administrative grievances are maintained, locating the grievances that are responsive to Plaintiff's complaint "would require reviewing every inmate grievance of every inmate housed in the prison during [the] specified period of time and looking at each individual inmate grievance to determine whether any particular grievance involved the specified staff person." (Opp'n 5:14-17, ECF No. 41.) Defendants argue that "[t]he process is further complicated by the fact that many inmate grievances may refer to a particular event or issue but not identify the staff person, or all of the staff persons, involved." (Opp'n 5:17-19, ECF No. 41.)
Although the burden of retrieving the documents in question may be great, the documents requested are highly relevant to Plaintiff's claims. The Court also notes that there is no alternative source for Plaintiff to obtain the information he is seeking. Accordingly, the Court finds that Plaintiff's need for the documents outweighs the burden imposed on Defendant Adams.
Defendants argue that the documents requested invade the privacy rights of other inmates because the requests would identify inmates who are not related to this litigation. Defendants also contend that the grievances may contain "a great deal of intensely personal information about the inmates, such as what conditions necessitated the use of force and what, if any, medical harm they suffered as a result of the employment of force." (Opp'n 7:14-16, ECF No. 41.) Defendants claim that redaction of the inmate names "is not a realistic option given LAMON'S reason for requesting them" because "LAMON would not be able to determine defendants' response to each excessive use of force allegation without questioning the inmate who wrote the grievance." (Opp'n 7:17-20, ECF No. 41.)
The Court may limit the scope of discovery to protect the privacy interests of litigants and third parties. See Federal Rule of Civil Procedure 26(c), Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35 (1984). Plaintiff has not set forth any need for the names of the inmates who filed the grievances, and any such need is outweighed by the inmate's privacy interests. Although the names of the inmates could prove useful to Plaintiff in order to identify potential witnesses, these witnesses did not consent to having their identities disclosed to Plaintiff. Plaintiff argues that these inmates have no reasonable expectation of privacy in the information contained in grievances sent to prison officials. However, the Court finds that there is a reasonable expectation that such grievances will not fall into the hands of the general inmate population and potential gang rivals. Information regarding an inmate's medical injuries or other activities in the prison may potentially be dangerous in the hands of an enemy.
Defendants argue against redaction of the names, but the arguments against redaction are not persuasive. Defendants contend that Plaintiff could not determine Defendants' response to the incidents unless he first questions the inmate who wrote the grievance. However, Plaintiff could determine the prison officials' response to each use of force allegation by questioning Defendants directly and referencing the particular incident by the appeal log number. Accordingly, the Court will order the names of the inmates associated with the documents to be redacted before they are provided to Plaintiff.
Finally, Defendants argue that the documents requested are protected by the attorney-client privilege. Defendants claim that some of the documents requested may have been "made in confidence in order to obtain legal advice." (Opp'n 8:7-9, ECF No. 41.) Defendants also argue that some documents may have been prepared by attorneys for Defendants in anticipation of litigation.
"When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Federal Rule of Civil Procedure 26(b)(5)(A). The Court notes that the vast majority of the documents at issue are grievances written by inmates. The responses to those grievances were directed toward the inmate authors, rebutting any contention that the information was made in confidence and should be regarded as privileged.
Defendants have failed to produce a privilege log that describes any other documents with enough specificity that would allow Plaintiff to challenge whether they are truly privileged. Accordingly, Defendants will be ordered to produce the documents requested. If Defendants withhold any documents because they are privileged, ...