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Timothy Fenstermacher v. Samuel Moreno

December 6, 2010

TIMOTHY FENSTERMACHER, PLAINTIFF,
v.
SAMUEL MORENO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER RE MOTIONS (Docs. 44, 59, 63, 73)

Plaintiff Timothy Fenstermacher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are four motions concerning a discovery dispute regarding documents Plaintiff is requesting from Defendants Moreno and Robles ("Defendants") and the California Department of Corrections and Rehabilitation ("CDCR").

I. Background

A. Plaintiff's July 19, 2010 Motion

On July 19, 2010, Plaintiff filed a motion "for an Order Pursuant Ev. C. 1043 and 1045 for Disclosure of Personnel Records and Other Investigative Material Held by California Dept. of Corrections and Rehabilitations." (Doc. #44.) Plaintiff requests the disclosure of all investigative materials collected by CDCR in connection with the Office of Internal Affairs investigation of the June 20, 2006 use of force incident that is the subject of this civil litigation. Plaintiff argues that disclosure is proper pursuant to the Pitchess procedures codified in California Evidence Code §§ 1043 and 1045. Plaintiff's motion also describes his attempts to obtain the requested documents from the Defendants in this action through discovery requests.

Plaintiff's requests were denied because Defendants contended that the documents were privileged. Since the motion described Plaintiff's efforts to obtain the documents through the discovery process, the Court ordered the Defendants to respond to the motion and construe it as a motion to compel. Defendants Moreno and Robles both filed oppositions to Plaintiff's motion. CDCR has also filed a brief in opposition to Plaintiff's motion.

B. Defendant's October 22, 2010 Motion to Quash Plaintiff's Subpoena

Plaintiff attempted to obtain the documents in question through the subpoena process. On October 22, 2010, Defendant Moreno filed a motion to quash Plaintiff's subpoena. (Doc. #59.) Defendant Moreno argued that the subpoena was defective because it was not issued by the court or by an attorney acting as an officer of the court, as required by Federal Rule of Civil Procedure 45(a)(3). On November 24, 2010, Plaintiff conceded that the subpoena was defective and issued a statement of "non-opposition" to Defendant Moreno's motion. (Doc. #74.)

C. Plaintiff's Motions for a Subpoena

Plaintiff has filed two motions requesting the issuance of a subpoena duces tecum. Plaintiff's November 1, 2010 motion requests the issuance of a subpoena commanding CDCR to produce the documents requested in Plaintiff's July 19, 2010 motion. (Doc. #63.) Plaintiff's November 15, 2010 motion requests the issuance of a blank subpoena. (Doc. #73.)

II. Discussion

Plaintiff requests the disclosure of all documents related to the CDCR's investigation into the incident described in Plaintiff's complaint. However, Plaintiff's July 19, 2010 motion is defective in that it requests production of those documents through the procedures set forth in California Code of Evidence §§ 1043 and 1045.*fn1 The Court directed Defendants to respond to the July 19, 2010 motion by construing it as a motion to compel to obtain further briefing regarding whether Plaintiff's requests were appropriate under federal law pertaining to discovery.

The parties' submissions contain scant discussion of the standards for conducting discovery in the federal court system, such as whether Plaintiff's original requests for documents were proper under Rule 34. Defendant Robles' opposition argues that Plaintiff failed to properly comply with the California state law requirements for filing a Pitchess motion and that the documents requested are privileged under California law. CDCR has also intervened and filed a brief arguing that it is entitled to be heard before the documents are disclosed and that the documents requested are privileged under California law. Defendant Moreno filed an opposition arguing that CDCR should be given an opportunity to be heard and that the documents are privileged under California law. Defendant Moreno also argues that the Court should conduct an in-camera review of the documents before ordering disclosure, that the documents requested contain irrelevant information, and that the documents contain information that is privileged under the attorney work-product and attorney-client privileges.

This action is proceeding in federal district court and not in California state court. The Court advises the parties that their citations to California state law on evidentiary procedures, such as the Pitchess motion process, and their citations to California laws regarding evidentiary privileges are not particularly helpful in resolving the pending discovery dispute before the Court. In federal court, federal law governs the applicability of evidentiary privileges unless "State law supplies the rule of decision." Federal Rule of Evidence 501. Even "[w]here there are federal question claims and pendent state law claims present, the federal law of privilege applies." Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005). This is an action brought under 42 U.S.C. ยง 1983, which ...


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