The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION'S MOTION TO MODIFY PORTIONS OF PLAINTIFFS' SUBPOENAS ORDER REGARDING REQUEST TO STRIKE and RALPH DIAZ DECLARATIONS (Documents 131 and 149[Sealed])
On May 16, 2011, Real Party in Interest/Non-Party California Department of Corrections and Rehabilitation ("CDCR") filed the instant motion to modify portions of Plaintiffs' subpoenas pursuant to Federal Rule of Civil Procedure 45. CDCR also filed a request to strike Plaintiffs' declarations. The motions were heard before the Honorable Dennis L. Beck, United States Magistrate Judge, on June 20, 2011. Mary Horst, Deputy Attorney General, appeared on behalf CDCR and on behalf of Defendants Tommy Wan, Kimberli Boncore and Ralph Diaz. Brooks Beard, Daniel Zlatnik and Edward Caden appeared on behalf of Plaintiffs Ryan Couch and Kenneth Jimenez.
Following remand from the Ninth Circuit Court of Appeals, Plaintiffs Ryan Couch ("Officer Couch") and Kenneth Jimenez ("Officer Jimenez") (collectively "Plaintiffs") filed a second amended complaint on July 8, 2010. Officer Couch and Officer Jimenez are correctional officers of CDCR and worked at CDCR's Substance Abuse Treatment Facility ("SATF") in Corcoran, California. At SATF, Plaintiffs worked in the Investigative Services Unit ("ISU") as investigative officers. By their amended complaint, Officers Couch and Jimenez allege violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964, against Defendants Tommy Wan, Kimberli Boncore and Ralph Diaz in their individual and official capacities. Defendant Tommy Wan is the Associate Warden in charge of Central Services and Facility C at SATF. Defendant Kimberli Boncore served as an investigator and corrections officer at SATF. Defendant Ralph Diaz was a Facility C Captain at SATF and now serves as an Associate Warden.
Between December 13, 2010, and May 5, 2011, SATF and CDCR, non-parties to this lawsuit, received ten subpoenas from Plaintiffs in this case. Between February 8 and March 3, 2011, CDCR responded to the subpoenas. On March 23, 2011, CDCR provided supplemental responses. Exhibits A, B and C to Declaration of Mary Horst ("Horst Dec.").
On May 16, 2011, CDCR filed the instant motion to modify portions of the subpoenas. On June 3, 2011, Plaintiffs filed a request to seal their opposition to CDCR's motion. The Court granted the request, and Plaintiffs' opposition and several supporting declarations were filed under seal.
On June 10, 2011, CDCR filed a reply. CDCR also filed, under seal, a motion to strike certain declarations.
According to the motion, CDCR and Plaintiffs disagree regarding the following categories of documents: (1) certain inmate central files; (2) confidential section documents contained within each inmate's central file; (3) debriefing reports/confidential memoranda; and(4) electronic discovery.
CDCR explains that it maintains case records for all incarcerated inmates that reflectfindings, considerations, action and dispositions with respect to classification, treatment, employment, training and discipline. Cal. Penal Code § 2081.5. A central file ("c-file") is the master file maintained by CDCR concerning these records. A c-file is divided into severalcategories and may include a separate "confidential" folder. Declaration of Everett Fischer ("Fischer Dec.") ¶ 6.
A confidential folder may contain memoranda and/or reports of gang activity. Department of Operations Manual ("DOM"), Chapter 6, Article 2, § 61020.5 et seq. The confidential folder may also contain "debriefs," which are statements by a gang investigator from a subject who claims to have dropped out of a gang. DOM, Chapter 6, Article 2 § 61020.7. Debriefs are used to obtain information that adversely impacts the gang and is an investigation into the gang's operation. The subject of a debrief is asked to describe all of his activities and knowledge of gang activities since the time he became involved with the gang. Fischer Dec. ¶ 9. A gang intelligence report is a working document containing information about ongoing gang related investigations. These documents are maintained in the confidential folder of the c-file. Fischer Dec. ¶¶ 10, 12.
A. Motion to Modify Subpoenas
CDCR asserts that the c-file documents requested are not discoverable because: (1) the requests are overbroad and do not seek relevant information; (2) release of the requested information will cause specific ...