The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER REGARDING DISCOVERY MOTIONS [ECF NOS. 53, 56, 66, 71, 74, 82, 86]
On December 12, 2008, Plaintiff Stanford Paul Bryant, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 [ECF No. 1]. Bryant filed a First Amended Complaint on March 3, 2009 [ECF No. 3], and a Second Amended Complaint on June 23, 2010 [ECF No. 39].
Following several motions to dismiss, Defendants Armstrong, Catlett, Janda, Lizarraga, Ochoa, and Trujillo filed an Answer to the Second Amended Complaint on April 29, 2011 [ECF No. 49]. The Court subsequently held a case management conference and the parties commenced discovery [ECF Nos. 51-52]. Cross-motions for summary judgment are currently pending [ECF Nos. 91-92]. All pretrial dates have been vacated, pending a ruling on the summary judgment motions [ECF No. 104].
Also pending before the Court are Plaintiff's seven motions to compel discovery from four of the six remaining Defendants [ECF Nos. 53, 56, 66, 71, 74, 82, 86].*fn1 The Court finds the motions to compel suitable for resolution on the papers, pursuant to Civil Local Rule 7.1. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons stated below, Bryant's motions are GRANTED in part and DENIED in part.
The Plaintiff contends in count one that Defendant Armstrong violated the Equal Protection Clause by discriminating against Bryant because of his race. (Second Am. Compl. 13, 16-17, ECF No. 39.)*fn2 The Defendant allegedly scheduled Plaintiff and other African-American inmates to attend the law library during times that conflicted with their yard recreation; in contrast, Armstrong scheduled Hispanic inmates for law library time that did not interfere with yard time. (Id. at 13-17.)
In count two, Bryant argues that Defendant Armstrong retaliated against him for submitting an inmate grievance against Armstrong for racial discrimination. (Id. at 19-20.) According to Bryant, Armstrong retaliated by filing a false "Information Chrono." (Id. at 22.)
The Plaintiff argues in count three that after he and another inmate submitted grievances against Armstrong, Defendant Lizarraga retaliated against Bryant and other African-American prisoners by moving them to more restrictive cell placements, threatening Plaintiff, and filing a false disciplinary report and rule violation charge against Bryant. (Id. at 25-30.) Further, Defendant Trujillo purportedly falsified a report and refused to permit the Plaintiff to call witnesses at his disciplinary hearing. (Id. at 34.) Defendants Catlett, Janda, and Ochoa sanctioned the retaliatory conduct of Armstrong, Lizarraga, and Trujillo. (Id. at 41.)
Finally, in count four, Plaintiff alleges that Defendants Armstrong, Lizarraga, and Trujillo violated California Civil Code sections 52.1, 51.7, and 52(b) by interfering with Bryant's constitutional rights because of his race. (Id. at 43.) Armstrong and Lizarraga threatened violence against Plaintiff if he continued to discuss or pursue grievances alleging racial discrimination. (Id. at 43-44.) Lizarraga is claimed to have "committed an act of violence" against Plaintiff by removing legal documents from his cell without permission. (Id. at 44.) Similarly, Bryant contends that Defendant Trujillo intimidated Plaintiff by having three Hispanic officers surround him in a "menacing manner." (Id. at 44-45.)
It is well established that a party may obtain discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). Relevant information need not 3 08cv02318 W(RBB) be admissible at trial so long as the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Id. Relevance is construed broadly to include any matter that bears on, or reasonably could lead to other matter that could bear on, any issue that may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)) (footnote omitted). Rule 37 of the Federal Rules of Civil Procedure authorizes the propounding party to bring a motion to compel responses to discovery. Fed. R. Civ. P. 37(a)(3)(B). The party opposing the discovery bears the burden of resisting disclosure. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992).
A. Defendant Ochoa: Motion to Compel Responses to Document Requests 1, 2, 3, and 4 (Set One) [ECF No. 53] Plaintiff filed a "Motion for an Order to Compel Discovery," in which he seeks an order compelling Defendant Ochoa to respond to requests for production of documents 1, 2, 3, and 4 in set one [ECF No. 53]. Defendant T. Ochoa's Opposition to Plaintiff's Motion for an Order to Compel Discovery was later filed, along with a declaration of John P. Walters [ECF No. 57]. "Plaintiff's Reply to Defendants' Opposition to Plaintiff's Motion for an Order to Compel Discovery" was also filed [ECF No. 60].
In request for production of documents 1, Bryant seeks "[a]ny and all documents and writings, as 'writings' is defined by Federal Rules of Evidence 1001 that discloses [sic] the contents of any and all questions, answers or statements resulting from any and all inquiries made in Appeal log #CAL-A-08-00207 . . . ." (Mot. Order Compel Disc. Ochoa 4, ECF No. 53.) Request 2 is identical to request 1, except it relates to appeal log #CAL-A-08-00311. (Id. at 11-12.) Requests 3 and 4 are also identical, but they concern appeal logs #CAL-A-08-02223 and #CAL-A-08-01027, respectively. (Id. at 12.) Defendant Ochoa objects that all four document requests are vague and ambiguous. (Id. at 16-17.) Defendant also states that a diligent search was undertaken and that all responsive documents within Ochoa's control have been provided. (Id.)
In his Motion to Compel, Bryant maintains that Ochoa improperly failed to produce any records even though they are part of Calipatria's investigative files and therefore in Ochoa's possession. (Id. at 4.) Defendant's responses are incomplete because Plaintiff has received documents that "indicate that there [were] several 'inquiries' conducted as a result of [Bryant's] grievances Log Nos. Cal-A-08-00207, #Cal-A-08-00311, and #Cal-A-08-01027." (Id. at 9.) Plaintiff argues that Ochoa signed related "Confidential Supplement to Appeals" documents on April 5, 2008, and July 27, 2008. (Id.) Any attempt by Ochoa to claim that the documents do not exist, Bryant contends, is therefore evasive. (Id. at 6.)
1. Timeliness of Defendant's responses and objections
Plaintiff submits in his declaration that he served Ochoa with a set of document requests on June 15, 2010. (Id. at 8.) This Court subsequently stayed all discovery pending resolution of the then-pending motion to dismiss. (Id.) Yet, according to Bryant, Ochoa did not respond to the discovery until nearly two months later on June 1, 2011. (Id. at 5.) Therefore, Plaintiff urges that Ochoa has waived his objections by failing to timely respond to the discovery requests. (Id.)
In his Opposition, Defendant argues that Bryant misinterprets the Court's order staying discovery and he does not specify what dates or deadlines he uses to assert the responses were almost two months late. (Def. T. Ochoa's Opp'n 2, ECF No. 57.) According to the Defendant, Plaintiff served the document requests on June 15, 2010, and on July 14, 2010, the Court issued a minute order staying all discovery pending a ruling on the motion to dismiss. (Id.) Then, on January 7, 2011, in its Report and Recommendation, "the Court stayed all discovery 'pending the motion to dismiss.'" (Id.) Ochoa represents, "No further details were given." (Id.) Defendant asserts that on February 11, 2011, the district court issued an order on the motion to dismiss, and Defendants filed an Answer on April 29, 2011. (Id.)
Ochoa submits, "Thus, the orders stayed discovery pending the motion to dismiss, but did not specify any exact date or method for resuming discovery." (Id.) On May 2, 2011, defense counsel mailed a letter to Bryant concerning the discovery and suggested that, because the stay was lifted, Plaintiff's first set of document requests be deemed served that day and a response would be due May 31, 2011. (Id.) Counsel asked Plaintiff to advise him of any objections to the proposal. (Id.) Defendant served his responses to the discovery requests on May 24, 2011. (Id.) Accordingly, Ochoa maintains that his responses were timely served, and no objections were waived. (Id. at 3.)
In his Reply, Bryant urges that Ochoa misstates the record. (Pl.'s Reply Defs.' Opp'n 2, ECF No. 60.) Plaintiff points out that this Court specifically stayed discovery until thirty days after the district court issued an order on Defendants' motion to dismiss. (Id.) Bryant asserts, "The Defendant Ochoa does not claim that he did not have knowledge of this Court's order or the specific date that the district court judge issued the order on Defendant's Motion to Dismiss, in fact Defendant Ochoa cites the specific date which the district court judge issued the order . . . ." (Id.)
On July 2, 2010, Defendants filed a Motion for a Protective Order to Stay Discovery Pending the Motion to Dismiss [ECF No. 41]. On July 15, 2010, this Court issued a temporary stay of discovery, pending resolution of the Motion to Dismiss and the Motion for a Protective Order [ECF No. 42]. In their Motion for a Protective Order, the Defendants alleged that on June 15, 2010, after Plaintiff filed his Second Amended Complaint but before Defendants moved to dismiss, Plaintiff served five sets of discovery on Defendants. (Mot. Protective Order Attach. #1 Mem. P. & A. 2, ECF No. 41.) The Defendants maintained that all discovery should be stayed until their motion to dismiss was resolved. (Id. at 3.)
This Court, on January 7, 2011, recommended that the motion to dismiss be granted in part and denied in part and ordered that all discovery be stayed [ECF No. 46]. As to the Defendants' request for a protective order, the Court explicitly stated:
Applying these guidelines, a temporary stay on discovery until resolution of the Motion to Dismiss is appropriate. Defendants filed this Motion after they were served with discovery and met with Plaintiff in an attempt to resolve the issue. Defendants do not seek a protective order that will remain in effect after their Motion to Dismiss is resolved, or until any answer is filed; they merely request that discovery be stayed until the Motion to Dismiss is ruled upon.
(Order Granting Defs.' Mot. Protective Order 42, ECF No. 46 (internal citations omitted).)
The Court addressed the duration and extent of the stay as follows:
Defendants have shown good cause to stay discovery pending a ruling on their Motion to Dismiss. A stay of all discovery shall be in effect from the date this Report and Recommendation is filed until thirty days after the district court judge issues an order on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint [ECF No. 40]. (Id. (internal citations omitted).)
In his Opposition, Ochoa references this January 7, 2011 Order staying all discovery and represents that "the Court stayed all discovery 'pending the motion to dismiss'" yet misrepresents that "[n]o further details were given." (Def. T. Ochoa's Opp'n 2, ECF No. 57.) Ochoa continues, "Thus, the orders stayed discovery pending the motion to dismiss, but did not specify any exact date or method for resuming discovery." (Id.) This is a flagrant misrepresentation of the record. Either Defendant and his attorney failed to read the order to which they repeatedly and explicitly rely, or they deliberately misled the Court. Both possibilities are disconcerting.
In any event, Defendant Ochoa's responses are untimely. Because the district court issued its ruling on the motion to dismiss on February 11, 2011 [ECF No. 47], the stay of discovery was in effect for thirty days, or until March 14, 2011, as March 13, 2011, fell on a Sunday. (See Order Granting Defs.' Mot. Protective Order 42, ECF No. 46); see also Fed. R. Civ. P. 6(a)(1)(C); S.D. Cal. Civ. R. 7.1(c). Ochoa ignored Plaintiff's discovery requests until May 2, 2011, when defense counsel mailed Bryant a letter referencing the stay and suggesting that the discovery be deemed served that day. (See Def. T. Ochoa's Opp'n Attach. #1 Decl. Walters 5, ECF No. 57.) Plaintiff did not receive Defendant's objections and responses until June 1, 2011, which is seventy-nine days after the stay expired. Ochoa's responses to document requests 1, 2, 3, and 4 in set one are untimely.
Unlike Rule 33, which governs interrogatories to parties, Rule 34 of the Rules of Civil Procedure does not provide that a responding party waives an objection not timely stated. Compare Fed. R. Civ. P. 33(b)(4), with Fed. R. Civ. P. 34(b)(2)(C). Nevertheless, generally, when a party fails to provide any response or objection to interrogatories or document requests, courts deem all objections waived and grant a motion to compel. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (finding that a party who failed to timely object to interrogatories and document production requests waived any objections); 7 James Wm. Moore, et al., Moore's Federal Practice, § 33.174, at 33-106, § 34.13[a], at 34-56 to 34-56.1 (3d ed. 2012). "It is well established that a failure to object to discovery requests within the time required constitutes a waiver of objection." Richmark, 959 F.2d at 1473.
Although the discovery stay was in effect through March 14, 2011, Ochoa did not serve his objections and responses until May 24, 2011, and Bryant did not receive them until June 1, 2011, roughly one and one-half months late. Accordingly, Ochoa has waived any objections and Plaintiff's document requests 1, 2, 3, and 4 in set one [ECF No. 53].
In response to a request for production of documents under Rule 34 of the Federal Rules of Civil Procedure, a party is to produce all relevant documents in his "possession, custody, or control." Fed. R. Civ. P. 34(a)(1). A party may be required to produce a document that is in the possession of a nonparty entity if the party has the legal right to obtain the document. Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). The term "control" is broadly construed, and it includes documents that the responding party has the legal right to obtain from third parties. See id. (citations omitted); 7 James Wm. Moore, et al., Moore's Federal Practice, § 34.14[b], at 34-73 to 34-75 (footnotes omitted).
"[W]hen a response to a production of documents is not a production or an objection, but an answer, the party must answer under oath." 7 James Wm. Moore, et al., Moore's Federal Practice, § 34.13[a], at 34-57 (footnote omitted). Similarly, if a responding party contends that documents are not in its custody or control, the court may require more than a simple assertion to that effect. See id. § 34.14[a], at 34-73 (footnote omitted); see also Schwartz v. Marketing Publ'g Co., 153 F.R.D. 16, 21 (D. Conn. 1994) (citing cases establishing that the absence of possession, custody, or control of documents that have been requested must be sworn to by the responding party).
Here, Ochoa responded to document requests 1, 2, 3, and 4 by stating that he has produced all relevant records that are in his possession or control. It is not clear that the Defendant took reasonable steps under the above standards to locate relevant records. Plaintiff's Motion to Compel further responses to these requests [ECF No. 53] is GRANTED. Ochoa must supplement his responses and produce additional documents in his custody or control that reflect inquiries and related investigations conducted in response to Plaintiff's four grievances, as well as all supplemental appeals documents, including any allegedly signed by Ochoa. If there are no other responsive documents in Defendant's possession, custody, or control, after conducting this further attempt to locate records, Ochoa must state so under oath and describe efforts he made to locate responsive documents. See Vazquez-Fernandez v. Cambridge Coll., Inc., 269 F.R.D. 150, 155 (D. P.R. 2010).
B. Defendant Armstrong: Motion to Compel Responses to Interrogatories 1, 2, and 3 (Set One) and Document Requests 1, 2, and 3 (Set One) [ECF No. 56]
Next, Plaintiff filed a "Motion for an Order to Compel
Discovery" with a supporting brief and a declaration of Stanford P. Bryant, in which he seeks an order compelling Defendant Armstrong to respond to interrogatories 1, 2, and 3 in set one as well as document requests 1, 2, and 3 in set one [ECF No. 56]. Defendant
T. Armstrong's Opposition to Plaintiff's Motion for an Order to Compel Discovery was filed in response, along with a declaration of John P. Walters [ECF No. 59]. "Plaintiff's Reply to Defendants' Opposition to Plaintiff's Motion for an Order to Compel Discovery" was also filed [ECF No. 70].
In interrogatory 1, Bryant asks Correctional Officer Armstrong, "State any and all reasons why you no longer work for CDCR at Calipatria State Prison." (Mot. Order Compel Disc. Armstrong Attach. #2 Decl. Bryant 4, ECF No. 56.) Armstrong objected that the information was not relevant, the interrogatory lacks foundation, and it should be excluded under Federal Rule of Evidence 403. (Id. at 13.) Defendant further objected that the question invades her right to privacy under California Penal Code §§ 832.7 and 832.8, and seeks information that is privileged and confidential. (Id.)
In his Motion to Compel, Bryant asserts he believes that Defendant no longer works at Calipatria because she was arrested for committing criminal acts with, or on behalf of, the "Southern California Hispanic Street gang(s)," and she was fired from CDCR as a result. (Id. Attach. #1 Br. 3.) Plaintiff argues that Armstrong has conceded in response to document request 1 that she is no longer employed by CDCR. (Id.) Bryant maintains that this interrogatory seeks relevant information that could lead to evidence bearing on Defendant's intent to discriminate against African-American inmates and favor Hispanic inmates. (Id. at 3-4.)
Although Armstrong raised multiple objections when initially responding to the interrogatories, the Court will only address the ones she elected to pursue when opposing this Motion. The Defendant now argues that interrogatory 1 seeks information regarding the personnel records of a correctional officer, which is confidential. (Def. T. Armstrong's Opp'n 2, ECF No. 59.) Armstrong submits, "In the context of disclosure of confidential peace officer records, federal courts are bound by California law." (Id. (citing Cal. Evid. Code § 1043).)
a. Privileged and confidential
As preliminary matter, the Court must determine whether state or federal law applies to Defendant's assertion of privilege. Armstrong represents that federal courts must apply state privilege law as well as the procedures applicable to peace officers' personnel records and Pitchess motions.*fn3 (See Def. T. Armstrong's Opp'n 2, ECF No. 59.) This is an inaccurate statement of the law.
State privilege law does not govern discovery issues in federal § 1983 cases. See Kerr v. U.S. District Court for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976); Crowe v. County of San Diego, 242 F. Supp. 2d 740, 749-50 (S.D. Cal. 2003); Kelly v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987); see also Fed. R. Evid. 501; Miller, 141 F.R.D. at 299. "In civil rights cases brought under federal statutes, questions of privilege are resolved by federal law." Hampton v. City of San Diego, 147 F.R.D. 227, 228, 230 (S.D. Cal. 1993) (citing Kerr, 511 F.2d at 197); Miller, 141 F.R.D. at 298-99 (comparing federal and California discovery rules at length, finding direct conflicts between them, and holding that federal discovery rules govern § 1983 civil rights actions). "This theme has been interpreted by the Ninth Circuit to include the discovery of personnel files, despite claims of state-created privileges." Miller, 141 F.R.D. at 297. Here, Armstrong applies the wrong legal standard altogether when arguing that each request seeks privileged, confidential information. (See Def. T. Armstrong's Opp'n 2, ECF No. 59). Notwithstanding this shortcoming, Defendant's objection fails under federal law.
Federal common law recognizes a qualified privilege for official information, such as information in government personnel files. Kerr, 511 F.2d at 197-98. Defendant Armstrong must comply with the procedural requirements for asserting the official information privilege. See Rackliffe v. Rocha, No. 1:07-cv-00603-AWI-DLB PC, 2012 U.S. Dist. LEXIS 57973, at *10 (E.D. Cal. Apr. 6, 2012) ("Defendants do not explain how the interrogatory . . . would violate official information privilege."); Williams v. Walker, No. CIV S-07-2385 WBS GGH P, 2009 U.S. Dist. LEXIS 122970, at *24-26 (E.D. Cal. Dec. 22, 2009) (explaining that to object to interrogatories on the basis of the official information privilege, an appropriately delegated prison official must personally consider the material requested and explain why it is privileged); Gonzalez v. City of Calexico, No. 03CV2005 WQH (PCL), 2006 U.S. Dist. LEXIS 93144, at *11-12 (S.D. Cal. Dec. 22, 2006) (stating requirements to invoke the official information privilege for interrogatories).
To determine whether information in government personnel files is subject to the official information privilege, federal courts weigh the potential benefits of disclosure against the potential disadvantages. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990). In civil rights cases against corrections officials, this balancing ...