The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
Stevenson filed a motion to compel the production of certain documents on January 18. Magistrate Judge Gallo denied the motion, and Stevenson then filed an objection to Judge Gallo's ruling for the undersigned Judge to consider.
The Court reviews a magistrate judge's discovery rulings under the "clearly erroneous or contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A). Young v. CDCR, 2012 WL 2403865 at *1 (E.D. Cal. June 25, 2012); Gabriel Technologies Corp. v. Qualcomm Inc., 2012 WL 849167 at *1--2 (S.D. Cal. 2012) ("Due to discovery motions' non-dispositive nature, decisions by a magistrate judge regarding the scope and nature of discovery are afforded broad discretion."). See also Anderson v. Equifax Info. Servs. LLC, 2007 WL 2412249 at *1 (D. Or. Aug. 20, 2007) ("Though Section 636(b)(1)(A) has been interpreted to permit de novo review of the legal findings of a magistrate judge, magistrate judges are given discretion on discovery matters and should not be overruled absent a showing of clear abuse of discretion.").
At the outset, it's important to note that Stevenson appears not to object to the entirety of Judge Gallo's discovery ruling. The ruling covered six requests for production. With respect to five of them-Nos. 1--2, 4, 5, 7, and 10-Blake responded that no responsive documents existed to produce. Judge Gallo's ruling accepted that, and Stevenson's pending objection doesn't take further issue. So, Judge Gallo's ruling with respect to those requests for production is AFFIRMED. The Court finds no clear error or abuse of discretion, anyway.
The remaining request for production at issue is No. 3:
Any and all documents, written reports, originals or copies, identifiably as "Confidential Supplement to Appeal Inquiry Log No. CAL-A-07-0054" of Calipatria State Prison Completion of the investigation final review concerning the incident of March 13, 2007. (Doc. No. 26, Ex. E.) Blake invoked the "official information privilege" and declined to respond to the request. Judge Gallo's ruling sided with Blake:
Here, Plaintiff's arguments are without merit. The official information privilege applies to federal civil rights lawsuits.
Plaintiff does not offer any authority to suggest the contrary.
Moreover, even if Correctional Officers Armstrong and Lima submitted reports and the requested documents are relevant to Plaintiff's claims, the relevancy of the documents does not overcome a claim of privilege. Therefore, Defendant's response to this Request for Production of Documents was proper. (Doc. No. 28 at 2.) Stevenson's grievance with Judge Gallo's ruling, in essence, is that Blake's invocation of the privilege was procedurally defective and Judge Gallo simply rubber-stamped it.
A party wishing to invoke the official information privilege must first comply with a series of procedural requirements to make a threshold showing that the privilege applies. These were specified in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987). This Court has previously looked to Kelly for guidance. See, e.g., Bryant v. Armstrong, 2012 WL 2190774 at *6--7 (S.D. Cal. June 14, 2012). If the threshold showing is made, the Court then weighs the potential benefits of disclosure against the potential disadvantages. Id. It usually does this by reviewing the documents at issue in camera. Id. (citing Soto v. City of Concord, 162 F.R.D. 603, 613) (N.D. Cal. 1995)).
First, the party must invoke the privilege by name. Id. There's no doubt that Blake did that. (Doc. No. 26, Ex. E.)
Second, it must supplement the invocation with "a declaration or affidavit, under oath and penalty of perjury, from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit or declaration." Id. This affidavit cannot come from the author of the documents at issue, or from "the lawyer representing the agency or officers in the litigation." Id. Rather, "[i]t is essential that the affidavit come from an official in the affected agency." Id. Blake complied with this requirement, too. Blake's invocation of the privilege was supported by a declaration from G. Nunez, a "Correctional Counselor II" at Calipatria State Prison assigned to the Litigation Office. Ms. Nunez represented that she is "familiar with staff personnel records, disciplinary files, and staff investigations, and how those files and documents are maintained by the CDCR at Calipatria." (Doc. No. 27-1, Ex. C, ¶ 1.) Stevenson now argues that Ms. Nunez is actually the Litigation Coordinator at Calipatria, and accordingly, that she is a "lawyer representing the agency" and cannot be the one to invoke the confidential information privilege. The ...