United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL
[ECF NO. 33]
MITCHELL D. DEMBIN, Magistrate Judge.
I. Procedural History
On May 29, 2012, Plaintiff Ronald Martinez, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights lawsuit under 42 U.S.C. § 1983. (ECF No. 1). Plaintiff's operative First Amended Complaint alleges that his First Amendment rights were violated by Defendants when they allegedly retaliated against him for filing inmate grievances. (ECF No. 5). The First Amended Complaint alleges Defendants sought to chill his speech by fabricating a piece of evidence (a "kite" - a note passed by inmates) that falsely accused him of conspiring to assault a peace officer, which resulted in him being housed in the Administrative Segregation Unit during the investigation, and by unduly prolonging the investigation to extend his stay in the Administrative Segregation Unit. ( Id. at 2). On September 5, 2014, Plaintiff filed a motion to compel discovery responses from Defendants Gervin and Madden. (ECF No. 33). Specifically, Plaintiff seeks responses to requests 1-3, 5-9, and 17 in his Requests for Production of Documents (Set 1), requests 5 and 6 in his Requests for Production of Documents (Set 2), interrogatories 3, 4, and 8 served on Defendant Madden, and interrogatories 2, 3, 5-7, 11 served on Defendant Gervin. ( Id. ). On September 26, 2014, Defendants filed an opposition. (ECF No. 37). Plaintiff filed his reply on October 16, 2014. (ECF No. 45). After careful consideration of all of the papers filed in support of and in opposition to this motion, and the authorities cited therein, Plaintiff's motion to compel is hereby GRANTED in part and DENIED in part for the reasons set forth below.
Rules 26 through 37 "have been interpreted liberally to allow maximum discovery." Spell v. McDaniel, 591 F.Supp. 1090, 1114 (E.D. N.C. 1984) (citing Hickman v. Taylor, 329 U.S. 495 (1947)). Accordingly, the burden of resisting discovery is on the party opposing discovery. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
Rule 26(b)(1) allows discovery regarding any matter that is (1) nonprivileged, and (2) relevant to any party's claim or defense. Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). District courts have broad discretion to determine relevancy for discovery purposes. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). If relevancy is not apparent from the face of a request, the propounding party has the burden to show relevance. Floyd v. Grannis, Case No. S-08-cv-2346-WBS-JKM-P, 2010 WL 2850835 at *1 (E.D. Cal. July 19, 2010) (quoting Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382-383 (D. Kan. 2005)). Similarly, district courts have broad discretion to limit discovery where the discovery sought is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." Fed.R.Civ.P. 26(b)(2)(c).
A. Requests relating to kite evidence
Request for Production of Documents (Set 1) no. 1; Interrogatory to Defendant Madden no. 3; Interrogatory to Defendant Gervin no. 11
Document request no. 1 demands "[t]he kite' evidence utilized to implicate Plaintiff in a conspiracy" to assault prison staff. (ECF No. 33 at 9). The interrogatories ask each Defendant to state verbatim the text of the kite. ( Id. at 37, 47). Plaintiff states he is seeking the kite evidence so that he can prove that it was fabricated as he alleges in his operative complaint. One of Plaintiff's theories is that Defendant Gervin wrote the kite and pretended it came from a confidential informant, and thus Plaintiff is seeking a copy of the actual kite so that he can compare the kite handwriting to Defendant Gervin's handwriting. (ECF No. 33 at 32). Defendants object that the "[o]fficial information privilege" excuses them from providing the kite evidence, because disclosure would violate privacy, and endanger the safety and security of the "institution and staff." ( Id. at 50-55 (Defendants' privilege log and declaration of Rebeca Larios in support thereof); ECF No. 37 at 3).
Federal common law recognizes a qualified privilege for official information. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). The official information privilege protects information collected by law enforcement agencies. See Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal. 1987). In determining when a document or information falls within the official information privilege, the Ninth Circuit has adopted a balancing test. Sanchez, 936 F.2d at 1033-34. "[C]ourts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery." Id. Some sister courts have stated that the proper operation of the balancing test requires a "balancing approach that is moderately pre-weighted in favor of disclosure." See Kelly, 114 F.R.D. at 661 (citations omitted).
In order to trigger the Court's balancing of interests, the party opposing disclosure must make a substantial threshold showing. Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). The party opposing disclosure "must submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit." Id. The declaration "must include: (1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality... (2) a statement that the official has personally reviewed the material in question, (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer, (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, (5) and a projection of how much harm would be done to the threatened interests if the disclosure were made." Kelly, 114 F.R.D. at 670.
Once the party asserting the privilege meets the threshold burden, the court will review the documents in light of the balancing test articulated in Kelly, which includes, but is not limited to: (1) the extent to which disclosure will thwart the governmental process by discouraging citizens from giving the government information; (2) the impact of having their identities disclosed upon persons who have given information; (3) the degree to which government self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is not frivolous and brought in good faith; (9) whether the information sought is available from discovery or through other sources; and, (10) the importance of the information sought to the plaintiff's case. See Kelly, 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973.))
Plaintiff asserts that the declaration Defendants provided is inadequate under Kelly. (ECF No. 33 at 11-14). Defendants provided a declaration explaining that providing the kite would endanger the safety of staff and other inmates and hinder future investigations. (ECF No. 33 at 50-53). But the declaration is lacking in several respects. First, the declarant does not declare that she actually reviewed the kite; she merely declares that she is authorized to view "prison and CDCR records at Centinela Prison." (ECF No. 33 at 50-53). Second, the declarant attests that disclosing "these documents" "would directly threaten the safety of inmates and staff, by revealing the identity and nature of confidential sources inside the prison." ( Id. at 51:17-19). Ms. Larios, however, does not declare that the kite was signed by the confidential informant ...