United States District Court, N.D. California
ORDER ON MOTION TO COMPEL (Docket No. 2600)
CLAUDIA WILKEN, District Judge.
John Armstrong et al. move for an order to compel the
California Office of the Inspector General (OIG) to respond
to Plaintiffs' subpoena of documents and provide
information Plaintiffs seek (Docket No. 2600). The OIG filed
a response, and the California Correctional Peace Officers
Association, with leave from the Court, filed an amicus
curiae brief. Having considered the filings and the amicus
curiae brief, the Court GRANTS Plaintiffs' motion to
compel to the extent Plaintiffs demonstrate that materials
they seek are related to this case. As discussed below, a
protective order will be entered, and the OIG may replace
employee names with unique identifiers in documents produced.
The Court DENIES Plaintiffs' motion to the extent it
seeks material that does not appear to be sufficiently
related to this case, without prejudice to issuance of a
January 2016, counsel for Plaintiffs sought information from
the OIG related to the OIG's recent report: "2015
Special Review: High Desert State Prison Susanville, CA"
(OIG High Desert Report). Docket No. 2567-4. Later that
month, Plaintiffs served document and deposition subpoenas on
the OIG. On February 19, the OIG provided "certain
responsive documents, " objections, a declaration from
the Chief Deputy Inspector General and a privilege log
identifying documents and grounds for not producing them.
Motion to Compel at 8; see Declaration of Corene Kendrick,
Ex. 2; Declaration of James C. Spurling, Ex. B.
assertion of privilege in federal question cases brought
under 42 U.S.C. § 1983 is governed by federal law. See
Kerr v. U.S. Dist. Court for N. Dist. of California,
511 F.2d 192, 197 (9th Cir. 1975); Kelly v. City of San
Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987).
"Federal common law recognizes a qualified privilege for
official information." Soto v. City of Concord,
162 F.R.D. 603, 613 (N.D. Cal. 1995) (citing Kerr, 511 F.3d
at 198). The official information privilege requires a
balancing of "the policies underlying our civil rights
laws, public confidence in the court system, and doing
justice in individual cases" against interests of law
enforcement and "the privacy rights of officers or
citizen complainants." Kelly, 114 F.R.D. at
661; id. at 669-71.
seek documents related to statements in the OIG High Desert
Report about (a) a code of silence among correctional
officers, (b) the California Correctional Peace Officers
Association's responses to the OIG's interviews of
California Department of Corrections and Rehabilitation
(CDCR) employees, (c) treatment of inmates in the Disability
Placement Program, (d) specific allegations of High Desert
staff misconduct, and (e) agent and investigation assignment
practices by the CDCR Office of Internal Affairs. See
Declaration of Corene Kendrick, Ex. 1 at Appendix
A. Plaintiffs have withdrawn their motion
to the extent it sought case files from the CDCR Office of
Internal Affairs. See Reply at 6.
asserts that the majority of the documents Plaintiffs seek
are not relevant to this case.
on the text of the OIG High Desert Report, Plaintiffs'
subpoena and the OIG's privilege log, material under
Plaintiffs' Request 1c and material relating to prisoners
with disabilities under Request 1d relate to the issues in
relevance of material sought under Request 1a, Request 1b,
the remaining incidents appearing in the OIG High Desert
Report in relation to Request 1d, and Request 1e, however, is
not clear. Thus, the Court DENIES Plaintiffs' motion to
compel these materials without prejudice to issuance of a
also argues that its mental impressions of the sufficiency of
CDCR's work is not relevant to this case. OIG interview
materials and analysis of CDCR investigations is relevant to
show how CDCR has responded to allegations of staff
misconduct involving Armstrong class members. The OIG's
privilege log lists interview reports, transcripts and audio
as standalone "documents" only in response to
Requests 1a and 1b, but the Court considers the OIG's
privilege argument regarding interview materials, generally,
because its privilege log lists "Interview Notes"
among other materials in response to Requests 1c and
OIG's concerns can be accommodated by the entry of a
protective order that restricts viewing to attorneys'
eyes only and limits use of the information to this action.
to the extent the OIG will produce materials that contain
employee names, the OIG may remove each name and replace it
with a unique identifier.
Court GRANTS Plaintiffs' motion to compel with respect to
material under Request 1c and part of 1d that is related to
inmates with disabilities. Within one week of the date on
which this order issues, the OIG shall propose a protective
order based on the Court's model order available on its
Plaintiffs shall respond within one week, and shall meet and
confer with the OIG within one week of responding. If the
parties cannot agree on a protective order, within one week
they shall submit their respective versions with differences
highlighted, and the Court will select one. The OIG shall
produce documents within two weeks of the date on which the
Court signs a protective order. The Court DENIES
Plaintiffs' motion with respect to other material that
does not appear to be sufficiently related to this case,
without prejudice to issuance of a narrower subpoena.