ORDER REGARDING DISCOVERY OF CONFIDENTIAL MATERIALS

SEVEN (7) DAY DEADLINE FOR DEFENDANTS' PRODUCTION OF DOCUMENTS

MICHAEL J. SENG, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds on Plaintiff's Eighth Amendment failure to protect claim against Defendants Walker, Prokop, Davis, Spralding, and Fellows, and stems from a 2011 Classification Hearing during which Defendants assigned Plaintiff to the same unit as his enemy, inmate Robert Siordia.

I. Procedural Background

On September 30, 2016, Plaintiff filed a motion to compel responses to seven requests for the production of documents ("RPDs") as well as ten Interrogatories directed to Defendant Walker. (ECF No. 126.) On December 12, 2016, the Court granted in part and denied in part Plaintiff's motion to compel. (ECF No. 142.) In response to Plaintiff's RPD No. 1, which requested his "entire" prison record including those confidential documents that were reviewed in relation to Defendants' placement decision, Defendants were directed to submit to the Court, for in camera review, any withheld portion of Plaintiff's prison record file relied on by Defendants during the 2011 Classification Committee hearing.

The Court requested the files be submitted to the Court in both redacted and unredacted form, and directed Defendants to file and serve a privilege log detailing the nature of the documents withheld, as well as an affidavit signed by an individual with knowledge of the documents explaining his or her reasons for refusing to disclose the documents on privilege grounds.

On December 27, 2016, Defendants submitted to the Court for in camera review 21 confidential documents contained within Plaintiff's prison file that were likely reviewed by Defendants during the Classification Committee hearing. That same day, Defendants filed a privilege log (ECF No. 148) and the accompanying affidavit of Correctional Counselor II ("CCII") D. Davis in support of the privilege log. (ECF No. 148-1.)

Defendants were also directed to submit, in response to RPD No. 8, documents relating to disciplinary actions or findings of misconduct against any Defendant for the acts alleged in this lawsuit. No such documents having been submitted, the presumption is that none exist. Defendants shall, within seven days of this Order, so confirm under oath.

The Court has reviewed the documents submitted and now addresses Defendants' assertion of privilege.

II. Legal Standard

The Supreme Court has long noted that privileges are disfavored. Jaffee v. Redmond, 518 U.S. 1, 9 (1996). "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). Privileges are to be "strictly construed" because they "impede full and free discovery of the truth." Eureka Fin. Corp. v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). "If the privilege is worth protecting, a litigant must be prepared to expend some time to justify the assertion of the privilege." Id.

In civil rights cases brought under section 1983, questions of privilege are resolved by federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975). "State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases." 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." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511 F.2d at 198. The discoverability of official documents should be determined under the "balancing approach that is moderately pre-weighted in favor of disclosure." Kelly, 114 F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by making a "substantial threshold showing." Id. at 669. For each discovery request objected to, the party must file an objection and submit a declaration or affidavit from a responsible official with personal knowledge of the matters attested to by the official. Id. The affidavit or declaration must include (1) an affirmation that the agency has generated or collected the requested material and that it has maintained its confidentiality, (2) a statement that the material has been personally reviewed by the official, (3) a description of the governmental or privacy interests that would be threatened by disclosure of the material to the plaintiff or plaintiff's attorney, (4) a description of how disclosure under a protective order would create a substantial risk of harm to those interests, and (5) a projection of the harm to the threatened interest or interests if disclosure were made. Id. at 670. "The asserting party, as in any case where a privilege is claimed, must sufficiently identify the documents so as to afford the requesting party an opportunity to challenge the assertion of privilege." Miller v. Pancucci, 141 F.R.D. 292, 300 (9th Cir. 1992).

III. Discussion

A. Documents Submitted for In Camera Review

Defendants' privilege log contains 21 items. They are described in the privilege log as follows:

According to Defendants: These documents are classified as "Confidential Material" pursuant to Cal Code. Regs. tit. 15, §§ 3321(a)(1) and (2) and 3370(d)(e). (Decl. of D. Davis in Supp. of D.'s Privilege Log (ECF No. 148-1) ¶ 6.) If any of the information contained within were made known to an inmate it would endanger the safety of inmates and correctional staff and thereby jeopardizing institutional security. (Id. ¶ 7.) Such documents may be released only pursuant to a court order or under the provisions set forth in Cal. Code Regs. tit 15, § 3370(e). (Id. ¶ 6.) A protective order would be insufficient to protect the confidentiality of the documents, since the threat of sanctions for disobeying a protective order would be insufficient to deter a prisoner from disseminating and profiting from confidential information. (Id. ¶ 10.)

B. Analysis

The Court has reviewed each and every of the documents submitted for in camera review and makes the following findings and order regarding their production:

1. Exhibits A, B, C, D, E, F, G, H, I, P, Q, and R

These exhibits document other inmates' concerns about Plaintiff and reports by inmates the nature of which could expose them to Plaintiff's enmity or retaliation. They include allegations, some dating back to 1998, by inmates that Plaintiff engaged in illegal activity or used violence or intimidation tactics against them or others. None of the information therein relate to the reasonableness of Plaintiff's expressed fear of Siordia. They have no potential relevance to the claims in this lawsuit and are unlikely to lead to the discovery of admissible evidence. The Court will not order their disclosure.

2. Exhibit U

Exhibit U contains Plaintiff's confidential enemy list from the beginning of his incarceration through January 2011. According to Defendants, inmates can have both confidential and non-confidential enemy lists. (Davis Decl. ¶ 8.) Enemies are non-confidential where both parties are aware of the enemy concern. Confidential enemy lists identify informants who have provided information about another inmate, thereby exposing themselves to possible harm if such disclosures were revealed. (Id.) Plaintiff's confidential enemy lists may include the names of inmates who Plaintiff may not know regard him as an enemy. They do not include inmate Siordia's name; he does not appear on Plaintiff's confidential enemy list.

Again, the Court sees no potential relevancy of this information. The Court therefore will not order disclosure of Exhibit U.

3. Exhibits J, K, L, and N

These documents relate to Plaintiff's self-reported safety concerns on Facility C of High Desert State Prison ("HDSP") in 1998. Plaintiff named two inmates as potential threats. Those inmates are not affiliated with the instant case. While the reviewing officer found Plaintiff's claims to be unsubstantiated, one inmate was relocated to a different housing unit because of Plaintiff's stated concerns.

As these documents relate to enemy concerns that are more than eighteen years old and involve inmates with no relation to this case, the Court finds Exhibits J, K, and L are not relevant and will not order their disclosure.

4. Exhibit M

This memorandum documents a July 22, 1998 interview with Plaintiff during which he discussed activity on Facility C of High Desert State Prison ("HDSP"). Plaintiff identified inmates who were added to his confidential enemy list.

As this document relates to confidential information that is more than eighteen years old and involves inmates that are not affiliated with this lawsuit, the Court finds Exhibit M is not relevant and will not order its disclosure.

5. Exhibit O

This chrono relates to Plaintiff's self-reported enemy concerns while at the California Substance Abuse Treatment Facility ("SATF") in December 2000. As a result of Plaintiff's stated concerns, Plaintiff was placed in administrative segregation pending possible referral as a "Sensitive Needs" prisoner. It was also recommended that an inmate Plaintiff deemed an enemy be added to Plaintiff's confidential enemy list.

As this document relates to enemy concerns that are more than sixteen years old and involve an inmate not affiliated with this lawsuit, the Court finds Exhibit O is not relevant and will not order its disclosure

6. Exhibit S

This document memorializes an April 16, 2010 interview with Plaintiff in which he discussed inmate concerns on Facility A at Salinas Valley State Prison ("SVSP") involving inmates of the "Northern D/O" gang prompting prison officials to recommend Plaintiff remain in administrative segregation pending transfer to another facility.

Exhibits S relates to the circumstances that led to Plaintiff's transfer from SVSP to PVSP, to wit, Plaintiff's enemy concerns and could conceivably have some relevance to Plaintiff's claim here. Defendants will therefore be directed to disclose Exhibit S, subject to the protections listed below.

7. Exhibit T

This chrono memorializes an August 18, 2010 interview with Plaintiff at SVSP concerning Plaintiff's self-expressed enemy concerns about the "2-5" gang who Plaintiff believed would assault him if given the chance.

Defendants will therefore be required to disclose Exhibit T, subject to the protections listed below.

IV. Redactions and Protective Order

Defendants propose redacting from exhibits provided to Plaintiff the names, CDCR numbers, housing locations, nicknames, and gang affiliations of all inmates other than Plaintiff and all identifying information relating to officials who prepared or reviewed the documents.

Exhibits S and T will be provided to Plaintiff with the redactions proposed by Defendants. If, upon review of them, Plaintiff concludes they contain information that is relevant and in genuine need of corroboration, he may petition the Court for means of identifying and contacting individuals referred to therein upon a showing of good cause to include an explanation of his basis for contending that such information would be helpful to his case and a statement of what he hopes to seek and secure from any such witness.

Subject to further order of the Court, Plaintiff may receive and use the information in Exhibits S and T, subject to the redactions above, in litigating this matter subject to and strictly in accordance with the following terms and conditions:

V. Order

Based on the foregoing, it is HEREBY ORDERED that:

IT IS SO ORDERED.