KAREN S. CRAWFORD, Magistrate Judge.
This is a § 1983 action. Plaintiff Marissa Loftis filed a complaint on behalf of herself and her minor child, Marquise Deangelo Loftis Jr. (collectively "Plaintiffs"). (See ECF No. 37.) Plaintiff Marissa Loftis's husband and plaintiff Marquise Deangelo Loftis Jr.'s father is incarcerated at R.J. Donovan Correctional Facility in San Diego. (Id.) Plaintiffs initially alleged that while visiting their husband/father on April 7, 2016, they were illegally detained by defendants Ramos and Wilborn for three hours based on their religious beliefs. (See ECF No. 1.) Plaintiffs alleged that they were separated and that plaintiff Marissa Loftis was subjected to a strip search in order to regain custody of her son. (Id.) Defendants contend that plaintiff Marissa Loftis was properly detained after she was caught trying to bring tobacco, a scale, and money orders into the prison. (Id.)
On September 25, 2017, defendants served their discovery responses, including objections, a privilege log, and a declaration in support of the assertion of privilege, to plaintiff's initial series of Requests for Production of Documents ("RPDs")
In response to a Joint Motion to Continue Litigation Dates and Deadlines filed on December 12, 2017, Judge Porter entered an Order Granting Joint Motion to Continue and/or Extend Relevant Litigation Deadlines and Dates on December 15, 2017. Therein, the Court vacated the deadlines previously set and issued a revised schedule for the remaining discovery. She also ordered the parties to file a joint motion addressing any outstanding discovery disputes no later than January 31, 2018. (ECF No. 36 at 2.) In accordance with this Order, on January 31, 2018, the parties filed the instant Motion seeking resolution of a discovery dispute; specifically, defendants' assertion of privilege in their September 25, 2017 and November 6, 2017 responses to plaintiff's RPDs. (See ECF No. 43.)
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, a party is entitled to seek discovery of any non-privileged matter that is relevant to his or her claims and proportional to the needs of the case. The December 2015 amendment to Rule 26 reinforced the proportionality factors for defining the scope of discovery and, thus, under the amended Rule 26, relevancy alone is no longer sufficient to obtain discovery. See Fed. R. Civ. P. 26(b)(1) advisory committee notes to 2015 amendment. Accordingly, parties must conduct a cost-benefit analysis weighing the importance of the issue to the outcome of the case, the amount at stake in the case, the parties' resources, and their relative access to the information. Id. Thus, only evidence that is "relevant to any party's claim or defense" is within the scope of permissible discovery. Id.; Medicinova Inc. v. Genzyme Corp., No. 14-cv-2513-L (KSC), 2017 WL 2829691, at *5 (S.D. Cal. June 29, 2017) ("The test going forward is whether evidence is `relevant to any party's claim or defense,' not whether it is `reasonably calculated to lead to admissible evidence.") (quoting In re Bard IVC Filters Prods. Liability Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)).
"The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D. 573, 575 (C.D. Cal. 2005)).
A party may also request the production of any document within the scope of Rule 26(b) of the Federal Rules. Fed.R.Civ.P. 34(a). Under Rule 34, a request for the production of documents is sufficient ifthe documents or things to be produced are described by item or category with "reasonable particularity." Fed.R.Civ.P. 34(b)(1)(A). "The test for reasonable particularity is whether the request places a party upon `reasonable notice of what is called for and what is not.' Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004); see also Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649-50 (10th Cir. 2008) ("[A] discovery request should be sufficiently definite and limited in scope that it can be said `to apprise a person of ordinary intelligence what documents are required and [to enable] the court. . .to ascertain whether the requested documents have been produced."). "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Fed.R.Civ.P. 34(b)(2)(B). Rule 34 requires that objections to a request for the production of documents be timely and the grounds be stated with specificity. See Fed.R.Civ.P. 34(b)(2).
"If the responding party objects to the requested form—or if no form was specified in the request—the party must state the form or forms it intends to use." Fed.R.Civ.P. 34(b)(2)(D). Unless otherwise stipulated or ordered by the Court, a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. Fed.R.Civ.P. 34(b)(2)(E)(i).
In response to all of plaintiffs' requests, defendants provided the following objection:
(See ECF Nos. 43-2 at 2-5; 43-5 at 4, 9-13; 43-6 at 4-7.)
In the Joint Motion, defendants claim plaintiffs' requests seek official information that is kept confidential and considered privileged information, and is therefore not subject to discovery. (ECF No. 43 at 9-10.) Defendants contend that disclosure of documents containing sensitive investigatory information of illegal activity within the prison could jeopardize official investigations and place other inmates and correctional staff at risk of retaliation if informants were to be discovered. (Id. at 10.) Plaintiffs assert that the requests are relevant to the allegations in the Complaint, the documents cannot be acquired by alternative means, and any concern of retaliation is speculative at this point. (Id.) Plaintiffs also assert that Defendants' concern regarding any impediment to future investigations and/or retaliation of other inmates that the disclosures may bring can be addressed through a protective order. (Id.)
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 v. US. Dist. Ct., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 392, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). The party asserting the privilege has the burden of proving the privilege. Kelly v. City of San Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987); see also Hamption v. City of San Diego, 147 F.R.D. 227, 231 (S.D. Cal. 1993) ("Through this opinion, this court is hereby joining the Northern District's and Central District's procedures outlined in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987) and Miller v. Pancucci, 141 F.R.D. 292 (C.D. Cal. 1992) for invoking the official information privilege"); Stewart v. City of San Diego, 2010 WL 4909630, at *1 (S.D. Cal. 2010) (applying Kelly). Some factors that courts may consider when conducting the case-by-case balancing analysis include:
In making this determination, courts must conduct "a situation specific analysis of the factors made relevant by the request in issue and the objection to it." Kelly, 114 F.R.D. at 663. In civil rights cases against police departments, the balancing test should be "moderately pre-weighed in favor of disclosure." Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal.1995) (quoting Kelly, 114 F.R.D. at 661).
To invoke the official information privilege, defendants must make a substantial threshold showing. See Soto, 162 F.R.D. at 613; Hampton, 147 F.R.D. at 231; and Dowell v. Griffin, 275 F.R.D. 613, 616 (S.D. Cal. 2011). To meet this threshold requirement, defendants "must submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit." Dowell, 275 F.R.D. at 616. The affidavit must include: (1) an affirmation that the agency generated or collected the material in issue and has 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; and (5) a projection of how much harm would be done to the threatened interests if disclosure were made. Soto, 162 F.R.D. at 613 (internal quotation marks omitted).
In the Order issued December 15, 2017, this Court directed the parties to address "any outstanding discovery disputes" in a joint motion, filed no later than January 31, 2018. [Doc. No. 36, p. 2]. The responsive Joint Motion filed by the parties, however, fails to provide this Court with sufficient information with which to make a determination.
Specifically, incomplete information is provided regarding exactly what has already been produced by the defendants in response to plaintiffs' requests. While some documents produced are identified,
Similarly, the defendants have also failed to articulate the specific bases for their safety concerns and privilege assertions in response to each of the document requests at issue. The Court can speculate that documents that pertain exclusively to the search of plaintiff Denise Ramos may not disclose information that would put inmates or correctional staff in jeopardy, and may therefore be subject to production, subject to a protective order. By contrast, documents that pertain to entry screening protocol in general, if produced without the protection of an appropriate protective order, could potentially be used by individuals seeking admittance to the facility to avoid the detection of contraband. Further, assuming that they have any relevance to this case at all, documents requested that address inmate procedures in the facility, or which involve investigations of plaintiffs' husband/father also raise viable security concerns, as would any documents referencing investigations pertaining to him.
The Joint Motion also fails to adequately describe the efforts, if any, the parties have made to agree to terms of a tailored protective order. Specifically, in Section C, plaintiffs represents that the parties met and conferred and that plaintiffs'"offer to agree to a protective order was politely declined." [Doc. No. 43, p. 5]. The defendants state in the very next sentence that a protective order should be issued "in the event the Court orders any confidential or privileged documents to be produced." Id. No information is provided to the Court regarding efforts, if any, to reach an agreement regarding the terms for an appropriate protective order.
The wholesale failure to meet and confer, in person, in detail about appropriate terms for a protective order and each of the discovery requests at issue is evident. As such, the parties have failed to comply with both Judge Bartick's Civil Chamber Rules and the Local Rules of this Court. See Judge Bartick's Chambers Rule IV; Civ.L.R. 26.1, 83.4.
Based on the Court's reading of the Joint Motion, it is evident both parties completely ignored the proportionality prong of Rule 26(b)(1). For that reason, plaintiffs have not addressed whether the documents they seek are proportional to the needs of this case. Likewise, defendant has failed to demonstrate with specificity why the requested documents should not be produced. Neither party address factors which underly the proportionality analysis, namely, "the importance of the issues at stake in this action," "the burden of expense of some of the proposed discovery[,]" "the parties' relative access to relevant information, the parties' resources, or the importance of the discovery in resolving the issues." See N.U. v. Wal-Mart Stores, Inc., 2016 WL 3654759, at *7 (D. Kansas July 8, 2016). As such, the Court finds both plaintiffs' requests and the defendants' objections to be unsustainably overbroad.
For the foregoing reasons, the Court orders as follows:
IT IS SO ORDERED.
