STANLEY A. BOONE, Magistrate Judge.
Plaintiff Vance Utley ("Plaintiff") is a state prisoner who is represented by counsel and proceeding with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint in this action on July 14, 2015. (ECF No. 1.) This case now proceeds on the first amended complaint, which Plaintiff filed on May 18, 2016, against defendants C.O. Acevedo, C.O. Wimer, and C.O. Lopez for failure to protect. (ECF No. 32.) Defendant Lopez has not appeared in this action yet.
On June 29, 2016, Plaintiff filed a motion to compel the production of records from the California Department of Corrections and Rehabilitation ("CDCR"). (ECF No. 41.) Plaintiff noticed the motion to compel for hearing on July 20, 2016. The parties did not file a joint statement re discovery disagreement or an affidavit pursuant to Local Rule 251(d). Therefore, the Court vacated the July 20, 2016 hearing; and Plaintiff's motion to compel was denied without prejudice on July 15, 2016. (ECF No. 43.)
On July 17, 2016, Plaintiff filed a second motion to compel the production of records from CDCR, which he titled an amended notice of motion and motion for order compelling the production of records. (ECF No. 44.) Plaintiff's counsel also filed a 251(d) declaration on July 17, 2016. (ECF No. 44-2.)
On July 29, 2016, Defendant C.O. Acevedo and Defendant C.O. Wimer ("Defendants") filed an opposition to Plaintiff's motion to compel that only addressed whether Plaintiff's July 17, 2016 motion to compel was filed after the deadline for filing a motion to compel and whether the Court should deny the motion to compel as untimely. (ECF No. 48.) Defendants requested the opportunity to oppose the motion on its merits if the Court considers the merits of the motion. In the interests of judicial efficiency, the Court ordered Defendants to file a response on the merits to Plaintiff's July 17, 2016 motion to compel. (ECF No. 49.) On August 3, 2016, Defendants filed an opposition to the motion to compel on the merits. (ECF No. 50.) On August 8, 2016, Plaintiff filed a reply to Defendants' opposition to the motion to compel.
The hearing on the motion to compel took place on August 10, 2016. Ken Karan appeared telephonically on behalf of Plaintiff. California Deputy Attorney General David Carrasco appeared telephonically on behalf of Defendants. After the hearing, Defendants submitted the confidential memorandum for an in camera review. The Court also granted Defendants' request to submit the documents that Defendants contend have already been produced in discovery and contain the non-confidential information that is in the confidential memorandum. For the reasons set forth below, Plaintiff's motion to compel is granted. The November 25, 2014 confidential memorandum shall be produced to Plaintiff's counsel pursuant to an attorney eyes only protective order.
Plaintiff alleges that Defendants violated his constitutional rights in connection with their failure to protect him from an attack by inmates. Plaintiff alleges that on or about November 27, 2014, when Plaintiff was performing his program at Substance Abuse Treatment Facility-Corcoran State Prison ("SATF-CSP"), he noticed four inmates in a group taking an unnatural interest in his presence. Plaintiff understood the group of inmate's behavior as a prelude to an attack. Plaintiff went to the nearest office to find an escort from a correctional officer. Defendants Acevedo, Wimer, and Lopez were in the office. Plaintiff told the Defendants that he was about to be attacked and beaten by the inmates gathered outside of the office and he requested an escort to the program office. Officer Acevedo disparaged Plaintiff's concerns and rejected Plaintiff's plea for an escort. Plaintiff repeated his plea for an escort at least four times, during which Defendant Acevedo moved toward Plaintiff cursing him until Acevedo physically ejected Plaintiff from the office.
After he was ejected from the office, Plaintiff attempted to return to his housing, but within 20 to 50 feet of the door to the office, Plaintiff was attacked by the same inmates he earlier observed as a threat. The group of inmates hit, kicked, and beat him about his head and body.
Plaintiff suffered severe injuries as a result of the attack, including trauma to his left eye. Plaintiff initially lost vision in his left eye from the trauma and swelling. Plaintiff had lost vision in his right eye from an unrelated cause early in his life, so he was blind during the attack and unable to defend himself. Plaintiff has since regained some of his vision, but it is drastically reduced from what it was prior to the attack. Plaintiff must protect his vision from bright lights; and he is worried that he will become permanently blind. Plaintiff urinated blood for several days after the attack and he suffers from kidney damage. He also suffered neck and back injuries and trauma to his rib cage. He can only stand for short periods of time and suffers pain when he sits. He suffers extreme headaches when reading for only a few minutes. He was subjected to the deprivations of Administrative Segregation because he was attacked. Plaintiff will be released from prison in the near future, but his employment prospects have diminished due to his injuries.
Motions to compel are governed by Federal Rule of Civil Procedure 37, which states, in pertinent part:
Fed. R. Civ. P. 37.
Rule 37 states that "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). The Federal Rules of Civil Procedure provide that a party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). "Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.
In this instance, the parties are disputing whether Defendants should have to produce the November 25, 2014 confidential memorandum authored by Mr. Garza. Mr. Garza conducted an investigation of the attack on Plaintiff and then authored a memorandum. Plaintiff's Request No. 1:
(ECF No. 44-2 at 7.)
(ECF No. 44-2 at 13.)
The relevant entry on the privilege log:
(ECF No. 44-1 at 4-5.)
Defendants argue that Plaintiff's motion to compel should be denied as untimely. Defendants argue that Plaintiff filed his motion to compel after the deadline for filing a non-dispositive motion and did not request a modification of the scheduling deadline. In Plaintiff's August 8, 2016 reply, he argues that nothing in the Local Rules requires a finding of good cause to re-file notice. At the hearing, Plaintiff argued that denying a motion without prejudice means that the second motion relates back to the date that the first motion was filed even if the deadline has past at the time the second motion is filed. However, the Court is unaware of, and Plaintiff was unable to provide, any authority that supports this argument. Although Local Rule 251(a) provides that the hearing regarding discovery disagreements may be dropped from the calendar without prejudice if the joint statement or 251(d) declaration is not filed at least seven days before the hearing, a party must still comply with the deadlines set out in the Court's scheduling order. To carry Plaintiff's assertions to its "logical" conclusion would mean that a "without prejudice" is akin to an extension of court deadlines and that a party could bring future motions merely by obtaining a "without prejudice" designation, despite an order which sets forth the deadlines the parties must adhere to.
Defendants argue that any extension of a deadline after deadline has passed must be by motion and the movant must show excusable neglect under Federal Rule of Civil Procedure 6(b).
However, under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P. 16(d). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and good cause requires a showing of due diligence,
Permitting the motion to compel to be considered on its merits would not substantially prejudice Defendants, because Defendants are not prejudiced by any delays caused by the instant motion. If the Court orders Defendants to produce the confidential memorandum there will be no prejudice to Defendants. The production of the confidential memorandum does not affect any of Defendants' filings. The deadline to file dispositive motions remained the same in this matter. In addition, the pretrial conference and jury trial dates remain the same. The length of delay is not great and the delay has relatively little, if any, impact on the judicial proceedings.
In his instant motion to compel, Plaintiff presents several reasons why he did not comply with Local Rule 251 and file a joint statement by the required deadline for the prior motion to compel. Plaintiff argues that he diligently pursued the prior motion to compel, but that last minute input from CDCR, defense counsel's desire to move the hearing date, Plaintiff's uncertainty that a hearing would be held, and the desire to include the deposition transcripts in support of the motion prevented Plaintiff from complying with the July 13, 2016 deadline for the joint statement. The Court finds that Plaintiff attempted to act in good faith by trying to complete the joint statement along with Defendants. Upon consideration of some due diligence on Plaintiff's part, and frankly, the lack of prejudice to Defendants, the Court finds that Plaintiff has demonstrated good cause to extend the deadline for filing a non-dispositive motion and the deadline for non-expert discovery relating to the instant motion to compel only. Therefore, the Court will consider Plaintiff's motion to compel on the merits.
However, Plaintiff is cautioned that if he expects to move a hearing date or if there is uncertainty surrounding a hearing date, he should attempt to resolve those issues as early as possible, and not wait until only a few days before the hearing. In the future, these will not be found as good reasons to excuse Plaintiff's delay and extend deadlines. Also, although Plaintiff may have been diligently working on the joint statement and trying to coordinate its submission with Defendants, Plaintiff did not communicate to the Court that there would be a delay in filing the joint statement. Absent extraordinary circumstances, the parties should file any requests for extensions of deadlines prior to the expiration of the deadline. For any further requests to extend the deadlines, the Court will consider when the need to extend the deadline became known and the length of delay in seeking an extension.
Plaintiff contends that CDCR's position is that any document labeled confidential by CDCR is beyond the reach of discovery in a civil case. Plaintiff argues that CDCR does not indicate how any person or security would be jeopardized by Plaintiff knowing who provided information during the investigation; why a protective order would not be followed; whether the witness requested confidentiality to provide a statement; the specific threats addressed by the promise and whether the threats are real; and how discovery may be limited due to a promise of confidentiality.
Defendants argue that the CDCR has labeled each memorandum as confidential and maintained its confidentiality. Plaintiff argues that a protective order assuring that the confidential memorandum is "attorney's eyes only" will resolve any of those concerns. Defendants counter that there is the possibility of inadvertent disclosure to Plaintiff. Defendants also assert that the information in the confidential memorandum, excluding the identities of the confidential informants, has already been disclosed to Plaintiff. Defendants suggest that the Court could confirm this by conducting an in camera review.
M. Lujan, the litigation coordinator, declares that if confidential memoranda are disclosed, inmates could use the information to determine the identity of informants and target them for assault, extortion, or other predatory conduct, either directly or indirectly. (Lujan Decl. ¶ 4.) M. Lujan also declared that "[s]ome of the information in this confidential memorandum consists of allegations against inmates not parties to this action. The disclosure of this information would jeopardize the safety of the informant and the security of the institution." (Lujan Decl. ¶ 5.) Based on these statements in Lujan's declaration, it appears that there are statements of informants in the confidential memorandum, and not merely statements of percipient witnesses. At the hearing, Defendants stated that there was information from "confidential informants" in the confidential memorandum.
At the hearing, Defendants were asked what privilege they are asserting and what authority supported their position. Defendants replied that it is not a privilege and that it is to protect confidential information that would undermine safety and security of the institution and undermine the ability of CDCR staff to obtain information from confidential informants. Defendants stated that generally, when information is obtained from confidential sources, namely, prison informants, the memorandum is labeled confidential. Defendants want to protect the confidential informants in the memorandum at issue in this case.
The Court is sensitive to issues involving confidential informants and security measures to protect inmates from other inmates. However, in this case, Defendants have not articulated any privilege or any legal authority that justifies withholding disclosure of the November 25, 2015 confidential memorandum other than a vague assertion based on safety and security concerns of the inmates and the institution. In their August 3, 2016 opposition on the merits, Defendants cite sections 3321 and 3370 of the California Code of Regulations. Discovery in federal court is not governed by state prison regulations or the California Government Code. The Court finds that Defendants' citations to those sources do not justify withholding disclosure of the November 25, 2014 confidential memorandum. Therefore, Defendants will have to produce the November 25, 2014 confidential memorandum to Plaintiff. However, the Court has reviewed the November 25, 2014 confidential memorandum in camera to determine whether disclosure of the memorandum should be subject to a protective order.
"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). "The Ninth Circuit recognizes that district courts have great flexibility to protect documents that contain confidential or commercially sensitive information."
Upon review of the confidential memorandum in camera, as well as the Court's review of the documents that have been already produced to Plaintiff, the Court notes that the confidential memorandum contains summaries of statements from three inmates. The memorandum contains a statement that if released to the public and other inmates may put that inmate in a position of harm. Therefore, the Court finds that the November 25, 2014 confidential memorandum should be produced subject to an attorney eyes only protective order. The parties shall submit a stipulated attorney eyes only protective order within seven days. If the parties are unable to agree on the protective order, they may seek the Court's assistance to resolve any disagreement through the informal discovery dispute process found on the Court's website, under Judge Boone, in an effort to avoid expenses and further delays.
Accordingly, IT IS HERBY ORDERED that:
IT IS SO ORDERED.
