JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff moves to compel production of documents responsive to his Request for Production of Documents. (Doc. 59.) Defendants oppose the motion and request that the Court either deny the motion or conduct an in camera review. They also seek a protective order to permit plaintiff to review some of the privileged documents listed on their privilege log. For the reasons set forth below, plaintiff's motion will be granted in part.
On November 4, 2012, CO Gonzalez placed handcuffs on plaintiff tightly and roughly escorted him from his cell to outside the building where plaintiff was housed. Once outside, CO Gonzalez slammed plaintiff onto the pavement without provocation, injuring plaintiff's left shoulder, left elbow, left knee, and the left side of his face. Plaintiff was stunned and bleeding. CO Gonzalez then sat on plaintiff's head, and he pressed his right knee hard into plaintiff's face and head.
An alarm was activated from the yard gun tower. Within seconds, multiple prison guards came running to where CO Gonzalez and plaintiff were. One of the guards, CO Harris, struck plaintiff twice with a steel baton, again without provocation. Plaintiff was still on the ground at this point. Though this defendant was yelling "Stop resisting," plaintiff was not resisting.
Following this incident, plaintiff was taken to the medical unit where CO Harris directed plaintiff to face the wall. When plaintiff complied, CO Harris punched plaintiff twice in the facial/head area.
Federal Rule of Civil Procedure 26(b)(1) provides that "[p]arties 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." Information that is within the scope of discovery "need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1).
Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them."
Under Rule 34(b), the party to whom the request is directed must respond in writing 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). Also, "[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)(E)(I).
Under Rule 37 of the Federal Rules of Civil Procedure, "a party seeking discovery may move for an order compelling an answer, designation, production, or inspection." Fed. R. Civ. P. 37(a)(3) (B). The court may order a party to provide further responses to an "evasive or incomplete disclosure, answer, or response." Fed. R. Civ. P. 37(a)(4). "District courts have `broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16.'"
Plaintiff takes issue with defendants' responses to five requests for production of documents. Defendants oppose each request as follows.
In Request No. 1, plaintiff sought "The security video footage recording for [California Correctional Institution ("CCI")] A yard. Specifically camera footage of 11-4-2012. Camera adjacent to the rotunda. Going in the inmate exercise yard facing 4A sidewalk SHU. Or any & all footage viewed by the I.S.U/Prison official — regarding the staff complaint investigation use of force."
Defendants responded to this request by asserting several objections, including that it was vague, ambiguous, and impermissibly compound. They then noted that "[a]fter a diligent search and reasonable inquiry," there does not exist video footage of the incident. As for footage related to the investigation into plaintiff's claim, defendants identified a video-taped interview of plaintiff conducted on January 8, 2013. Defendants offered to make this video available for viewing through Plaintiff's correctional counselor.
Plaintiff claims this response is inadequate, and he challenges the defendants' objections that the request is vague, ambiguous, and impermissibly compound. The Court agrees that the request is sufficiently specific to overcome objections based on vagueness and ambiguity. While it is compound, there is no serious argument that the two-part request is irrelevant or otherwise improper.
Concerning video footage of the incident, plaintiff claims footage exists since he was informed by the officer who conducted the disciplinary hearing following the excessive force incident that he reviewed the security camera. In their response, defendants claim that they were unable to locate a video after conducting a "diligent search and reasonable inquiry." In the Court view, this is sufficient. As for the second portion of this request, plaintiff has not identified how the defendants' response is inadequate. For this reason, his motion as to Request No. 1 will be
In Request No. 2, plaintiff sought "The footage recording of use of force investigation recording. Plaintiff use of force statement & injuries."
Defendants asserted several objections in response to this request. They also offered to make the January 8, 2013, video of plaintiff's interview available for viewing through Plaintiff's correctional counselor.
In the pending motion, plaintiff states that he should not be prohibited from obtaining a copy of the use of force injury video via a CD Rom disc. He also claims that, despite request, he has been unable to view the video. Defendants contend that a "Departmental policy" prohibits plaintiff from retaining a copy of the video, but they do not specify that policy. In any event, it appears that plaintiff viewed the video on June 15, 2018, and there is no argument that this was insufficient.
In Request No. 3, plaintiff sought "Any & All; tangible documents, investigation notes, books, documents of any & all prison officials, internals affairs/outside resource who had anything to do with Nov. 4th 2012 use of force investigation. Fed. Rules of Civ Pro. 26(b)(1) including any & all relevant material in subjection to this matter, including."
Defendants asserted several objections and then produced the following: a CDCR 837 Crime/Incident Report, Log No. CCI-FAA-12-11-0269, and a CDCR 115 Rules Violation Report, Log No. FA-12-11-0004. They also produced a privilege log identifying documents that they assert are protected by the Official Information Privilege for the safety and security of the institution. The privilege log identifies two categories of documents: (1) the records and results of the investigation into plaintiff's inmate appeal (CONFID, 1-2, 5-6, 7-10, 45-46, and 56) (the "first category"), and (2) documents relating to the internal deliberations of prison officials in evaluating and critiquing the use of force by its prison staff and a medical record of another inmate (CONFID 3, 11-14, 15-21, 22-29, 30-32, 33-34, 35-44, and 47-55) (the "second category").
"Assertions of privilege in federal question cases are governed by federal common law."
Federal common law recognizes a "qualified privilege for official information."
To determine whether the privilege applies in a particular case, "courts must weigh the potential benefits of disclosure against the potential disadvantages."
Under certain conditions, investigatory files compiled for law enforcement purposes are privileged.
"The governmental privilege must be formally asserted and delineated in order to be raised properly."
In support of their claim of the official information privilege, defendants submitted a privilege log and the declaration of M. Dailo, the litigation coordinator at California Correctional Institution in Tehachapi, California. Sheet Decl. Ex. 3. M. Dailo declares to have personally reviewed the documents identified in the privilege log and claims that some of the identified documents should not be produced because of personal information contained therein or because they are treated as highly sensitive. For other identified documents, M. Dailo states that they can produced under limited circumstances (e.g., accessed through the litigation coordinator for a limited time only).
Regarding the confidential investigative documents listed in the privilege log, M. Dailo states generally that their production would "diminish the effectiveness of the investigations process and the benefits of the investigations" if inmates and the public were "to understand the tactics and techniques used by officers to defend against the inmates or to quell a prison disturbance. . . ." Dailo Decl. ¶ 22. Regarding personal information of inmates and correctional staff whose names and records are in responsive documents, M. Dailo states that these individuals would need to be notified pursuant to California regulations, that the records of another inmate's medical information should be protected from disclosure, and that the release of this information would jeopardize the safety and security of the institution. Dailo Decl. ¶ 23.
Federal courts recognize a constitutionally-based right of privacy that may be asserted in response to discovery requests.
In their opposition to plaintiff's motion to compel, defendants state that they are have arranged to provide plaintiff access to the first category of documents subject to a protective order through his correctional counselor. As to the second category of documents, defendants maintain that the documents should not be produced at all.
Plaintiff, who spends a considerable portion of his motion arguing that the documents he seeks are relevant to his excessive force claim, does not challenge the defendants' invocation of the official information privilege. Additionally, he concedes that certain information, including the personnel information of correctional staff and information on other inmates, should not be produced. Likewise, at least as of now, the Court cannot see how the determinations made by a third party to this litigation, can bear on the issues here.
In any event, due to the sensitive nature of the documents identified by the defendants as "category 2," the Court will reserve ruling on plaintiff's motion to compel as to these documents until after an in camera review. The defendants are
In Request No. 4, plaintiff sought "Any & all disciplinary reprimands & 602 complaints of use of force & such alike. Def. R. Harris & J. Gonzales."
Defendants asserted several objections and then produced a copy of plaintiff's 602 appeal, Log No. CCI-0-12-03124, and 602 Appeal Log No. CCI-0-13-00723. They also produced a privilege log and the declaration of M. Dailo and, in a supplemental response, the declaration of J. Wood, Appeal Coordinator at CCI, identifying documents that they assert are protected by the Official Information Privilege for the safety and security of the institution.
Plaintiff claims this production was inadequate because inmate complaints of use of force "will help the Court and jurors see the chronical conduct & behavior of the [defendants and] also assist plaintiff to explain to the jurors what type of character the [defendants] possess." MTC at 9.
"[I]n the context of civil rights excessive force cases against police departments, plaintiffs may suffer great difficulties if courts impose demanding relevancy standards on them."
In addition, there are only two individual defendants to this case. Having chosen to file this action in federal court, the plaintiff forewent the option of suing the CDCR, as their employer. Consequently, this evidence would also not be relevant to show notice to the employer or ratification by the employer.
On the other hand, if the other incidents are sufficiently similar, there is a chance the records may be admissible for other reasons such as motive of the officers.
The defendants make generalized claims of "safety and security risk[s]" and they assert privacy concerns that can be addressed through redactions and a protective order. Indeed, defendants have offered to make documents responsive to this request available to plaintiff on such terms.
The Court will reserve ruling on plaintiff's motion to compel as to Request No. 4 pending in camera review. The defendants are
In Request No. 5, plaintiff sought "The D.O.M Rule & Reg. Procedure & Institutional Protocol procedure on the topics — specifically, training & how the guards are suppose[d] to act — mitigate combative prisoners `in handcuffs restraints.'"
In response, defendants produced a copy of Cal. Code Regs., tit. 15, §§ 3391, Employee Conduct; 3268, Use of Force; 3268.2, Use of Restraints; and CDCR Department Operations Manual, Article 2, Use of Force, § 51020.1 et seq.
While plaintiff expresses dissatisfaction with this request, he fails to explain why the defendants' production of these regulations is insufficient. His motion as to Request No. 5 is
In addition to the foregoing, plaintiff seeks monetary sanctions for alleged discovery abuses. The Court finds no reason to impose sanctions and will thus
Based on the foregoing, the Court
