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 28 U.S.C. § 1983. The action proceeds on Plaintiff's Eighth Amendment excessive force claim against Defendants Cope, Gonzales, Lozano, Smith, and Stane, and on a Fourteenth Amendment due process claim against Defendant Crounse.
On January 31, 2017, Plaintiff filed a motion to compel. (ECF No. 83.) Defendants filed oppositions. (ECF Nos. 85-89.) Plaintiff filed a belated reply. (ECF No. 99.) On March 3, 2017, the Court ordered Defendants to submit specified materials for in camera review in relation to the motion to compel. (ECF No. 94.) They did so on March 15, and March 16, 2017. (
On March 7, 2017, the Court denied without prejudice the motion to compel as to Defendant Crounse. (ECF No. 95.) The Court took under submission the motion to compel as to other Defendants. The Court herein states its ruling on Plaintiff's motion to compel as to Defendants Cope, Gonzales, Lozano, Smith, and Stane.
The discovery process is subject to the overriding limitation of good faith.
Generally, if the responding party objects to a discovery request, the party moving to compel bears the burden of demonstrating why the objections are not justified.
Defendants objected to many of Plaintiff's requests on the ground that the requested information is privileged. In support of their assertion of privilege, Defendants relied largely on state law privilege grounds that are not binding on federal courts in this type of case.
The Supreme Court has long noted that privileges are disfavored.
In civil rights cases brought under section 1983, questions of privilege are resolved by federal law.
Nevertheless, "[f]ederal common law recognizes a qualified privilege for official information."
"To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery."
The party invoking the privilege must at the outset make a "substantial threshold showing" by way of a declaration or affidavit from a responsible official with personal knowledge of the matters attested.
The Court has reviewed the letter of instruction and determined that it is not relevant to this action, nor is it likely to lead to the discovery of relevant evidence. Plaintiff has no discernible need for discovery of this material. In this circumstance, the balance tips against disclosure. The letter need not be produced.
As with Defendant Stane's letter of instruction, the Court has reviewed Defendant Smith's employee counseling records and is satisfied that they are not relevant to this action, nor are they likely to lead to the discovery of relevant evidence. The records need not be produced.
Request No. 30 seeks the inmate housing roster for Plaintiff's housing unit for the date of the incident at issue in this case. Defendants objected to this request on grounds of confidentiality, safety and security, and third party privacy. The declaration submitted by Defendants in support of their privilege log addressed only the defendant officers' confidential information; it articulated no basis for withholding the inmate housing roster. In their opposition to the motion to compel, Defendants cite only to generalized concerns regarding the release of confidential inmate information to other inmates.
This declaration is insufficient to support Defendants' claim of privilege. Additionally, the only asserted basis for maintaining the confidentially of these documents is state law concerning confidentiality and privacy. The Court finds these justifications unpersuasive grounds for withholding discovery. Moreover, the Court concludes that a roster of inmates housed on Plaintiff's unit at the time the incident occurred may be relevant and necessary for the identification of potential inmate witnesses. There appears to be no alternative means available to Plaintiff to obtain this information. Accordingly, the Court concludes that the housing roster must be produced to Plaintiff.
However, to the extent the roster contains confidential inmate information beyond the inmate's first initial, last name, and CDCR number, such information may be redacted, without prejudice to Plaintiff seeking disclosure of the redacted information upon a showing of good cause.
The Court has reviewed the Use of Force Critique Package in camera. The information contained therein generally is unhelpful to Plaintiff's case and instead is supportive of Defendants' version of the facts. None of the documents contain findings that excessive force was used. Nevertheless, the Court finds that some of the documents contain accounts of the incident in a level of detail that may lead to the discovery or relevant evidence or assist Plaintiff in identifying witnesses.
The Court has weighed the potential benefits of disclosure of these documents against the potential disadvantages,
Given the foregoing, judicial preference for admitting competent, relevant evidence, and recognition that the balance is "moderately pre-weighted in favor of disclosure" in these cases,
The remaining documents contained in the Use of Force Critique Package are not sufficiently relevant or probative to warrant the breach in confidentiality their disclosure would require. Accordingly, Defendants will not be compelled to produce those documents to Plaintiff.
The Court begins by noting that many of Plaintiff's requests are aimed at obtaining any and all records pertaining to Defendants' history of being accused of or disciplined for the use of excessive force. Based on the Court's review of the records submitted in camera and Defendants' responses to Plaintiff's requests for production, it appears that none of the Defendants have been disciplined, counseled, or instructed for using excessive force against inmates.
The only apparent document in Defendants' possession, custody or control that is relevant to this request is Defendant Stane's letter of instruction. As discussed above, Defendants will not be compelled to produce this document.
Request No. 3 seeks video interviews conducted in relation to the prison's investigation of the incident at issue. In response, Defendants stated their willingness to permit Plaintiff to view his own videotaped interview upon request. They also state that no other such videos exist. In response to Plaintiff's motion to compel, Defendants state that Plaintiff, to date, has not requested to view the video.
There appears to be no dispute with regard to this request. Defendants will permit Plaintiff to view the only responsive video upon Plaintiff's request. Plaintiff's contention that other video interviews must exist because various investigations were conducted is unsupported.
These requests seek documents containing policies and procedures regarding the use of force. Defendants state that they have produced all responsive documents that are in their possession, custody, or control. Plaintiff provides no argument to the contrary. Defendants cannot be compelled to produce material that is not in their possession, custody, or control. Furthermore, although Plaintiff desires these materials to educate the jury as to how the Defendants violated internal policies or procedures, any such violations do not bear on the constitutional question at issue in this case, i.e., whether Defendants used excessive force against Plaintiff after Plaintiff was subdued. Further production is not warranted.
This request seeks all use-of-force video interviews of prisoners who have accused Defendants of excessive force. The Court agrees that this request is overbroad and unduly burdensome. Furthermore, in light of the Defendants' responses to other requests indicating a lack of excessive force findings against the Defendants, this request is unlikely to lead to the discovery of relevant evidence. Unsubstantiated accusations of excessive force by Defendants against other inmates are too tangential to this litigation to require a further response. The motion to compel a further response to this request will be denied.
With the exception of the Use of Force Critique Package, Defendants produced all responsive documents in their possession, custody, and control. As discussed above, the Court has reviewed the Use of Force Critique Package and determined that specified materials must be disclosed. With the exception of the Use of Force Critique Package as described above, Plaintiff's motion to compel a further response to these requests will be denied.
Defendants refused to produce documents responsive to these requests on the ground that they are privileged. Defendants' privilege log lists Defendant Stane's letter of instruction and Defendant Smith's Employee Counseling Records as responsive to these requests. As stated above, the Court has reviewed these records in camera and determined that they need not be produced. Accordingly, Plaintiff's request to compel a further response to these requests will be denied.
This request seeks all Office of Internal Affairs ("OIA") files for Defendants. Defendants objected to this request as overbroad. The Court agrees. Nonetheless, OIA files pertaining to the incident at issue in this case have the potential to contain relevant evidence. Accordingly, Defendants will be compelled to provide a further, limited response to this request by providing Plaintiff with OIA files relating to this incident. Alternatively, to the extent Defendants contend that the files are privileged, they may file and serve a privilege log, supporting declaration, and brief in support of withholding the files from Plaintiff, and must simultaneously provide the OIA files to the Court in camera review. The Court then will review the files to determine whether they must be disclosed.
This request, which seeks an inmate housing roster, was discussed above in relation to Defendants' claim of privilege. The roster must be produced to Plaintiff as described above.
Plaintiff seeks rosters of inmates who participated in Islamic religious services at his institution from July 2009 through July 13, 2013. He states that he requires this information to show that he is a practicing Muslim, a matter that he believes will be in dispute.
Defendants objected to this request on various grounds. Ultimately, however, the Court concludes that the materials are not relevant to any fact of consequence in this action, nor are they likely to lead to the discovery of relevant evidence. Although Plaintiff contends that the events at issue here were precipitated by derogatory remarks made by Defendant Gonzalez regarding Plaintiff's religious practice, the veracity of Plaintiff's faith is not a material dispute. And, even if the materials do contain some minimal relevance, the burdens of producing and appropriately redacting those materials are not proportional to the needs of the case.
This request seeks "[a]ll `Use of Force Committee Electronic Data'" for each of the Defendants. This request is overbroad, unduly burdensome, disproportionate to the needs of the case, and unlikely to lead to the discovery of relevant evidence for the reasons stated above regarding Request No. 9. No further response is required.
These requests are broadly worded to seek "any and all records pertaining to the Defendants." Plaintiff then clarifies such records may include those pertaining to Defendants' use of force history or creating false evidence, and information concerning individuals who may have made such complaints against Defendants. Plaintiff wishes to show that there is an underground policy at CDCR in which officers assault inmates and then cover up the assaults through false evidence.
This request is overbroad, unduly burdensome, disproportionate to the needs of the case, and unlikely to lead to the discovery of relevant evidence for the reasons stated above regarding Request Nos. 9. As stated, there is nothing before the Court to suggest that Defendants have been disciplined, counseled, or instructed with regard to the conduct specified by Plaintiff. Plaintiff's belief that there is evidence to support his theory of an underground policy appears to be based entirely on speculation and, based on the information before the Court, is unlikely to be borne out in CDCR records. No further response is required.
Although Defendants have not specifically requested that the Court issue a protective order, the Court concludes that such an order is warranted. Accordingly, the following protective order applies to the privileged materials described above. Defendants shall produce said materials and Plaintiff may review them and use them in litigating this matter subject to and in strictly in accordance with following terms and conditions:
Based on the foregoing, it is HEREBY ORDERED that:
