ORDER

ALLISON CLAIRE, Magistrate Judge.

INTRODUCTION

Plaintiff is a state prisoner incarcerated under the authority of the California Department of Corrections and Rehabilitation (CDCR), proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on the original complaint filed July 26, 2012, ECF No. 1, against sole defendant Correctional Officer R. Wasko. Plaintiff pursues a First Amendment retaliation claim that defendant, acting in retaliation against plaintiff for filing an administrative grievance against defendant on September 5, 2008, made false allegations against plaintiff in a CDC-115 Rules Violation Report (RVR), concerning an alleged incident on October 28, 2011. Plaintiff contends that the RVR caused adverse consequences including placement in the Administrative Segregation Unit (ASU), an adverse prison transfer, and denial of parole. ECF No. 1 at 22-3, 26-7. At the time, plaintiff was housed at the California Medical Facility (CMF). Plaintiff is currently incarcerated at the California Men's Colony in San Luis Obispo.

On December 18, 2013, this court granted defendant's motion to dismiss plaintiff's retaliation claims premised on three CDC 128-B Chronos defendant authored against plaintiff, dated December 10, 2009, July 20, 2011, and September 12, 2011, on the ground that plaintiff failed to exhaust administrative remedies. ECF No. 36; see also ECF No. 21 (Findings and Recommendations).

By order filed August 14, 2014, the deadline for completing discovery in this action was extended to November 17, 2014, and the deadline for filing dispositive motions was extended to March 2, 2015. ECF No. 69. Cross-motions for summary judgment have been filed by plaintiff, ECF No. 95, and defendant, ECF No. 97, and the briefing on these matters is currently in progress.

This order addresses the parties' outstanding discovery disputes, a motion to quash plaintiff's subpoena duces tecum, and additional matters filed by plaintiff.1

THE PARTIES' DISCOVERY DISPUTES

I. Legal Standards Common to All Discovery

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and, for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Relevant information need not itself be admissible at trial provided the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id.

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. See e.g., Grabek v. Dickinson, 2012 WL 113799, *1 (E.D. Cal. 2012); Womack v. Virga, 2011 WL 6703958, *3 (E.D. Cal. 2011). This requires the moving party to inform the Court which discovery requests are the subject of the motion to compel, and, for each disputed response, why the information sought is relevant and why the responding party's objections are not meritorious. Grabek, 2012 WL 113799 at *1; Womack, 2011 WL 6703958 at *3.

The court is vested with broad discretion to manage discovery, Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Survivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) and, where the discovery request seeks information which, based on the record, is clearly within the scope of discovery and the objection lacks merit, the court may elect to exercise its discretion to reach the merits of the dispute. See e.g., Marti v. Baires, 2012 WL 2029720, *3 (E.D. Cal. 2012); Williams v. Adams, 2009 WL 1220311, *1 (E.D. Cal. 2009). The court must limit discovery if the burden of producing it outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). "In each instance, the determination whether ... information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action." Fed. R. Civ. P. 26 Advisory Committee's Note (2000 Amendment), Gap Report re. Subdivision (b)(1).

II. Plaintiff's Motion to Compel Further Responses to Plaintiff's Requests for Admission (Set Two) (Request Nos. 15 and 18), and for Sanctions, ECF No. 68

In this motion, filed August 11, 2014, plaintiff seeks sanctions and further responses to his Requests for Admissions (Set Two), Nos. 15 and 18. ECF No. 68. Defendant filed an opposition, ECF No. 70; plaintiff filed a reply, ECF No. 75. The subject Requests for Admissions (Set Two), were served April 22, 2014; defendant served his responses on June 5, 2014.

A. Legal Standards for Requests for Admission

The permissible scope of a request for admission is set forth in Rule 36(a), Federal Rules of Civil Procedure, which provides:

Fed. R. Civ. P. 36(a)(1). Requests for admission are intended to narrow the issues for trial by identifying and eliminating the matters on which the parties agree. Safeco of Am. v. Rawstron, 181 F.R.D. 441, 443 (C.D. Cal. 1998). A matter is deemed admitted unless the responding party serves a written answer or objection within thirty days after service of the request. Fed. R. Civ. P. 36(a)(3). If an objection is made in place of an admission or denial, the responding party must state the reasons for the objection. Fed. R. Civ. P. 36(a)(5). If the court finds an objection is not justified, "it must order that an answer be served." Fed. R. Civ. P. 36(a)(6). "On a finding that an answer does not comply with [Rule 36], the court may order either that the matter is admitted or that an amended answer be served." Id.

B. Analysis

1. Plaintiff's Request for Admission No. 15

As originally worded, plaintiff's Request for Admission No. 15 sought the following:

Defendant responded:

Plaintiff asserts that defendant's response was evasive and offers to reword Request No. 15 as follows:

ECF No. 68 at 4 (original emphasis). Defendant maintains that this request is vague, confusing and irrelevant.

Review of the complaint and exhibits, see ECF No. 1 at 20-35, and Exs. G and H, demonstrates that defendant Wasko informed another CDCR official, J. Zometa, in a November 29, 2011 email, that he originally documented his alleged October 28, 2011 interaction with plaintiff on a CDC 128-B Chrono, but Captain Walker had defendant change it to a CDC 115 Rules Violation Report (RVR). Defendant noted in the email that "[t]he fact that the RVR was [thereafter] reduced to a 128-A does not change my belief that Heilman is a threat to my safety. Please keep me advised if administration plans to release Heilman from ASU." ECF No. 1 at 84, Ex. H. Pursuant to the November 17, 2011 hearing on the CDC 115 (entitled "Threatening Staff"), the Senior Hearing Officer reduced the "Serious RVR" to an Administrative CDC 115, which he then dismissed, and instead documented plaintiff's alleged conduct on a CDC 128-A Custodial Counseling Chrono for violation of Cal. Code Regs., tit. 15, § 3004(b) (requiring respectful behavior), and "warned and counseled [plaintiff] in regard to his future behavioral expectations." ECF No. 1 at 68, Ex. G.

Plaintiff appears to argue that, if defendant acknowledges he intentionally violated CDCR rules by initially documenting plaintiff's alleged behavior on a CDC 128-B (to assert that plaintiff's alleged conduct was more egregious than it actually was), this will demonstrate defendant's intent to retaliate against plaintiff. While this argument suggests some relevance to the subject request, the court finds that the request, even as modified, remains unhelpful in "narrow[ing] the issues for trial." Rawstron, 181 F.R.D. at 443. Defendant's defense of this action demonstrates his denial of plaintiff's theory, and the record is replete with defendant's assertions that he felt threatened by plaintiff. Whether this assertion is truthful and/or reasonable are questions of fact that will be determinative of plaintiff's retaliation claim. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).2 Requiring a further (and predictable) response to this request would be futile.

Accordingly, plaintiff's motion to compel defendant's further response to plaintiff's Request for Admission (Set Two) No. 15, is denied.

2. Plaintiff's Request for Admission No. 18

Plaintiff's Request for Admission No. 18 seeks the following:

Defendant responded:

Plaintiff contends that defendant's response is evasive, and that requiring defendant to respond directly to the request "will show [defendant's] intent and motives to retaliate against plaintiff" because "`intimidating staff' is a serious rules violation . . . and not just `prohibited conduct.'" ECF No. 75 at 3-4. Plaintiff's intent in obtaining a further response to Request No. 18 is virtually identical to his intent in pursuing a further response to Request No. 15. Plaintiff wants defendant to acknowledge that he intentionally harassed plaintiff, and that such admission will support plaintiff's retaliation claim. For the reasons previously noted, the court finds that requiring a further response to this request would be futile.

Accordingly, plaintiff's motion to compel defendant's further response to plaintiff's Request for Admission (Set Two) No. 18, is denied.

C. Plaintiff's Request for Sanctions

Plaintiff seeks sanctions pursuant to this motion on the ground that defendants have been "deliberately evading providing truthful responses, and forcing Plaintiff to spend his resources to obtain these responses through Court intervention," ECF No. 68 at 2, and because defense counsel "continues to waste both the Court's and the Plaintiff's time and resources with deception, evasion and facades," ECF No. 75 at 4. Defendant opposes the request. ECF No. 70 at 5-6.

Rule 37, Federal Rules of Civil Procedure, authorizes "a wide range of sanctions" for a party's failure to comply with discovery rules or court orders enforcing them. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). A party may be sanctioned for failing to respond to or supplement discovery requests, and for evasive or incomplete responses. See Fed. R. Civ. P. 37 (a), (c), (d). "In the Ninth Circuit, sanctions are appropriate only in `extreme circumstances' and where the violation is `due to willfulness, bad faith, or fault of the party.'" Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (quoting United States v. Kahaluu Construction Co., Inc., 857 F.2d 600, 603 (9th Cir. 1988) (citations omitted)).3

Here, because plaintiff's motion to compel is denied, his request for sanctions for bringing this motion is also denied.

III. Plaintiff's "Addendum" Motion for Sanctions Based on Defendant's Amended Responses to Plaintiff's Requests for Admissions (Set Two) (Request Nos. 20 and 21), ECF No. 86

The court construes as an independent motion plaintiff's "Addendum" requesting sanctions based on defendant's alleged bad faith in belatedly supplementing his responses to plaintiff's Requests for Admissions (Set Two), Request Nos. 20 and 21. As earlier noted, defendant served his initial responses on June 5, 2014. Defendant supplemented his responses to Request Nos. 20 and 21 on October 21, 2014. At issue is defendant's belated acknowledgement of a "Confidential Attachment C" prepared by CDCR staff in response to plaintiff's relevant inmate appeal, Log No. CMF-11-M-01341, which was construed as a staff complaint against defendant Wasko. The requests, original responses and amended responses provide in pertinent part:

Defendant's counsel states that the Confidential Attachment C was not provided to him when he prepared and served defendant's original responses to plaintiff's admission requests in June 2014. See Goodwin Decl., ECF No. 89-1 at 1-2. Counsel was thereafter out of his office for an extended period between September and October 2014. Upon his return, counsel learned that other staff, in preparing a response to plaintiff's third-party subpoena duces tecum, discovered that a Confidential Attachment C was generated in response to plaintiff's subject inmate appeal. Counsel avers in pertinent part:

Goodwin Decl., ¶¶6-8, ECF No. 89-1 at 2.

Despite his many allegations to the contrary, see ECF Nos. 86, 91, plaintiff has presented no evidence from which to reasonably infer that defendant or defense counsel acted in bad faith in responding to, and supplementing, these requests. Significantly, there is no evidence from which to reasonably infer that defendant Wasko knew of the existence of the subject Confidential Attachment C. The Privilege Log submitted in support of the pending motion to quash, discussed infra, designates this document "Log Number 1," and indicates that it was authored by Lt. Ross, and reviewed by seven correctional officials, but not by defendant Wasko. See ECF No. 81 at 18. The asserted reasons for the belated discovery of the subject Confidential Attachment C are reasonable, and counsel states under penalty of perjury that he promptly supplemented the subject requests when he discovered the document, as required by Federal Rule of Civil Procedure 26(e). The court finds that there is no evidence of "willfulness, bad faith, or fault" on the part of defendant or defense counsel, and that any delay was substantially justified, see Fed. R. Civ. P. 37(c)(1).

For these reasons, the court finds that plaintiff's request for sanctions premised on defendant's amended responses to Plaintiff's Requests for Admission Nos. 20 and 21, is without merit. The request is therefore denied.

IV. Plaintiff's Motion to Compel Defendant to Provide Supplemental Discovery Responses, ECF No. 84

By this motion, plaintiff seeks defendant's further responses to plaintiff's Requests for Admission, Request for Production of Documents, and Interrogatories. ECF Nos. 84, 86. Defendant filed an opposition, ECF No. 87; plaintiff filed a reply, ECF No. 88.

A. Plaintiff's Public Records Act Request

In this context plaintiff filed another "Addendum," this one requesting that the court take judicial notice of a January 8, 2015 "Amended Response to Public Records Request," sent to plaintiff by CDCR's Office of Legal Affairs (OLA). See ECF No. 93 at 9-11, Ex. A; see also California Public Records Act (CPRA), Cal. Govt. Code § 6250 et seq. The subject "Amended Response" amended OLA's February 20, 2014 original response, discussed infra, which informed plaintiff that 37 responsive pages had been identified and would be provided to plaintiff upon payment of $6.44 ($4.44 copy expenses, and $2.00 postage). Id., see also ECF No. 81 at 14. Plaintiff asserts the Amended Response demonstrates that defense counsel has not been forthcoming in this litigation, withheld relevant material, and "contrived a `plan' with the Office of Legal Affairs" for these purposes. Plaintiff asks the court to consider these matters when assessing his broader motion for supplemental discovery responses and sanctions. ECF Nos. 93, 96.

The court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201.

Significantly, the Amended Response does not state that OLA identified additional documents responsive to plaintiff's Public Records request, only that OLA's prior search did not include emails that may have been exchanged among the identified officials during the relevant period. OLA states that it will conduct a search of those emails upon plaintiff's prepayment for the expenses of the search, and that it reserves the right to assert any appropriate exemption barring release of a responsive email.4 As defendant states in opposition, ECF No. 94, the Amended Response "does not indicate any electronic records exist," and "does not show that Correctional Officer Wasko has access to, custody, and/or control over additional responsive documents that have not already been disclosed." ECF No. 94 at 2.

For these reasons, the court finds that OLA's Amended Response contains no affirmative information and is therefore irrelevant to the merits of plaintiff's motion for additional discovery from defendants. Plaintiff's request for judicial notice of the Amended Response is denied.

B. Motion to Compel Supplemental Responses

By the instant motion, ECF No. 84, plaintiff challenges defendant's responses to twenty-eight of plaintiff's sixty-eight Requests for Admission, eighteen of plaintiff's twenty-five Interrogatories, and thirteen of plaintiff's twenty-four Requests for Production. Plaintiff makes only general arguments in his brief motion, anticipating that the court will examine each of the challenged requests, responses, and plaintiff's objections, as set in forth in the attachments to his motion, which total more than 100 pages. Specifically, plaintiff asks the court to review the details of his "Good Faith Notice to Defendant Wasko to Supplement his Discovery Responses," served April 2014 in response to defendant's initial March 2014 discovery responses.5 See ECF No. 84 at 9-110. In May 2014, in response to plaintiff's "Good Faith Notice," defense counsel informed plaintiff that he had "reviewed your objections, as well as my client's responses and the attachments accompanying the responses. Because the responses are accurate and the objections are proper, my client stands on his responses." ECF No. 84 at 7. Plaintiff filed this motion on November 3, 2014.

Defendant has filed a comprehensive opposition to plaintiff's motion, asserting general reasons for denial, as well as responding to each of plaintiff's specific challenges. See ECF No. 87. As noted by defendant, several of plaintiff's requests seek information about defendants or claims that have been dismissed from this action. See e.g. Requests for Admission Nos. 16-20, 23, 33 and 35; Interrogatories Nos. 4-5, 7-9; and Request for Production No. 15. Nevertheless, the court finds defendant's general objections well taken. Plaintiff has not met his burden of demonstrating to the court, as to each challenged discovery response, why defendant's objections are unjustified and how the requested discovery is relevant to plaintiff's claims. See Roberts v. CDCR, 2014 WL 117973, *2 (E.D. Cal. 2014). No party can reasonably expect the court to undertake an independent review of nearly sixty contested discovery responses, based only on the objections that one party submitted to another.

Within the Ninth Circuit, "broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant." Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations and internal quotation marks omitted). Plaintiff's minimal briefing on this motion indicates that he will suffer no prejudice by its denial.

Accordingly, plaintiff's motion to compel supplemental responses, ECF No. 84, is denied.

THIRD PARTY MOTION TO QUASH

Brian Duffy, former CMF Warden and a non-party in this action, moves to quash plaintiff's subpoena duces tecum on the ground that any responsive documents are privileged. See ECF Nos. 80, 81. Plaintiff opposes the motion, ECF No. 83, and moves to compel Duffy's further responses to each of his subpoena requests, ECF No. 82. Duffy filed an opposition to plaintiff's motion to compel, ECF No. 85, and plaintiff replied, ECF Nos. 91, 96.

I. Procedural Background and Court's Authorization

By order filed August 14, 2014, this court granted plaintiff leave to submit a proposed subpoena duces tecum in conformance with the Federal Rules of Civil Procedure and guidelines set by the court. ECF No. 69. Plaintiff submitted his proposed subpoena on September 2, 2014. ECF No. 73. By order filed September 8, 2014, the court directed the United States Marshal to personally serve the subpoena, together with a copy of the court's order, on Warden Duffy, ECF No. 74. The court limited the subpoena requests as follows (id.):

In his motion to quash, filed October 10, 2014, Duffy states that there are no existing documents responsive to Request Nos. 1, 2, 3 and 7; that, liberally construed, the materials that may be responsive to Request No. 7 are privileged; that the materials responsive to Request No. 8 are privileged; and that the documents responsive to Request No. 9 will be provided to plaintiff upon receipt of payment for the copying costs. See ECF No. 81 at 2. Warden Duffy has submitted a privilege log in support of withholding responsive documents. Neither Duffy nor plaintiff contest the response to Request No. 56 which, therefore, is not further addressed by the court. Thus, the matters at issue are plaintiff's Request Nos. 1-3 and 7-9.

II. Legal Standards Governing Motion to Quash or Modify Subpoenas

Rule 45(d)(3), Federal Rules of Civil Procedure, governs motions to quash or modify a subpoena. Rule 45(d)(3)(A) identifies the following circumstances in which a court is required to grant a motion to quash or modify a subpoena:

Fed. R. Civ. P. 45(d)(3)(A).

In assessing the merits of a motion to quash, the court is guided by Rule 26, which authorizes the discovery of "any nonprivileged matter that is relevant to any party's claim or defense," Fed. R. Civ. P. 26(b), while cognizant that discovery restrictions "may be broader when a nonparty is the target of discovery," Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir. 1980). "In spite of the extremely broad interpretation given Rule 26(b) in regard to party discovery, the cases have construed this provision more narrowly when it is applied to non-parties." Laxalt v. McClatchy, 116 F.R.D. 455, 457 (D. Nev. 1986).

III. Analysis

A. General Objections

Warden Duffy generally objects to the subpoena on the ground that it appears to require his appearance at plaintiff's place of incarceration, California Men's Colony in San Luis Obispo, which is more than 100 miles from his current employment as Warden of the California Health Care Facility in Stockton. See Fed. R. Civ. P. 45(d)(3)(a)(ii). However, for the reasons set forth below, Warden Duffy's appearance will not be required because the only responsive document that will be ordered produced may be served by mail on plaintiff or through his institution's litigation coordinator. Accordingly, any objection based on distance is overruled.

B. Request Nos. 1, 2 and 3

These requests, as limited by the court's order filed September 8, 2014, seek the following information:

In response to each of these requests, Duffy stated that he had conducted a diligent search but had located no responsive documents. Nevertheless, plaintiff challenges the objections asserted by Duffy, and asserts that his representation concerning no responsive documents is unconvincing. See ECF No. 82 at 4-7.

Plaintiff presents theories for his disbelief, but no more. In the absence of evidence to the contrary, plaintiff is required to accept Duffy's responses to these requests that, despite a diligent search, no responsive documents exist.7 See e.g. Mootry v. Flores, 2014 WL 3587839, *2 (E.D. Cal. 2014) ("Defendants cannot be required to produce documents that do not exist. Absent evidence to the contrary, which has not been presented, Plaintiff is required to accept Defendants' response no such documents exist."); accord, Holt v. Nicholas, 2014 WL 250340, *4 (E.D. Cal. 2014) ("Absent evidence to the contrary, which has not been presented, Plaintiff is required to accept Defendant's amended response that no such documents responsive to his request exist."); Ransom v. Johnson, 2009 WL 1025587, *7 (E.D. Cal. 2009) ("Plaintiff is required to accept that Defendant has no responsive documents in his possession, custody, or control."). No more is required.

Accordingly, plaintiff's motion to compel further responses to Request Nos. 1, 2 and 3 in his subpoena duces tecum served on Warden Duffy is denied.

C. Request No. 7

Pursuant to this request, plaintiff seeks the following:

Warden Duffy responded that, construing plaintiff's request literally, there are no responsive documents. However, to the extent that documents other than a "training manual" may address the conduct of prison staff in responding to inmate threats, such documents are privileged and identified in Duffy's privilege log.8 See Duffy Decl., Ex. B (ECF No. 81 at 17-30).

Duffy's privilege log lists, in pertinent part, 17 documents (Log Numbers 2 through 18) withheld on the basis of "official information." These documents are various instructor guides and lesson plans authored by staff at CDCR's Office of Training and Professional Development (OTPD), Correctional Training Center (CTC). The materials are used for training CDCR staff and cadets at the Basic Correctional Officer Academy (BCOA), and include training on arrest and control, staff relations, managing effective interaction and conflict, radio communication and alarm devices, and use of force. See Duffy Decl., Ex. B (ECF No. 81 at 17-30). In his declaration before this court, Warden Duffy provides a detailed explanation how disclosure of these materials would jeopardize the safety and security of inmates and staff alike.9

Privileges are narrowly construed because they impede the full and fair discovery of the truth. "Federal common law recognizes a qualified privilege for official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). This qualified privilege "must be formally asserted and delineated in order to be raised properly." Kerr v. U.S. District Court, 511 F.2d 192, 198 (9th Cir. 1975) aff'd, 426 U.S. 394 (1976) (internal citations omitted). To properly invoke the official information privilege, "[t]he claiming official must `have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced' and state with specificity the rationale of the claimed privilege." Id.

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. Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). "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." Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. Cal. 1987). In addition, "[t]he 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 (C.D. Cal. 1992).

Once a threshold showing has been made that the official privilege applies, the court must balance the interests and decide whether the conditional privilege applies. "To determine whether the information sought is privileged, courts must weigh the potential benefits of the disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery." Sanchez, 936 F.2d at 1033-34; see also Martinez v. City of Stockton, 132 F.R.D. 677 (E.D. Cal. 1990). "The balancing approach of the Ninth Circuit is mirrored in this and other courts' previous determinations that a balancing test is appropriate when the disclosure of law enforcement files in a civil action is at issue." Doubleday v. Ruh, 149 F.R.D. 601, 609 (E.D. Cal. 1993).

In the present case, Warden Duffy, a responsible official with personal knowledge of the matters at issue, states that he personally reviewed the subject materials, which were generated by officials within CDCR, which has in turn maintained the confidentiality of the materials.10 See Duffy Decl. at ¶¶ 1-6, ECF No. 81 at 1-3. Warden Duffy further attests that disclosure of the materials, even if subject to a carefully drafted protective order, would threaten the safety of inmates and staff, and jeopardize the security of CDCR institutions. Thus, Warden Duffy's declaration meets the threshold requirements for demonstrating application of the official information privilege.

The next inquiry is made by the court, by balancing the potential benefits and disadvantages of disclosure. Plaintiff asserts that this material is relevant to his claim that defendant Wasko failed to take any officially sanctioned steps in responding to plaintiff's allegedly threatening conduct toward Wasko, thus undermining defendant's assertion that he felt threatened by plaintiff and supporting plaintiff's claim that defendant's challenged conduct was retaliatory. Plaintiff seeks to demonstrate that any alleged legitimate correctional goal for Wasko's challenged conduct was merely pretextual.

While plaintiff's objectives are reasonable, balancing the respective interests weighs against wholesale disclosure of CDCR's methods and strategies for maintaining control in its institutions. Without this material, plaintiff may still require defendant Wasko to identify the officially sanctioned ways that he responded to plaintiff's allegedly threatening conduct, as well as the official sanctioned responses that he did not pursue. Permitting plaintiff to comb through CDCR's training materials to identify options that defendant allegedly pursued or failed to pursue is no more than a fishing expedition, at significant risk to the safety and security of CDCR inmates and staff.

For these reasons, the court finds that the risks of disclosure outweigh the potential benefits, and therefore denies plaintiff's motion to compel Warden Duffy's further responses to his Request No. 7.

D. Request No. 8

Pursuant to this request, plaintiff seeks the following:

Warden Duffy objected to this request on grounds of privilege and relevance.11 The responsive document is referenced as Log Number 1, in Warden Duffy's privilege log, and its retention is premised on the deliberative process privilege, self-critical analysis privilege, and common law. Review of the privilege log indicates, as earlier noted, that the Confidential Attachment C was authored by CMF Lt. D. Ross, and received or reviewed by seven CMF or Office of Appeals staff, but not by defendant Wasko. See ECF No. 81 at 18. This procedure is consistent with that set forth in CDCR's Operations Manual, Section 54100.25.2 (Processing of Staff Complaints).12

Plaintiff contends that Duffy's objections are unfounded and that this information is essential to plaintiff's retaliation claim. In permitting inclusion of this document in the authorized subpoena duces tecum, this court expressly found that the "staff Complaint, CMF-11-01341, is related to plaintiff's allegations in this action." ECF No. 32 at 5; see also id. at 5-7. Plaintiff correctly asserts that, in general, a Confidential Attachment C to an inmate staff complaint sets forth the findings of the official investigation into the inmate's allegations. Plaintiff states, persuasively, that it "contains the analysis of the staff member in question's actions, and more often than not, a more truthful account of said staff member's conduct than what is revealed on the Form 602 returned to the inmate." ECF No. 82 at 10.

Plaintiff also notes that the court required disclosure of a separate Confidential Attachment C in another of plaintiff's cases, Heilman v. Vojkufka, Case No. 2:08-cv-02788 KJM EFB P. In that case, plaintiff sought disclosure of the "Confidential Supplement to Appeal, Appeal Inquiry (Attachment `C'") of 602 Staff Complaint. Appeal Log No. CMF-M-07-01295." Id., ECF No. 38 at 5, n. 2. The court authorized disclosure pursuant to a subpoena duces tecum, id. at 6-7, which was served by the United States Marshal on CDCR, ECF No. 53, and ultimately obtained by plaintiff, see ECF No. 81 at 10-11, Ex. 2, despite an apparently routine notation at the top of the document that the supplement was "Not for Inmate Distribution;" see also ECF No. 88 (noting, significantly, a factual discrepancy between the findings contained in the supplement and the defendant's declaration).

Warden Duffy does not contest the relevance of this material. Rather, he asserts that CDCR's internal investigative procedures will be compromised "if compelled disclosure of internal reports like the one at issue becomes commonplace."13 ECF No. 81 at 5.

The Ninth Circuit does not recognize the "self-critical analysis" privilege. See e.g. Union Pacific R.R. v. Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000) and citations therein. The deliberative process privilege, which is qualified, is intended to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for governmental decision-making. See e.g. Federal Trade Commission v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). A litigant may obtain discovery of materials protected by the privilege if the need for the materials outweighs the governmental interest in keeping the decision-making process confidential. In deciding whether to override the privilege and allow discovery, there are four factors to be considered: "(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions." Id.

The court is persuaded that the requested Confidential Attachment C to plaintiff's subject inmate appeal challenging the conduct of defendant Wasko may be clearly and uniquely relevant to the allegations and claims in this action; no other evidence provides an official assessment of Wasko's challenged conduct. In addition, the court finds that requiring disclosure will not hinder CDCR's frank and independent assessment of alleged staff misconduct, on a case by case basis. Nevertheless, the court is cognizant that unfettered disclosure of the document may jeopardize institutional security. Accordingly, Warden Duffy will be directed to submit the document for in camera review, and the court will then make a final assessment as to its relevance and, if appropriate, the method of disclosure.

Warden Duffy is directed to submit, within fourteen days after the filing date of this order, an unredacted copy of the subject Confidential Attachment C to plaintiff's inmate appeal Log No. CMF-11-M-01341, for this court's in camera review. Warden Duffy may also submit, contemporaneously, a proposed redacted copy of the Attachment that would provide plaintiff with the relevant information while minimizing or eliminating any potential risk arising from disclosure. Thereafter, the court will issue a final order issue order granting or denying plaintiff's request for disclosure of this document, subject to any appropriate conditions.

E. Request No. 9

Pursuant to this request, plaintiff seeks the following:

Warden Duffy responded that the documents would be provided upon plaintiff's payment of the copying expenses:

As earlier noted, these documents were identified by CDCR's Office of Legal Affairs in response to a request from plaintiff pursuant to the California Public Records Act. The documents are included in plaintiff's subpoena only because the CMF Litigation Coordinator offered to provide them upon plaintiff's payment of the costs for copying and mailing these materials, a total of $6.44 ($4.44 for copying 37 pages), and ($2.00 for mailing). See ECF No. 81 at 14. Plaintiff does not dispute that he is responsible for the costs of providing the identified documents, but asserts that he should be permitted to review the documents to determine whether he already possesses some of them, and then to obtain copies of only those documents that would be newly acquired.

In light of the minimal costs of full production, the court finds that the burdens attendant to plaintiff's request to exercise his discretion to review and direct the selective copying of these documents (including further expenses associated with the necessary involvement of staff, availability of copying, and possible further mailing), outweighs any potential benefit. See generally Fed. R. Civ. P. 26(b). Accordingly, if plaintiff wants these materials, he must first submit a check for $6.44 payable to the California Department of Corrections and Rehabilitation, and shall do so within thirty (30) days after the filing date of this order.

IV. Summary

The motion to quash filed by Warden Duffy, ECF No. 80, is granted with the following exception: Warden Duffy shall, within fourteen days after the filing date of this order, submit for in camera review the Confidential Attachment C identified in Request No. 8, and may also submit a proposed redacted copy of the document. Plaintiff's motion, ECF No. 82, to compel Warden Duffy's responses to plaintiff's subpoena duces tecum is granted in part.

PLAINTIFF'S MOTION FOR LEAVE FOR "COURT EN BANC REVIEW"

In this motion, filed January 12, 2015, plaintiff seeks "en banc review" of the undersigned's Findings and Recommendations filed September 13, 2013, ECF No. 32, which in pertinent part recommended dismissal of three of plaintiff's retaliation claims due to plaintiff's failure to administratively exhaust those claims. ECF No. 92. The District Judge adopted the Findings and Recommendations by order filed December 18, 2013. ECF No. 36. Several months later, on 18, 2014, plaintiff filed a Motion for Reconsideration. ECF No. 51. By order entered August 25, 2014, the District Judge denied plaintiff's motion for reconsideration. ECF No. 72.

Plaintiff now asserts that he did not timely receive notice of the District Judge's order, and requests "en banc" review of the undersigned's findings that plaintiff did not exhaust his administrative remedies as to three subject 128-B General Information Chronos. Plaintiff asserts that he inadvertently failed to include certain matters in his objections to the Findings and Recommendations, e.g., that plaintiff timely re-filed Log No. CMF-12-00106 after it was screened out for containing multiple issues; that the appeal was improperly cancelled at Third Level Review; and that further administrative remedies were therefore effectively unavailable to plaintiff. See generally ECF No. 92.

Neither the Federal Rules of Civil Procedure nor the Local Rules of this court provide for the "en banc" review sought by plaintiff. Moreover, it is clear that plaintiff's reasons for pursing this novel request are without merit, as the undersigned fully addressed these matters in the subject Findings and Recommendations, ECF No. 32 at 7-10.

Accordingly, plaintiff's motion for "en banc review," ECF No. 92, is denied.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion, ECF No. 68, to compel further responses to his Requests for Admissions (Set Two) (Request Nos. 15 and 18), and for sanctions, is denied in full.

2. Plaintiff's motion, ECF No. 86, for sanctions (entitled "Addendum"), based on defendant's alleged bad faith in supplementing his responses to plaintiff's Requests for Admissions (Set Two) (Request Nos. 20 and 21), is denied in full.

3. Plaintiff's request for judicial notice, ECF No. 93, is denied.

4. Plaintiff's motion, ECF No. 84, to require supplemental discovery responses to his initial Requests for Admission, Request for Production of Documents, and Interrogatories, is denied in full.

5. The motion to quash filed by third-party Warden Duffy, ECF No. 80, is granted in part and denied in part.

6. Plaintiff's motion to compel further responses by Warden Duffy, ECF No. 82, is granted in part and denied in part.

7. Within fourteen (14) days after the filing date of this order, Warden Duffy shall submit for in camera review the document identified in Request No. 8 of plaintiff's subpoena duces tecum. Warden Duffy may also submit, at the same time, a proposed redacted copy of the document for purposes of disclosure to plaintiff. The court will issue a further order after in camera review.

8. To obtain the materials identified in Request No. 9 of plaintiff's subpoena duces tecum, plaintiff shall, within thirty (30) days after the filing date of this order, submit a check for $6.44 payable to the California Department of Corrections and Rehabilitation; failure to meet this deadline will result in the forfeiture of this option.

9. Plaintiff's motion, ECF No. 92, for en banc review of the undersigned's Findings and Recommendations filed September 13, 2013, is denied.

SO ORDERED.