The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 BRIAN KAKOWSKI, Case No.: 21cv1675-JAH(LR)
12 Plaintiff,
ORDER:
13 v.
(1) DENYING IN PART
14 KATHLEEN ALLISON, et al.,
PLAINTIFF’S MOTION TO
15 Defendants. COMPEL [ECF NO. 71]
16
AND
17
(2) REQUIRING PRODUCTION OF
18
DOCUMENTS FOR IN CAMERA
19 REVIEW
20
21
22
23 Currently before the Court are Plaintiff’s “Motion to Compel Discovery” [ECF No.
24 71 (“Mot.”)], Defendants’ Opposition [ECF No. 74 (“Opp’n”)], and Plaintiff’s Reply
25 [ECF No. 75 (“Reply”)]. Having considered all of the briefing and supporting
26 documents, and for the reasons set forth below, the Court DENIES IN PART Plaintiff’s
27 Motion to Compel.
28
1 I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
2 On September 22, 2021, Plaintiff Brian Kakowski, a state prisoner proceeding pro
3 se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983. (ECF
4 No. 1.) On January 9, 2022, Plaintiff filed a First Amended Complaint (“FAC”), the
5 operative pleading in this case. (See ECF No. 32.) On February 14, 2022, after
6 screening Plaintiff’s FAC, District Judge Houston dismissed “all claims against all
7 Defendants in Plaintiff’s First Amended Complaint without further leave to amend
8 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with the exception of Plaintiff’s Eighth
9 Amendment claims against Defendants Pollard, Clayton and Mosely.” (ECF No. 33 at
10 12; see also id. at 10.) Accordingly, the remaining claims in Plaintiff’s FAC are against
11 Defendants Richard J. Donovan Correctional Facility (“RJD”) Warden Pollard, Plaintiff’s
12 primary treating physician at RJD Dr. Clayton, and the Chief Appeals Officer of the
13 California Department of Corrections and Rehabilitation (“CDCR”) CDCR Moseley.
14 (See ECF No. 32.)
15 Plaintiff alleges that Defendants Pollard, Clayton, and Moseley failed to protect
16 him, and were deliberately indifferent to his health and safety. (Id. at 4, 6.) Plaintiff
17 asserts that Defendants failed to enforce California Code of Regulations, Title 15, section
18 3052(g), which provides that “[n]o inmate shall be assigned to the food service area until
19 medically cleared to handle food.” (Id. at 4; ECF No. 32-1 at 9.) He states that as a
20 result of Defendants’ failure to enforce the regulation, inmates with contagious diseases
21 were working in the kitchens and contaminated food, which “led to Plaintiff re-
22 contracting Hepatitis-C.” (Id.) Plaintiff further alleges that instead of investigating his
23 inmate grievance concerning the issue, Defendant Pollard denied the grievance by
24 stating, in direct violation of the California regulations, that “inmates are not precluded
25 from holding a position in culinary based on medical prognosis.” (Id. at 5.) Plaintiff
26 further contends that Defendant Mosely “made false claims and falsified documents
27 claiming chronos are up to date,” and that “everybody & everyone is medically cleared.”
28 (Id. at 6–7.)
1 Plaintiff also alleges that Defendant Clayton was deliberately indifferent to his
2 need for medical treatment of Hepatitis-C. (Id. at 9.) Plaintiff asserts that he asked to be
3 treated with Interferon, but was only given “Tums & Ibuprofen,” and he was hospitalized
4 in April 2021 with acute liver failure. (Id. at 9–10.) Plaintiff claims Clayton repeatedly
5 ignored the signs of liver failure Plaintiff reported, including dark brown urine, stomach
6 pain, and back aches. (Id. at 10, 14.)
7 On June 15, 2022, Plaintiff served his First Set of Requests for Production of
8 Documents, and Defendants Pollard, Clayton and Mosely responded to Plaintiff’s
9 requests on July 18, 2022. (ECF No. 74-1, Decl. of Gracie Pollard (“Pollard Decl.”) at
10 2.) After the parties met and conferred regarding Defendants’ discovery responses,
11 Defendants supplemented their production on September 2, 2022. (Id. at 2–3.)
12 Unsatisfied with the production, Plaintiff filed the Motion to Compel on October 11,
13 2022. (See Mot.) On December 7, 2022, the Court held a Discovery Hearing on
14 Plaintiff’s Motion to Compel (“Discovery Hearing”). (See ECF No. 79.)
15 II. LEGAL STANDARD
16 A. Motion to Compel
17 The Federal Rules of Civil Procedure authorize the parties to obtain discovery
18 regarding “any nonprivileged matter that is relevant to any party’s claim or defense and
19 proportional to the needs of the case,” considering the following factors: “importance of
20 the issues at stake in the action, the amount in controversy, the parties’ relative access to
21 relevant information, the parties’ resources, the importance of the discovery in resolving
22 the issues, and whether the burden or expense of the proposed discovery outweighs its
23 likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible
24 in evidence to be discoverable.” Id.
25 A party may request the production of any document, electronically stored
26 information, or tangible things within the scope of Federal Rule of Civil Procedure 26(b).
27 Fed. R. Civ. P. 34(a). “For each item or category, the response must either state that
28 inspection and related activities will be permitted as requested or state an objection to the
1 request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). The responding party is
2 responsible for all items in “the responding party’s possession, custody or control.” Fed.
3 R. Civ. P. 34(a)(1). The party propounding the request for production of documents may
4 move to compel discovery, where a party fails to produce documents requested under
5 Federal Rule of Civil Procedure 34. See Fed. R. Civ. P. 37(a).
6 The party seeking to compel discovery has the burden of establishing that its
7 request satisfies the Rule 26(b)(1) relevance requirements. Soto v. City of Concord, 162
8 F.R.D. 603, 610 (N.D. Cal. 1995). The party opposing discovery has the burden of
9 showing that the discovery should be prohibited, and “the burden of clarifying,
10 explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455,
11 458 (C.D. Cal. 2002) (citations omitted). District courts have broad discretion to
12 determine relevancy for discovery purposes. Cassirer v. Thyssen-Bornemisza Collection
13 Found., 862 F.3d 951, 958 n.6 (9th Cir. 2017) (quoting Hallett v. Morgan, 296 F.3d 732,
14 751 (9th Cir. 2002)). District courts also have broad discretion to limit discovery where
15 the discovery sought is “unreasonably cumulative or duplicative, or can be obtained from
16 some other source that is more convenient, less burdensome, or less expensive”; the
17 requesting party has had ample opportunity to obtain discovery; or the requested
18 discovery exceeds the scope of Federal Rule of Civil Procedure 26(b)(1). Fed. R. Civ. P.
19 26(b)(2)(C).
20 B. Pro Se Litigants
21 “[P]ro se representation does not excuse a party from complying with a court’s
22 orders and with the Federal Rules of Civil Procedure.” Hupp v. San Diego Cnty., Civil
23 No. 12cv0492 GPC, 2014 WL 1404510, at *2 (S.D. Cal. Apr. 10, 2014) (citing Ackra
24 Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856–57 (8th Cir. 1996)); Wood v.
25 Cnty. Contra Costa, 2022 WL 3681309, at *1 (9th Cir. 2022) (citing Carter v. C.I.R., 784
26 F.2d 1006, 1008 (9th Cir. 1986)) (stating that pro se litigants must comply with court
27 rules). “[W]hile pro se litigants may be entitled to some latitude when dealing with
28 sophisticated legal issues, acknowledging their lack of formal training, there is no cause
1 for extending this margin to straightforward procedural requirements that a layperson can
2 comprehend as easily as a lawyer.” Knox v. U.S. Customs & Border Prot., Case No.: 18-
3 cv-0030-AJB-AGS, 2018 WL 747830, at *2 (S.D. Cal. Feb. 7, 2018) (quoting Jourdan v.
4 Jabe, 951 F.2d 108, 109 (6th Cir. 1991)).
5 III. DISCUSSION
6 A. Procedural Considerations
7 Plaintiff states that he met and conferred with defense counsel, but could not
8 resolve the discovery dispute he raises in his Motion to Compel. (See Mot.) Defendants
9 contend that Plaintiff failed to comply with Judge Burkhardt’s Case Management
10 Conference Order requiring a Joint Discovery Statement, as well as Judge Leshner’s
11 Chambers Rules, and ask the Court to deny Plaintiff’s motion. (Opp’n at 8 (citing ECF
12 No. 50 at 15).)
13 The Court notes that this case was previously assigned to Magistrate Judge Jill L.
14 Burkhardt. (ECF No. 41.) The case was reassigned to Magistrate Judge David D.
15 Leshner on August 22, 2022, and to this Court on October 3, 2022. (See ECF Nos. 66,
16 67.) The Court has reviewed the requirements contained in the Chambers Rules of the
17 Magistrate Judges who had been assigned to this case before it was reassigned to this
18 Court. Those rules require the parties to meet and confer, and if the parties cannot
19 resolve their discovery dispute, to contact the chambers of the assigned Magistrate Judge
20 before filing any discovery motions. (See ECF No. 50 at 15; Hon. Jill L. Burkhardt Civ.
21 Chambers Rules § V; Hon. David D. Leshner Chambers Rules § III.C.) This Court’s
22 Civil Chambers Rules contain similar requirements. (See Hon. Lupe Rodriguez, Jr. Civ.
23 Chambers Rules § IV.) Plaintiff, however, did not advise the Court about the discovery
24 dispute he raises in the instant motion and instead filed his Motion to Compel. Although
25 the Court has authority to strike Plaintiff’s motion as noncompliant with the Court’s Civil
26 Chambers Rules, the Court will nevertheless address the merits of the motion.
27 The Court further notes that its briefing schedule on the Motion to Compel did not
28 direct Plaintiff to file a Reply, but Plaintiff filed a Reply on November 10, 2022. (See
1 ECF Nos. 72, 75.) The Court will consider the Reply, but reminds Plaintiff that even
2 though he is incarcerated and is proceeding pro se, he is required to comply with this
3 Court’s orders and Civil Chambers Rules.
4 B. Plaintiff’s Motion to Compel
5 Plaintiff seeks to compel the production of the following categories of documents:
6 (1) kitchen log books, (2) daily Meal Sample Reports, (3) Form 602 grievances from
7 third party inmates, and (4) the confidential portions of his inmate central file. (See Mot.;
8 Reply.) Although Plaintiff’s motion seeks to compel additional responses to RFPs No.
9 1–13, the parties advised the Court during the Discovery Hearing that the following RFPs
10 are still at issue: RFPs No. 1, 7, 8, 11, 12. The parties further stated that they had
11 resolved their discovery disputes with respect to the remaining RFPs. As such, the
12 Court DENIES Plaintiff’s Motion to Compel with respect to RFPs No. 2, 3, 4, 5, 6, 9, 10,
13 and 13 as moot. The Court will address the remaining RFPs within each category of
14 discovery requests at issue below.
15 1. Kitchen Log Books (RFPs No. 7, 8)
16 Plaintiff’s RFP No. 7 seeks “[a] copy of the ‘Hazardous Analysis Critical Control
17 Points’ aka ‘HACCP’ as it applies & is used for the CDCR & Richard J. Donovan
18 prison.” (ECF No. 71-2 at 7.) Defendants stated that they will produce “Hazardous
19 Analysis Critical Control Points Manual.” (Id.)
20 RFP No. 8 seeks “[a] copy of any and all kitchen log books to & for all (kitchen)
21 facilities showing daily, weekly, & safety logs entered to & for Facilities A, B, C, D, & E
22 as it pertains to Title 15 guidelines re health & daily inspection of all kitchen workers,
23 from May 2020 to now training, sanitation, food prep et al; showing inspections are
24 done.” (Id. at 8.) Defendants objected that the request is vague, ambiguous, overboard,
25 and not proportional to the needs of the case, because Plaintiff’s claims do not include
26 “all” aspects of health and safety, and do not involve “all” facilities A–E. (Id.)
27 Defendants also objected based on privacy, stating that the requested information
28 concerns non-parties who may no longer be in the custody of the CDCR, and the
1 information is confidential pursuant to California Code of Regulations, title 15, sections
2 33211 and 3402.2 (Id.) Defendants further stated that they “will produce COVID-19
3 related directives and modified program details,” and “will continue to make an ongoing
4 effort to obtain any other additional logs and relevant materials and supplement the
5 production should they discover additional information.” (Id.)
6 In the instant motion, Plaintiff moves to compel the production of “kitchen log
7 books.” (Mot. at 3.) He states that prison officials are required to maintain chronological
8 logs that he is seeking, and the requested documents will establish that workers are not
9 given basic instructions on food preparation and food service sanitation, and will “show
10 health violations.” (Reply at 3–4.)
11 Defendants assert that “kitchen log books” do not exist and are not relevant to
12 Plaintiff’s claims. (Opp’n at 3–4.) Defendants argue that Federal Rule of Civil
13 Procedure 34 only requires the production of already-existing documents, and they are
14 not required to create documents that do not exist. (Id. at 4.) Defendants thus ask the
15 Court to deny Plaintiff’s request. (Id.)
16
17
18 1 The regulation provides, in relevant part, that “[t]he following types of information shall be classified
as confidential: (1) Information which, if known to the inmate, would endanger the safety of any
19 person”; “(2) Information which would jeopardize the security of the institution.” Cal. Code Regs. tit.
15, § 3321(a)(1)–(2).
20
21 2 The section provides the following:
22 Within the scope of their assigned duties, employees are encouraged to consult an
inmate’s central file for assistance in better understanding the inmate. The contents of the
23 inmate’s file are private and privileged information. It will not be discussed with other
persons except as is necessary for professional reasons, and will not be the subject of
24
banter between employees or between employees and the inmate to whom it pertains or
25 with other inmates. Information in an inmate’s central file may be confidential by law or
for reasons relating to institution security and the safety of persons. Such confidential or
26 restricted information must not be disclosed to persons who are not authorized by law and
departmental policy and procedures to receive such information.
27
Cal. Code Regs. tit. 15, § 3402.
28
1 Plaintiff alleges in his FAC that Defendants failed to enforce California Code of
2 Regulations, Title 15, section 3052(g), and that as a result, inmates with contagious
3 diseases were working in the kitchens and contaminated food, which “led to Plaintiff re-
4 contracting Hepatitis-C.” (See ECF No. 32 at 4; ECF No. 32-1 at 9.) In light of
5 Plaintiff’s allegations in his FAC, the Court finds that Plaintiff is requesting information
6 relevant to his allegations of deliberate indifference against Defendants. (See id.)
7 Defense counsel states in her declaration that she “requested ‘kitchen log books’
8 from RJD, and the Litigation Coordinator confirmed that there are none.” (Pollard Decl.
9 at 3.) Defense counsel further declares that “[p]rocedures relating to food service were
10 modified in response to the COVID-19 pandemic, and thus, there are no ‘kitchen log
11 books’ containing daily logs of information relating specifically to the kitchen on D-
12 Yard.” (Id. at 3–4.) She also states that Defendants located “the Sergeant’s Log,” which
13 is not maintained specifically for the kitchen, but “for the whole facility D.” (Id. at 3.)
14 Defense counsel declares that after reviewing a sample of the “Sergeant’s Log,” she
15 “determined the only kitchen-related information in this log were the start and end times
16 for ‘chow’”; otherwise, the log “contains information on inmate escorts, security checks,
17 and counts.” (Id. at 4.)
18 Federal Rule of Civil Procedure 34 requires a party to produce all relevant
19 documents in the party’s “possession, custody, or control” when responding to a request
20 for production of documents. Fed. R. Civ. P. 34(a)(1). “Rule 34 only requires a party to
21 produce documents that are already in existence,” and a district court “cannot compel the
22 production of documents that do not exist.” Alexander v. F.B.I., 194 F.R.D. 305, 310
23 (D.C. Cir. 2000); Medina v. Cnty. of San Diego, Civil No. 08cv1252 BAS (RBB), 2014
24 WL 4793026, at *19 (S.D. Cal. Sept. 25, 2014); see also Lamon v. Adams, No. 1:09–cv–
25 00205–LJO–SMS PC, 2015 WL 1879606, at *3 (E.D. Cal. Apr. 22, 2015) (“In requiring
26 the production of documents and other tangible things ‘in the responding party’s
27 possession, custody, or control,’ Federal Rule of Civil Procedure 34(a)(1) contemplates
28
1 only the production of existing items since something that does not exist cannot be
2 possessed, held, or controlled.”).
3 As an initial matter, the Court finds that the information contained in the
4 “Sergeant’s Log” is not relevant to Plaintiff’s allegations in the FAC. Further,
5 Defendants are correct that they are not required to create documents that do not exist in
6 response to Plaintiff’s discovery requests. See Fed. R. Civ. P. 34(a)(1); Alexander, 194
7 F.R.D. at 310; Medina, 2014 WL 4793026, at *19. In light of defense counsel’s sworn
8 representations that procedures relating to food service were modified in response to the
9 COVID-19 pandemic, and that after she requested “kitchen log books” from RJD, the
10 Litigation Coordinator advised her that “there are none,” the Court DENIES Plaintiff’s
11 motion to compel further production in response to RFPs No. 7, 8. See id.; see also
12 SolarCity Corp. v. Doria, Case No.: 16cv3085-JAH (RBB), 2018 WL 467898, at *7 (S.D.
13 Cal. Jan. 18, 2018) (quoting Bryant v. Armstrong, 285 F.R.D. 596, 603 (S.D. Cal. 2012))
14 (“If there are no other responsive documents in [d]efendant’s possession, custody, or
15 control, after conducting this further attempt to locate records, [the party resisting
16 discovery] must state so under oath and describe efforts [the party] made to locate
17 responsive documents.”).
18 2. Daily Meal Sample Reports
19 Plaintiff’s motion seeks to compel the production of RJD’s daily Meal Sample
20 Reports for 2020. (See Mot. at 4; Reply at 3.) Defendants assert that Meal Sample
21 Reports contain inventory, menu items for inmate meals, and other meal preparation
22 details. (Opp’n at 5 (citing ECF No. 71-3 at 5).) Defendants further allege that although
23 Meal Sample Reports are not relevant to Plaintiff’s allegations of deliberate indifference,
24 they have agreed to produce a limited range of such reports. (Id.)
25 The documents submitted to the Court demonstrate that after a telephonic meet and
26 confer with Plaintiff on September 28, 2022, Defendants agreed to request a limited date
27 range of the reports at issue and provide them to Plaintiff. (See Pollard Decl. at 2–3.)
28 Further, defense counsel states in her declaration that “Defendants requested Meal
1 Sample Reports for January–April of 2021 from RJD on September 29, 2022,” and “will
2 produce the reports requested once received.” (Id. at 3.) Notably, during the Discovery
3 Hearing, the parties advised the Court that Defendants had produced the requested
4 documents. Further, Plaintiff agreed that he was satisfied with the production.
5 Accordingly, the Court DENIES Plaintiff’s motion to compel the production of Daily
6 Meal Sample Reports as moot.
7 3. 602 Grievances Filed by Other Inmates (RFPs No. 11, 12)
8 Plaintiff’s RFP No. 11 requests:
9 [a]ny and all formal and information written complaints (including but not
limited to 602 forms [sic]) against Defendants Pollard and any Defendant
10
alleging “arbitrary & wrongfully” treating 602s [sic], during Defendant
11 Pollard’s employment as Warden while at Richard J. Donovan (this request
includes written responses, reports, memos [sic] etc. on file at RJD.[)]
12
13 (ECF No. 72-1 at 10.)
14 RFP No. 12 seeks the following:
15 [a]ny and all formal and information written complaints [sic] (including but
not limited to 602 forms [sic]) in which (any) Richard J. Donovan staff
16
member has violated “a health & safety violation” & [sic] again (Defendant
17 Pollard) is subjectively aware, this includes in the food & kitchen service
areas & [inmate] health & welfare. (This request includes written responses,
18
reports, memos, etc, work orders on file at RJD.”[)]
19
20 (Id. at 11.)
21 Defendants objected that the above requests seek irrelevant information, are
22 overbroad, burdensome, and not proportional to the needs of the case. (Id. at 10, 13.)
23 They stated that the requested information implicates privacy rights of non-parties who
24 may no longer be in custody of the CDCR, and the information is confidential under
25 California Code of Regulations, title 15, sections 3321 and 3402. (Id.) Additionally,
26 Defendants objected that the requested information is protected by the official
27
28
1 information privilege. (Id. (citing Soto, 162 F.R.D. at 613).) Defendants also cited
2 documents produced in response to RFPs No. 2 and 3.3 (Id.)
3 In his Motion to Compel, Plaintiff states that he is seeking documents pertaining to
4 complaints and allegations about Defendants, and he is not requesting documents
5 contained in personnel records. (Mot. at 6–7.) Plaintiff claims that Defendants’ failure to
6 protect inmates “shows deliberate indifference to known risks to inmates’ health and
7 safety.” (Id. at 2.) Plaintiff argues that the information he seeks is highly relevant to his
8 FAC allegations that inmates at RJD were mistreated, but “nothing was done about it,”
9 and that Warden Pollard failed to address ongoing violations. (Id. at 7; Reply at 5.)
10 Plaintiff contends that although the requested information may not be admissible as
11 character evidence, it may be admissible for other purposes. (Id.) He also asks the Court
12 to conduct an in camera review of the requested documents. (Id. at 4–5.)
13 Defendants argue that 602 grievances filed by other inmates are not relevant to
14 Plaintiff’s deliberate indifference claim, and compiling the requested information is
15 unduly burdensome. (Opp’n at 5–6.) Defendants further allege that the 602 grievances
16 contain “private and health related information” of other inmates, and the requested
17 production could jeopardize Plaintiff’s safety, the safety of third party inmates, as well as
18
19
3 The Court notes that in their objections to RFPs No. 2 and 3, Defendants agreed to produce the
20 following documents:
21
• Plaintiff Brian Kakowski (BF3115)’s Medical Records relating to his Hepatitis-C
22 condition and treatment.
• Plaintiff Brian Kakowski (BF3115)’s Mental Records relating to his Hepatitis-C
23 condition and treatment.
• Grievance documents including 602s and institution responses relating to Log #110535,
24
Log #16442, and Log #RJD-D-20-01522.
25 • Health care grievance documents relating to #RJD HC 21000637, #RJD HC 21000579,
and #RJD HC 21001347.
26
(ECF No. 71-2 at 4–5.) The parties clarified during the Discovery Hearing that that the grievances
27 Defendants identified in their objections were written by Plaintiff. The parties also advised the Court
that Defendants had produced the identified grievances to Plaintiff.
28
1 staff members. (Id. at 5.) Additionally, Defendants contend that the requested
2 production would “place a chilling effect on inmates who have valid matters that could be
3 addressed and remedied through the administrative grievance process,” create tension and
4 resentment in the inmate population, and reduce morale of prison staff. (Id. at 6.)
5 a. Relevance and burden
6 “[C]ourts permit some discovery into past complaints by narrowing the complaints
7 to the same defendants, to similar claims as being asserted in the lawsuit, and with a time
8 limitation.” Crumb v. Hasselblad, et al., Case No.: 16cv581-BTM (NLS), 2018 WL
9 521506, at *3 (S.D. Cal. Jan. 22, 2018); see also Whitely v. CDCR, Case No. CV 18-
10 1103-RGK (AGR), 2021 WL 840067, at *2–3 (C.D. Cal. Jan. 29, 2021) (“Courts
11 generally order production of complaints that involve allegations of similar incidents or
12 allegations . . . .”); Taylor v. O’Hanneson, No. 1:11–cv–00538–LJO–SAB (PC), 2014
13 WL 2696585, at *5 (E.D. Cal. June 13, 2014) (ordering production of documents
14 regarding allegations against defendants within five years preceding the events in
15 question in the action, asserting claims similar to plaintiff’s claims). “Evidence of similar
16 prior complaints may be relevant and discoverable even if not ultimately admissible.”
17 Whitely, 2021 WL 840067, at *2; see also Crumb, 2018 WL 521506, at *3 (noting that
18 evidence of past complaints “may be used for purposes other than character evidence, for
19 example to show bias or a pattern or practice”).
20 In this case, Plaintiff’s requests at issue are overbroad. Plaintiff’s remaining
21 claims involve allegations of deliberate indifference against Defendants Pollard, Clayton
22 and Moseley. The alleged wrongful conduct occurred during 2021. (See ECF No. 32.)
23 The Court therefore finds that the relevant timeframe extends to January 1, 2019.
24 Notably, during the Discovery Hearing, the parties advised the Court that Plaintiff
25 previously had identified the names of ten inmates housed at RJD who had allegedly filed
26 complaints at issue in this category of requests. Plaintiff also clarified that he was not
27 seeking 602 grievances against Defendant Clayton. Accordingly, the Court finds that the
28 following responsive documents are relevant: all grievances filed by the ten inmates
1 identified by Plaintiff, dating back to January 1, 2019, that allege claims similar to the
2 claims alleged against Defendants Pollard and Moseley in Plaintiff’s FAC.
3 Further, defense counsel confirmed during the Discovery Hearing that she had the
4 list of ten inmates identified by Plaintiff, and stated that searching for responsive
5 documents would require reviewing the files of the identified inmates to locate the
6 requested grievances. Defense counsel also stated that the number of documents
7 responsive to the RFPs at issue would range between ten and fifty pages. The Court also
8 notes that Plaintiff does not have an alternative source to obtain the requested
9 information. Accordingly, RFPs No. 11 and 12, as limited by the Court in this Order,
10 seek information relevant to Plaintiff’s allegations in his FAC, and Plaintiff’s need for the
11 documents outweighs any alleged burden imposed on Defendants.
12 b. Privacy rights
13 Defendants’ “privacy concerns do not make the entire document privileged and
14 beyond the scope of discovery” because such “concerns can be addressed with a
15 protective order and/or the redaction of identifying information.” See Ramirez v.
16 Gutierrez, Case No.:20-cv-1109-MMA(BLM), 2021 WL 4776332, at *6 (S.D. Cal. Oct.
17 12, 2021); see also Eusse v. Vitela, Case No.: 3:13-cv-00916-BEN-NLS, 2015 WL
18 9008634, at *5 (S.D. Cal. Dec. 14, 2015) (“[T]he names and identifying information of
19 the individuals who made the complaints, as well as other officers who were not involved
20 in the incident, may be redacted.”); Thompson v. Morales, No. 1:04-cv-06554-SMS PC,
21 2008 WL 413757, at *1 (E.D. Cal. Feb. 13, 2008) (“Privacy concerns, if any, may be
22 addressed by redaction of names, CDC numbers, and other identifying
23 information . . . .”). Therefore, if the requested production in this case will require
24 disclosure of confidential information, Defendants may redact such information.
25 c. Official information privilege
26 “Assertions of privilege in federal question cases are governed by federal common
27 law.” Dowell v. Griffin, 275 F.R.D. 613, 616 (S.D. Cal. 2011) (citing Fed. R. Evid. 501).
28 “Federal common law recognizes a qualified privilege for official information.” Sanchez
1 v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). The party asserting the
2 official information privilege has the initial burden of proving the applicability of the
3 privilege. See Kelly v. City of San Jose, 114 F.R.D. 653, 669–71 (N.D. Cal. 1987). A
4 party seeking to invoke the privilege must serve a timely discovery response specifically
5 identifying the official information privilege as a basis for its objection. Id. at 669. The
6 party must also submit a “declaration or affidavit” from “a responsible official within the
7 agency who has personal knowledge of the principal matters to be attested to in the
8 affidavit or declaration,” which includes the following:
9 (1) an affirmation that the agency generated or collected the material in issue
and has in fact maintained its confidentiality (if the agency has shared some
10
or all of the material with other governmental agencies it must disclose their
11 identity and describe the circumstances surrounding the disclosure, including
steps taken to assure preservation of the confidentiality of the material), (2) a
12
statement that the official has personally reviewed the material in question,
13 (3) a specific identification of the governmental or privacy interests that
would be threatened by disclosure of the material to plaintiff and/or his
14
lawyer, (4) a description of how disclosure subject to a carefully crafted
15 protective order would create a substantial risk of harm to significant
governmental or privacy interests, (5) and a projection of how much harm
16
would be done to the threatened interests if the disclosure were made.
17
18 Id. at 670.
19 “If the non-disclosing party does not meet this initial burden of establishing cause
20 to apply the privilege, the court must order disclosure of the documents; if the party
21 meets this initial burden, the court generally conducts an in camera review of the material
22 and balance each party’s interests.” Bryant, 285 F.R.D. at 605; see also Soto, 162 F.R.D.
23 at 613; Kelly, 114 F.R.D. at 671. The balancing test4 requires the court to “weigh the
24
25
4 Courts may consider the following non-exhaustive list of factors: (1) the extent to which disclosure
26 will thwart governmental processes by discouraging citizens from giving the government information;
(2) the impact upon persons who have given information of having their identities disclosed; (3) the
27 degree to which government self-evaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the
28
1 potential benefits of disclosure against the potential disadvantages.” Sanchez, 936 F.2d
2 at 1033–34.
3 In this case, Defendants provided a declaration from V. McSee, a Correctional
4 Counselor II at RJD. (ECF No. 74-1, Decl. of V. McSee (“McSee Decl.”).) McSee
5 states that he is familiar with CDCR’s policies and procedures regarding maintenance and
6 retention of prison records, as well as CDCR’s confidentiality practices. (Id. at 22.) He
7 further declares that documents responsive to RFPs No. 11, 12 are maintained as
8 confidential to protect the safety of the inmates and staff involved, and the security of the
9 institution. (Id. at 23–24.) McSee declares that “allowing inmates to have access to other
10 inmates’ administrative grievances could potentially compromise the safety and security
11 of inmates.” (Id. at 24.) He explains that when an inmate’s grievance concerns staff
12 misconduct, RJD conducts a confidential investigation, and because investigations are
13 confidential, inmates are encouraged to make truthful statements. (Id.) McSee also states
14 that “investigators who are assured of the confidential nature of the proceedings are
15 encouraged to accurately report their findings.” (Id.) Additionally, McSee states that a
16 protective order will not alleviate a substantial risk of harm that could result from
17 disclosure of the requested information. (Id. at 25.)
18 Having reviewed Defendants’ discovery responses at issue, as well as the
19 declaration from V. McSee, the Court finds that Defendants have satisfied the threshold
20 requirement for application of the official information privilege. Accordingly, the Court
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or reasonably likely to follow from the incident in question; (6) whether the police investigation has
25 been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith;
26 (9) whether the information sought is available through other discovery or from other sources; and (10)
the importance of the information sought to the plaintiff’s case. Kelly, 114 F.R.D. at 663. Courts are
27 required to conduct “a situation specific analysis of the factors made relevant by the request in issue and
the objection to it.” Id.
28
1 will perform an in camera review and the required balancing analysis to determine
2 whether the privilege applies to documents responsive to RFPs No. 11 and 12.
3 4. Confidential Portions of Plaintiff’s Central File (RFP No. 1)
4 RFP No. 1 seeks “[a]ny and all documents [sic] created by any and all CDCR
5 employee staff member & or official as it pertains to Plaintiff & is in custody of CDCR
6 also known as (C-file) logs, reports, photos, grievances, responses, etc. [sic].” (ECF No.
7 71-2 at 3.) Defendants objected that the request is vague, seeks irrelevant information,
8 and is burdensome. (Id.) Defendants further stated that the request is disproportionate to
9 the needs of the case because Plaintiff’s claims relate to his Hepatitis-C condition and
10 treatment, and do not require all information contained in Plaintiff’s central file. (Id.)
11 Defendants stated that they “will not produce Plaintiff’s C-file because none of the
12 contents are relevant to the claims in Plaintiff’s First Amended Complaint.” (Id.)
13 In the instant motion, Plaintiff argues that he is requesting a copy of “synopsis,”
14 which is “a confidential report in which staff logs information on [inmates].” (Mot. at 4;
15 see also Reply at 5.) Plaintiff alleges that inmates are allowed to obtain this information,
16 with certain redactions, before their Board hearings, and Defendants can “delete and
17 redact” confidential names and sources. (Mot. at 4; Reply at 5.) Plaintiff also contends
18 that “defense is using the idea that I do drugs so I want to see what[s] [sic] being said in
19 my c-file, by officers or inmates.” (Mot. at 4.)
20 Defendants argue that the requested information does not relate to Plaintiff’s
21 claims and implicates issues of institutional security. (Opp’n at 7–8.) Defendants also
22 contend that Plaintiff’s request is overbroad because his “central file encompasses all
23 documents that relate to him in any manner and extend from the time of his initial
24 incarceration to the present.” (Id. at 7.) Defendants further state that the requested
25 information is protected from disclosure under state law and may contain information
26 about non-party inmates. (Id. (citing Cal. Code Regs. tit. 15, § 3321(a)(1)–(2)).)
27 Defendants also assert that any investigatory files compiled by a state agency for
28 correctional purposes are protected from disclosure. (Id. (citing Cal. Gov. Code
1 § 6254(f); Evid. Code §§ 1040–1043).) Finally, Defendants maintain that they produced
2 to Plaintiff information regarding his alleged history of drug use from his medical
3 records, and Plaintiff is therefore not prejudiced from not reviewing the confidential
4 potions of his central file. (Id. at 7–8.)
5 The Court notes that after the District Judge’s February 14, 2022 screening order,
6 the only remaining claims in Plaintiff’s FAC are his Eighth Amendment deliberate
7 indifference claims against Defendants Pollard, Clayton and Mosely. (See ECF No. 33;
8 see also ECF No. 32.) Plaintiff fails to establish that the confidential portion of his
9 central file contains any documents relevant to the remaining claims in his FAC. Further,
10 the Court notes that Defendants’ supplemental document production included Plaintiff’s
11 medical records and non-confidential portions of his central file, and that Defendants
12 provided the information “as a courtesy, although inmates have their own means to
13 access and inspect their medical files and central file.” (See Opp’n at 3; Pollard Decl. at
14 2–3; id., Exh. C; Opp’n at 3 n.1.) As such, Plaintiff’s request at issue is overbroad and
15 not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1) (allowing
16 discovery of “any nonprivileged matter that is relevant to any party’s claim or defense
17 and proportional to the needs of the case”). Additionally, the Court agrees with
18 Defendants that because they have already produced Plaintiff’s medical records
19 containing information regarding his alleged history of drug use, Plaintiff will not be
20 prejudiced from not reviewing the confidential potions of his central file. Accordingly,
21 the Court DENIES Plaintiff’s Motion to Compel production in response to RFP No. 1.
22 See id.; see also King v. Biter, Case No.: 1:15-cv-00414-LJO-SAB (PC), 2017 WL
23 3149592, at *6 (E.D. Cal. July 25, 2017) (denying plaintiff’s motion to compel the
24 production of confidential portion of his central file; finding that plaintiff’s request was
25 overbroad because his “central file encompasses all documents that relate to him in any
26 manner and extend from the time of his initial incarceration to the present,” and the
27 requested information was not relevant and not proportional to the needs of the case);
28 Glass v. Beer, No. 1:04-cv-05466-OWW-SMS PC, 2007 WL 913876, at *7 (E.D. Cal.
1 || Mar. 23, 2007) (denying plaintiffs motion to compel the production of confidential
2 || portion of his central file; finding that the request was overbroad and plaintiff failed to
3 || establish that the requested information was relevant to his claims; noting that plaintiff
4 || was “engaging in a fishing expedition in an attempt to gain access to the entire
5 || confidential section of his central file’’).
6 IV. CONCLUSION
7 Plaintiff's Motion to Compel is DENIED IN PART as follows:
8 1) The Court DENIES Plaintiff's Motion to Compel with respect to RFPs No. 1,
9 8.
10 2) On or before January 6, 2023, Defendants must lodge with the Court for in
11 || camera review to efile_rodirguez @casd.uscourts.gov documents responsive to RFPs
12 ||No. 11, 12. Defendants are only required to provide grievances and complaints that fit
13 |} within the Court’s definition of relevance as set for in Section HI.B.3. If Defendants
14 || believe that portions of the documents at issue should be redacted if the Court orders
15 || production of the documents, Defendants must identify the specific information that
16 ||should be redacted and provide the basis for the requested redaction. The Court will
17 ||1issue a supplemental order after conducting the required in camera review.
18 3) The Court DENIES Plaintiff's Motion to Compel with respect to RFPs No. 2,
19 113, 4, 5, 6, 9, 10, and 13 as moot.
20 IT IS SO ORDERED.
21 Dated: December 13, 2022
22
23 / LZ
24 Honorable Lupe Rodriguez, Jr.
25 United States Magistrate Judge
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