Petition — Kerr v. United States Dist. Court for Northern Dist. of Cal.

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

-__ —-—

Cie,

Supreme Court U.S.

a }: l | Kp

In the Supreme Court

THE

Huited States

Ocropen Terai, 1974

Henry W. Kerr, ot al. Petitioners,

Vs.

Unitep States Districr Cover, Norruerx Disrerer

OF CALIFORNIA, Respondent,

JOHN VAN GELDERN, et al., Real Parties in Interest.

PETITION FOR WRITS OF CERTIORARI

to the United States Court of Appeals for the Ninth Circuit

ond he-bnited=5 Diateiot6

whine LE wD. Youne iB ER,

G&S at the ta nf 6

JAC K R wi INKLE R,

r f

menopetiny P. O'Brien.

A stant Attor y Ger

Joun TT. Murruy.

arte, Abtacns mae

KARL SS. coat

Deputy Att [re nT T.

JEAN Borpon,

ce, Caiit , 9410

Teleohone f4aic

Attorneys for Petitioners,

PORNAU -WALSH PRINTING CO. - S562 MISSION STREET - SAN FRANCIS(O . CA 14105

Page

Motion for leave to file petition for writs of certiorari ...... 1

Petition for writs of cortiovari ..:.......ccccccccccccccees 3

I a a se

I i 5

EY WUE, rod coccondsdaeundubaeueceeieee ods 6

Statutory and constitutional provisions involved ........... 7

Rs SEE EE ee ee oe 3

A. Nature of the action below ..................00.. 8

B. Proceedings relating to the discovery orders sought

ee Ec olay Sided dag Waeb aed cod eco ees 10

C. Other discovery afforded plaintiffs ............... 14

iy. CS 0 80065 506 bh0 sb cp eek b0cbacaeceseds 17

Reasons for granting the writs ..................e-e0e0ee: 21

The decisions below raise exceptionally significant prob-

lems concerning the scope of discovery of confidential

government documents in federal civil rights actions

brought by prisoners against state officials .......... 21

A. It was impossible to foilow Reynolds to protect

Se ED b-cbu. cc cadebewucddads ade, uae ss 22

B. The definition of “privilege” should be re-evaluated 23

C. May “privilege” be raised by counsel? .... ...... 24

D. The treatment of confidential matters ........... 27

The decisions below raise important questions concerning

the standard for when mandamus should be granted to

review interlocutory discovery orders ............... 28

Ill

The decisions below conflict with the decisions of other

courts of appeals concerning the standard for when

to grant mandamus to review interlocutory discovery

GED bocce qeccebous ches pdees cecccuchabicseGieses 30

Subject Index

ii Sussect Inpex

IV Page

The Fourth Amendment precludes compelling production

of confidential documents without a prior determina-

tion that the documents are not privileged .......... 32

Special reasons justify granting a writ of certiorari to

review the district court’s discovery order of Decem-

ber 3, 1974, and relief from this order is not available

i Wir SS GIS ko. wok du co's en No cenes exe busesss 37

NN, on okie cewekicd Conneeded wadenuehsedaadeu 40

Table of Authorities Cited

Cases Pages

Boyd v. United States, 116 U.S. 616 (1886) ............. 33

Couch v. United States, 409 U.S. 322 (1973) ............. 33

Davis v. United States, 328 U.S. 582 (1946) ............. 33

Fed. Trade Com. v. Amer. Tobacco Co., 264 U.S. 298 (1924) 36

Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa. 1973) .... 24

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ................ )

Harper and Row Publishers, Ine. v. Decker, 423 F.2d 487

(7th Cir. 1970), affirmed, 400 U.S. 348 (1971) ......... 21

In re Olson, 37 Cal.App.3d 783, 12 Cal.Rptr. 579 (1974) .. 9

In re Prewitt, 8 Cal.3d 470, 503 P.2d 1326 (1972) ....... 9

In re Sturm, 11 Cal.3d 258, 521 P.2d 97 (1974) .......... )

MecPhau! v. United States, 364 U.S. 372 (1960) .......... 35

Morrissey v. Brewer, 408 U.S. 471 (1972) ............... 9

Okla. Press Pub. Co. v. Walling, 327 U.S. 186 ........ 34, 35, 36

Pfizer v. Lord, 456 F.2d 545 (8th Cir. 1972) ............. 31

See v. City of Seattle, 387 U.S. 541 (1967) .............. 34

TABLE OF AUTHORITIES CITED iii

Pages

United States Board of Parole v. Merhige, 487 F.2d 25 (4th

Cir. 1973), cert. denied sub nom. Merhige v. United States

Board of Parole, ......... pam i PPPPTTEeereerery 30, 31

United States v. Dionisio, 410 U.S. 1 (1973) ............. 34

United States v. Morton Salt Co., 338 U.S. 632 (1950) .... 35

United States v. Reynolds, 345 U.S. 1 (1953) . .22, 23, 24, 25, 26, 37

Wolff v. McDonald, ....... i az , 94 Sup. Ct. Rptr. 2963,

a ED CUED cccdeveweceeccvcosssoccesensene i)

Constitutions

United States Constitution:

Fourth Amendment .............++5+: 7, 8, 10, 32, 33, 34, 35

Rules

Federal Rules of Civil Procedure:

Be TEDEED cccccncesepeceses 6, 7, 17, 21, 23, 30, 34, 35, 36

Pe 2 dee eunnnacee id Cee ea Eee a 6 10

ORE Se ee ere ee eer ee 34

Federal Rules of Evidence:

Neen ee i bheeeateceesouceet 21, 23, 29

Supreme Court Rules:

Be TD ccc cvecccvcsccnesvccevecsvevececcecsces +

Statutes

United States Code:

Title 28, Section 1254(1) ....... se cee ce ee eee ee eeees 1,2,5

Title 28, Section 1651 .......... sec e eee eee eeees 1, 6, 7, 29

Title 28, Section 1651(a) ........eeeee cree eee eee eee 8

Texts

4 Moore’s Federal Practice, 726.83 [9.-3] ............05-. 21, 30

Writs Act, 86 Harvard Law Review 595 > ee 30

Ocroser TreRM, 1974

No.

Henry W. Kerr, et al., Petitioners,

vs.

Unirep States District Court, NorRTHERN District

or CaLirorNia, Respondent,

JOHN VAN GELDERN, et al., Real Parties in Interest.

MOTION FOR LEAVE TO FILE PETITION FOR

WRITS OF CERTIORARI

Petitioners respectfully move this Court for leave

to file the annexed petition for writs of certiorari un-

der Title 28 United States Code Section 1651, di-

rected to the United States District Court for the

Northern District of California, to review orders of

that court entered on June 20, 1974 and on December

3, 1974, and more particularly described in the peti-

tion, and for such other and further relief as may be

just and proper.

This motion is made in conjunction with a petition

for writs of certiorari under Title 2¢, United States

Code section 1254(1), to review orders of the United

States Court of Appeals for the Ninth Circuit, en-

tered on December 18, 1974, and January 17, 1975, in

the same proceedings.

Dated, February 14, 1975.

EveLLeE J. YOUNGER,

Attorney General of the State of California,

Jack R. WINKLER,

Chief Assistant Attorney General—

*- Criminal Division,

Epwarp P. O’Brien,

Assistant Attorney General,

Joun T. Murpny,

Deputy Attorney General,

Karu S. Mayer,

Deputy Attorney General,

JEAN Borpon,

Deputy Attorney General,

Attorneys for Petitioners.

Iu the Supreme Court

OF THE

United States

OcToBER TERM, 1974

No.

Henry W. Keng, et al., Petitioners,

vs.

Unirep Srates District Court, NorRTHERN DiIsTRICT

or CaLirorNiA, Respondent,

JoHN VAN GELDERN, et al., Real Parties in Interest.

PETITION FOR WRITS OF CERTIORARI

to the United States Court of Appeals for the Ninth Circuit

and to the United States District Court for

the Northern District of California

Petitioners, Henry W. Kerr, et al.,’ respectfully

pray that writs of certiorari issue to review the de-

cisions of the United States Court of Appeals for the

1Petitioners are the defendants below named in the complaint

as y+ seo “Henry W. Kerr, Curtis 0. Lynum, Manley J. Bowler,

Leland M. Edman, James H. Hoover, Charles E. Brown, Daniel

R. Lopez, individually and in their official capacity as members

of the California Adult Au hority, Joseph A. Spangler, individu-

ally and in his official eapacity as Administrative Officer of the

California Adult Authority, Raymond K. Procunier, individually

and in his official capacity as Director of Corrections of the State

of California, their agents, employees and successors in interest,

Defendants.”

Ninth Circuit denying petitioners’ petitions for writs

of mandamus, entered on December 18, 1974 and on

January 17, 1975, and to review the underlying orders

of the United States District Court for the Northern

District of California, entered on June 20, 1974 and

on December 3, 1974, which gave rise to the manda-

mus proceedings. By reason of these orders, petition-

ers must produce for adversary inspection the confi-

dential contents of the personnel files of members and

hearing representatives of the California Adult Au-

thority (the state parole board), and of the correc-

tional files of any 200 California state prisoners des-

ignated by plaintiffs, and specified other categories

of confidential state government documents.

The two district court orders were entered by the

same judge in the same action, and both compel

the discovery of confidential state government docu-

ments. The two Court of Appeals decisions were ren-

dered on petitioners’ attempts to obtain interlocutory

review of the discovery orders. Pursuant to Rule

23(5), Supreme Court Rules, this single petition for

writs of certiorari is submitted to seek review of the

two decisions of the Court of Appeals and of the two

diseovery orders of the district court.

OPINIONS BELOW

The opinion of the Court of Appeals dated Janu-

ary 17, 1975 has not vet been reported. A copy of this

opinion is annexed as Exhibit A of the Appendix to

this petition. The underlying discovery order of the

district court, dated June 20, 1974, as well as the

magistrate’s findings and recommendations, dated

April 24, 1974, which are incorporated by reference

in the district court’s order, are annexed as Exhibit

B of the Appendix to this petition.

The order of the Court of Appeals dated December

18, 1974, has not been reported. A copy of this order

is annexed as Exhibit C of the Appendix. A copy of

the underlying discovery order of the district court,

dated December 3, 1974, is annexed in Exhibit D of

the Appendix to this petition. This order incorporates

an earlier discovery order, dated August 12, 1974, and

magistrate’s findings and recommendations dated June

11, 1974. Both of these documents are also annexed in

Exhibit D of the Appendix to this petition.

JURISDICTION TO REVIEW

The decisions of the Court of Appeals sought to be

reviewed were entered December 18, 1974, (No. 74

3392) and on January 17, 1975 (No. 74-2206) and each

denied petitioners’ petitions for writ of mandamus

and/or prohibition to review discovery orders en-

tered by the district court in the same action on De-

cember 3, 1974 and on June 20, 1974. This Court’s

jurisdiction to review these decisions of the Court of

Appeals is invoked under Title 28 United States Code

section 1254(1).

The underlying discovery orders of the district court

sought to be reviewed were entered on December 3,

1974, and on June 20, 1974. The jurisdiction of this

Court to review directly these orders of the district

court is invoked under Title 28 United States Code

section 1651.

The special and unusual circumstances which war-

rant exercise by this Court of its discretionary power

to issue the common law writs of certiorari, as re-

quested in this petition, as well as reasons why the

relief is not available in any other court, are set forth

later under the heading “Reasons For Granting The

Writs.”

QUESTIONS PRESENTED

1. Whether Rule 26(b) (1), Federal Rules of Civil

Procedure, extends to confidential state government

documents a qualified privilege of non-disclosure

whereby their production for adversary inspection

may be compelled only after the district court has

looked at them and decided their utility in the pend-

ing action outweighs their confidentiality.

2. Whether such a qualified privilege may be as-

serted by the attorney general on behalf of his client

who is a defendant and head of the department which

controls the state government documents where (a)

the confidential nature of the documents is apparent;

(bh) the utility of the documents in the pending action

is not apparent, and (c) there is an abundance of

alternative sources of information adequate to pursue

the points for which the confidential documents are

soucht.

3. Whether the compelied disclosure of confidential

government documents for adversary inspection under

the protective orders in this case, or under any pro-

tective order, is a permissible substitute for a quali-

fied privilege of non-disclosure under Rule 26(b) (1)

Federal Rules of Civil Procedure.

4. According to what standard should the Court

of Appeals exercise discretion under Title 28 United

States Code section 1651 to review interlocutory dis-

covery orders ?

5. Whether the completed production of a confi-

dential document for adversary inspection under a

court order not supported by a showing and objective

determination that there is probable cause to believe

the utility of the document in a pending action out-

weighs its confidentiality is an unreasonable search

or seizure in violation of the Fourth Amendment to

the United States Constitution.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Federal Rules of Civil Procedure, Rule 26(b) (1):

“Seope of discovery. Unless otherwise limited

by order of the court in accordance with these

rules, the scope of discovery is as follows: (1) In

general. Parties may obtain discovery regarding

any matter, not privileged, which is relevant to

the subject matter involved in the pending action,

whether it relates to the claim or defense of the

party seeking discovery or to the claim or defense

of any other party, including the existence, de-

scription, nature, custody, condition and location

of any books, documents, or other tangible things

and the identity and location of persons having

knowledge of any discoverable manner. It is not

ground for objection that the information sought

will be inadmissible at the trial if the infor-

mation sought appears reasonably calculated to

lead to the discovery of admissible evidence.”

United States Code, Title 28 section 1651(a) :

“The Supreme Court and all courts established

by Act of Congress may issue all writs necessary

or appropriate in aid of their respective jurisdic-

tions and agreeable to the usages and principles

of law.”

United States Constitution, Amendment IV:

“The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no warrant shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched and tlie persons or things to be seized.”

STATEMENT OF THE CASE

A. Nature of the Action Below.

This ‘is a civil rights class action on behalf of all

adult male felons in prison or on parole, for declara-

tory and mandatory injunctive relief to determine

what process is due at state parole and disciplinary

proceedings.”

2The complaint asserts that due process requires the following

rights be furnished at all proceedings on considering, rescinding,

or revoking parole; at term fixing or re-fixing proceedings, and at

serious disciplinary proceedings: (1) the right to counsel, ap-

Despite the breadth of allegations in the complaint,

the action has focused on parole consideration pro-

ceedings, and counsel for plaintiffs have focused their

discovery on such proceedings.

The complaint was filed on November 15, 1972. No

monetary relief is demanded by plaintiffs, and re-

spective counsel have agreed that this is a non-jury

case and that no jury has been demanded.

The commencement of trial is presently calendared

for June 9, 1975.

pointed if necessary ; (2) the right to present favorable witnesses;

(3) the right to confront and cross-examine adverse witnesses; (4)

the right to discovery of evidence which may be considered at the

hearings; (5) the right to challenge panel members for bias; (6)

the right to a verbatim record of the proceeding; (7) the right to

a written decision including a statement of the reasons for decision

and of the evidence relied on.

The requirements of due process at parole revocation and disci-

plinary proceedings have already been established by this Court.

Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer,

408 U.S. 471 (1972); Wolff v. McDonald, ...... fee , 94 Sup.

Ct. Rptr. 2963, 41 L. Ed. 2d 935 (1974). At parole rescission

hearings, California state prisoners are entitled to the due process

standards set forth in Morrisey. In re Prewitt, 8 Cal. 3d 470, 503

P. 2d 1326 (1972). Whether the right to counsel under Scarpelli

also applies to California parole rescission proceedings has n

briefed, argued, and submitted to the California Supreme Court

in Gee v. Brown, No. SAC. 7994.

For parole consideration proceedings, a California state prisoner

has the right to notice, to examine the contents of his correctional

file, to appear and be heard, and to written reasons for any denial

of parole. In re Olson, 37 Cal.App.3d 783, 12 Cal.Rptr. 579 (1974) ;

In re Sturm, 11 Cal.3d 258, 521 P.2d 97 (1974). Term-fixing

generally attends parole consideration proceedings, and term-

refixing generally attends parole revocation proceedings.

From the above, it would appear that the only “open” questions

in the action coneern plaintiffs’ demands for rights to counsel

and to call and confront witnesses at parole consideration pro-

ceedings, and their demands for rights to challenge for bias and

to a verbatim record at all the indicated proceedings. The resolu-

tion of these questions of law would neither require nor justify

the compelled indiscriminate production of the confidential docu-

ments sought by plaintiffs.

B. Proceedings Relating to the Discovery Orders Sought to be

Reviewed.

1. The contents of immate files (U.S.D.C. Order

of December 3, 1974; Court of Appeals Order denying

mandamus in action 74-3392 on December 18, 1974).

Pursuant to Rule 34, Federal Rules of Civil Pro-

cedure, plaintiffs requested that defendants produce

the correctional files of every twentieth inmate (over

1000 files). Upon defendants’ objection (on grounds

of confidentiality, and Fourth Amendment grounds)

and plaintiffs’ motion to compel, the magistrate

recommended that the files of up to 200 inmates be

produced under a protective order limiting inspection

to plaintiffs’ counsel, and use only in connection with

this case. (Appendix, Exhibit D). By order dated

August 12, 1974, the district court affirmed the magis-

trate with an addition to the protective order to

require that inmates consent to inspection of their

files.

In September 1974, defendants produced the cor-

rectional files of the inmates first designated by plain-

tiffs (22 inmates). In doing so, however, certain

confidential documents were withheld from the files

as a preliminary matter. These documents included

reports from confidential informers, crime partner

information, sensitive clinical data, investigative re-

ports accompanying certain visitor requests, and con-

fidential communications from judges and district

attorneys. Each document withheld was identified in

writing as was the reason for withholding it, and

plaintiffs’ counsel was furnished the writing.

The inmate files furnished were inspected by coun-

sel for plaintiffs on October 9, 11, and 15, 1974. By

letter dated October 15, 1974, counsel for defendants

advised counsel for plaintiffs that if they wished to

inspect any of the confidential documents withheld,

they should express some specific need for them in

the pending action, whereupon the confidentiality of

the documents would be re-evaluated in the light of

such need. This letter sought negotiations between

counsel and then, if necessary, presentation of the

documents to the district court for an in-camera

inspection and balancing of the interests in confiden-

tiality against plaintiffs’ need for the documents in

the action.

Plaintiffs rejected this suggestion and filed on

October 19, 1974, a motion for “Enforcement, Clarifi-

cation, and Sanctions,” which asserted that defendants

violated the district court’s order by not furnishing the

confidential documents, and requested an order that the

inmate files be furnished intact, that plaintiffs be

allowed to make photocopies of any and all of the

contents of these files, and that the inspection not be

limited to the files of inmates whose parole considera-

tion proceedings had been recorded.

When the matter was heard on October 31, 1974, the

court made it clear that the preliminary withholding

of the documents was a violation of the discovery order

and threatened defendants, and counsel for defendants,

with contempt proceedings if this or any other viola-

tion of an order occurred. The court announced that

a forthcoming written order would provide that (1)

the inmate files subject to inspection include the files

of inmates whose parole consideration proceedings

were not recorded; (2) the contents of the files to be

produced for inspection must include all material in

the file; (3) plaintiffs could move for modification of

the Order of August 12, 1974, to permit photocopying,

and (4) plaintiffs’ counsel could have the assistance

of two certified law students in inspecting the files.

Plaintiffs then filed a motion for photocopying the

contents of the inmate files, defendants filed opposi-

tion, and the matter was heard on November 21, 1974,

whereupon the district court dictated in open court

the text of the order to which this petition is ad-

dressed. The written order was signed on December 3,

1974, and is annexed in Exhibit D of the Appendix

to this petition. This order reflects the court’s deter-

minations of October 31, 1974, and November 21, 1974,

and incorporates by reference the order of August

12, 1974.

On December 13, 1974, defendants filed in the

United States Court of Appeals for the Ninth Circuit

a petition for writ of mandamus and/or prohibition,

an application for stay of the discovery order and an

application for immediate stay. The immediate stay

was granted on December 13, 1974. On December 18,

1974, the Court of Appeals issued its order denying

the petition for writ of mandamus and vacating the

immediate stay. A copy of this order is annexed in

Exhibit C of the Appendix to this petition.

2. The contents of personnel files and of other

specified categories of confidential documents (USDC

Order of June 20, 1974; Court of Appeals Opinion

denying mandamus in Action No. 74-2206 filed

January 17, 1975):

In June 1973, plaintiffs served a “Request for Pro-

duction of Documents.” Request No. 7 seeks produc-

tion of the personnel files of each member, each

hearing representative, and of the executive officer

of the state parole board. Requests numbered 14, 15,

18, 20, 21, and 22 each relate to various specified

categories of departmental documents.’ Defendants

objected to these requests for documents upon the

grounds that the documents were irrelevant, confi-

dential, and privileged. In March of 1974, plaintiffs

moved for an order compelling the discovery of these

documents, including discovery of the personnel files.

The matter was briefed, argued and submitted before

the United States magistrate, who on April 24, 1974,

issued Findings and Recommendations, including a

recommendation “that with respect to plaintiffs’

motion for production of documents the same be

granted as to each and every item.” A copy of the

magistrate’s Findings and Recommendations are an-

nexed hereto in Exhibit B of the Appendix to this

petition,

Upon defendants’ request for review, the district

court on June 20, 1974, issued an order adopting the

magistrate’s Findings and Recommendations as the

decision and order of the court with certain modifica-

8The text of these requests is quoted in footnote 5 of the

opinion - the Court of Appeals in No. 74-2206 (Appendix, Ex. A,

pp. v-vi).

tions, including a protective order limiting inspection

of the personnel files to counsel of record and no more

than a total of 2 investigators designated by such

counsel and then only to the extent necessary to the

conduct of this action. A copy of this order is annexed

in Exhibit B of the Appendix to this petition. The

district court’s order further provided “that defen-

dants’ request for an in-camera inspection of the per-

sonnel files for a determination of the relevance and

a balancing of the materiality of their contents prior

to release of the files to plaintiffs is denied.”

Defendants filed in the Court of Appeals a petition

for writ of mandamus or prohibition and application

for stay, whereupon the Court of Appeals granted a

stay, required an answer to be filed to the petition

and caiendared the matter for argument on Novem-

ber 14, 1974. The matter was argued and submitted

on that date, and on January 17, 1975, the Court of

Appeals rendered its opinion denying the petition and

vacating the stay. A copy of this opinion is annexed

as Exhibit A of the Appendix to this petition.

C. Other Discovery Afforded Plaintiffs.

Plaintiffs have been afforded massive discovery in-

dependent of the discovery provisions herein sought to

be reviewed:

(1) Interrogatories: Plaintiffs have propounded

three sets of interrogatories which have asked hun-

dreds of questions of each of the ten defendants. The

last two sets of these interrogatories have focused on

the parole consideration process and attendant cir-

cumstances,

(2) Requests for Admissions: Plaintiffs have pro-

pounded two sets of requests for admissions by each

of the ten defendants, and each set has included well

over 100 such requests. These requests for admissions

have similarly focused on the parole consideration

process.

(3) Request for Documents: Plaintiffs have pro-

pounded numerous requests for documents which seek

production of all documents relating to dozens of spec-

ified categories of documents in the possession of or

accessible to the Department of Corrections or the

Adult Authority.

(4) Recordings: Plaintiffs have tape recorded in

their entirety, including the deliberations of panel

members, approximately 1,200 separate parole consid-

eration proceedings.

(5) Visits and observations: Many persons are

available to testify for plaintiffs with respect to the

nature of the parole consideration process and of the

interests at stake. Twenty-four attorneys designated

by plaintiffs, including plaintiffs’ counsel of record,

have attended and taken notes at 160 parole considera-

tion hearings. Many dozens of lay persons designated

by plaintiffs have attended as operators of recording

devices at a total of approximately 1,200 parole con-

sideration hearings. Each member of plaintiffs’ class

(over twenty thousand prisoners) has participated

in parole consideration hearings, and counsel for plain-

tiffs, as well as designees of such counsel, may inter-

view these members of the class. In addition, plaintiffs

may call members of the parole board, hearing of-

ficers of the parole board, and numerous correctional

personnel who have personal knowledge of these pro-

ceedings.

(6) Depositions: Plaintiffs have taken lengthy

depositions of nine members of the parole board, of

the administrative officer of the parole board, of three

parole board hearing officers, of a psychiatrist em-

ployed by the Department of Corrections, of a cor-

rectional counselor, and of two research supervisors

of the Department of Corrections. The depositions of

the parole board members and hearing officers focused

on their backgrounds, education, and work experience,

as well as on the parole consideration process. These

depositions total over 1,400 pages in length.

(7) Inmate files: Under order of the district

court, plaintiffs are entitled to examine the contents

of the correctional files of any 200 inmates designated

by them. The number of items which are highly

confidential and entitled to protection under a quali-

fied privilege of non-disclosure, as asserted herein, is

small when compared with the totai contents of the

files. Plaintiffs will be authorized to examine this

larger portion of the contents of inmate files, with re-

spect to which a qualified privilege is not asserted,

regardless of the outcome of this petition.

As a result of the discovery outlined above, plain-

tiffs have an abundance of information and sources

of information bearing on (1) the background, possi-

bility of bias, and competence of parole board members

and hearing representatives; (2) the nature of parole

consideration proceedings, the manner in which they

are conducted, the interests at stake, the kind of in-

formation relied on, and the factors and circumstances

considered in arriving at decisions as a result of these

proceedings; (3) the ability or capacity of inmates to

handle themselves at such proceedings; (4) whether

inmate files, upon which hearings panels rely, contain

incomplete, misleading, or false information.

SUMMARY OF ARGUMENT

The district court’s discovery orders are not only

indiscriminate (they require production of all person-

nel records of all parole board members and hearing

officers and all contents of all correctional files of any

200 inmates designated by plaintiffs), the orders also

preclude any attempts by defendants to segregate par-

ticular confidential documents for an informed de-

termination by the district court of whether their

confidentiality is outweighed by any utility the doc-

uments may have to the plaintiffs in their action

below.

Under Rule 26(b)(1), Federal Rules of Civil Pro-

cedure, the federal courts recognize a qualified privi-

lege to protect confidential government documents

from unnecessary disclosure. The qualification of the

privilege is that a confidential document may be

ordered disclosed if its confidentiality is outweighed

by the utility of the document to the proponent of its

discovery in the pending action. This qualified privi-

lege extenas to confidential state government docu-

ments. The personnel files of members and hearing

officers of a state parole board, as well as specified

confidential portions of the contents of correctional

files of state prisoners are confidential in nature. In-

deed, by virtue of the protective provisions, even

though inadequate, in the discovery orders, the magis-

trate and each of the judges below recognized that

these categories of documents are confidential.

These categories of documents are of no apparent

utility to the plaintiffs in this civil rights class action

brought by state prisoners to determine what process

is due at administrative proceedings concerning parole

or discipline. Plaintiffs have been furnished massive

discovery of the nature of these proceedings and of

the interests they involve.

Under the circumstances of this case it was proper

for counsel, the attorney general, to assert the quali-

fied privilege. First, unlike an absolute privilege, the

assertion of a qualified privilege does not call for ab-

dication of judicial control over the evidence, but seeks

an affirmative exercise of judicial control. Second,

as the confidential nature of the documents is appar-

ent and was recognized by the judges below, a formal

writing from the head of the department which con-

trols the documents was not necessary. Third, in

asserting the qualified privilege, the attorney general

acted on behalf of a party to the action who was, in

fact, the head of the department which controls the

documents ordered produced. Fourth, with respect to

the confidential contents of inmate files, a more par-

ticularized and formal assertion of confidentiality is

impossible until the files to be produced are designated

by plaintiffs. Accordingly, the reasons heretofore re-

lied on for requiring a formal and personal assertion

of privilege are absent.

Because the confidentiality of the documents is ap-

parent, the utility of the documents is not apparent,

and there is an abundance of alternate sources of in-

formation, the assertion by counsel of the qualified

privilege of non-disclosure should not have been re-

jected without an in-camera inspection and informed

balancing by the court of the competing interests in-

volved.

The qualified privilege should not be viewed by

the courts with hostility as an impediment to dis-

closure of the truth in pending litigation. Unlike an

} absolute privilege, the qualified privilege does not

block information from the court, but only from an

adversary, and then only where legitimate public pol-

icy favoring confidentiality outweighs the litigant’s

need for the information in the pending action. The

compelled indiscriminate production of the documents

for adversary inspection will not enhance the court’s

search for the truth. Even if the contents of the doc-

uments are highly relevant and material to the subject

matter of the action (in which case the documents

would probably be ordered produced anyway, after an

in-camera inspection and balancing), there is no re-

quirement that plaintiffs furnish them to the court.

Indeed, to the extent that documents would tend to

undermine plaintiffs’ allegations, it is likely counsel

would not volunteer them for the court’s consideration.

The compelled disclosure of confidential government

documents under a protective order is neither the

equivalent of, nor an adequate substitute for, a quali-

fied privilege of non-disclosure, and is not the equiva-

lent of an informed and particularized exercise of

judicial discretion.‘ Neither the magistrate nor the

district judge examined any of the documents prior

to compelling their disclosure for adversary inspection.

Relief from the requirements of the district court’s

discovery order is available in no other court, and re-

view on appeal after judgment in the district court

will be inadequate to cure the irreparable harm which

will result from adversary inspection of the confiden-

tial documents.

The standard for when mandamus should be granted

to review interlocutory discovery orders differs be-

tween the Courts of Appeals. The Court of Appeals in

this case relied on an extraordinary standard in deny-

ing mandamus. There is a need to delineate uniform

standards for when mandamus should be granted to

review such orders, and the need is especially great

‘The protective provisions are illusory and inadequate. Although

the protective orders limit inspection of the actual documents, the

use of copies is less limited, and discussion of their contents is

not limited. Use of the documents is limited only by a vague stand-

ard: to the extent necessary to the conduct of this action. The

orders do not specify what measures must be taken by counsel

(there are presently 7 counsel of record for plaintiffs, from at least

4 different law firms) or their investigators to assure compliance

with the protective provisions, nor are there provisions for the

ultimate disposition of copies, or copies of copies, which counsel

may make of the documents. The risk of irreparable harm from

further disclosure of the documents or their contents, through

mistake, inadvertence, or otherwise, will continue beyond the ter-

mination of this litigation.

in actions initiated by state prisoners against state

officials.

To the extent the term “privilege” in Rule 26(b) (1)

takes its meaning from the law of evidence, section

501 of the Federal Rules of Evidence can be expected

to generate divergent views concerning the discovery

of confidential government documents. This circum-

stance also increases the need for advisory mandamus.

Certiorari should be granted to review this aspect of

the decisions below and to announce a uniform stand-

ard for mandamus.

REASONS FOR GRANTING THE WRITS

THE DECISIONS BELOW RAISE EXCEPTIONALLY SIGNIFICANT

PROBLEMS CONCERNING THE SCOPE OF DISCOVERY OF

CONFIDENTIAL GOVERNMENT DOCUMENTS IN FPEDERAL

CIVIL RIGHTS ACTIONS BROUGHT BY PRISONERS AGAINST

STATE OFFICIALS.

It has been estimated that assertions of privilege

constitute a large percentage of all judicial determina-

tions of objections to discovery. 4 Moore’s Federal

Practice, 126.83 [9.-3], fn. 33, at page 26-627 (27%).

During discovery in civil rights actions brought by

prisoners, these questions nearly always arise. Yet, the

meaning of privilege, and judicial treatment of asser-

tions of privilege, remain uncertain and in flux be-

tween the federal courts.

The present case exposes important harmful effects

which these uncertainties impose on the administra-

tion of civil justice, as well as the need for this Court

to delineate workable uniform standards for the asser-

tion and treatment of claims under this paramount

limitation of the scope of discovery.

In United States v. Reynolds, 345 U.S. 1 (1953),

this Court stated that “privileged” as used in the rules

for discovery should be understood as the term is used

in the law of evidence, and that privilege is to be as-

serted formally by the head of the department control-

ling the matter after he has actually personally

considered the documents with respect to which a

privilege is asserted. 345 U.S. at 6, 7-8.

A. It Was Impossible to Follow Reynolds to Protect The Inmate

Files.

By its terms, the discovery order for production

of inmate files precludes attempts to meet the proce-

dures of Reynolds. Until the plaintiffs designate the

200 inmates whose files are to be produced, it is im-

possible to actually consider the particular documents

whose confidentiality will be jeopardized. When the

first group of about 20 inmates was designated, at-

tempts to segregate particular documents for such con-

sideration were met with threats of contempt. The

resulting order makes it unmistakably clear that

nothing may be withheld from immediate production

on demand by plaintiffs:

“All such central files made available upon re-

quest by plaintiff shall be produced without any

material, memos, documents, summaries, reports,

letters, or other papers of any kind, shape or

form, having been removed, altered, deleted or

transferred in any way by defendants prior to

plaintiffs’ inspection.” (USDC order, December

3, 1974, Appendix, Exhibit D, page xxvi).

B. The Definition of “Privilege” Should Be Re-evaluated.

The reference in the Reynolds opinion to the law of

evidence for a definition of the term “privilege” as

used in discovery is unworkable. Rule 26(b) (1) states

that the inadmissibility at trial of the information

sought is no ground for objection to a discovery de-

mand. Indeed, in federal civil actions the law of

evidence concerning privilege for confidential state

government documents is indefinite and will likely re-

main so in view of the provisions of section 501 of the

new Federal Rules of Evidence.’ Without delineating

standards for doing so, this section invites ad hoe

determinations of claims of privilege.

The “law of evidence” lacks both the flexibility and

the precision to accommodate the range of competing

interests involved in pre-trial discovery demands for

the disclosure of government documents which are

confidential. Whether particular documents are con-

fidential depends neither on the law of evidence nor

SARTICLE V. PRIVILEGES

Rule 501.

GENERAL RULE

Except as otherwise required by the Constitution of the United

States or provided by Act of Congress or in rules prescribed by

the Supreme Court pursuant to statutory authority, the privilege

of a witness, person, government, State, or political subdivision

thereof shall be governed by the principles of the common law as

they may be interpreted by the courts of the United States in the

light of reason and experience. However, in civil actions and

proceedings, with respect to an element of a claim or defense as to

which State law supplies the rule of decision, the privilege of a

witness, person, government, State, or political subdivision thereof

shall be determined in accordance with State law.

on the nature of the pending action, but on independ-

ent interests and policies. Whether documents which

are confidential should nevertheless be disclosed should

depend on the needs and circumstances peculiar to the

pending action.

For discovery purposes, “privileged” should be taken

to mean that a particular document which is confiden-

tial need not be disclosed because its confidentiality is

not outweighed by its utility and necessity in the pend-

ing action. See Frankenhauser v. Rizzo, 59 F.R.D.

339, 342, 344 (E.D.Pa. 1973).

C. May “Privilege” Be Raised by Counsel?

Under the circumstances of this case it was appro-

priate and permissible for counsel to assert a qualified

privilege of non-disclosure. The reasons for the proce-

dure in Reynolds that privilege be asserted as a for-

mal matter by the head of the department having con-

trol over the documents, and then only after having

personally considered each document, are absent in the

present case.

First, in Reynolds an absolute privilege was as-

serted such that not even the district court was per-

mitted to see the documents to consider whether the

privilege was well taken. Secondly, the confidential

nature of the documents sought in Reynolds was not

apparent until the court was furnished the writings

which comprised the formal assertion of privilege.

Third, the head of the department having control

over the documents in Reynolds was not a party to

the action before the court.

In the present case only a qualified privilege was

asserted with the realization that disclosure in'samera

would be appropriate for a determination of whether

the utility and necessity of the documents outweigh

their confidentiality. Second, the confidential nature of

the documents in question is apparent and was recog-

nized below by the insertion of at least some protective

provisions in the discovery orders. Third, the head of

the department having control over the documents,

namely, petitioner Procunier, was a party defendant

below on whose behalf the attorney general acted in

asserting the qualified privilege. Fourth, under the

December 3, 1974 discovery order it is impossible for

the department head to meet the review process of

Reynolds prior to disclosing the documents for ad-

versary inspection. Fifth, as the documents in the

present case were to be presented to the court for an

in-camera inspection and balancing of the competing

interests, the court was called upon to exercise direct

control over the evidence and not to abdicate such con-

trol to the unfettered discretion of the department

head. Sixth, the utility of these documents to plaintiffs

is not apparent. Seventh, the possible necessity of

these documents to plaintiffs’ case is remote in view

of the abundance of alternative sources of informa-

tion available to pursue the points to which the docu-

ments are said to relate.

There are additional reasons for re-evaluating the

reliance Reynolds would place on the personal judg-

ment of the head of the department in determining

whether confidential documents should be disclosed.

First, the policies and interests on which the depart-

ment would rely are different from the policies on

which the court would rely to evaluate the claim of

privilege. Indeed, the department head would be ill-

equipped to use the same policy considerations used

by the judge. The judge must weigh the confidential-

ity of the documents against their utility and necessity

in the pending action. The department head does not

balance competing interests of the litigants,’ but

merely informs the court of the confidentialty of the

document. In the present case, the personal judgment

of the department head is not necessary to inform the

court that employee personnel files are of a confiden-

tial nature. Whether the confidential documents are

also privileged would depend on the circumstances of

this particular case, and, as Reynolds states, this de-

termination is for the court and not the executive.

Second, the interests involved in protecting these

confidential documents from needless disclosure are

not limited to those of the department or of the de-

partment head. In this case, not only are depart-

mental interests and institutional security at stake,

but also the privacy and safety of other individuals

are jeoparized by the compelled disclosure of confi-

dential informers’ statements, personnel files, investi-

gative reports on visitors, crime partner information,

and other sensitive categories. The courts, no less than

the department head, have reason to not needlessly

jeopardize such third party interests.

®In the present case, defendants’ offer to reevaluate the confi-

dentiality of particular documents in light of specifications by

plaintiffs of their need for them, was made for the purpose of

saving the district court from unnecessary in-camera inspection.

D. The Treatment of Confidential Matters:

The decisions below raise serious questions con-

cerning the treatment which should be accorded con-

fidential state government documents not protected

by a recognized absolute privilege.

The district court refused defendants’ request for

an in-camera inspection of the personnel files to de-

termine whether their confidentiality is outweighed

by their utility and necessity to plaintiffs in the

pending action. The district court’s indiscriminate

treatment of the confidential items in inmates’ files

is more aggravated and precludes an opportunity to

segregate particular documents for such an in-camera

inspection prior to disclosure to plaintiffs. Instead, the

district court compelled disclosure of the documents

under a protective order purporting t. limit plain-

tiffs’ use of them.

If the confidentiality of these documents outweighs

their utility and necessity to plaintiffs in the pending

action, the documents are entitled to a privilege

against any disclosure. The protective order is no

substitute for the informed judicial discretion which

would result from an in-camera inspection and bal-

ancing of the competing interests, and is not the

equivalent of a privilege against disclosure if ap-

propriate upon such inspection and balancing. Pro-

tective orders, more extensive than were provided in

the present case, would be appropriate if, after an

in-camera inspection and balancing, the court de-

termined that the utility and necessity of the docu-

ments outweighed their confidentiality and compelled

their disclosure. However, where, as here, the confi-

dentiality of the documents is apparent, and their

utility and necessity to the action is not apparent,

these confidential state government documents, at the

minimum, should be entitled to an in-camera inspec-

tion and informed balancing of competing interests

prior to their compelled disclosure for adversary

inspection. Any less informed treatment of such

documents unnecessarily jeopardizes exceptionally

significant interests. In this case the discovery is de-

manded by counsel for a class of plaintiffs which

includes every male felon in prison or on parole in

California, and the information demanded will invade

the personal privacy of the members of the parole

hoard and jeopardize the personal safety of prisoners

who have given information in confidence against

other prisoners.

THE DECISIONS BELOW RAISE IMPORTANT QUESTIONS CON-

CERNING THE STANDARD FOR WHEN MANDAMUS SHOULD

BE GRANTED TO REVIEW INTERLOCUTORY DISCOVERY

ORDERS.

The likelihood of immediate irreparable harm to

the important third party interests involved, the large

number of actions brought by prisoners, and the little

guidance for the court’s ad hoe determinations of

qualified privilege are circumstances indicating a need

for mandamus proceedings to review interlocutory

discovery orders,

In the present case the district court’s discovery

orders will result in prejudice to the defendants as

important as the prejudice which may result from

the erroneous granting of the ultimate relief de-

manded in the action. Indeed, the harm which can

be caused by these discovery orders is irreparable,

whereas the harm which could be caused by the er-

roneous granting of the ultimate relief in the action

would be subject to cure on appellate review. The

problem is especially acute in the present case where

(a) plaintiffs are state prisoners; (b) defendants

are members of the state parole board and the state

director of corrections; (c) the confidentiality of the

state government documents is apparent and in-

volves not only significant departmental interests,

including institutional security, but also involves the

personal safety and privacy of third persons; (d)

the utility and necessity for the documents to plain-

tiffs in the pending action is not apparent.

Under the provisions of section 501, Federal Rules

of Evidence, it would appear that the standards for

assertion and treatment of privilege will evolve on a

case by case basis with little guidance for the ~»urts’

ad hoe determinations.

The standard for granting mandamus to review

interlocutory discovery orders should be akin to the

standard of review on appeal to which the interests

at stake would be entitled but for the risk of inter-

vening irreparable harm. Interlocutory review

should be available under Title 28 United States Code

section 1651 not only to cure a usurpation of power,

an act in excess of jurisdiction, or a failure to ex-

ercise jurisdiction, but also to save important public

and private interests from irreparable harm attribut-

able to a discovery order which the district court

had “jurisdiction” to enter, but which is clearly or

plainly erroneous.’ See United States Board of Parole

v. Merhige, 487 F.2d 25 (4th Cir. 1973), cert. denied

sub nom. Merhige v. United States Board of Parole,

am Oils «ten Cee

III

THE DECISIONS BELOW CONFLICT WITH THE DECISIONS OF

OTHER COURTS OF APPEALS CONCERNING THE STAND-

ARD FOR WHEN TO GRANT MANDAMUS TO REVIEW IN-

TERLOCUTORY DISCOVERY ORDERS.

There is a variance between the Courts of Appeals

with respect to the standards for when mandamus

should be granted to review interlocutory discovery

orders. See 4 Moore’s Federal Practice, 126.83[9.-3];

Supervisory and Advisory Mandamus Under the All

Writs Act, 86 Harvard Law Review 595 (1973). The

opinion of the Court of Appeals in No. 742206 ae-

knowledges that this standard is in flux between the

cireuits and that there is authority for lessening the

extraordinary showing necessary to invoke mandamus.

(Appendix, Exhibit A, fn. 6 at pages vi-vii).

*Even under the extraordinary standard used by the Court of

Appeals in this case, mandamus should have been granted. Under

Rule 26(b)(1), a district court lacks authority to compel produe-

tion of privileged matter. As the confidentiality of the documents

is apparent, and their utility not apparent, the documents are

privileged from disclosure, until the court has looked at them,

balanced the competing interests, and determined their utility and

necessity to plaintiffs outweighs their confidentiality.

The Court of Appeals opinion in the present case

refers to three different standards: (1) mandamus

is appropriate where the district court has exceeded

its jurisdiction, improperly failed to exercise juris-

diction, or has taken action amounting to a usurpa-

tion of power; (2) mandamus is appropriate where

ordinary remedies are inadequate and there are

present exceptional and extraordinary circumstances

which require the issuance of the writ to present a

grave miscarriage of justice; (3) madamus is ap-

propriate depending on the degree to which the dis-

trict court’s actions can be legally questioned, the

damage to petitioner which is not correctable on ap-

peal, and the ability to correc the district court’s

actions by appeal.

The Court of Appeals for the Eighth Circuit would

grant mandamus to review an interlocutory discovery

order which presented a ‘‘really extraordinary” ques-

tion and where appeal after disclosure would be in-

adequate. Pfizer v. Lord, 456 F.2d 545, 548 (8 Cir.

1972). In the Court of Appeals for the Seventh Cir-

cuit, mandamus may be granted to review such orders

where there is a question of substantial importance

and where appeal would be inadequate. Harper and

Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th

Cir. 1970), affirmed, 400 U.S. 348 (1971) (by an

equally divided court). The Court of Appeals for the

Fourth Cireuit has granted mandamus to review and

vacate an interlocutory discovery order on the ground

that the order was clearly erroneous. [/nited States

Board of Parole v. Merhige, supra, 487 F.2d 25 (4th

Cir. 1973).

In summarily denying the petition for mandamus

in No. 74-3392 (Appendix, Exhibit C), the Court of

Appeals may be assumed to have applied the ex-

traordinary standards to which reference is made in

the Opinion in No. 74-2206. The two judges who par-

ticipated in No. 74-3392 also participated in No.

74-2206.

These conflicts justify the grant of certiorari to

review the decisions below.

THE FOURTH AMENDMENT PRECLUDES COMPELLING PRO-

DUCTION OF CONFIDENTIAL DOCUMENTS WITHOUT A

PRIOR DETERMINATION THAT THE DOCUMENTS ARE NOT

PRIVILEGED.

As the decisions below violate the fundamental

right to be free from unreasonable search and seizure,

they must be rectified. Expectations of privacy, in-

sofar as they are reasonable, are protected by the

Fourth Amendment. Compulsory process for the pro-

duction of documents may not issue in derogation of

the Fourth Amendment. An order compelling the dis-

closure of privileged documents is not authorized by

statute, and is as defective as is a search warrant

issued without probable cause. An order compelling

the production of confidential documents without a

prior determination that their utility in the litigation

is paramount, is as defective as is a general search

warrant.

The essence of the Fourth Amendment is the pro-

tection of reasonable expectations of privacy. When

a person communicates information to government

officials in confidence, he maay reasonably expect that

the confidence will be maintained unless a justifica-

tion for disclosure is found to outweigh the jutifica-

tion for confidentiality. In such circumstances, the

expectation is not that disclosure is inevitable (see

Couch v. United States, 409 U.S. 322, 335 (1973)),

but rather that confidentiality will be asserted. Simi-

larly, when a government official’s duties include con-

trol over confidential documents, he may reasonably

expect that he will not be compelled to disclose the

information unless the justification for disclosure is

found to outweigh the reasons for confidentiality.

In such circumstances, the official cannot be said to

be assuming a duty to disclose the documents (see

Davis v. United States, 328 U.S. 582, 589-590 (1946),

but rather is assuming a duty to assert the confiden-

tiality of the documents. In short, as it is reasonable

to expect that confidential documents will not be dis-

closed unless it is shown that the justifications for

disclosure are paramount, such expectation is pro-

tected by the Fourth Amendment.

It was recognized early in our history that the

essence of a search and seizure is not the physical

intrusion and taking of property, but is the element

of compulsion. See Boyd v. United States, 116

U.S. 616, 621-622 (1886). Compulsory process for the

production or inspection of documents is thus subject

to the limitations inherent in the Fourth Amendment.

See United States v. Dionisio, 410 U.S. 1, 11 (1973) ;

Sec v. City of Seattle, 387 U.S. 541, 544-545 (1967).

Accordingly, an order pursuant to Rule 37 of the

Federal Rules of Civil Procedure, compelling a party

to produce documents, is subject to the limitations

of the Fourth Amendment.

Just as a search warrant may issue only upon

probable cause, compulsory process may issue only

upon statutory or constitutional authorization. See

Okla. Press Pub. Co. v. Walling, 327 U.S. 186,

209 (1946). Rule 26(b)(1) of the Federal Rules of

Civil Procedure explicitly excepts from discovery

matters which are privileged. Confidential state docu-

ments are privileged unless there is a showing and a

determination that their utility in the litigation is

paramount to their confidentiality. Accordingly, a

court order compelling the production of confidential

documents, without an tn-camera inspection and de-

termination, is necessarily an order compelling the

production of privileged documents. As such an order

is explicitly precluded by Rule 26(b)(1) of the Fed-

eral Rules of Civil Procedure, it is analogous to the

issuance of a search warrant without probable cause.

Moreover, there is no constitutional authorization

for compelling the production of confidential doeu-

ments without any informed assessment as to whether

or not their utility in the litigation is paramount. As

it is reasonable to expect that disclosure will not be

compelled in the absence of such a determination,

the Fourth Amendment precludes the issuance of

such an order, The Fourth Amendment precludes the

conclusion that simply by virtue of having been

named as a defendant in a civil proceeding, the de-

fendant must forfeit all confidential documents re-

gardless of their utility in the litigation.

Even when compulsory process is issued pursuant

to a statutory or constitutional authorization, it runs

afoul of the Fourth Amendment if the specification

of the documents is inadequate or excessive. See Okla.

Press Pub. Co. v. Walling, supra, 327 U.S. 186, 208-

209 (1946) ; United States v. Morton Salt Co., 338 U.S.

§32, 652 (1950). ‘‘*[A]dequacy or excess in the

breadth of the subpoena are matters variable in re-

lation to the nature, purposes and scope of the in-

quiry,’ (citation omitted).” McPhaul v. United States,

364 U.S. 372, 382 (1960). Accordingly, where the

precise content of the documents is not known, greater

latitude is reasonable. See McPhaul, supra, 364 U.S.

at 382. Conversely, where as here the precise con-

tents of confidential documents can he known by

examination of the documents im camera, a general

order compelling their production is clearly unrea-

sonable.

Legitimately authorized compulsory process is simi-

larly invalid under the Fourth Amendment if the

documents sought are not reasonably relevant to the

underlying purpose of the authorization. See Okla.

Press Pub. Co. v. Walling, supra, 327 U.S. 186, 208-

209 (1946): United States v. Morton Salt Co., supra,

338 U.S. 632, 652 (1950). By its terms the underlving

nurpose of Rule 26(b) (1) is to authorize the discovery

of matters which are not privileged. If confidential

documents are privileged because their utility in liti-

gation is outweighed by the need for confidentiality,

such documents may not at the same time be deemed

to be discoverable within the meaning of Rule 26(b)

(1). Accordingly, a general order for the production

of confidential documents without a prior showing and

determination that the utility of the documents in the

litigation outweighs the interest in confidentiality is

unreasonable.

“The gist of the protection is in the requirement,

expressed in terms, that the disclosure sought shall

not be unreasonable.” Okla. Press Pub. Co. v. Wal-

ling, supra, 327 U.S. 186, 208 (1946). When the Fed-

eral Rules of Civil Procedure are utilized to vitiate

this protection, intervention by this Court is war-

ranted. As observed by Mr. Justice Holmes: “It is

contrary to the first principles of justice to allow a

search through all the respondents’ records, relevant

or irrelevant, in the hope that something will turn

up.” Fed. Trade Com. v. Amer. Tobacco Co., 264 U.S.

298, 306 (1924).

SPECIAL REASONS JUSTIFY GRANTING A WRIT OF CERTIO-

RARI TO REVIEW THE DISTRICT COURT'S DISCOVERY

ORDER OF DECEMBER 3, 1974, AND RELIEF FROM THIS

ORDER IS NOT AVAILABLE IN ANY OTHER COURT.

The district court’s discovery order of December 3,

1974, indiscriminately compels the production for ad-

versary inspection and copying all of the contents of

all of the correctional files of any 200 state prison

inmates designated by plaintiffs.“By its terms, the

order also makes compliance with the Reynolds pro-

cedures impossible, as the order precludes any attempt

to segregate particular confidential documents for any

purpose prior to plaintiffs’ inspection and copying of

them.

The protective provisions of the district court’s

order are illusory and patently inadequate. The order

limits physical inspection of the documents to counsel

of record for plaintiffs and to no more than two

other persons each of whom must be a member of the

bar or a certified law student. However, there are pres-

ently seven attorneys of record for plaintiffs, from

at least four different law firms. Thus nine persons

are presently eligible to physically inspect the inmate

files.

The discovery also provides that plaintiffs may

make photocopies of any and all contents of the 200—

inmate files. Two protective provisions, also illusory,

apply to this part of the order. The order requires

plaintiffs’ counsel to obtain the consent of inmates

prior to making photocopies of the contents of their

files, and also provides that the photocopies may not

be used except as necessary to acquittal of their duties

of representation in this case. However, the highly

confidential items in an inmate’s file include items

with respect to which the inmate’s consent for copying

is irrelevant. Such items include reports from con-

fidential informants against the inmate, investigative

reports of certain visitors, sensitive clinical or psy-

chiatric data concerning the inmate, and confidential

communications from third parties including judges,

district attorneys, and other persons outside the

prison system.

The restriction of the use of photocopies is an il-

lusory reliance on the self-restraint of a vigorous

advocate, and would provide no adequate relief from

the disclosure, through inadvertence or mistake, of

information which would jeopardize the personal

safety or invade the personal privacy of other per-

sons. Plaintiffs’ attorneys in this action represent

every adult male felon in prison or on parole in the

California state prison system. The courts are aware

that there are inmate factions, and that the competi-

tion between such factions includes threats, intimida-

tion, blackmail, extortion, and violence. By virtue of

the class designation in the action below, counsel for

plaintiffs represent and have access to inmates in-

cluded in all of these factions.

The possible utility in this action of the information

in these relatively few highly confidential items in the

inmate files is very remote. The harm which can

result from any improper disclosure or use of copies

of the documents or their contents is significant. Nei-

ther this harm, nor the risk of harm could be cor-

rected on appeal after disclosure of the documents.

Relief from the district court’s order of December

3, 1974, is not available in any other court. Repeated

assertions of the confidential nature of the contents of

the inmate files, and repeated requests for an im-

camera inspection of them prior to disclosure for

adversary inspection were rejected by the district

court. Preliminary steps taken to segregate particular

confidential items from the inmate files which have to

this point been designated by plaintiffs were met with

threats of contempt proceedings against defendants

and defendants’ counsel. These preliminary steps re-

sulted in the peculiarly detailed provision in the dis-

trict court’s order that all of the contents of all of

the files of the inmates designated by plaintiffs must

be furnished ‘‘. .. without any material, memos, docu-

ments, summaries, reports, letters or other papers of

any kind, shape or form, having been removed, al-

tered, deleted or transferred in any way by defen-

dants prior to plaintiffs’ inspection.” (Appendix, p.

XXV1).

Defendants’ prompt attempt to obtain review by

mandamus proceedings in the Court of Appeals was

summarily denied by that court.

CONCLUSION

For the above reasons, petitioners respectfully re-

quest this Court to issue writs of certiorari to the

United States Court of Appeals for the Ninth Cir-

cuit, and to the United States District Court for the

Northern District of California, to review and reverse

the decisions in this case.

Dated, February 14, 1975.

Respectfuily submitted,

EVELLE J. YOUNGER,

Attorney General of the State of California,

Jack R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

Epwarp P. O’Brien,

Assistant Attorney General,

JoHN T. MurpHy,

Deputy Attorney General,

Karu 8S. MAYER,

Deputy Attorney General,

JEAN BorpDON,

Deputy Attorney General,

Attorneys for Petitioners.

(Appendix Follows)

Exhibit A

United States Court of Appeals

for the Ninth Circuit

No. 74-2206

Henry W. Kerr, Curtis 0. Lynum, WALTER

A. Gorpon, Jr., Mantey J. Bow.er, LELAND

M. Epman, James H. Hoover, Cuarizes E.

Brown, Dantet R. Lopez, individually and

in their official capacities as members of the

California Adult Authority, Josern A.

SpaNGLeR, individually and in his official

capacity as Administrative officer of the Cali-

fornia Adult Authority, Raymonp K. Pro- |

CUNIER, individually and in his official ca- |

pacity as Director of Corrections of the State

of California; their agents, employees, and

successors in interest, >

Petitioners,

vs.

Untrep States District Court FoR THE NorTH-

ERN DisTRICT OF CALIFORNIA, |

Respondent, |

JoHnN Van GEeLpERN, DanNy JONES, CHARLES

Epwarp Van Nort, Bruty Ray Lewis, Ros- .

ERT NEWTON GARDNER, JR., JAMES MURRIN,

Georce CHATFIELD, individually and on be-

half of all others similarly situated,

Real Parties in Interest.

[January 17, 1975]

On Petition for Writ of Mandamus

or Prohibition

OPINION

Before: Hamuey, Merritt and Duntway, Circuit

Judges.

HaM ey, Circuit Judge:

Petitioners seek from this court a writ of mandamus

or prohibition under 28 U.S.C. § 1651, vacating an

order of respondent district court which granted a

motion of the real parties in interest requiring peti-

tioners to produce various documents by way of

discovery under Rules 34 and 37 of the Federal Rules

of Civil Procedure. We deny the petition.

The real parties in interest, who seek the documents,

are seven California state prisoners who have joined

as plaintiffs in a civil rights action against petitioners

in the respondent district court.’ Plaintiffs in that

suit assert district court jurisdiction under 28 U.S.C.

§ 1343, 42 U.S.C. §6 1983 and 1988, and 28 U.S.C.

§§ 2201 and 2202. Plaintiffs brought the action on

behalf of themselves and of a class, divided into sev-

eral subclasses, consisting of all others similarly

situated.” |

Petitioners in this mandamus proceeding are the

defendants in the civil rights action described above.

They constitute the members of the California Adult

Authority, two state administrative officers, their

agents, employees and successors in interest, as de-

scribed in the caption of the complaint.

Plaintiffs in the civil rights action seek both declar-

atory and injunctive relief. They request a declaratory

judgment that the acts of the defendants pertaining

to the revocation, rescission or suspension of parole,

the fixing or refixing of sentences, and the imposition

of sanctions for alleged infractions of rules, as de-

1In the district court the civil rights action carries docket number

C-72-2088 SAW.

2After the petition was filed in this court, the district court entered an

order providing that the suit could be maintained as a class action.

iii

scribed in numerous paragraphs of the complaint,

contravene the rights of the plaintiffs and their class

under the Fifth, Sixth and Eighth Amendments and

the Due Process and Equal Protection Clauses of the

Fourteenth Amendment of the United States Consti-

tution.

The injunctive relief plaintiffs seek is an order

requiring defendants and their agents to accord plain-

tiffs and their class certain specified procedural rights

with regard to all proceedings for the revocation, sus-

pension or rescinding of parole, the fixing or refusing

to fix the terms of sentences, and the imposing of seri-

ous disciplinary sanctions. The rights sought pertain

to giving notice of such proceedings, providing an

opportunity to be heard, to present witnesses, and to

cross-examine witnesses; according the right to be

represented by counsel; providing the right to be

heard by an unbiased panel or official and the right

to challenge any panel or official for cause; and pro-

viding a verbatim transcript of any such hearing and

a written statement of the reason for the action taken

and the evidence relied on.

During the course of discovery in the civil rights

action, plaintiiffs served upon petitioners a set of

interrogatories under Fed. R. Civ. P. 33 and a request

for production of documents under Fed. R. Civ. P. 34.

Petitioners made objections to the requests for docu-

ments and to certain interrogatories. As to the re-

quested documents, petitioners also argued that an in

camera inspection was necessary in order to determine

relevancy and evaluate their claimed privileges.

Plaintiffs thereupon moved under Fed. R. Civ. P. 37

to compel discovery. The district court referred the

motion to a United States magistrate for findings and

recommendations.

Following a hearing, the magistrate recommended

that all requests for production of documents be

granted, that some but not all of the interrogatories

be answered, and that costs in the amount of $500 be

levied against petitioners under Fed. R. Civ. P. 37(a)

(4). Protective orders concerning certain of the docu-

ment requests were also suggested.*

Petitioners sought a review by the district court

of the magistrate’s findiuigs and recomnicndations,

complaining primarily about the granting of the re-

quests for the production of documents. After such

a review, the district court, with reference to the docu-

ments here in issue, followed the magistrate’s recom-

mendations, inchiding denial of the request for in

camera inspection. However, the district court modi-

fied the recommended protective order by being more

restrictive of the persons to whom the documents in

request number seven could be revealed.* Subsequently,

3Several document requests were subject to a limited time period. And

with reference to request number seven, the magistrate advised limiting

the revelation of the documents to plaintiffs’ attorneys and the personnel

in their offices.

‘The protective order with reference to request number seven, as

entered by the district court, reads:

“(That no . . . file of any plaintiffs, or any copy of any of its con-

tents, and no personnel file of any member of the Adult Authority,

hearing representative or executive officer, nor any copy of any of

its contents, shall be shown to any person except counsel of record

for the plaintiffs and no more than a total of two investigators desig-

nated by such counsel, and then only to the extent necessary to the

conduct of this action.”

the district court refused to stay the discovery order

pending the disposition of this petition.

Being dissatisfied with the district court’s order

under Fed. R. Civ. P. 37, petitioners instituted this

mandamus or prohibition proceeding and requested

a stay pending its disposition. The petitioners contend

that it was improper for the distriet court to allow

discovery of the documents requested under Fed. R.

Civ. P. 34, specifically those sought in requests num-

bers 7, 14, 15, 18, 20, 21 and 22 of the plaintiffs’

request for production of documents.® This court

SThe requests for documents at issue are:

“7, All files, including all personnel files, which are maintained by

the Adult Authority or by the Department of Corrections, or by any

officer or employee thereof, with respect to each member, each hear-

ing representative, and the Executive Officer of the Adult Authority.”

“14. Each report submitted by any member, hearing representative,

Executive Officer, or any other employee or official of the Adult

Authority, including without limitation all reports of the type indi-

eated at lines 9-11 of page 21 of the aforementioned deposition.”

“15. All written statements written or delivered by any member or

hearing representative or the Executive Officer of the Adult Author-

ity during the past 5 years favoring, opposing, or in any way com-

menting upon bills or other legislation or legislative proposal pend-

ing in the U.S. House of Representatives, the Senate of the United

States, or the California Legislature.”

“18. All written proposals for any change whatsoever in the organi-

zation or operation of, qualifications for, or substantive criteria

and procedures to be employed by the Adult Authority, including

without limitation any of the individuals or groups listed in the

foregoing item.”

“20. All memoranda written by the Chairman of the Adult Auth-

ority during the past 5 years, no matter to whom sent, including

without limitation memoranda sent to other government organiza-

tions, agencies or officials, or to other members, hearing representa-

tives, officials or employees of the Adult Authority.”

“21. All documents in effect on November 15, 1972 which pertain

to any Policy Statement or Resolution issued by the Adult Author-

ity, ineluding without limitation any file maintained on any Resolu-

tion or Policy Statement and all such documents executed or issued

subsequent to that date.”

“292. All documents, however formal or informal, issued during the

past calendar year, which concern the Adult Authority’s adoption

stayed the district court’s order on September 20,

1974, at which time it also designated this petition

for oral argument.

Preliminarily, it is necessary to examine the nature

of the vehicle which brings the district court’s order

before this court for review. This is a petition for

mandamus or prohibition pursuant to the All Writs

Act, 28 U.S.C. § 1651. Mandamus is an extraordinary

remedy. It is appropriately exercised where the dis-

trict court has exceeded its jurisdiction, or has im-

properly failed to exercise jurisdiction, or has taken

action amounting to an “usurpation of power.” Will

v. United States, 389 U.S. 90, 95-96 (1967); Roche

v. Evaporated Milk Ass’n., 319 U.S. 21, 26 (1943).

This court set out its standard for granting mandamus

in Hartley Pen Co. v. United States District Court,

287 F.2d 324, 328 (9th Cir. 1961).

“Tn our view the remedy is available in an ordi-

nary case within our jurisdiction if ordinary

remedies are inadequate and there are present

exceptional and extraordinary circumstances

which require the issuance of an extraordinary

writ to prevent a grave miscarriage of justice.

996

of new policies, procedures, criteria, and the like, to be followed

by members, hearing representatives, officials and employees, in-

cluding without limitation all documents relating to a) Policy State-

ment No. 24, adopted March 27, 1973, and b) Resolution No. 129,

revised and reissued May 21, 1973.”

®6The standard, for when mandamus should be granted to review inter-

loeutory discovery orders, is in flux between circuits. 4 Moore’s Federal

Practice § 26.83 [9.—3] (2d ed., Supp. .973). There is some authority

vii

From an examination of Hartley, three factors are

evident which determine the appropriateness of grant-

ing mandamus: the degree to which the district court’s

actions can be legally questioned, the damage to

petitioner (not correctable on appeal), and the ability

to correct the district court’s actions by appeal. See

Heathman v. United States District Court, 503 F.2d

1032 (9th Cir. 1974); Belfer v. ~~ 435 F.2d 121

(9th Cir. 1970).

Petitioners first direct their attention to the docu-

ments described in request number seven. See note 5,

supra. These documents consist of the personnel files

maintained by petitioners pertaining to each member

of the Adult Authority, each hearing representative,

and the Executive Officer of the Adult Authority.

On the merits of the district court order, petitioners

argue that the contents of these personnel files have

no relevance to the subject matter of the civil rights

action, and for this reason alone, the district court

discovery order should be vacated with regard to

request number seven.

One of the plaintiffs’ allegations in their civil rights

complaint is that members and executive personnel

of the Adult Authority have “no expertise in arriving

at fair decisions” because of their narrow partisan

backgrounds, their bias against prisoners, their inex-

perience, and their failure to reflect a representative

cross section of the population of California. As indi-

for lessening the extraordinary showing necessary to invoke mandamus.

Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970),

aff’d., 400 U.S. 348 (1971) (by an equally divided court); Pfizer, Inc. v.

Lord, 456 F.2d 545 (8th Cir. 1972).

*ee

cated by the earlier review of the relief sought in the

civil rights suit, plaintiffs do not attack the qualifica-

tions of petitioners with an expectation of obtaining

a judicial determination that an Adult Authority so

constituted cannot accord due process to prisoners

who come before them. Instead, they expect that, by

proving such an allegation, they will demonstrate the

need of imposing stringent procedural requirements

governing the functioning of the Adult Authority.

Since this would appear to be a proper line of

attack for plaintiffs, the district court’s holding of

the personnel files relevant for discovery purposes

is not so questionable as to invoke mandamus. For

the question of relevancy “is to be more loosely con-

strued at the discovery stage than at the trial.” 8

Wright & Miller, Federal Practice and Procedure,

§ 2008 at 41 (1970). Thus under Fed. R. Civ. P. 26(b)

(1), it is no ground for objection that information

sought in pretrial discovery would not be admissible

at trial, “ ‘if the testimony sought appears reasonably

calculated to lead to the discovery of admissible evi-

dence.’ . . .” Olympic Refining Company v.. Carter,

332 F.2d 260, 266 (9th Cir. 1964). In addition to

discovering information pertaining to a party’s case

in chief, it is entirely proper to obtain information

for other purposes such as cross-examination of ad-

verse witnesses. See United States v. Meyer, 398 F.2d

66, 72 (9th Cir. 1968).

Because the issue of relevancy in discovery matters

is subject to such a broad standard, a district court’s

decision will rarely be overturned by a petition for

mandamus.’ Heathman v. United States District Court

503 F.2d at 1035. Cf. Hartley Pen Co. v. United

States District Court, 287 F.2d at 328-332.

Petitioners argue, however, that established prin-

ciples of California law and federal law create an

absolute or qualified privilege for the personnel files

covered by request number seven and all documents

sought under requests numbers fourteen, fifteen, eight-

een, twenty, twenty-one and twenty-two, and for this

reason discovery should not have been ordered. In the

alternative, petitioners argue that, at the very least,

the district court should have required in camera

inspection to ascertain relevancy and judge the need

to maintain the confidentiality of the Authority’s files.

The claim of privilege under California law is

based upon California Evidence Code § 1040, and

California Government Code §§ 6250-6260 and 6254(f)

(Supp. 1974). However, the civil rights action was

instituted in federal court under a federal statute, 42

U.S.C. § 1983, which was enacted particularly to vin-

dicate federal rights against deprivation by state

action. See Monroe v. Pape, 365 U.S. 167, 180 (1961).

As this court recently pointed out in Heathman v.

United States District Court, 503 F.2d at 1034: “[I Jn

federal question cases the clear weight of authority

and logic supports reference to federal law on the

issue of the existence and scope of an asserted pri-

7™Fo: an example of where the determination on relevancy was found

extraordinary and mandamus invoked, see Sanderman v. Winner, ......

F.2d ...... , No. 74-1477 (10th Cir. Nov. 26, 1974).

We make no inference as to whether the information contained in the

personnel files would be admissible at trial, as against a claim that it is

irrelevant.

vilege. 2B Barron & Holtzoff, Federal Practice and

Procedure (Wright ed. 1961), § 967 at 243; 4 Moore’s

Federal Practice, § 26.60 [7] at 26-255; 8 Wright &

Miller, Federal Practice and Procedure, Civil § 2016

at 123; Proposed Federal Rules of Evidence, Rules

501-02.”

The states’s interest is that of a litigant, and not,

as in diversity cases, that of a sovereign whose law

is being applied in a foreign forum. Reference to

federal law in this case is necessary on the issue of

the existence and scope of the claimed privilege.

Heathman v. United States District Court, 503 F.2d

at 1034; Fears v. Burris Manufacturing Co., 436 F.2d

1357, 1360-1361 (5th Cir. 1971); Carr v. Monroe Man-

ufacturing Co., 431 F.2d 384, 387-389 (5th Cir. 1970) ;

Colton v. United States, 306 F.2d 633, 636 (2d Cir.

1962).

Federal statutory law, the Freedom of Information

Act, 5 U.S.C. 66 552(b)(6) and (7), is relied upon

by petitioners to sustain their asserted privilege. The

purpose of this Act was to expand the access of the

public to official records of federal agencies, subject

to stated exceptions. Among the exceptions to dis-

closure are those set out in § 552(b)(6)—personnel

and medical files, and section 552(b)(7)—“investi-

gatory files compiled for law enforcement purposes.’”*

This Act would not create a privilege for the re-

quested documents for two reasons. First, its lan-

8The section 552(b)(7) exception has no relationship with the kinds

of documents plaintiffs seek to discover. See Bristol-Myers Co. v. F.T.C.,

424 F.2d 935, 939-940 (D.C. Cir. 1970).

guage is limited to authorities “of the Government of

the United States.” 5 U.S.C. § 551(1). The civil rights

suit involves California agencies. Secondly, the excep-

tions to the disclosure in the Act were not intended

to create evidentiary privileges for civil discovery.

See Verrazzano Trading Corp. v. United States, 349

F.Supp. 1401, 1403 (Cust. Ct. 1972); Pleasant Hill

Bank v. Umted States, 58 F.R.D. 97, 99 (W.D. Mo.

1973) ; Hodgson v. GMAC, 54 F.R.D. 445, 446 (S.D.

Fla. 1972) ; 4 Moore’s Federal Practice § 26.61 [4.—3]

at 26-276, 26-278 (2d ed.). They were intended only to

permit the withholding of certain types of informa-

tion from the public generally.

Petitioners also contend that the common law

governmental privilege (encompassing and referred

to sometimes as the official or state secret privilege)

covers the requested documents. Committee for Nu-

clear Responsibility, Inc. v. Seaborg, 463 F.2d 788,

792-795 (D.C. Cir. 1971); Carr v. Monroe Manu-

facturing Co., 431 F.2d at 388-390.

These cases, however, indicate that this is only a

qualified privilege, contingent upon the competing

interests of the requesting litigant and subject to

disclosure especially where protective measures are

taken, as in this case. But we do not have to reach

the question of whether this privilege extends to these

documents or if a further protective order in the

nature of in camera inspection was necessary before

allowing disclosure. The governmental privilege must

he formally asserted and delineated in order to be

raised properly. United States v. Reynolds, 345 U.S.

xii

1, 7-8, 10-11 (1953); Carr v. Monroe Manufacturing

Co., 431 F.2d at 387. See General Services Admini-

stration v. Benson, 415 F.2d 878, 879 (9th Cir. 1969).

Cf. United States v. Nixon, ....... we steals (July

24, 1974) (“by a formal claim of privilege”); Com-

ittee for Nuclear Responstbility, Inc. v. Seaborg, 463

F.2d at 792-793 (by implication).

In United States v. Reynolds, supra, the Supreme

Court in discussing a claimed state secret privilege

stated :

“The privilege belongs to the Government and

must be asserted by it; it can neither be claimed

nor waived by a private party. It is not to be

lightly invoked. There must be a formal claim

of privilege, lodged by the head of the depart-

ment which has control over the matter, after

actual personal consideration by that officer. . . .”

345 U.S. at 7-8.

Neither the Chairman of the Authority nor the Di-

rector of Corrections nor any official of these agencies

asserted, in person or writing, any privilege in the

district court.

The claiming official must “‘have seen and con-

sidered the contents of the documents and himself

have formed the view that on grounds of public inter-

est they ought not to be produced’’”® and state with

specificity the rationale of the claimed privilege.

Reynolds is illustrative. The Court there continued,

explaining:

United States v. Reynolds, 345 U.S. at 8 n. 20, quoting Duncan v.

Cammell, Laird & Co. [1942] A.C. 624, 638.

eee

“Of course, even with this information before

him, the trial judge was in no position to decide

that the report was privileged until there had

been a formal claim of privilege. Thus it was

entirely proper to rule initially that petitioner

had shown probable cause for discovery of the

documents. Thereafter, ,when the formal claim

of privilege was filed by the Secretary of the Air

Force, under circumstances indicating a reason-

able possibility that military secrets were involved,

there was certainly a sufficient showing of priv-

ilege to cut off further demand for the docu-

ments on the showing of necessity for its

compulsion that had then been made.” (Emphasis

added.) 345 U.S. at 10-11.

In the civil rights suit, petitioners’ counsel merely

raised a blanket objection covering any and all docu-

ments in request numbers 7, 14, 16, 18, 20, 21 and

22. Formally claiming a privilege should involve spec-

ifying which documents or class of documents are

privileged and for what reasons, especially where the

nature of the requested documents does not reveal an

obviously privileged matter. See Pleasant Hill Bank

v. United States, 58 F.R.D. at 101. Since there may

be information in the requested documents which

should be protected, the petitioners may assert a

privilege to a particular document or class of docu-

ments, and perhaps seek in camera inspection, at the

time the documents are discovered in the district

court. See United States v. Reyonlds, 345 U.S. at

10-11.

Tn sum, the petition fails to show such an usurpation

by the district court that warrants the extraordinary

xiv

remedy of writ of mandamus. In promulgating the

discovery order the district court did enter some pro-

tective measures. The granting of mandamus as to

discovery orders is limited, and this case does not

appear to present exceptional circumstances.

The stay of this court is vacated, and the petition

for mandamus or prohibition is denied.

United States District Court

Northern District of California

No, C-72-2088 SAW

John Van Geldern, et al., 1

Plaintiffs,

vs. >

Henry W. Kerr, et al.,

Defendants. 7

[Filed Jun. 20, 1974]

ORDER

Plaintiff’s motion filed pursuant to Rule 37, Fed-

eral Rules of Civil Procedure, for an order telling

defendants to answer certain interrogatories pro-

pounded pursuant to Rule 33, Federal Rules of Civil

Procedure, and to produce certain documents re-

quested pursuant to Rule 34, Federal Rules of Civil

Procedure, having been submitted in the first instance

to United States Magistrate David R. Urdan, pursuant

to this Court’s order of July 13, 1973; and

Magistrate Urdan having filed and served, on April

24, 1974, his Findings and Recommendations with re-

spect to the aforementioned motion; and

Defendants’ request for review of the aforemen-

tioned Findings and Recommendations having regu-

xvi

larly come on for hearing before this Court on June

13, 1974, and good cause appearing therefor,

It Is Hereby Ordered that, except for the

modifications indicated below, the aforementioned

Findings and Recommendations be, and they hereby

are, adopted and rendered as the decision and order

of this Court;

And It Is Further Ordered that, defendants’

objections are sustained with respect to Interroga-

tories Nos. 1 and 2, parts B, F, G, H, I, K, and

L. Defendants are to answer parts D of Interroga-

tories Nos. 1 and 2, but may do so in a reasonably

abbreviated fashion as will be worked out among

counsel.

And It Is Further Ordered that, with respect

to the answers provided in Interrogatories Nos.

1 and 2, and with respect to the documents pro-

vided in accordance with Items No. 1 and 7 of plain-

tiffs’ request for production of documents, that no

central file of any plaintiffs, or any copy of its con-

tents, and no personnel file of any member of the

Adult Authority, hearing representative or executive

officer, nor any copy of any of its contents, shall be

shown to any person except counsel of record for the

plaintiffs and no more than a total of two investiga-

tors designated by such counsel, and then only to the

extent necessary to the conduct of this action.

And It Is Further Ordered that defandants’ re-

quest for an in-camera inspection of the personnel

files for a determination of the relevance and a

balancing of the materiality of their contents prior

to release of the files to plaintiffs is denied.

And It Is Further Ordered that defendants comply

with this order within 20 days of the date hereof.

And It Is Further Ordered that, pursuant to Rule 7,

Federal Rules of Civil Procedure, Defendants pay to

plaintiffs the sum of $500.00 as the expenses reason-

ably incurred by plaintiffs in obtaining this order.

And It Is Further Ordered that defendants’

request for a stay of the requirement of disclosure

of personnel records pending disposition of any

petition for mandamus, filed by defendants within

five days of the date hereof, to review this part of

the order is denied.

Dated: June 20, 1974

Stanley A. Weigel

United States District Judge

eee

In the United States District Court for the

Northern District of California

No. C-72-2088 SA W

John Van Geldern, et al., )

Plaintiffs,

vs. >

Henry W. Kerr, et al.,

Defendants.

[Filed Apr. 24, 1974]

FINDINGS AND RECOMMENDATIONS

The matter of plaintiff’s motion for an order com-

pelling defendants to produce documents and to an-

swer or further answer interrogatories was the subject

of a hearing April 1, 1974, and thereafter submitted

on the papers in the file and arguments of counsel.

The defendants opposed the motion on the ground

that a large number of the document requests and

interrogatories are irrelevant to the action, as in the

defendants’ view the subject matter of the complaint

concerns only past correctional procedures limited to

whether proceedings relating to the seven named

plaintiffs regarding their parole comported to applica-

ble standards of due process. This objection is not

valid because it misconstrues the subject matter of the

case. The complaint seeks relief more extensive than

that envisioned by the defendants, and therefore the

xix

defendants’ objection to some of the plaintiffs’ dis-

covery on the ground of irrelevancy is without merit.

The defendants object to certain other parts of the

plaintiffs’ discovery requests claiming that the inform-

ation sought is privileged absolutely under certain

California State statutes. It is my view that objections

on that ground also are without merit for reasons ex-

pressed in plaintiffs’ memorandum in support of the

motion, and should be overruled. Two other general

objections made by the defendants that appear from

time to time in their opposition to the plaintiffs’ dis-

covery requests, namely, that some create an undue

burden upon the defendants; or, that the requests are

not sufficiently detailed in that certain document re-

quests are not specific enough should also be over-

ruled.

I. DOCUMENTS

Having concluded that defendants’ general objec-

tions mentioned above are not valid, it is recom-

mended that with respect to plaintiffs’ motion for

production of documents the same be granted as to

each and every item.

Where not specifically designated in any individual

document request, it is recommended that the time

period covered should be January 1, 1970, to the

present. With respect to the documents referred to

in Requests Nos. 1 and 7, a Protective Order should

he entered, reciting that no central file of any plain-

tiff and no personnel file of any member of the Adult

Authority, hearing representative, or executive officer

shall be shown to any person except counsel for the

plaintiffs and those personnel employed in their offices,

and then only to the extent necessary to the conduct

of this litigation, except assmay be permitted by fur-

ther order of the Court.

Il. INTERROGATORIES

It is recommended that plaintiffs’ motion be granted

as to Nos. 1 and 4; and denied as to Interrogatory 3

for each of eight defendant members of the Adult

Authority. It it recommended that defendant Span-

gler answer Interrogatory No. 2,

It is further recommended that the plaintiffs’ mo-

tion as to defendant Hoover be granted with respect

to Interrogatories Nos, 12, 14, 16(b), 18, 20, 27, 31

and 38; and denied as to Nos, 15, 19 and 39.

Interrogatories Nos. 3 and 39 are covered by docu-

ment requests, No. 19 requires no further answer, and

No. 15 would require the Adult Authority Panel mem-

bers to recall what the panel members said to the

inmate and what the inmate said to them at diverse

dates in 1972 and 1973 when the Adult Authority

took action with respect to the named plaintiffs. That

would be an undue burden upon the panel members.

As to this particular interrogatory, the defense ob-

jection is well taken. Reference to plaintiffs’ files and

other documents as to which the motion is granted

will suffice.

It is recommended that the plaintiffs’ motion in

respect to the Defendant Gordon be granted as to

Interrogatories Nos. 14, 16, 17, 18, 27 and 41(b); and

denied as to Nos. 15 and 39.

xxi

As to the Defendant Lynum, it is recommended

that the motion be granted as to No. 27, and denied

as to Nos. 39 and 41(b)39.

As to the Defendant Lopez, the motion should be

granted as to Nos. 14, 27, 31, 34 and 35; and denied

as to Nos. 38, 39, and 41(a)39.

As to the Defendant Edman, the motion should be

granted as to Nos. 27 and 31; and denied as to Nos.

38, 39, 41(a)39, 41(¢)9 and 41(d)39.

As to the Defendant Brown, the motion should be

granted as to Nos, 14, 17, 27 and 41(d); and denied

as to Nos. 19 and 39.

With respect to the Defendant Procunier, it is rec-

ommended that the motion be granted as to Nos. 12

and 14, and denied as to Nos. 10, 11 and 39.

As to the Defendant Spangler, it is recommended

that the motion be granted as to Nos. 12, 14, 16, 17,

20, 21 through 38, and 41; and denied as to Nos. 10,

11, 13, 15 and 39.

Although Nos. 10 and 11 regarding Procunier and

Spangler are relevant inquiries, it appears that plain-

tiffs will obtain the information through the granting

of their motion for production of documents.

Finally, it is recommended that defendant pay to

plaintiffs the sum of $500.00 as the expenses reason-

ably incurred by plaintiff in obtaining this order.

Dated: April 24, 1974

/s/ David R. Urdan

David R. Urdan

United States Magistrate

CERTIFICATE OF SERVICE By Mar

I Hereby Certify that copies of the foregoing Find-

ings and Recommendations in Case No. C-72-2088S A W

were this date mailed to the following:

B. E, Bergesen, III, Esq.

Attorney at Law

795 Turk Street

San Francisco, CA 94102

Fay Stender, Esq.

Attorney at Law

The Embarcadero, Pier 37

San Francisco, CA 94133

Sidney M. Wolinsky, Esq.

Attorney at Law

433 Turk Street

San Francisco, CA 94102

Attorneys for Plaintiffs;

William D. Stein, Esq.

Deputy Attorney General

Office of the Attorney General

6000 State Building

San Francisco, CA 94102

Attorney for Defendants.

Dated: April 24, 1974.

/s/ David R. Urdan

David R. Urdan

United States Magistrate

Exhibit C

United States Court of Appeals

for the Ninth Circuit

No. 74-3392

He R. Kerr, et al.,

ad Petitioners,

VS.

United States District Court, Northern

District of California,

Respondent,

John Van Geldern, et al.,

Real Parties in Interest. :

[Filed Dee. 18, 1974]

ORDER

Before: Merritt and Duniway, Circuit Judges

The petition for writ of mandamus or prohibition

and application for stay of discovery order, filed on

December 13, 1974, is denied. The stay ordered by

Judge Duniway on December 13, 1974, is vacated.

/s/ Charles M. Merrill

/s/ Ben. C. Duniway

United States Circuit Judges

xxiv

United States Court of Appeal

for the Ninth Circuit

No. 74-3392

Henry R. Kerr, et al., ;

Petitioners,

vs.

United States District Court, Northern

District of California,

—~—

Respondent,

John Van Geldern, et al.,

Real Parties in Interest. ;

[Filed Dec. 13, 1974]

ORDER

Before: Duntway, Circuit Judge

The order of the district court made December 3,

1974 is hereby stayed pending further consideration

of the pending petition for writ of mandamus.

/s/ Ben. C. Duniway

U.S. Circiut Judge

Exhibit D

In the United States District Court

Northern District of California

Civ. No. 72-2088 SAW

John Van Geldern, et al.,

Plaintiffs,

vs.

Henry W. Kerr, et al.,

Defendants.

[Filed Dec. 3, 1974]

ORDER

The plaintiffs have moved for enforcement of this

Court’s Order dated August 12, 1974, for sanctions

and for clarification of said Order. Defendants have

countermoved for sanctions and other relief.

The motions having duly come on for hearing, all

parties having been heard, and good cause appearing

therefor,

It Is Hereby Ordered that the Order of this Court

dated August 12, 1974, is incorporated by reference

into this Order.

It Is Hereby Ordered that the central files made

available to plaintiffs in accordance with the Order

dated August 12, 1974, shall include any and all mate-

xxvi

rial, wherever located, which is available to or could

be available upon request to Adult Authority members

or hearing representatives in making parole determi-

nations. The term “central files” shall include all files

of a prisoner in the California Prison System, how-

ever designated, including but not limited to, “inves-

tigative files,” “admininstrative files,” or any similar

designations. All such central files made available

upon request by plaintiff shall be produced without

any material, memos, documents, summaries, reports,

letters or other papers of any kind, shape or form,

having been removed, altered, deleted or transferred

in any way by defendants prior to plaintiffs’ inspec-

tion,

It Is Further Ordered that all material previously

removed or withheld by defendants from files already

requested by plaintiffs shall be made available to

plaintiffs’ counsel for inspection within ten days.

It Is Further Ordered that plaintiffs, in their in-

spection of central files, may be assisted by no more

than two persons (other than plaintiffs’ attorneys)

who shall be supervised by plaintiffs’ attorneys, and

who shall be certified law students in good standing

in California law schools, or members in good stand-

ing with the State Bar of California.

Such persons shall be permitted physically to in-

spect all of the files made available to plaintiffs’ coun-

sel under this Order and the Order dated August 12th,

1974.

It Is Further Ordered that inspection of central

files shall take place under such conditions as to pro-

vide a reasonable opportunity for plaintiffs’ counsel

and their designated assistants, to carry out their

inspection in a businesslike manner during normal

working hours.

It Is Further Ordered that plaintiffs’ counsel, in-

cluding any assistants, shall not alter, add to or

destroy any file or any part thereof.

It Is Further Ordered that the tape recordings of

parole consideration hearings provided for by the

Order of this Court dated August 12th, 1974, con-

tinue unobstructed, and that such recordings include

any and all utterances of hearing officers or other

prison officials present before, during and after the

time the inmate enters the hearing room.

It Is Further Ordered in reference to the Order

of this Court dated August 12th, 1974 that:

1. Defendants shall make available to plain-

tiffs, upon plaintiffs’ request, the central file of

any inmate within the California Prison System,

whether or not hearings have been tape recorded

for such inmate, up to a maximum of 200 such

files. Files previously made available shall be

counted toward the maximum.

2. Plaintiffs, at their sole expense, may photo-

copy any or all of the said 200 files and any part

of any or all of such files, provided they obtain

written permission to do so in advance, from each

inmate subject of such files. Before giving per-

mission to photocopy, each such inmate shall

receive a written notice from plaintiffs describ-

ing, in reasonable detail, the identities and num-

eee

bers of persons who may have access to the

photocopies sought by plaintiffs and the plain-

tiffs’ proposed eventual disposition of the photo-

copies.

3. Plaintiffs’ attorneys shall not make any

use of said photocopies nor permit inspection

thereof, except as necessary for acquittal of their

duties of representation in this case.

4. Plaintiffs’ attorneys are charged with pro-

tecting the confidentiality of the contents of all

the files or parts of files inspected and/or copied

by them and/or their assistants,

It Is Further Ordered that those portions of the

record in this proceeding which contain transcripts

or partial transcripts of inmate hearings in which the

identity of the subject inmate or any other inmate or

former inmate is revealed shall be immediately sealed

and such portions shall be open for inspection only

by further order of this Court. The responsibility for

effecting sealing is placed upon counsel for plaintiffs.

Dated: 12/3/74

/s/ Stanley A. Weigel

United States District Court Judge

In the United States District for

the Northern District of California

Civil No, C-72-2088 SAW

John Van Geldern, et al., )

Plaintiffs,

Vs. >

Henry W. Kerr, et al.,

Defendants. 7

[Filed Aug. 12, 1974]

ORDER

This Motion on July 18, 1974, came on to be heard

on both plaintiffs’ and defendants’ request for review

of Magistrate’s Findings and Recommendations of

June 11, 1974. Having heard argument by counsel

for all parties and having considered all the records

and files in this case,

It Is Ordered that the Magistrate’s Findings and

Recommendations dated June 11, 1974, and consisting

of seven pages is incorporated by reference into this

Order.

All counsel have agreed that the issue concerning

attorney attendance at Adult Authority hearings has

been resolved by mutual agreement of the parties and

that it is therefore unnecessary for the Court to rule

on this question.

It Is Further Ordered that the Findings and Rec-

ommendations of June 11, 1974, of the Magistrate are

affirmed in part and overruled in part as specified in

the remaining paragraphs of this Order.

It Is Further Ordered that the recommendation of

the Magistrate concerning tape recording of Adult

Authority hearings is overruled. California Adult Au-

thority Parole Grant or Denial Hearings at both San

Quentin and California Medical Facility located at

Vacaville (hereinafter “Vacaville”), whether con-

ducted by Adult Authority members of Hearing Rep-

resentatives, shall be recorded, except as hereinafter

provided, in their entirety pending further order of

this Court. Said recording shall commence for all

hearings taking place on or after August 5, 1974, and

shall terminate two weeks prior to the date set for

commencement of trial of this cause. Defendants shall

promptly notify plaintiffs’ counsel of the time and

place of all scheduled parole grant or denial hearings

at San Quentin and Vacaville from August 5, 1974,

until two weeks prior to trial. Plaintiff’s counsel shall

then furnish to defendants’ counsel, at least two days

prior to the commencement of any hearing to be re-

corded, all necessary machinery to accomplish the tape

recordings. The plaintiffs’ counsel shall also furnish

to defendants’ counsel all necessary cassettes or tapes

to comply with this Order. Plaintiffs shall be respon-

sible for operating said tape recorder and shall see to

it that all aspects of hearings are recorded, including

all deliberations and conversations between and among

panel members relating to the hearings even when

prisoners are not physically present at the hearings.

xxxi

Defendants shall cooperate to enable plaintiffs to

comply with their obligations under this Order.

It Is Further Ordered that no party or other per-

son shall alter, delete or destroy any tape, or any part

thereof. Plaintiffs’ counsel shall be responsible for as-

suring that defendants’ counsel have equal access to

any tapes within the possession or control of plain-

tiffs’ counsel. Access to said tapes shall be restricted

to counsel and their assistants and consultants.

It Is Further Ordered that prisoners who are par-

ticipating in hearings shall have the option not to

have their hearing recorded and they shall be advised

of such right by supplying to them, prior to their

hearing, a written notice in the form of Exhibit “A”

to this order, which is hereby incorporated by refer-

ence.

It Is Further Ordered that with respect to the re-

quested inspection of inmate central files the Magis-

trate’s Findings and Recommendations are affirmed

and modified as follows:

(a) Such inspection shall be carried out by

plaintiffs’ counsel and not by law students.

(b) Plaintiffs’ counsel shall be permitted to

select for their inspection the central files of those

inmates whose hearings have been tape recorded

in accordance with this Court Order (up to a

maximum of 200 such files) and who have not

objected to such inspection.

“central files” shall be deemed to mean all of

those files, wherever located, pertaining to an

inmate which are normally available to and con-

sidered by panel members and those actually used

by panel members making a parole granting or

denial determination.

(d) Defendants shall make such files available

to plaintiffs’ counsel during normal business hours

at the offices of the Adult Authority at the Ferry

Building in San Francisco.

It Is Further Ordered that defendants shall not be

required to pay to plaintiffs attorneys fees or other

expenses incurred in obtaining this Order.

Dated: Aug. 12th, 1971

/s/ Stanley A. Weigel

Judge, United States District Court

NOTICE OF RECORDING OF HEARING

AND NOTICE OF INSPECTING OF FILE

1. Recording of Hearing

A United States District Court Order requires that

parole consideration hearings at San Quentin and

Vacaville be tape recorded, but provides that any in-

mate may. object to his hearing being recorded, and

provides that the hearing may not be recorded if such

an objection is made.

If your hearing is recorded, the attorneys for

plaintiffs in the case may wish to inspect your central

file. The plaintiffs are California state prisoners in

prison and on parole. The defendants are the Direc-

tors of Corrections and the Adult Authority.

If you do not object, a tape recording will be made

of your hearing and will be available to the attorneys

eer

for both sides and to the Judge in a civil rights case.

The recordings may be used as evidence to inform the

federal judge of what happens at California parole

consideration hearings.

If you do object, your hearing will not be recorded.

You should indicate by writing your initials in one

of the boxes below whether you object, or do not ob-

ject to your hearing being recorded.

[} I do not object to my hearing being tape re-

corded.

[] I object to my hearing being tape recorded.

EET TRL FF

OOOO es a+ = = ee weees s+ = sete rerereree te eeet anna sseeeeseseeeeseeseeesesese

2. Inspection of Your File

You should indicate whether you consent or do not

consent by writing your initials in one of the boxes

below.

[] I do consent to plaintiffs’ attorneys inspecting

my central file.

(_] I do not consent to plaintiffs’ attorneys inspect-

ing my central file.

[This form should be given without comment by cus-

todial officers or other personnel to each prisoner at

San Quentin and Vacaville who will have a parole

hearing between August 5, 1974, and November 15,

1974.]

XXxiv

In the United States District Court

for the Northern District of California

No, C-72-2088 SA W

John Van Geldern, et al.,

Plaintiffs,

VS.

Henry W. Kerr, et al.,

Defendants.

[Filed Jun 11, 1974]

FINDINGS AND RECOMMENDATIONS

The Plaintiffs’ Motion for an Order Compelling

Discovery pursuant to Rule 37, Federal Rules of Civil

Procedure, was heard June 5, 1974, and was sub-

mitted after hearing argument of counsel and upon

all files and records in the case. The plaintiffs seek

three items in their motion: first, that members in

good standing of the California Bar be allowed to at-

tend Adult Authority parole granting hearings on 24-

hours notice; second, that defendants tape record all

Adult Authority parole granting hearings until trial

commences in this case; and third, that plaintiffs’

counsel be permitted to inspect at random every twen-

tieth file of inmates confined in the California prison

system, and for whom a central file is kept. The plain-

XXXV

tiffs have previously served upon the defendants a

written request for these three items, and the defend-

ants have denied each request in writing.

The constitutionality of the decision-making proc-

ess of the Adult Authority with respect to fixing of

sentence or the granting of parole is the basic issue

in the case. Since the plaintiffs allege that the pro-

ceedings of the Adult Authority leading to a deter-

mination as to whether inmates in the California

prison system are to be confined or released do not

meet due process requirements, it is critical to aid the

Court in making a determination as to the constitu-

tionality of the procedures that the plaintiffs be per-

mitted to develop facts and information through the

federal rules discovery process, as to what transpires

at such a hearing, and also to examine the central

files of inmates other than the named plaintiffs.

Il. Attending Adult Authority Hearings

The Adult Authority issued Policy Statement No. 3

(Statement) April 24, 1967, which sets forth the rules

to be followed at Adult Authority hearings. In per-

tinent part the Statement provides that certain per-

sons might be invited to the hearings as official guests

including, for example, legislators, judges, law en-

forcement officials, members of the press, but the

Statement does not include members of the Bar or

attorneys for the inmates. Invited guests are not per-

mitted to take notes, no more than three visitors may

observe any hearing, no person may appear in opposi-

tion to or as an advocate for any particular inmate,

XXXVi

no one may visit a parole hearing case who may have

a personal interest in the inmate, no visitors are per-

mitted where the inmate objects, and care is taken

not to schedule visitors on the last day of the hear-

ings. The Classification and Parole Representative at

each institution is responsible for scheduling visitors

at Adult Authority hearings.

Two things appear evident: first, the defendants

completely control access to Adult Authority hearings

that are the subject matter of the litigation; second,

the procedure followed at these hearings is relevant

and material to the subject matter of the case. The

Federal Courts have allowed discovery by means of

observation and have ordered the production of tape

recordings and tramseripts in certain cases. (See ci-

tations in Plaintifis’ Memorandum in Support of Mo-

tion.) Although the defendants seem to be willing,

as expressed at the hearing and in their opposition

papers, to reach an accommodation on this issue, they

nevertheless argue that the issue of whether attorneys

shall be allowed to observe Adult Authority hearings

requires a determination by a three-judge Court that

certain of the provisions in the Statement are invalid

and inoperable.

The Statement cannot prevent relevant discovery

under the Federal Rules of Civil Procedure and de-

fendants’ notion that a three-judge Court is required

to rule on the question of whether plaintiffs should

be permitted to attend the hearings in face of the

Statement is without merit. The Statement is not a

state statute or an order made by an administrative

XXXVil

board acting under a state statute within the mean-

ing of 28 U.S.C. 2281 so as to require a three-judge

Federal Court to pass upon its force and effect in this

case.

The defendants argue further that many other ave-

nues of discovery are open to the plaintiffs without

the necessity of permitting counsel for plaintiffs to at-

tend the hearings; for example, deposing Adult Au-

thority members; deposing or calling inmates who have

appeared at the hearings as witnesses; and inquiring

of the defendants as to Adult Authority hearing

procedures by means of interrogatories. The ques-

tion, however, so far as plaintiffs’ motion is concerned,

and so far as the right to undertake discovery in gen-

eral is concerned, is not what is necessary but what

is permitted under the rules. What goes on at the

hearings is relevant to the subject of the litigation,

and once relevance is established the federal civil dis-

covery rules are to be liberally construed. Parties may

obtain discovery regarding any matter not privileged

which is relevant to the subject matter involved in the

pending action, and may undertake to seek informa-

tion reasonably calculated to lead to the discovery of

admissible evideuce, and, parties may obtain discov-

ery by permission to enter upon land or other prop-

erty for inspection and or other purposes. Rule 26(a),

Federal Rules of Civil Procedure. Also, the Court

can make any order which justice requires to protect

a party or person, including that the discovery may

be had only on specified terms and conditions. Rule

26(c), Federal Rules of Civil Procedure. It is my

*f*e

view that those two provisions of Rule 26 should be

jointly applied to allow members of the Bar to at-

tend Adult Authority hearings. In balancing the de-

gree of necessity for disclosure shown by the private

litigants here against the State’s claim of importance

of maintaining the ‘‘secrecy” of the hearings as ex-

pressed in the Statement, it is my view that plaintiffs’

position is more compelling.

I do not believe plaintiffs’ motion on this item

should be granted in the form requested, but would

recommend it be granted as follows:

The discovery cut-off date in the case is now set at

August 15, 1974. The defendants’ attorneys should ar-

range with the Classification and Parole Representa-

tive (the person listed in the Statement as being

responsible for scheduling visitors at Adult Authority

hearings) for three members of the California Bar

to attend at least 15 Adult Authority hearings between

now and August 15, 1974; that counsel for plaintiffs

be included with respect to at least one-half of the

visits so scheduled and that these attorney visitors

be allowed to take hand-written notes of the pro-

ceedings.

Il. Tape Recording

It is my recommendation that this portion of the

plaintiffs’ motion be denied. The mechanics of tape

recording and the intrusion of such a system upon the

need for preserving the unfettered conduct of the

hearings and free expression by inmates and Adult

Authority members outweighs the utility and neces-

xxxlx

sity of providing plaintiffs with this discovery ve-

hicle. Furthermore, attendance at hearings provided

in Part I of these Findings is a fair substitute for

recording as well as providing plaintiff with access

to the hearings.

Ill. Inmates’ Files

Plaintiffs seek to have defendant produce every

twentieth file of inmates in California prisons. This

would amount to about 1,000 files.

The files of the seven-named plaintiffs have been

produced. Defendants object to producing files of

inmates other than named plaintiffs. They argue that

no decided California case requires it; that to do so

would violate confidentiality provisions of California

statutes and further, that such disclosure would, per-

haps, be detrimental to institutional security, reveal

informants who have a right to be protected and

would inhibit public officials and private individuals

from coming forth with information concerning in-

mates.

In cases arising under federal law it is clear that

there is no constitutional inhibition to abrogation of

state-created privileges in connection with pre-trial

discovery. There is no absolute California State priv-

ilege that would prevent pre-trial discovery of inmate

files. And further, there is no specific federal statute

dealing with evidentiary privileges applicable to this

case. The standard to be applied is not state case law

or state statutes, but whether the confidentiality of

files outweighs the plaintiffs’ right to acquire material

relevant to the case. The answer is to grant discovery

within the confines of a protective order contemplated

by the rules.

There is the concept that the public interest may be

a reason for not permitting inquiry into particular

matters by discovery. However, in this case that inter-

est is less critical that plaintiffs’ right to utilize the

discovery process, under certain limits, to examine in-

mate files where the contents are or may be central

to the allegations made; namely, that the Adult Au-

thority decision to release or confine an inmate is based

in whole or in part on the information contained

therein.

From all that appears in the files of this case and

from all I have heard at discovery motion hearings,

the conduct of the Adult Authority hearings and the

manner in which they are held together with informa-

tion in inmate files are, perhaps, the most relevant

matters that might tend to support the plaintiffs’

claims, are directly relevant and material to the sub-

ject of the litigation and are discoverable.

I would recommend that this item of the plaintiffs’

motion be granted. However, the number of files to

be produced should be limited to 200 and produced

within 20 days subject to a protective order that would

restrict examination and inspection of inmate files

to attorneys for plaintiffs and for their use only in

connection with this lawsuit.

Plaintiffs also seek $950 as sanctions against defend-

ants for bringing this motion. I would deny plaintiffs

that amount or any other sums. These requests here,

xli

as distinguished from other previous motions, are

rather unique. Defendants’ failure to comply with

plaintiffs’ original requests for this information was

not unreasonable as to now award plaintiffs any at-

torneys’ fees.

Dated: June 11, 1974.

/s/ David R. Urdan

David R. Urdan

United States Magistrate

CERTIFICATE OF SERVICE BY MAIL

I Hereby Certify that copies of the foregoing Find-

ings and Recommendations in Case No. C-72-2088

SAW were this date mailed to the following:

B. E. Bergesen, III, Esq.

Attorney at Law

795 Turk Street

San Francisco, CA 94102,

Fay Stender, Esq.

Attorney at Law

The Embarcadero, Pier 37

San Francisco, CA 94133,

Sidney M. Wolinsky, Esq.

Attorney at Law

433 Turk Street

San Francisco, CA 94102,

Attorneys for Plaintiffs ;

Evelle J. Younger, Attorney General

Karl 8S. Mayer, Deputy Attorney General

6000 State Building

San Francisco, CA 94102,

Attorneys for Defendants.

Dated: June 11, 1974.

/s/ David R. Urdan

David R. Urdan >

United States Magistrate

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.