Warner v. Cate et al

Filing 157

ORDER Regarding Discovery of Confidential Materials, Seven (7) Day Deadline for Defendants' Production of Documents, signed by Magistrate Judge Michael J. Seng on 1/18/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,

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CASE NO. 1:12-cv-01146-MJS (PC)
ORDER REGARDING DISCOVERY OF
CONFIDENTIAL MATERIALS

v.
M. CATE, et al.,

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Defendants.

SEVEN (7) DAY DEADLINE FOR
DEFENDANTS’ PRODUCTION OF
DOCUMENTS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds on Plaintiff’s

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Eighth Amendment failure to protect claim against Defendants Walker, Prokop, Davis,

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Spralding, and Fellows, and stems from a 2011 Classification Hearing during which

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Defendants assigned Plaintiff to the same unit as his enemy, inmate Robert Siordia.

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I.

Procedural Background

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On September 30, 2016, Plaintiff filed a motion to compel responses to seven

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requests for the production of documents (“RPDs”) as well as ten Interrogatories directed

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to Defendant Walker. (ECF No. 126.) On December 12, 2016, the Court granted in part

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and denied in part Plaintiff’s motion to compel. (ECF No. 142.) In response to Plaintiff’s

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RPD No. 1, which requested his “entire” prison record including those confidential

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documents that were reviewed in relation to Defendants’ placement decision,

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Defendants were directed to submit to the Court, for in camera review, any withheld

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portion of Plaintiff’s prison record file relied on by Defendants during the 2011

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Classification Committee hearing.

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The Court requested the files be submitted to the Court in both redacted and

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unredacted form, and directed Defendants to file and serve a privilege log detailing the

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nature of the documents withheld, as well as an affidavit signed by an individual with

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knowledge of the documents explaining his or her reasons for refusing to disclose the

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documents on privilege grounds.

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On December 27, 2016, Defendants submitted to the Court for in camera review

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21 confidential documents contained within Plaintiff’s prison file that were likely reviewed

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by Defendants during the Classification Committee hearing. That same day, Defendants

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filed a privilege log (ECF No. 148) and the accompanying affidavit of Correctional

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Counselor II (“CCII”) D. Davis in support of the privilege log. (ECF No. 148-1.)

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Defendants were also directed to submit, in response to RPD No. 8, documents

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relating to disciplinary actions or findings of misconduct against any Defendant for the

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acts alleged in this lawsuit. No such documents having been submitted, the presumption

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is that none exist. Defendants shall, within seven days of this Order, so confirm under

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oath.

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The Court has reviewed the documents submitted and now addresses

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Defendants’ assertion of privilege.

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II.

Legal Standard

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The Supreme Court has long noted that privileges are disfavored. Jaffee v.

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Redmond, 518 U.S. 1, 9 (1996). “The party asserting an evidentiary privilege has the

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burden to demonstrate that the privilege applies to the information in question.” Tornay

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v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). Privileges are to be “strictly

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construed” because they “impede full and free discovery of the truth.” Eureka Fin. Corp.

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v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). “If the privilege is

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worth protecting, a litigant must be prepared to expend some time to justify the assertion

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of the privilege.” Id.

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In civil rights cases brought under section 1983, questions of privilege are

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resolved by federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d

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192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from statutes or court

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decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of San

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Jose, 114 F.R.D. 653, 655–56 (N.D. Cal. 1987).

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“Federal common law recognizes a qualified privilege for official information.”

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Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511 F.2d

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at 198. The discoverability of official documents should be determined under the

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“balancing approach that is moderately pre-weighted in favor of disclosure.” Kelly, 114

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F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by

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making a “substantial threshold showing.” Id. at 669. For each discovery request

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objected to, the party must file an objection and submit a declaration or affidavit from a

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responsible official with personal knowledge of the matters attested to by the official. Id.

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The affidavit or declaration must include (1) an affirmation that the agency has

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generated or collected the requested material and that it has maintained its

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confidentiality, (2) a statement that the material has been personally reviewed by the

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official, (3) a description of the governmental or privacy interests that would be

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threatened by disclosure of the material to the plaintiff or plaintiff's attorney, (4) a

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description of how disclosure under a protective order would create a substantial risk of

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harm to those interests, and (5) a projection of the harm to the threatened interest or

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interests if disclosure were made. Id. at 670. “The asserting party, as in any case where

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a privilege is claimed, must sufficiently identify the documents so as to afford the

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requesting party an opportunity to challenge the assertion of privilege.” Miller v.

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Pancucci, 141 F.R.D. 292, 300 (9th Cir. 1992).

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III.

Discussion

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A.

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Defendants’ privilege log contains 21 items. They are described in the privilege

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log as follows:
Ex. A:

Dec. 12, 1991 128B Confidential Chrono regarding enemy concerns
between Warner and another inmate;

Ex. B:

Dec. 17, 1991 128 B Confidential Chrono listing confidential
enemies of Warner;

Ex. C:

April 22, 1993 Confidential Memorandum interview with an inmate
regarding safety concerns involving Warner;

Ex. D:

January 27, 1995 Confidential Memorandum interview with an
inmate regarding safety concerns involving Warner;

Ex. E:

May 25, 1995 Confidential Memorandum interview with an inmate
regarding Warner;

Ex. F:

July 12, 1995 Confidential Memorandum interview with an inmate
regarding Warner;

Ex. G:

August 14, 1995 Confidential Memorandum interview with an inmate
regarding Warner;

Ex. H:

August 28, 1995 Confidential memorandum regarding inmate
Warner;

Ex. I:

May 6, 1997 Confidential Memorandum interview with an inmate
regarding safety concerns with Warner;

Ex. J:

February 11, 1998 Confidential Memorandum interview with inmate
Warner regarding his concerns for personal safety;

Ex. K:

March 18, 1998 Confidential 128B Informational Chrono regarding
enemies of Warner;

Ex. L:

April 17, 1998 128B Confidential Informational Chrono regarding
enemies of Warner;

Ex. M:

July 22, 1998 Confidential Memorandum interview with Warner
regarding enemy concerns;

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Documents Submitted for In Camera Review

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Ex. N:

July 22, 1998 Confidential Memorandum follow up interview with
Warner regarding enemy concerns;

Ex. O:

December 13, 2000 128 Confidential Chrono regarding enemy
concerns for Warner;

Ex. P:

October 23, 2003 Confidential Memorandum interview with an
inmate regarding safety concerns with Warner;

Ex. Q:

April 11, 2006 Confidential Memorandum interview with an inmate
regarding safety concerns with Warner;

Ex. R:

June 21, 2006 128 Confidential Chrono regarding a compatibility
concern with Warner;

Ex. S:

April 19, 2010 Confidential Memorandum Interview with Warner
regarding safety concerns;

Ex. T:

August 18, 2010 Confidential 128B informational chrono noting
interview with Warner regarding enemy concerns; and

Ex. U:

Plaintiff’s CDCR 812-C Notice of Critical Information Confidential
Enemies: lists available from beginning of Warner's incarceration
(for CDCR E-32637) through the date of the January 19, 2011 UCC
hearing.

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According to Defendants:

These documents are classified as “Confidential

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Material” pursuant to Cal Code. Regs. tit. 15, §§ 3321(a)(1) and (2) and 3370(d)(e).

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(Decl. of D. Davis in Supp. of D.’s Privilege Log (ECF No. 148-1) ¶ 6.) If any of the

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information contained within were made known to an inmate it would endanger the

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safety of inmates and correctional staff and thereby jeopardizing institutional security.

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(Id. ¶ 7.) Such documents may be released only pursuant to a court order or under the

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provisions set forth in Cal. Code Regs. tit 15, § 3370(e). (Id. ¶ 6.) A protective order

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would be insufficient to protect the confidentiality of the documents, since the threat of

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sanctions for disobeying a protective order would be insufficient to deter a prisoner from

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disseminating and profiting from confidential information. (Id. ¶ 10.)

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B.

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The Court has reviewed each and every of the documents submitted forin camera

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Analysis

review and makes the following findings and order regarding their production:

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1.

Exhibits A, B, C, D, E, F, G, H, I, P, Q, and R

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These exhibits document other inmates’ concerns about Plaintiff and reports by

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inmates the nature of which could expose them to Plaintiff’s enmity or retaliation. They

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include allegations, some dating back to 1998, by inmates that Plaintiff engaged in illegal

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activity or used violence or intimidation tactics against them or others. None of the

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information therein relate to the reasonableness of Plaintiff’s expressed fear of Siordia.

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They have no potential relevance to the claims in this lawsuit and are unlikely to lead to

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the discovery of admissible evidence. The Court will not order their disclosure.

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2.

Exhibit U

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Exhibit U contains Plaintiff’s confidential enemy list from the beginning of his

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incarceration through January 2011. According to Defendants, inmates can have both

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confidential and non-confidential enemy lists. (Davis Decl. ¶ 8.)

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confidential where both parties are aware of the enemy concern. Confidential enemy

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lists identify informants who have provided information about another inmate, thereby

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exposing themselves to possible harm if such disclosures were revealed. (Id.) Plaintiff’s

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confidential enemy lists may include the names of inmates who Plaintiff may not know

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regard him as an enemy. They do not include inmate Siordia’s name; he does not

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appear on Plaintiff’s confidential enemy list.

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Enemies are non-

Again, the Court sees no potential relevancy of this information.

The Court

therefore will not order disclosure of Exhibit U.
3.

Exhibits J, K, L, and N

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These documents relate to Plaintiff’s self-reported safety concerns on Facility C of

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High Desert State Prison (“HDSP”) in 1998. Plaintiff named two inmates as potential

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threats. Those inmates are not affiliated with the instant case. While the reviewing officer

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found Plaintiff’s claims to be unsubstantiated, one inmate was relocated to a different

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housing unit because of Plaintiff’s stated concerns.

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As these documents relate to enemy concerns that are more than eighteen years

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old and involve inmates with no relation to this case, the Court finds Exhibits J, K, and L

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are not relevant and will not order their disclosure.

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4.

Exhibit M

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This memorandum documents a July 22, 1998 interview with Plaintiff during which

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he discussed activity on Facility C of High Desert State Prison (“HDSP”). Plaintiff

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identified inmates who were added to his confidential enemy list.

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As this document relates to confidential information that is more than eighteen

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years old and involves inmates that are not affiliated with this lawsuit, the Court finds

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Exhibit M is not relevant and will not order its disclosure.
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Exhibit O

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This chrono relates to Plaintiff’s self-reported enemy concerns while at the

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California Substance Abuse Treatment Facility (“SATF”) in December 2000. As a result

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of Plaintiff’s stated concerns, Plaintiff was placed in administrative segregation pending

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possible referral as a “Sensitive Needs” prisoner. It was also recommended that an

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inmate Plaintiff deemed an enemy be added to Plaintiff’s confidential enemy list.

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As this document relates to enemy concerns that are more than sixteen years old

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and involve an inmate not affiliated with this lawsuit, the Court finds Exhibit O is not

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relevant and will not order its disclosure

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6.

Exhibit S

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This document memorializes an April 16, 2010 interview with Plaintiff in which he

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discussed inmate concerns on Facility A at Salinas Valley State Prison (“SVSP”)

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involving inmates of the “Northern D/O” gang prompting prison officials to recommend

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Plaintiff remain in administrative segregation pending transfer to another facility.

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Exhibits S relates to the circumstances that led to Plaintiff’s transfer from SVSP to

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PVSP, to wit, Plaintiff’s enemy concerns and could conceivably have some relevance to

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Plaintiff’s claim here. Defendants will therefore be directed to disclose Exhibit S, subject

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to the protections listed below.

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7.

Exhibit T

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This chrono memorializes an August 18, 2010 interview with Plaintiff at SVSP

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concerning Plaintiff’s self-expressed enemy concerns about the “2-5” gang who Plaintiff

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believed would assault him if given the chance.

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Defendants will therefore be required to disclose Exhibit T, subject to the

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protections listed below.

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IV.

Redactions and Protective Order

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Defendants propose redacting from exhibits provided to Plaintiff the names,

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CDCR numbers, housing locations, nicknames, and gang affiliations of all inmates other

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than Plaintiff and all identifying information relating to officials who prepared or reviewed

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the documents.

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Exhibits S and T will be provided to Plaintiff with the redactions proposed by

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Defendants. If, upon review of them, Plaintiff concludes they contain information that is

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relevant and in genuine need of corroboration, he may petition the Court for means of

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identifying and contacting individuals referred to therein upon a showing of good cause

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to include an explanation of his basis for contending that such information would be

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helpful to his case and a statement of what he hopes to seek and secure from any such

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witness.

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Subject to further order of the Court, Plaintiff may receive and use the information

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in Exhibits S and T, subject to the redactions above, in litigating this matter subject to

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and strictly in accordance with the following terms and conditions:

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(a) Plaintiff may not disclose the content to anyone other than his

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appointed or retained counsel, if any; said counsel’s administrative staff

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necessary to Plaintiff’s litigation of this matter; Court personnel and stenographic

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reporters necessarily involved in these proceedings; any outside expert or

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consultant retained by Plaintiff’s counsel for purposes of this action.

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(b) Plaintiff can review the confidential materials, but not copy them or

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retain them or copies of them in his possession. The Litigation Coordinator at

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Plaintiff’s institution shall allow Plaintiff a reasonable time of up to 90 minutes to

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review the documents and make notes relating to them.

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counsel, his counsel will be permitted to retain copies of the documents and

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review and discuss them with Plaintiff without restriction.

If Plaintiff obtains

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(c) At the conclusion of the proceedings in this case, including any period

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for appeal or collateral review, or upon other termination of this litigation, Plaintiff

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and counsel for Plaintiff, if any, shall destroy all confidential materials and all

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copies of such material in their possession or return such materials to counsel for

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Defendants with sworn declarations stating they have done so.

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(d) All confidential material in this matter shall be used solely in connection

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with the litigation of this matter, or any related appellate proceeding and collateral

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review, and not for any other purpose, including any other litigation or proceeding.

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V.

Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Within seven days of this order, Exhibits S and T of Defendants’

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supplemental privilege log shall be produced to Plaintiff and his counsel, if he

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has any, subject to the Protective Order and with the redactions referred to

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above. The documents shall be kept in the care and custody of the

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institution’s Litigation Coordinator and Plaintiff’s counsel, if he has any. The

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Litigation Coordinator shall make arrangements for Plaintiff to have up to 90

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minutes to review the materials. Plaintiff may take notes, but no copy of the

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materials shall be provided to Plaintiff.

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2. Within seven days of this order, Defendants shall confirm with the Court that

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no documents responsive to RPD No. 8 exist.

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IT IS SO ORDERED.
Dated:

January 18, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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