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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 EARL WARNER, 13 Plaintiff, 14 15 CASE NO. 1:12-cv-01146-MJS (PC) ORDER REGARDING DISCOVERY OF CONFIDENTIAL MATERIALS v. M. CATE, et al., 16 Defendants. SEVEN (7) DAY DEADLINE FOR DEFENDANTS’ PRODUCTION OF DOCUMENTS 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds on Plaintiff’s 21 Eighth Amendment failure to protect claim against Defendants Walker, Prokop, Davis, 22 Spralding, and Fellows, and stems from a 2011 Classification Hearing during which 23 Defendants assigned Plaintiff to the same unit as his enemy, inmate Robert Siordia. 24 I. Procedural Background 25 On September 30, 2016, Plaintiff filed a motion to compel responses to seven 26 requests for the production of documents (“RPDs”) as well as ten Interrogatories directed 27 to Defendant Walker. (ECF No. 126.) On December 12, 2016, the Court granted in part 28 1 and denied in part Plaintiff’s motion to compel. (ECF No. 142.) In response to Plaintiff’s 2 RPD No. 1, which requested his “entire” prison record including those confidential 3 documents that were reviewed in relation to Defendants’ placement decision, 4 Defendants were directed to submit to the Court, for in camera review, any withheld 5 portion of Plaintiff’s prison record file relied on by Defendants during the 2011 6 Classification Committee hearing. 7 The Court requested the files be submitted to the Court in both redacted and 8 unredacted form, and directed Defendants to file and serve a privilege log detailing the 9 nature of the documents withheld, as well as an affidavit signed by an individual with 10 knowledge of the documents explaining his or her reasons for refusing to disclose the 11 documents on privilege grounds. 12 On December 27, 2016, Defendants submitted to the Court for in camera review 13 21 confidential documents contained within Plaintiff’s prison file that were likely reviewed 14 by Defendants during the Classification Committee hearing. That same day, Defendants 15 filed a privilege log (ECF No. 148) and the accompanying affidavit of Correctional 16 Counselor II (“CCII”) D. Davis in support of the privilege log. (ECF No. 148-1.) 17 Defendants were also directed to submit, in response to RPD No. 8, documents 18 relating to disciplinary actions or findings of misconduct against any Defendant for the 19 acts alleged in this lawsuit. No such documents having been submitted, the presumption 20 is that none exist. Defendants shall, within seven days of this Order, so confirm under 21 oath. 22 The Court has reviewed the documents submitted and now addresses 23 Defendants’ assertion of privilege. 24 II. Legal Standard 25 The Supreme Court has long noted that privileges are disfavored. Jaffee v. 26 Redmond, 518 U.S. 1, 9 (1996). “The party asserting an evidentiary privilege has the 27 burden to demonstrate that the privilege applies to the information in question.” Tornay 28 2 1 v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). Privileges are to be “strictly 2 construed” because they “impede full and free discovery of the truth.” Eureka Fin. Corp. 3 v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). “If the privilege is 4 worth protecting, a litigant must be prepared to expend some time to justify the assertion 5 of the privilege.” Id. 6 In civil rights cases brought under section 1983, questions of privilege are 7 resolved by federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 8 192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from statutes or court 9 decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of San 10 Jose, 114 F.R.D. 653, 655–56 (N.D. Cal. 1987). 11 “Federal common law recognizes a qualified privilege for official information.” 12 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511 F.2d 13 at 198. The discoverability of official documents should be determined under the 14 “balancing approach that is moderately pre-weighted in favor of disclosure.” Kelly, 114 15 F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by 16 making a “substantial threshold showing.” Id. at 669. For each discovery request 17 objected to, the party must file an objection and submit a declaration or affidavit from a 18 responsible official with personal knowledge of the matters attested to by the official. Id. 19 The affidavit or declaration must include (1) an affirmation that the agency has 20 generated or collected the requested material and that it has maintained its 21 confidentiality, (2) a statement that the material has been personally reviewed by the 22 official, (3) a description of the governmental or privacy interests that would be 23 threatened by disclosure of the material to the plaintiff or plaintiff's attorney, (4) a 24 description of how disclosure under a protective order would create a substantial risk of 25 harm to those interests, and (5) a projection of the harm to the threatened interest or 26 interests if disclosure were made. Id. at 670. “The asserting party, as in any case where 27 a privilege is claimed, must sufficiently identify the documents so as to afford the 28 3 1 requesting party an opportunity to challenge the assertion of privilege.” Miller v. 2 Pancucci, 141 F.R.D. 292, 300 (9th Cir. 1992). 3 III. Discussion 4 A. 5 Defendants’ privilege log contains 21 items. They are described in the privilege 6 7 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; 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Documents Submitted for In Camera Review 28 4 1 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. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 According to Defendants: These documents are classified as “Confidential 16 Material” pursuant to Cal Code. Regs. tit. 15, §§ 3321(a)(1) and (2) and 3370(d)(e). 17 (Decl. of D. Davis in Supp. of D.’s Privilege Log (ECF No. 148-1) ¶ 6.) If any of the 18 information contained within were made known to an inmate it would endanger the 19 safety of inmates and correctional staff and thereby jeopardizing institutional security. 20 (Id. ¶ 7.) Such documents may be released only pursuant to a court order or under the 21 provisions set forth in Cal. Code Regs. tit 15, § 3370(e). (Id. ¶ 6.) A protective order 22 would be insufficient to protect the confidentiality of the documents, since the threat of 23 sanctions for disobeying a protective order would be insufficient to deter a prisoner from 24 disseminating and profiting from confidential information. (Id. ¶ 10.) 25 B. 26 The Court has reviewed each and every of the documents submitted forin camera 27 Analysis review and makes the following findings and order regarding their production: 28 5 1 1. Exhibits A, B, C, D, E, F, G, H, I, P, Q, and R 2 These exhibits document other inmates’ concerns about Plaintiff and reports by 3 inmates the nature of which could expose them to Plaintiff’s enmity or retaliation. They 4 include allegations, some dating back to 1998, by inmates that Plaintiff engaged in illegal 5 activity or used violence or intimidation tactics against them or others. None of the 6 information therein relate to the reasonableness of Plaintiff’s expressed fear of Siordia. 7 They have no potential relevance to the claims in this lawsuit and are unlikely to lead to 8 the discovery of admissible evidence. The Court will not order their disclosure. 9 2. Exhibit U 10 Exhibit U contains Plaintiff’s confidential enemy list from the beginning of his 11 incarceration through January 2011. According to Defendants, inmates can have both 12 confidential and non-confidential enemy lists. (Davis Decl. ¶ 8.) 13 confidential where both parties are aware of the enemy concern. Confidential enemy 14 lists identify informants who have provided information about another inmate, thereby 15 exposing themselves to possible harm if such disclosures were revealed. (Id.) Plaintiff’s 16 confidential enemy lists may include the names of inmates who Plaintiff may not know 17 regard him as an enemy. They do not include inmate Siordia’s name; he does not 18 appear on Plaintiff’s confidential enemy list. 19 20 21 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 22 These documents relate to Plaintiff’s self-reported safety concerns on Facility C of 23 High Desert State Prison (“HDSP”) in 1998. Plaintiff named two inmates as potential 24 threats. Those inmates are not affiliated with the instant case. While the reviewing officer 25 found Plaintiff’s claims to be unsubstantiated, one inmate was relocated to a different 26 housing unit because of Plaintiff’s stated concerns. 27 28 6 1 As these documents relate to enemy concerns that are more than eighteen years 2 old and involve inmates with no relation to this case, the Court finds Exhibits J, K, and L 3 are not relevant and will not order their disclosure. 4 4. Exhibit M 5 This memorandum documents a July 22, 1998 interview with Plaintiff during which 6 he discussed activity on Facility C of High Desert State Prison (“HDSP”). Plaintiff 7 identified inmates who were added to his confidential enemy list. 8 As this document relates to confidential information that is more than eighteen 9 years old and involves inmates that are not affiliated with this lawsuit, the Court finds 10 11 Exhibit M is not relevant and will not order its disclosure. 5. Exhibit O 12 This chrono relates to Plaintiff’s self-reported enemy concerns while at the 13 California Substance Abuse Treatment Facility (“SATF”) in December 2000. As a result 14 of Plaintiff’s stated concerns, Plaintiff was placed in administrative segregation pending 15 possible referral as a “Sensitive Needs” prisoner. It was also recommended that an 16 inmate Plaintiff deemed an enemy be added to Plaintiff’s confidential enemy list. 17 As this document relates to enemy concerns that are more than sixteen years old 18 and involve an inmate not affiliated with this lawsuit, the Court finds Exhibit O is not 19 relevant and will not order its disclosure 20 6. Exhibit S 21 This document memorializes an April 16, 2010 interview with Plaintiff in which he 22 discussed inmate concerns on Facility A at Salinas Valley State Prison (“SVSP”) 23 involving inmates of the “Northern D/O” gang prompting prison officials to recommend 24 Plaintiff remain in administrative segregation pending transfer to another facility. 25 Exhibits S relates to the circumstances that led to Plaintiff’s transfer from SVSP to 26 PVSP, to wit, Plaintiff’s enemy concerns and could conceivably have some relevance to 27 28 7 1 Plaintiff’s claim here. Defendants will therefore be directed to disclose Exhibit S, subject 2 to the protections listed below. 3 7. Exhibit T 4 This chrono memorializes an August 18, 2010 interview with Plaintiff at SVSP 5 concerning Plaintiff’s self-expressed enemy concerns about the “2-5” gang who Plaintiff 6 believed would assault him if given the chance. 7 Defendants will therefore be required to disclose Exhibit T, subject to the 8 protections listed below. 9 IV. Redactions and Protective Order 10 Defendants propose redacting from exhibits provided to Plaintiff the names, 11 CDCR numbers, housing locations, nicknames, and gang affiliations of all inmates other 12 than Plaintiff and all identifying information relating to officials who prepared or reviewed 13 the documents. 14 Exhibits S and T will be provided to Plaintiff with the redactions proposed by 15 Defendants. If, upon review of them, Plaintiff concludes they contain information that is 16 relevant and in genuine need of corroboration, he may petition the Court for means of 17 identifying and contacting individuals referred to therein upon a showing of good cause 18 to include an explanation of his basis for contending that such information would be 19 helpful to his case and a statement of what he hopes to seek and secure from any such 20 witness. 21 Subject to further order of the Court, Plaintiff may receive and use the information 22 in Exhibits S and T, subject to the redactions above, in litigating this matter subject to 23 and strictly in accordance with the following terms and conditions: 24 (a) Plaintiff may not disclose the content to anyone other than his 25 appointed or retained counsel, if any; said counsel’s administrative staff 26 necessary to Plaintiff’s litigation of this matter; Court personnel and stenographic 27 28 8 1 reporters necessarily involved in these proceedings; any outside expert or 2 consultant retained by Plaintiff’s counsel for purposes of this action. 3 (b) Plaintiff can review the confidential materials, but not copy them or 4 retain them or copies of them in his possession. The Litigation Coordinator at 5 Plaintiff’s institution shall allow Plaintiff a reasonable time of up to 90 minutes to 6 review the documents and make notes relating to them. 7 counsel, his counsel will be permitted to retain copies of the documents and 8 review and discuss them with Plaintiff without restriction. If Plaintiff obtains 9 (c) At the conclusion of the proceedings in this case, including any period 10 for appeal or collateral review, or upon other termination of this litigation, Plaintiff 11 and counsel for Plaintiff, if any, shall destroy all confidential materials and all 12 copies of such material in their possession or return such materials to counsel for 13 Defendants with sworn declarations stating they have done so. 14 (d) All confidential material in this matter shall be used solely in connection 15 with the litigation of this matter, or any related appellate proceeding and collateral 16 review, and not for any other purpose, including any other litigation or proceeding. 17 V. Order 18 Based on the foregoing, it is HEREBY ORDERED that: 19 1. Within seven days of this order, Exhibits S and T of Defendants’ 20 supplemental privilege log shall be produced to Plaintiff and his counsel, if he 21 has any, subject to the Protective Order and with the redactions referred to 22 above. The documents shall be kept in the care and custody of the 23 institution’s Litigation Coordinator and Plaintiff’s counsel, if he has any. The 24 Litigation Coordinator shall make arrangements for Plaintiff to have up to 90 25 minutes to review the materials. Plaintiff may take notes, but no copy of the 26 materials shall be provided to Plaintiff. 27 28 9 1 2. Within seven days of this order, Defendants shall confirm with the Court that 2 no documents responsive to RPD No. 8 exist. 3 4 5 6 IT IS SO ORDERED. Dated: January 18, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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