Mitchell v. DaViga, et al.
Filing
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ORDER REQUIRING Further Production of Documents From Defendant Chavez Following in Camera Review of Withheld Documents, signed by Magistrate Judge Erica P. Grosjean on 6/22/16. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:13-cv-01324-DAD-EPG-PC
COREY MITCHELL,
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ORDER REQUIRING FURTHER
PRODUCTION OF DOCUMENTS FROM
DEFENDANT CHAVEZ FOLLOWING IN
CAMERA REVIEW OF WITHHELD
DOCUMENTS
Plaintiff,
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vs.
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B. DAVIGA, et al.,
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Defendants.
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SEVEN-DAY DEADLINE
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I.
BACKGROUND
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Corey Mitchell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint
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commencing this action on August 21, 2013. (ECF No. 1.) This case now proceeds with the
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Second Amended Complaint filed on July 14, 2014, against defendants Correctional Officer
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Chavez and Sergeant Sheldon (“Defendants”) for failure to protect Plaintiff from risk of harm
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in violation of the Eighth Amendment. (ECF No. 11.)
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On May 17, 2016, the Court held a status conference to discuss outstanding discovery
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issues, among other things. During that conference, and as confirmed in the Court’s written
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order dated May 27, 2016, the Court ordered Defendant Chavez to produce certain documents,
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or indicate that they are being withheld on the ground of privilege, in which case Defendant
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Chavez should submit withheld documents for in camera review. (ECF No. 42)
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On June 7, 2016, Defendant Chavez submitted a brief in support of withheld documents
(ECF No. 45), and also submitted the withheld documents for in camera review.
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The Court has reviewed the withheld documents and orders certain additional
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production.
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II.
APPLICABLE LEGAL STANDARDS
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In civil rights cases brought under section 1983, questions of privilege are resolved by
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federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir.
“Federal common law recognizes a qualified privilege for official information.”
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1975).
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Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511 F.2d at
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198). “[T]his is only a qualified privilege, contingent upon the competing interests of the
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requesting litigant and subject to disclosure . . . .” Kerr, 511 F.2d at 198.
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The discoverability of official documents should be determined under the “balancing
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approach that is moderately pre-weighted in favor of disclosure.” Kelly v. City of San Jose,
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114 F.R.D. 653, 661 (N.D. Cal. 1987). The party asserting the privilege must properly invoke
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the privilege by making a “substantial threshold showing.” Id. at 669. The party must file an
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objection and submit a declaration or affidavit from a responsible official with personal
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knowledge of the matters attested to by the official. Id. The affidavit or declaration must
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include (1) an affirmation that the agency has generated or collected the requested material and
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that it has maintained its confidentiality, (2) a statement that the material has been personally
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reviewed by the official, (3) a description of the governmental or privacy interests that would
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be 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 harm
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to those interests, and (5) a projection of the harm to the threatened interest or interests if
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disclosure were made. Id. at 670. Requiring the defendant to make a “substantial threshold
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showing” allows the plaintiff to assess the defendant's privilege assertions and decide whether
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they should be challenged. Id.
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The Supreme Court has long noted that privileges are disfavored. Jaffee v. Redmond,
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518 U.S. 1, 9 (1996). “The party asserting an evidentiary privilege has the burden to
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demonstrate that the privilege applies to the information in question.” Tornay v. United States,
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840 F.2d 1424, 1426 (9th Cir. 1988).
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III.
ANALYSIS OF WITHHELD DOCUMENTS
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The Court has undertaken an in camera review of the withheld documents. The Court
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is in agreement with Defendant regarding many of the withheld/redacted documents because
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the Court agrees that most of the withheld documents have little if any relevance to this lawsuit
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and involve confidential and sensitive information about individuals not party to this lawsuit.
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The Court also appreciates that Defendant has provided certain information in redacted form in
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order to facilitate disclosure as to certain issues involving Mr. Baylor.
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Upon review, the Court disagrees with withholding as to AGO 179-181. This is a
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report concerning the underlying incident in this case. The Court has reviewed the Declaration
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of Brian Hancock in Support of Privilege Log in Response to Plaintiff’s Request for Production
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of Documents, Sets One and Two, dated December 10, 2015, especially pages 96-97 of that
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document. In that declaration, Mr. Hancock generally argues that disclosure would harm
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prison safety by disclosing the manner of conducting investigations and confidential
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information about staff. It also states that staff members may be less inclined to be forthright if
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they understand their statements could be provided in litigation.
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Without ruling on the admissibility of the report in light of hearsay and other
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evidentiary issues, the Court finds that it is very relevant to the dispute in this case. It contains
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a summary of information garnered from percipient witnesses related to the underlying event.
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It does not indicate that any information was provided by a confidential informant with
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concerns about its safety. The information appears to originate from correctional officers
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themselves. It does not provide any confidential information about those correctional officers.
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It also does not disclosure confidential sensitive prison information that would reveal safety
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procedures of the prison. There is nothing about prison policy regarding investigations that
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appears sensitive or indeed suprising in any way—it merely summarizes the results of various
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interviews. The Court is also not convinced that disclosure of statements made in the course of
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an investigation would necessarily impede truthfulness. Indeed, it is just as possible that
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correctional officers would be more forthright realizing that their statements could be subject to
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discovery.
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statements would be admissible in a court of law is not a persuasive reason to withhold the
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documents as privileged.
In any event, concerns that officers might decide to lie if they realized their
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Thus, taking into account all interests at issue in this case, the Court orders Defendant
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Chavez to provide documents at AGO 179-181 in unredacted form. The Court agrees with
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Defendant’s other redactions and withholdings.
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The Court notes that this was a case and document-specific analysis considering the
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interests of the parties and specific content of this document, and does not necessarily apply to
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any other document or report in this or any other case.
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IV.
CONCLUSION
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Accordingly, IT IS HEREBY ORDERED that Defendant Chavez shall provide Plaintiff
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with unredacted copies of the documents at AGO 179-181 within one week (7 days) from the
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date of this order.
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IT IS SO ORDERED.
Dated:
June 22, 2016
/s/
UNITED STATES MAGISTRATE JUDGE
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