Hernandez v. Hernandez et al

Filing 99

ORDER Regarding Discovery; Ten (10) Day Deadline for Defendants' Production of Documents, signed by Magistrate Judge Michael J. Seng on 7/2/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FEDERICO HERNANDEZ,

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Plaintiff,

CASE NO. 1:13-cv-01625-MJS (PC)
ORDER REGARDING DISCOVERY

v.
M. HERNANDEZ, et al.,

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Defendants.

TEN (10) 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 action proceeds against

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Defendants Hernandez, Zambrano, Clark, Rodriguez, and Martin on Plaintiff’s Eighth

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Amendment excessive force claim. Trial is set for August 11, 2015. (ECF No. 86.)

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On June 3, 2015, Plaintiff filed a motion requesting a telephonic discovery

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dispute conference to address items contained in Defendants’ supplemental privilege

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log. (ECF No. 77.) The issues raised by Plaintiff were discussed during the pretrial

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conference, and Defendants were ordered to provide the disputed documents to the

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Court for in camera review. (ECF No. 92.) The Court received Defendants’ documents

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on June 25, 2015, reviewed them, and here addresses the privileges asserted against

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their production.

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I.

PLAINTIFF’S REQUEST

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Plaintiff asks that documents listed in Defendants’ privilege log be released to

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him. Specifically, he asks that Defendants reveal statements concerning the following:

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(1) whether CDCR policy was followed; (2) whether officials used excessive force; and

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(3) whether CDCR officers were disciplined in connection with the incident.

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II.

LEGAL STANDARD

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A. Privilege Generally

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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. U.S. District Court for the Northern District of California,

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511 F.2d 192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from

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statutes or court decisions, is not binding on federal courts in these kinds of cases.” Kelly

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v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987).

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B.

Official Information Privilege

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Nevertheless, “[f]ederal common law recognizes a qualified privilege for official

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

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Kerr, 511 F.2d at 198). The official information privilege ensures disclosure of

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discoverable information without compromising the state’s interest in protecting the

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privacy of law enforcement officials and in ensuring the efficacy of its law enforcement

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system. Kelly, 114 F.R.D. at 662-63.

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“To determine whether the information sought is privileged, courts must weigh the

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potential benefits of disclosure against the potential disadvantages. If the latter is

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greater, the privilege bars discovery.” Sanchez, 936 F.2d at 1033-34. “In the context of

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civil rights suits against [corrections officials], this balancing approach should be

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‘moderately pre-weighted in favor of disclosure.’” Soto, 162 F.R.D. at 613 (quoting Kelly,

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114 F.R.D. at 661).

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The party invoking the privilege must at the outset make a “substantial threshold

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showing” by way of a declaration or affidavit from a responsible official with personal

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knowledge of the matters attested. Soto, 162 F.R.D. at 613. “The claiming official must

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‘have seen and considered the contents of the documents and himself have formed the

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view that on grounds of public interest they ought not to be produced’ and state with

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specificity the rationale of the claimed privilege.” Kerr, 511 F.2d at 198 (citation omitted).

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The affidavit must include: (1) an affirmation that the agency generated or collected the

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material in issue and has maintained its confidentiality; (2) a statement that the official

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has personally reviewed the material in question; (3) a specific identification of the

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governmental or privacy interests that would be threatened by disclosure of the material

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to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully

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crafted protective order would create a substantial risk of harm to significant

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governmental or privacy interests, and (5) a projection of how much harm would be done

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to the threatened interests if disclosure were made. Soto, 162 F.R.D. at 613. In addition,

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“[t]he asserting party, as in any case where a privilege is claimed, must sufficiently

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identify the documents so as to afford the requesting party an opportunity to challenge

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the assertion of privilege.” Miller v. Panucci, 141 F.R.D.292, 300 (C.D. Cal. 1992).

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C.

Self-Critical Analysis Privilege

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Though raised by Defendants, the Ninth Circuit has not recognized the “self-

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critical analysis” privilege. See Union Pac. R.R. Co. v. Mower, 219 F.3d 1069, 1076 n. 7

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(9th Cir. 2000), and citations therein.

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D.

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The deliberative process privilege is intended to protect the quality of agency

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decisions by promoting frank and independent discussion among those responsible for

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governmental decision-making. See, e.g., Fed. Trade Comm’n v. Warner Commc’ns,

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Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). A litigant may obtain discovery of materials

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protected by the privilege if the need for the materials outweighs the governmental

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interest in keeping the decision-making process confidential. In deciding whether to

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override the privilege and allow discovery, there are four factors to be considered: “(1)

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the relevance of the evidence; (2) the availability of other evidence; (3) the government's

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role in the litigation; and (4) the extent to which disclosure would hinder frank and

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independent discussion regarding contemplated policies and decisions.” Id.

Deliberative Process Privilege

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However, the deliberative process privilege generally is not applicable in civil

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rights cases against officers. Soto, 162 F.R.D. at 612. This privilege “should be invoked

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only in the context of communications designed to directly contribute to the formulation

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of important public policy.” Id. It does not shield internal affairs investigations or records

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of witness and officer statements. Id.

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III.

DISCUSSION

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Defendants’ supplemental privilege log contains nine items. (ECF No. 57-1.)

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Following an April 29, 2015 discovery dispute conference, the Court conducted an in

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camera review of Items 2, 3, 8, and 9, and concluded that they contained no relevant

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information. (ECF No. 71.) Accordingly, Defendants were not required to disclose these

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items. The Court will not revisit that ruling. The remaining items on Defendants’

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supplemental privilege log are discussed below.

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A.

Item No. 1

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Item No. 1 is a Correctional Lieutenant’s April 9, 2013, “Report of Findings” to

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Acting Facility Captain Nate Greene and Associate Warden Dave Fischer concerning

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the incident at issue. It was generated in response to Plaintiff’s staff complaint.

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Defendants claim privilege under Federal Rule of Evidence 501, the official information

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privilege, and the critical self-analysis privilege. They state that CDCR has maintained

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the document’s confidentiality pursuant to state law. Staff complaints are “maintained

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under lock and key with access allowed to only authorized personnel.” The

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investigations are not available to inmates under the California Code of Regulations,

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and are available to staff only in limited circumstances.

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Defendants state that maintaining the confidentiality of the investigations into

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staff complaints encourages witnesses to make truthful statements. They further

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contend that release of the information, even pursuant to a protective order, would

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endanger institutional safety “as it would disclose the process and procedures used to

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respond to inmate violence, and could jeopardize a correctional officer’s authority

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because another officer may be critical of their action,” even if those actions comply

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with regulations and the law. Disclosure could inform inmates of CDCR’s investigatory

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techniques and hamper future investigations. They contend this holds true even if the

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documents are released pursuant to a protective order.

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B.

Item Nos. 4-7

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Item Nos. 4-7 were generated as part of the institution’s own internal review

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process, a process undertaken whenever force is used to ensure compliance with

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CDCR policy.

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Item No. 4 is a Memorandum concerning the incident, dated January 30, 2014,

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and authored by Associate Director Connie Gibson. Defendants claim the same

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privileges as with respect to Item No. 1.

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Item No. 5 is a “Report of Findings,” dated March 5, 2013. Defendants claim the
same privileges as with respect to Item Nos. 1 and 4.

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Item No. 6 is a “Confidential Use of Force Critique Package” concerning the

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incident. Defendants claim the self-critical analysis privilege, the official information

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privilege, and the deliberative process privilege.

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Item No. 7 is the “Institution Executive Review Committee Critique and

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Qualitative Evaluation” concerning the incident. Defendants claim the self-critical

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analysis privilege, the official information privilege, and the deliberative process

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privilege.

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Defendants claim the documents have the potential to jeopardize institutional

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safety by disclosing investigatory techniques and corrective measures taken as a result

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of such investigation. Inmates could use the information to sabotage staff attempts to

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deal with disruptive inmate conduct and undermine investigations into such attempts.

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Inmates could set staff up for disrespect or unwarranted discipline. Inmates could tailor

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allegations of staff misconduct to the criteria used in the review process. Disclosure

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could interfere with staff’s ability to control violent disturbances with minimal use of

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force. Disclosure would interfere with staff morale, making it difficult to hire qualified

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staff. This is true even is the documents are released pursuant to a protective order.

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C.

Analysis

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As nited above, the Ninth Circuit has not recognized the self-critical analysis

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privilege, Union Pac. R.R. Co., 219 F.3d at 1076 n. 7, and the deliberative process

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privilege is inapplicable to the type of internal investigatory documents discussed here,

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Soto, 162 F.R.D. at 612. Accordingly, the issue here is whether the documents may be

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withheld under the official information privilege.

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The Court has weighed the potential benefits of disclosure against the potential

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disadvantages, Sanchez, 936 F.2d at 1033–34, and concludes that the balance tips

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rather clearly in favor of disclosure. The Court is sensitive to Defendants’ need to

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maintain institutional safety and security. Similarly, the Court appreciates the benefit to

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society and institutions within it when thorough and accurate investigations into alleged

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wrondoing are promoted. However, these records contain highly relevant information

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bearing directly on the incident at issue and potential liability. Contrary to earlier

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representations, the records contain reports of internal inquiries into the incident and

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the level of force used, and opinions and determinations as to whether particular

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exercises of force were or were not appropriate and in accordance with policy. These

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records include differing views of the propriety of the actions during the event than

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those reflected in the position taken by Defendants in this case. Justice would be

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poorly served if their contents were not made available for use in questioning, and

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possibly impeaching, lay and expert witnesses at the trial of this case.

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Given the foregoing, judicial preference for admitting competent, relevant

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evidence, and recognition that the balance is “moderately pre-weighted in favor of

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disclosure” in these cases, Soto, 162 F.R.D. at 613 (quoting Kelly, 114 F.R.D. at 661),

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the Court cannot justify withholding these records from Plaintiff on any basis proferred

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by Defendants. Accordingly, Defendants will be ordered to produce to Plaintiff the

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records listed as Items Nos. 1 and 4-7 in their supplemental privilege log, subject to the

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limitations discussed below.

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IV.

PROTECTIVE ORDER

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Defendants requested the opportunity to seek a protective order prohibiting

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Plaintiff from disclosing these confidential documents to others if produced to him. A

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protective order is indeed warranted given the institutional concerns articulated by

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Defendants. In light of the limited time remaining before trial, and the relatively

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straightforward nature of Defendants’ request, there is no need for Defendants to file a

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separate motion seeking a protective order. The Court’s Protective Order shall issue,

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sue sponte, as follows:

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Defendants shall produce the said material and Plaintiff may review it and use it

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in litigating this matter subject to and strictly in accordance with following terms and

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conditions:

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1. The confidential documents may be submitted to the possession of the
following persons:

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a. The Litigation Coordinator at the institution where Plaintiff is now

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housed;

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b. Counsel for Plaintiff in this action, should Plaintiff acquire counsel;

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c. Paralegal, stenographic, clerical, and secretarial personnel regularly

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employed by counsel for Plaintiff;

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d. Court personnel and stenographic reporters engaged in such

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proceedings as are incidental to the preparation for trial or trial of this

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action;

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e. Any outside expert or consultant retained by Plaintiff’s counsel for

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purposes of this action; and

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f. Non-inmate witnesses to whom the materials need be disclosed as

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necessary for preparation for trial and trial of this case, provided that

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each witness shall be informed of and agree in writing to be bound by

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the terms of this order, and shall not, in any event, be permitted to

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take or retain copies of the material .

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2. Plaintiff will be allowed to review the confidential materials, but he may not

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copy them, retain them, or retain copies of them in his possession. The

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Litigation Coordinator at Plaintiff’s institution shall allow Plaintiff up to 90

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minutes to review the materials and to take notes. Plaintiff may not disclose

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the documents to, or discuss their content with, any other inmate, nor may

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any other inmate review or have possession of the materials or Plaintiff’s

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notes.

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3. All material produced hereunder in possession of the Litigation Coordinator

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shall be destroyed or returned to the Defendants’ counsel no later than thirty

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days after trial of this matter.

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4. Upon final judgment and resolution of any appeal, Plaintiff or his counsel

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shall return or destroy all such materials still in or subject to their possession

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or control, and shall provide Defendants’ counsel with sworn declarations

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stating they have done so.

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5. Confidential material obtained by Plaintiff or his counsel shall not be

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disclosed, except as is necessary to the litigation of this case or its appeal,

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and for no other purpose.

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6. Any confidential material filed with the Court by either party shall be filed and
maintained under seal.

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7. Any violation of this Protective Order may be punishable as Contempt of

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Court and also may subject the violating party to litigations sanctions,

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including dispositive sanctions, in the Court’s discretion;

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8. Nothing in this Protective Order is intended to prevent officials or employees

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of the State of California, or other authorized government officials, from

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having access to confidential material to which they would have access in

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the normal course of their official duties.

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9. The provisions of this Protective Order are without prejudice to the right of
any party:
a. To apply to the Court for a further protective order relating to this or

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any confidential material or relating to discovery in this litigation;

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b. To apply to the Court for an order removing the confidential material

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designation from any documents;
c. To apply to the Court for an order modifying this Protective Order for
good cause shown; or
d. To object to a discovery request.
10. The provisions of this order shall remain in full force and effect until further
order of this Court.

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V.

ORDER

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Based on the foregoing, it is HEREBY ORDERED that, within ten days of this

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order, Item Nos. 1 and 4-7 on Defendants’ supplemental privilege log shall be

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produced in accordance with the Protective Order, and kept in the care and custody of

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

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

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review the materials. Plaintiff may take notes, but no copy of the materials shall be

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provided to Plaintiff.

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IT IS SO ORDERED.
Dated:

July 2, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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