Sansone v. Thomas

Filing 79

ORDER re: Production of Documents Submitted For In Camera Review, signed by Magistrate Judge Erica P. Grosjean on 11/21/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. SANSONE,

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Plaintiff,

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Case No. 1:13-cv-01942-DAD-EPG (PC)
ORDER RE: PRODUCTION OF
DOCUMENTS SUBMITTED FOR IN
CAMERA REVIEW

v.

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J.C. THOMAS, ET AL.,
Defendants.

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Plaintiff Richard M. Sansone is a state prisoner proceeding pro se in this civil rights

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action under 42 U.S.C. § 1983. Plaintiff alleges a violation of his Eighth Amendment rights

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based on Defendants’ excessive use of force against him while he was incarcerated at

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California State Prison - Corcoran.

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Pursuant to the Court’s order requiring initial disclosures (ECF No. 54), Defendant J.C.

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Thomas provided a privilege log indicating he was withholding certain documents pursuant to

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the Official Information Privilege. During a telephonic initial scheduling conference, as

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clarified in a subsequent order, the Court ordered Defendant to submit the documents that were

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withheld for in camera review. (ECF No. 67.) Defendant timely submitted such documents for

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in camera review. Defendant submitted a privilege log that had been produced to Plaintiff, a

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declaration by M. Kimbrell, the Litigation Coordinator at CSP – Corcoran, the original
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response to Plaintiff’s requests for production, and documents bates stamped AGO – 0037 to

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AGO – 0055. The Court has reviewed the documents and orders certain disclosures.

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I.

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LEGAL STANDARDS
In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975),

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aff'd 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government’s

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claim of the official information privilege as a basis to withhold documents sought under the

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Freedom of Information Act. It explained that the “common law governmental privilege

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(encompassing and referred to sometimes as the official or state secret privilege) . . . is only a

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qualified privilege, contingent upon the competing interests of the requesting litigant and

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subject to disclosure . . . .” Id.at 198 (internal citations and quotations omitted).

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The Ninth Circuit has since followed Kerr in requiring a balancing of interests and in

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camera review in ruling on the government’s claim of the official information privilege. See,

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e.g., Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming Magistrate Judge

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order compelling disclosure and stating “Federal common law recognizes a qualified privilege

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for official information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th

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Cir. 1976) (“Also, as required by Kerr, we recognize ‘that in camera review is a highly

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appropriate and useful means of dealing with claims of governmental privilege.’”); Kerr, 511

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F.2d at 198. “Government personnel files are considered official information. To determine

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whether the information sought is privileged, courts must weigh the potential benefits of

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disclosure against the potential disadvantages. If the latter is greater, the privilege bars

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discovery.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended

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on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (internal

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citations and quotations omitted).

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II.

ANALYSIS
Defendant has withheld reports, memoranda, and other documents related to a

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personnel investigation associated with the underlying event in this case. Specifically, the

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withheld documents include:

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An Incident Commander’s Review Report, dated October 28, 2013;

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Manager Review reports for two levels of review, dated October 30, 2013 and

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December 10, 2013;
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Four reports from the Institutional Executive Review Committee, one dated May
13, 2014 and three dated May 7, 2014; and,

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A report detailing an interview with Plaintiff, dated December 10, 2013.

Notably, some of the documents reference a video tape interview of Plaintiff. It is

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unclear, however, whether that interview has been produced to Plaintiff or is included within

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the documents for which Defendant is claiming a privilege.

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The Declaration of M. Kimbrell details a number of reasons why the documents should

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not be disclosed. Among other reasons, Kimbrell states that the process and findings of

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investigations conducted by CDCR are confidential and that such confidentiality promotes

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truthfulness in the investigation. Moreover, Kimbrell argues, the investigatory process that

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CDCR uses must be protected from inmates to preserve it from potential manipulation.

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Moreover, the documents include sensitive personal information of CDCR employees, which is

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protected by state law.

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Defendants may withhold personal information that is required to protect the privacy

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and security of correctional officers. This decision is without prejudice to a later request by

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Plaintiff for sufficient information about the witnesses to compel their attendance at deposition

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or trial, if necessary. To the extent the documents discuss the investigation policies or

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procedures that CDCR follows or used in its internal investigation, they are also privileged.

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Where, however, the documents discuss the underlying facts of the case, no privilege attaches

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and the documents are discoverable. In some cases, the reviewed documents contain both

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categories of information and it is appropriate to redact the documents before production.

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Specifically, the Court will allow Defendants to withhold Privilege Log Item Nos. 1, 2,

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and 3 in their entireties. Those documents discuss the applicable CDCR policies and contain

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little or no unique factual information describing the underlying incident. Rather, they concern

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administrative actions taken as a result of the investigation. Such internal CDCR proceedings
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are not relevant to the factual questions in this case and any relevant information is outweighed

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by concerns regarding revealing internal CDCR procedures.

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Privilege Log Item No. 4 is a Memorandum by the Institutional Executive Review

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Committee, dated May 13, 2014. This document contains a variety of information, including

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factual information about the incident in question. It also discusses, however, investigative

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actions taken after the incident, as well as information about other, unrelated incidents. It also

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contains information about CDCR employees unrelated to the incident in this case. The Court

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thus determines that this document may be produced in redacted form. In particular, the

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portions of AGO – 0044 and AGO – 0045 that describe only the sequence of events that

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occurred on October 22, 2013 should be produced to Plaintiff. The remainder of the

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Memorandum can be redacted, including, for example, the lower half of AGO – 0045 and the

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remainder of the document. Substantial portions of the cover page to the memorandum (AG –

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0043) have little or no relevance and may be redacted, as well.

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Privilege Log Nos. 5, 6, and 7 are, similar to Nos. 1 – 3, focused largely on the

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administrative actions after the incident occurred and contain little information of relevance to

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the claims in this case. Thus, the privilege is properly asserted with respect to these documents

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and disclosure is not required.

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Finally, Privilege Log No. 8 is a report dated December 10, 2013 that summarizes an

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interview of Plaintiff that was conducted after the incident. This document consists of factual

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information that Plaintiff provided in his interview with correctional officers and does not

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appear to include information related to actions or investigations that occurred after the

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incident. This document should thus be produced.

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within 14 days from this order, Defendant shall produce to Plaintiff the documents

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withheld under the official information privilege and provided in camera to the

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Court as described in this order.

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2. Within 30 days from this order, Defendants shall either provide Plaintiff with the
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video of Plaintiff’s November 22, 2013 interview or provide it to the Court for

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further in camera review.

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IT IS SO ORDERED.
Dated:

November 21, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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