Bosley v. Valasco et al

Filing 52

ORDER GRANTING IN PART Plaintiff's Motion to Compel 40 , signed by Magistrate Judge Michael J. Seng on 4/27/16: Seven-Day Deadline for In Camera Review. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT DEWAYNE BOSLEY, JR.,
Plaintiff,

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ORDER GRANTING IN PART
PLAINTIFF’S MOTION TO COMPEL

v.

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Case No. 1:14-cv-00049-MJS (PC)

(ECF No. 40)
M. VALASCO, et al.,

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Defendants.

SEVEN-DAY DEADLINE FOR IN
CAMERA REVIEW

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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 pursuant to 42 U.S.C. § 1983. This matter is before the undersigned
pursuant to the consent of the parties. (ECF Nos. 4, 26.)
Pending before the Court is Plaintiff’s motion to compel, which Defendant

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opposes. (ECF Nos. 40, 43.) For the reasons set forth here, Plaintiff’s motion will be
granted in part.
I.

RELEVANT BACKGROUND
A.

Introduction

Plaintiff initiated this action on January 14, 2014, and is proceeding on a Second
Amended Complaint that was found to state a Fourteenth Amendment excessive force
claim against Defendant Valasco. (ECF Nos. 13, 14.)

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On April 30, 2015, Defendant filed an Answer, and a Discovery and Scheduling
Order (“DSO”) issued shortly thereafter. (ECF Nos. 21, 22.) Pursuant to the DSO, the
discovery deadline was January 12, 2016, and the dispositive motion deadline was
March 21, 2016. The DSO directed the parties to file their responses to written
discovery requests forty-five days after requests were first served. DSO ¶ 2. The DSO
further directed the parties to serve discovery requests “sufficiently in advance of the
discovery deadline to permit time for a response and time to prepare and file a motion to
compel.” Id. ¶ 7.
On March 21, 2016, Defendant filed a motion for summary judgment. (ECF No.
48.) Plaintiff’s opposition to that motion is due on May 3, 2016. (See ECF No. 51.)
B.

Plaintiff’s Motion to Compel

In the instant motion to compel, which was purportedly mailed via institutional
mail on December 17, 2015, but was not filed with the Court until January 13, 2016,
Plaintiff moves for an order directing Defendant to respond to the following Requests for
Production of Documents (“RPD”):
1. The Central File aka “C” file pertaining to Marti Velasco
[sic], Correctional Officer at the Fresno County Jail,
regardless of date, including, but not limited to, all
records, disciplinary actions, electronically stored
information, incident reports, rule violation reports, file
grievances by inmates, Correctional Officer appeals,
Videotapes, and color photographs. Modified dated from
1-1-2013 to present.
2. I contend that Marti Velasco [sic] used excessive force
against Plaintiff on December 14, 2013 please supply the
following information identified by name below; the last
know [sic] address, and last know [sic] telephone
number, of each person with knowledge of the incident,
victims, and any witnesses present during the incident.
Witnesses: Jorge Hernandez, Jose Eduardo Garcia,
Gregory Luis Gomez, Lawrance Williams, and Jessie

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Moreno. Victims: Lucky Vang, Robbie Shanklen (Toledo),
and Saren Hem.

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3 Pl.’s Mot. Compel (“MTC”) at 2.
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Attached to Plaintiff’s motion is a California subpoena duces tecum signed by

5 him on January 7, 2016, but not directed to any particular person or entity. (ECF No. 40
6 at 4-6.) Under the section on the form for specifying the documents to be produced,
7 Plaintiff wrote:
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The Personel [sic] File aka “P” file pertaining to Marti
Velasco. [sic], Defendant, including but not limited to, all
records,
reports,
correspondence,
memorandums,
disciplinary actions, electronically stored information,
incident reports, inmate filed grievances, requests for
medical care and treatment, and color photographs. Dated
from January 1, 2013 to present.

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(ECF No. 40 at 4-6.) Under the section on the form for explaining why the documents
are sought and their relevance, Plaintiff wrote:
On September 28, 2015, Dec 17, 2015 Plaintiff issued a
subpoena duces tecum seeking the Defendant Personel [sic]
file Marti Velasco [sic] who is the Defendant employed at
Fresno County Jail recognize that 42 U.S.C. § 290dd-2(b)
provide also under code of civil procedure section 1985.3
[illegible] 1985.6 provides that the court may order the
disclosure of employee records if it finds good cause to do
so, however Defendant Attorney objects authorization the
release without a court order or authorization indicating that
the documents are necessary to the administration of justice.
[¶]
Defendant was allowed an opportunity to release of his
records and declined. However Defendant Employment
ethics is in question within the civil case and the production
of documents therefore necessary for the administration of
justice and adequately prepare, answer defendant’s
interrogatories and properly execute Plaintiff claim set forth.

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According to “Motion to Compel” Defendant will produce the
employee records of Marti Velasco [sic] pursuant this order.

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3 (ECF No. 41 at 5.)
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In his opposition, Defendant asks the Court to deny Plaintiff’s motion as untimely,

5 as well as based on the official information privilege and privacy. (ECF No. 43.)
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C.

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The Parties’ Discovery Efforts
1.

Plaintiff’s Discovery Efforts

Though Plaintiff’s cursory motion does not include details describing when or

9 how he asked Defendant for the documents and information that he now seeks, or what
10 the objections were to those requests, Defendant’s opposition provides some context.
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Set One: On September 28, 2015, Plaintiff served his first set of discovery

12 requests on Defendant, which included 7 RPD, 36 Requests for Admissions (“RFA”),
13 and 10 Interrogatories (“Set One”). Klar Decl. ¶ 2, Ex. A. Included in this set was RPD
14 No. 6, which asked for “All documents non-confidential contained in defendant’s
15 personnel file. Incident reports, disciplinary report any similar situations that supports
16 [sic] the allegations.” Klar Decl. Ex. A (ECF No. 43 at 19).
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On November 12, 2015, Defendant served his responses to these discovery

18 requests. Klar Decl. Ex. B. Relevant here, Defendant objected to RPD No. 6, Set One,
19 as follows:
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Objection: Defendant objects on the ground that the request
imposes undue burden (FRCP 26(c)) and is protected by the
qualified privilege for official information, under Sanchez v.
City of Santa Ana, 936 F.2d 1027, 1033-1034 (9th Cir.
1990); Soto v. City of Concord, 162 F.R.D. 603 (N.D. Cal.
1995.) The request also seeks documents that if disclosed,
will violate the Defendant’s privacy rights. Defendant further
objects because this request is overbroad and unduly
burdensome.

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27 Klar Decl. Ex. B (ECF No. 43 at 24).
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On December 6, 2015, Plaintiff sent Defendant a meet and confer letter
regarding Defendant’s responses, reiterating his request for the documents in
Defendant’s personnel file. Klar Decl. ¶ 6, Ex. E.
On December 15, 2015, Defendant re-asserted his privilege and privacy
objections. Klar Decl. ¶ 7, Ex. F.
Set Two: On October 28, 2015, Plaintiff served a second set of discovery,
including 7 RPD, 26 RFA, and 12 Interrogatories (“Set Two”). Klar Decl. ¶ 3, Ex. C.
Included in Set Two was RPD No. 6, which, like RPD No. 6, Set One, sought “All
documents non-confidential contained in defendant’s personnel file. Incident reports,
disciplinary report any similar situations that supports the allegations.” Klar Decl. Ex. C
(ECF No. 43 at 29).
Defendant responded to these discovery requests on December 9, 2015. Klar
Decl. Ex. D. As to RPD No. 6, Set Two, Defendant’s objection was identical to that
previously made, but he also objected to the request for being burdensome, harassing,
and oppressive. Id. (ECF No. 43 at 36).
Set Three: On December 18, 2015, less than one month before the conclusion of
the discovery period, Plaintiff sent Defendant a letter making an informal request for
production of documents. Klar Decl. ¶ 8, Ex. G. There, he asked for the “last known
address and last known telephone number of each person that I believe were witnesses
present during the incident or victims of Marti Velasco [sic]. 1. Jorge Hernandez; 2. Jose
Eduardo Garcia; 3. Gregory Luis Gamez; 4. Lawrence Williams; 5. Jessie Moreno; 6.
Lucky Vang; 7. Robbie Shanklen (Toledo); 8. Saren Hem.” Klar Decl. ¶ 8, Ex. G.
On January 11, 2016, Defendant objected to this request as follows:

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Objection: Pursuant to the Discovery and Scheduling Order
(Document 22), Plaintiff’s request is untimely. Responses to
written discovery shall be due forty-five days after the
request is first served. (Doc. 22, 2:22-23.) Discovery
requests must be served sufficiently in advance of the
discovery deadline to permit time for a response. (Id., 7:275

28.) Defendant’s responses are due on February 1, 2016,
which is after the discovery cut-off date of January 12, 2016.
Therefore, Plaintiff’s request is untimely. Defendant further
objects on the basis that this request does not seek the
production of documents, but rather seeks information.

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5 Klar Decl. ¶ 9, Ex. H (ECF No. 43 at 52).
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Set Four: Finally, on January 7, 2016, Plaintiff served a California state court civil

7 subpoena duces tecum on Defendant.1 Klar Decl. ¶ 10, Ex. I.
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Defendant objected to the subpoena on January 12, 2016, for failure to properly

9 serve a properly-issued subpoena, undue burden, official information privilege, and
10 privacy. Klar Decl. ¶ 10, Ex. J.
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2.

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Defendant’s Discovery Efforts

On November 24, 2015, Defendant deposed Plaintiff. Klar Decl. ¶ 4. The next

13 day, on November 25, 2015, Defendant sent Plaintiff his first set of discovery, which
14 included RPD and Interrogatories. Klar Decl. ¶ 5.
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On December 29, 2015, Defendant filed a stipulated protective order re mental

16 health records for Plaintiff. (ECF No. 37.) This motion was denied on January 8, 2016,
17 but leave to re-file was granted. (ECF No. 39.) On February 8, 2016, Defendant re-filed
18 his motion, and on March 25, 2016, the motion was granted. (ECF Nos. 6, 50.) Plaintiff
19 was directed to submit his mental health records within fourteen days from the date of
20 the order.
21 II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 26(b)(1) (as amended eff. Dec. 1, 2015) sets

23 forth the following standard pertaining to relevance:
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Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant

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This subpoena appears to be the same subpoena as the one attached to Plaintiff’s motion.

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information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Limitations to discovery are set forth in Federal Rule of Civil Procedure

6 26(b)(2)(C), which provides:
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On motion or on its own, the court must limit the frequency
or extent of discovery otherwise allowed by these rules or by
local rule if it determines that:

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(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).
Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking

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discovery may move for an order compelling an answer, designation, production, or
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inspection.” Fed. R. Civ. P. 37(a)(3) (B). The court may order a party to provide further
responses to an “evasive or incomplete disclosure, answer, or response.” Fed. R. Civ.
P. 37(a)(4). “District courts have ‘broad discretion to manage discovery and to control
the course of litigation under Federal Rule of Civil Procedure 16.’” Hunt v. County of

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Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation
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Trust, 633 F.3d 828, 833 (9th Cir. 2011)). Generally, if the responding party objects to a
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discovery request, the party moving to compel bears the burden of demonstrating why
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the objections are not justified. E.g., Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D.
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Cal. Jan. 13, 2012); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008).
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This requires the moving party to inform the Court which discovery requests are the
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subject of the motion to compel, and, for each disputed response, why the information
sought is relevant and why the responding party's objections are not meritorious.
Grabek, 2012 WL 113799, at *1; Womack v. Virga, 2011 WL 6703958, at *3 (E.D. Cal.
Dec. 21, 2011).

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The Court is vested with broad discretion to manage discovery and
notwithstanding these procedures, Plaintiff is entitled to leniency as a pro se litigant;
therefore, to the extent possible, the Court endeavors to resolve Plaintiff's motion to
compel on its merits. Hunt, 672 F.3d at 616; Surfvivor Media, Inc. v. Survivor
Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751
(9th Cir. 2002).
III.

DISCUSSION
A.

Timeliness

Defendant first objects to Plaintiff’s motion on the ground that it is untimely since
it was filed on January 13, 2016, one day after the close of the discovery period.
Plaintiff's filing, however, is accorded the benefit of the prison mailbox rule, pursuant to
which a document is deemed served or filed on the date a prisoner signs the document
(or signs the proof of service, if later) and gives it to prison officials for mailing. See
Houston v. Lack, 487 U.S. 266 (1988) (establishing prison mailbox rule); Campbell v.
Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (applying the mailbox rule to both state and
federal filings by prisoners). On the attached proof of service, Plaintiff certifies that he
placed a copy of the motion in the institutional mail on December 17, 2015. (See ECF
No. 40 at 3.) However, the subpoena duces tecum that is attached to the motion is
signed by Plaintiff and dated January 7, 2016. (See id. at 5.) Using the date on the lastsigned document and applying the prison mailbox rule, the Court concludes that
Plaintiff’s motion is not untimely. Therefore, this objection is overruled.

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B.

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The Court next turns to Plaintiff’s request for a copy of Defendant’s personnel
file. Defendant opposes this request pursuant to the official information privilege and his
right to privacy.2 3

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1.

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Redmond, 518 U.S. 1, 9 (1996). “The party asserting an evidentiary privilege has the
burden to demonstrate that the privilege applies to the information in question.” Tornay
v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). Privileges are to be “strictly
construed” because they “impede full and free discovery of the truth.” Eureka Fin. Corp.
v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). “If the privilege
is worth protecting, a litigant must be prepared to expend some time to justify the
assertion of the privilege.” Id.
In civil rights cases brought under section 1983, questions of privilege are
resolved by federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d
192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from statutes or
court decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of
San Jose, 114 F.R.D. 653, 655–56 (N.D. Cal. 1987).

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Official Information Privilege

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

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Plaintiff’s Request for Defendant’s Personnel File

“Federal common law recognizes a qualified privilege for official information.”
Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511
F.2d at 198.

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The discoverability of official documents should be determined under the

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During the course of discovery, Plaintiff has requested a copy of Defendant’s personnel file multiple times,
including in both Sets One and Two. Since those requests were properly and timely served, the Court declines to
reach Defendant’s argument that Plaintiff’s identical request in the subpoena duces tecum is untimely under the
DSO and improper pursuant to Federal Rule of Civil Procedure 45.

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To the extent Defendant has objected on other grounds to these requests, the Court will not address those not

27 briefed by Defendant in the opposition brief and only asserted through blanket objections. Defendant has waived
these objections by failing to provide reasons for the objections as required under Federal Rule of Civil Procedure

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“balancing approach that is moderately pre-weighted in favor of disclosure.” Kelly, 114
F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by
making a “substantial threshold showing.” Id. at 669. The party must file an objection
and submit a declaration or affidavit from a responsible official with personal knowledge
of the matters attested to by the official. Id. The affidavit or declaration must include (1)
an affirmation that the agency has generated or collected the requested material and
that it has maintained its confidentiality, (2) a statement that the material has been
personally reviewed by the official, (3) a description of the governmental or privacy
interests that would be threatened by disclosure of the material to the plaintiff or
plaintiff's attorney, (4) a description of how disclosure under a protective order would
create a substantial risk of harm to those interests, and (5) a projection of the harm to
the threatened interest or interests if disclosure were made. Id. at 670. Requiring the
defendant to make a “substantial threshold showing” allows the plaintiff to assess the
defendant's privilege assertions and decide whether they should be challenged. Id.
With his opposition, Defendant submits the declaration of John J. Zanoni, a
Sheriff’s Lieutenant with the Fresno County Sheriff’s Office (“Sheriff’s Office”) in the
Personnel and Internal Affairs Units. See Def.’s Opp’n Ex. 2. Mr. Zanoni declares that
he has personally reviewed Defendant’s personnel and internal affairs files and
concludes that the Sheriff’s Office has serious privacy and confidentiality concerns in
releasing them. Zanoni Decl. ¶¶ 3-4. He claims that releasing these documents would
include irrelevant information, such as Defendant’s private medical information, family
information and other personal information. Id. ¶ 5. Mr. Zanoni also claims that the
release of this information would affect the safety of individuals involved in Internal
Affairs investigations, such as Defendant, other officers, staff and inmate witnesses, and
confidential informants. Id. ¶¶ 7-8. In addition, he contends that “disclosure of
confidential investigations would seriously compromise the Sheriff’s Office [sic] ability to
conduct accurate, truthful and reliable investigations, which could jeopardize the safety

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and security of the Fresno County Jail.” Id. ¶ 10. Moreover, disclosure of Internal Affairs
investigation documents could undermine the investigative process and obstruct further
investigations by educating inmates about the Sheriff’s Office’s investigatory strategies
and procedures. Id. ¶ 11. He concludes that the harm that would be incurred following
the release of this information even if the Court issues a protective order because “it is
unlikely that Plaintiff will follow the court order because of his pro se status.” Id. ¶ 12.
The Court has reviewed Mr. Zanoni’s declaration, but notes the absence of a
privilege log attached to it, to Defendant’s opposition to the instant motion, or even to
Defendant’s objections to Plaintiff’s discovery requests. “The asserting party, as in any
case where a privilege is claimed, must sufficiently identify the documents so as to
afford the requesting party an opportunity to challenge the assertion of privilege.” Miller
v. Pancucci, 141 F.R.D. 292, 300 (9th Cir. 1992). Pursuant to Federal Rule of Civil
Procedure 26(b)(5)(A),

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When a party withholds information otherwise discoverable
by claiming that the information is privileged or subject to
protection as trial-preparation material, the party must:

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(i)

expressly make the claim; and

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(ii)

describe the nature of the documents,
communications, or tangible things not
produced or disclosed – and do so in a manner
that, without revealing information itself
privileged or protected, will enable other parties
to assess the claim.

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The advisory committee notes to Rule 26(b)(5) make clear that withholding otherwise
discoverable materials on the basis that they are privileged or subject to the work
product doctrine without notifying the other parties as provided in Rule 26(b)(5)(A) by
describing the nature of the information so as to enable them to assess the claim “may
be viewed as a waiver of the privilege or protection.” Fed. R. Civ. Pro. 26(b)(5) advisory
committee's comment (emphasis added). The advisory committee comments also
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indicate that if it appears complying with the privilege log requirements presents an
undue burden, a party may seek relief through a protective order. Id. Defendant did not
move for a protective order to relieve him of the obligation of providing a privilege log.
Nonetheless, the Ninth Circuit has “reject[ed] a per se waiver rule that deems a
privilege waived if a privilege log is not produced within Rule 34’s 30-day time limit.”
Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Ct. for the Dist. of Mont., 408 F.3d
1142, 1149 (9th Cir. 2005). Instead, the Ninth Circuit has instructed courts to look at the
following factors in determining whether a waiver has occurred: (1) “the degree to which
the objection or assertion of privilege enables the litigant seeking discovery and the
court to evaluate whether each of the withheld documents is privileged;” (2) “the
timeliness of the objection and accompanying information about the withheld
documents;” (3) “the magnitude of the document production;” and (4) “other particular
circumstances of the litigation that make responding to discovery unusually easy ... or
unusually hard.” Id. In evaluating these factors, the court is directed to apply them “in
the context of a holistic reasonableness analysis” and not in a “mechanistic
determination of whether the information is provided in a particular format.” Id.
(emphasis added).
Here, the balance of the Burlington factors weighs in favor of finding that
Defendant has waived the assertion of this privilege. As to the first factor, neither
Defendant’s objections to Plaintiff’s discovery requests nor his opposition to the instant
motion give sufficient details regarding the contents of the personnel file. The only
specific information is that the file includes Defendant’s private medical information and
“family information,” which the Court presumes to include Defendant’s home address.
The remainder of Mr. Zanoni’s declaration is directed to generalized safety fears and
potential for harm if courts were to require the release of, inter alia, confidential
investigations and internal affairs documents. There is no suggestion, however, that
such documents in fact exist in Defendant’s personnel file and are relevant to this

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action. As to the second and third factors, a privilege log has not yet been provided in
this case, leaving the Court with no indication as to the magnitude of the document
production. Finally, though litigation involving a pro se prisoner carries with it some
obstacles, there is no cognizable reason why Defendant was unable to provide a
privilege log in response to Plaintiff’s valid request.
Even assuming, however, that the Court did not find a waiver, Defendant has not
carried his burden of showing that the information in the personnel file is covered by the
official information privilege. As the party asserting the privilege, Defendant must
properly invoke the privilege by making a “substantial threshold showing,” which he has
not done. Kelly, 114 F.R.D. at 669. Defendant has instead relied on boilerplate claims of
harm, which have regularly been rejected by courts. Id. at 672 (“A general claim of harm
to the public interest would not be sufficient to overcome the burden placed on the party
seeking to shield material from disclosure.”); Miller, 141 F.R.D. at 302. See also, e.g.,
Bird v. Mayhew, 2016 WL 374555, at *6 (E.D. Cal. Feb. 1, 2016) (“Defendant asserts
the official information privilege by presenting boilerplate objections that fails to comply
with the above requirements.”); Johnson v. Sandy, 2014 WL 4631642, at *11 (E.D. Cal.
Sept. 15, 2014) (rejecting “broad objections and boilerplate claims of confidentiality and
policy rights”). Furthermore, the fear that disclosure of internal affairs investigations
would likely result in reduced participation by officers and the like has no empirical
basis. Kelly 114 F.R.D. at 664 (“no empirical study supports the contention that the
possibility of disclosure would make officers who participate (as respondents or as
investigators) in internal affairs investigations less honest,” and “in the absence of
special circumstances proved by law enforcement defendants, courts should ascribe
little weight to a police department's purported interest in preserving the anonymity of
citizen complainants.”). Lastly, Defendant outlines the potential for abuse of the
confidential information but does not explain how disclosure of any of the documents
subject to a carefully crafted protective order would create a substantial risk of harm to

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these governmental interests.
Defendant’s claim of official information privilege is therefore overruled.

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2.

Privacy

With respect to privacy rights, federal courts recognize a constitutionally-based
right of privacy that may be asserted in response to discovery requests. Soto, 162
F.R.D. at 616. The resolution of a party's privacy objection involves balancing the need
for the information sought against the privacy right asserted. Id. (citing Perry v. State
Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984)). “In the context of the
disclosure of police files, courts have recognized that privacy rights are not
inconsequential.” Soto, 162 F.R.D. at 616. “[F]ederal courts generally should give some
weight to privacy rights that are protected by state constitutions or state statutes.” Kelly,
114 F.R.D. at 656. “However, these privacy interests must be balanced against the
great weight afforded to federal law in civil rights cases against police departments.”
Soto, 162 F.R.D. at 616.
The Court acknowledges Defendant’s interest in his privacy, but also recognizes
that courts have fulfilled a plaintiff's need for discovery while protecting a defendant's
privacy by ordering the production of documents subject to a protective order limiting
the access to the material at issue to plaintiff, his counsel and those experts who require
such information to formulate an opinion. Soto, 162 F.R.D. at 617. Defendant’s privacy
objection is overruled.
Defendant asks that, in the event the Court grants Plaintiff’s motion as to his
personnel file, that the Court issue an order undertaking an in camera review of the
information subject to disclosure and to then determine what information, if any, should
be released. This request will be granted.
C.

Plaintiff’s Request for Witness Information

In Set Three, Plaintiff sent a letter to Defendant dated December 18, 2015,
asking for the “last known address and last known telephone number of each person

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that I believe were witnesses present during the incident or victims of Marti Velasco
[sic]. 1. Jorge Hernandez; 2. Jose Eduardo Garcia; 3. Gregory Luis Gamez; 4.
Lawrence Williams; 5. Jessie Moreno; 6. Lucky Vang; 7. Robbie Shanklen (Toledo); 8.
Saren Hem.” Klar Decl. ¶ 8, Ex. G.
Defendant objects to this request as untimely under the DSO and improperly
served pursuant to Federal Rules of Civil Procedure 33 and 34. He also asserts thirdparty privacy rights.
As indicated supra, the DSO directed the parties to file their responses to written
discovery requests forty-five days after the requests are first served. DSO ¶ 2. The DSO
further directed the parties to serve discovery requests “sufficiently in advance of the
discovery deadline to permit time for a response and time to prepare and file a motion to
compel.” Id. ¶ 7. Assuming for the moment that the form of Plaintiff’s request was
proper, the Court agrees with Defendant that the request was untimely since it was not
served sufficiently in advance to permit Defendant to respond before the close of the
discovery period and for a motion to compel be filed. Nonetheless, the Court concludes
that there is good cause to allow the present motion. See Fed. R. Civ. P. 16(b)(4) (“A
schedule may be modified only for good cause and with the judge’s consent.”).
Defendant also claims that Plaintiff’s motion to compel should be denied because
his request was informally made in a letter and not pursuant to the formal requirements
of the Federal Rules of Civil Procedure. This informality, however, did not prevent
Defendant from responding. “[W]hen one party responds to another’s informal request,
resort to a motion to compel is an acceptable next step.” M.M. v. Yuma County, 2011
WL 5445336, at *2 (D. Ariz. Nov. 10, 2011) (internal citations omitted).
Defendant’s final argument is that “the information Plaintiff seeks, last known
address and telephone number of the above named inmates, violate privacy rights of
these individuals. Releasing this information can create safety and security risks to

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these inmates.”4 While a bare assertion of privilege or privacy is not sufficient and the
witnesses' names are not shielded from disclosure in any event, Defendant is not
required to disclose telephone numbers or addresses. Seattle Times Co. v. Rhinehart,
467 U.S. 20, 35 n.21 (1984); Burlington, 408 F.3d at 1149; Soto, 162 F.R.D. at 616.

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Generally, if the responding party objects to a discovery request, the party
moving to compel bears the burden of demonstrating why the objections are not
justified. E.g., Grabek, 2012 WL 113799, at *1; Mitchell v. Felker, 2010 WL 3835765, at
*2 (E.D. Cal. Sep. 29, 2010); Ellis, 2008 WL 860523, at *4. This requires the moving
party to inform the Court which discovery requests are the subject of the motion to
compel, and, for each disputed response, why the information sought is relevant and
why the responding party's objections are not meritorious. Grabek, 2012 WL 113799, at
*1; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4.

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Here, Plaintiff has not addressed these privacy concerns, much less
demonstrated that his need for the information outweighs the third party privacy
interests. Accordingly, in the absence of any argument from Plaintiff, the Court will not
require Defendant to produce addresses or telephone numbers in response to Plaintiff’s
request.
V.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel (ECF No. 40) is GRANTED IN PART and DENIED

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IN PART as follows:

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a. Plaintiff’s request for a copy of Defendant’s personnel file, limited to

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those documents that are relevant to this action, and dated from

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Defendant did not raise this objection in his January 11, 2016, response to Plaintiff’s request. See Klar Decl. Ex. H.

26 When ruling on a motion to compel, a court “generally considers only those objections that have been timely
asserted in the initial response to the discovery request and that are subsequently reasserted and relied upon in

27 response to the motion to compel.” Calderon v. Experian Info. Solutions, Inc., 290 F.R.D. 508, 516 n. 4 (D.Idaho
2013) (citation omitted). Though Defendant’s argument appears to be untimely asserted in his opposition, the

28 Court will nonetheless consider it in light of the interests involved. Hunt, 672 F.3d at 616.
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January 1, 2013, to the present, is GRANTED.

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b. Plaintiff’s remaining requests are DENIED.
2. Defendant shall submit an unredacted copy of his personnel file to the Court

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for an in camera review within seven days from the date of this Order.

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Dated:

April 27, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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