Kinney v. Brazelton, et al.

Filing 81

ORDER REGARDING DISCOVERY signed by Magistrate Judge Michael J. Seng on 11/28/2016. Telephonic Discovery Dispute Conference set for 1/13/2017 at 01:30 PM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIJON KINNEY,

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CASE NO. 1:14-cv-00503-AWI-MJS (PC)
Plaintiff,

v.
P.D. BRAZELTON, et al.,

ORDER REGARDING DISCOVERY
Telephonic Discovery Dispute
Conference: January 13, 2017 at 1:30
p.m. in Courtroom 6 (MJS)

Defendants.

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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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Defendant Flores on Plaintiff’s Eighth Amendment claims for inadequate medical care

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and cruel and unusual punishment.

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On May 27, 2016, the undersigned set this matter for a telephonic discovery

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dispute conference. (ECF No. 56.) In relation to that conference, the undersigned

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ordered the parties to meet and confer and “attempt to resolve Plaintiff’s requests for

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transcripts, videos, and photographs.” Additionally, Defendant was ordered to submit

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certain specified documents for in camera review, and to file any objections he may have

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to the release of such documents to Plaintiff. Defendant instead filed objections to the

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order. (ECF No. 62.) Those objections were overruled by the District Judge and the

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matter was referred back to the undersigned. (ECF No. 71.)

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The matter will be set for a telephonic discovery dispute conference to address

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the following matters that remain in dispute.

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I.

Photographs

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The parties appear to agree that photographs were taken of Plaintiff’s injuries and

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that those photographs are not contained in Plaintiff’s medical records. Plaintiff maintains

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he is unable to access these photographs on his own.

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The parties again will be ordered to meet and confer and attempt to resolve this

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issue without Court intervention. In the event they are unable to do so, the issue will be

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addressed in the telephonic discovery dispute conference. The Court then will consider

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whether further orders are necessary or appropriate to facilitate Plaintiff’s access to

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these photographs.

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II.

Video Footage and Investigatory Materials

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Defendant was ordered to meet and confer with Plaintiff to attempt to resolve

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Plaintiff’s request for video footage of the incident. He also was ordered to submit the

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following documents for in camera review: “any and all documents in Defendant's

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possession, custody, or subject to his control relating to the investigation of the August

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14, 2012 incident by the California Department of Corrections and Rehabilitation and/or

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the Office of the Inspector General.”

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Defendant objected to these orders on the grounds that the video footage is

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confidential under California law and that the investigatory materials are confidential and

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subject to the official information privilege.

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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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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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In order for the Court to weigh “the potential benefits of disclosure against the

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potential disadvantages,” Sanchez, 936 F.2d at 1033-34, Defendant once again will be

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ordered to submit the following documents for in camera review: any and all documents

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in Defendant's possession, custody, or subject to his control relating to the investigation

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of the August 14, 2012 incident by the California Department of Corrections and

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Rehabilitation and/or the Office of the Inspector General. Defendant also will be ordered

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to submit any and all video footage of the incident for in camera review.

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Defendant again is invited to file and serve a statement of objections, if any he

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has, to release of such documents to Plaintiff. To the extent Defendant intends to claim

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the official information privilege, Defendant is reminded that he “must be prepared to

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expend some time to justify the assertion of the privilege.” Eureka Fin. Corp., 136 F.R.D.

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at 183 (E.D. Cal. 1991). Mere argument, such as that presented to the District Judge, is

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insufficient. Soto, 162 F.R.D. at 613; Kerr, 511 F.2d at 198. Additionally, Defendant must

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file and serve a privilege log identifying the documents he claims are privileged, so that

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Plaintiff may be prepared to respond to Defendant’s claim of privilege. Miller, 141 F.R.D.

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at 300.

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The Court is cognizant of Defendant’s prior argument that no protective order

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would be adequate to protect against the security concerns implicated by disclosure of

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these documents. Nonetheless, Defendant once again is invited to file and serve a

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proposed protective order for the Court’s review, in the event the Court determines that

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disclosure of these materials to Plaintiff is appropriate.

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III.

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Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:
1. This matter is set for a telephonic discovery dispute conference on January
13, 2017 at 1:30 p.m. in Courtroom 6 (MJS).

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2. Defense counsel shall arrange for Plaintiff’s participation in the conference.

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3. The Parties shall participate by calling [phone] and then entering

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access code 4446176#.
4. Prior to the conference, the parties shall meet and confer to attempt to resolve
Plaintiff’s requests for photographs of his injuries.

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5. No later than January 3, 2017, Defendant shall submit the following materials

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for in camera review: any and all documents in Defendant's possession,

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custody, or subject to his control relating to the investigation of the August 14,

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2012 incident by the California Department of Corrections and Rehabilitation

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and/or the Office of the Inspector General; and any and all video footage of

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the August 14, 2012 incident;

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6. Documents may be submitted for in camera

review by email to

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[e-mail]. Videos may be submitted for in camera review

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through the Clerk’s Office;

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7. Simultaneous with such submission, Defendant shall file and serve a

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statement of objections, if any he has, to the release of such documents to

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Plaintiff. Objections that the discovery requests are untimely need not be

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repeated. If Defendant contends that such documents should only be released

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pursuant to a protective order, Defendant may provide a proposed protective

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order for the Court’s review.

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IT IS SO ORDERED.
Dated:

November 28, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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