Chappell v. Fleming et al

Filing 88

ORDER signed by Magistrate Judge Allison Claire on 02/19/15 ordering the clerk of the court is directed to file attachment 1 to this order under seal. The clerk of the court is further directed to mail a copy of the attachment 1 to counsel for the defendants only. Within 10 days of the filing of this order, the defendants shall show cause why they should not serve plaintiff with the redacted copies of Exhibits J and K (confidential memoranda dated 9/28/09 and February 2, 2010 respectively) fi led here as attachment 1(under seal). Defendants may submit their response via email. In the alternative, defendants may discharge the order to show cause by filing notice that they have served plaintiff with the redacted exhibits, and by filing a copy of the redacted Exhibits J and K in support of their summary judgment motion. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REX CHAPPELL,

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No. 2:12-cv-00234 MCE AC P

Plaintiff,
v.

ORDER AND ORDER TO SHOW CAUSE

B. FLEMING, et al.,
Defendants.

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On February 5, 2015, the defendants filed a Notice of Request to Seal Documents in

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which they identified three confidential memoranda that they sought to have filed under sealed.

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ECF. No. 84-6. Because the request to seal documents did not address whether plaintiff was

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provided with redacted copies of the documents, and there was no explanation as to why

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measures such as redaction and limited access would be insufficient to address security concerns,

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defendants were ordered to serve plaintiff with redacted copies or explain why redaction was

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insufficient. ECF No. 85. In the event defendants believed production was inappropriate and

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their response to the order contained sensitive information, they were permitted to submit their

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response ex parte via email. Id. at 2.

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On February 13, 2015, defendants provided an ex parte response to the February 5, 2015

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order via email. They advised that redacted versions of the sealed exhibits had been prepared, but

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expressed concerns over the production of redacted versions of Exhibits J and K (confidential
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memoranda dated September 28, 2009, and February 2, 2010, respectively). On February 18,

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2015, defendants filed notice that they have served plaintiff with the Request to File Documents

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Under Seal, proposed order, and a redacted version of Exhibit I (confidential memorandum dated

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May 11, 2009).

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While defendants’ concerns regarding Exhibits J and K are valid, the court believes that

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these concerns can be addressed by redaction. Although proposed redacted copies of the exhibits

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have not been provided to the court, defendants’ response indicates that they understood the court

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to contemplate only redaction of inmate names and identification numbers. The court recognizes

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that such limited redaction may be insufficient to address valid security considerations. However,

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the directive to redact was not intended to be interpreted so narrowly.

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Upon review of the record and Exhibits J and K, it appears that the confidential

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memoranda can be redacted so that they protect sensitive information while documenting the

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basic facts which have already been disclosed to plaintiff in the defendants’ summary-judgment

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motion and accompanying statement of undisputed facts. Defendants will be ordered to show

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cause why they should not serve plaintiff with the redacted versions of Exhibits J and K attached

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to this order as Attachment 1 (under seal).1 Defendants may discharge the order to show cause by

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filing notice that they have served plaintiff with the redacted exhibits, and by filing a copy of the

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redacted Exhibits J and K in support of their summary judgment motion. If defendants seek

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additional redaction or believe that no level of redaction would be sufficient to remove the risk,

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they shall show cause in writing within ten days. Such a response may be submitted ex parte and

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via email.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to file Attachment 1 to this order under seal. The

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Clerk of the Court is further directed to mail a copy of Attachment 1 to counsel for the defendants

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only.

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2. Within ten days of the filing of this order, the defendants shall show cause why they

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The sealed exhibit will be provided only to defendants.
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should not serve plaintiff with the redacted copies of Exhibits J and K (confidential memoranda

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dated September 28, 2009, and February 2, 2010, respectively) filed here as Attachment 1 (under

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seal). Defendants may submit their response via email. In the alternative, defendants may

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discharge the order to show cause by filing notice that they have served plaintiff with the redacted

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exhibits, and by filing a copy of the redacted Exhibits J and K in support of their summary

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judgment motion.

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DATED: February 19, 2015

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