Rojas v. Loza et al

Filing 92

ORDER by Magistrate Judge Edward M. Chen Granting in Part and Denying in Part 84 Plaintiff's Motion to Compel. (emcsec, COURT STAFF) (Filed on 5/17/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAHIR ALBERTO ROJAS,

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Plaintiff,
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL

v.

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For the Northern District of California

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United States District Court

No. C-07-4662 MMC (EMC)

R. LOZA, et al.,

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Defendants.
___________________________________/

(Docket No. 84)
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Currently pending before the Court is Plaintiff’s motion to compel the production of certain

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documents. Having considered the parties’ briefs and accompanying submissions, as well as the

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oral argument of counsel, the Court hereby GRANTS in part and DENIES in part Plaintiff’s

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motion.

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After the hearing herein, at the Court’s request, Plaintiff has clarified his document request to

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seek the following four categories of documents:

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(1)

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force or violence in the workplace, (b) misconduct or misbehavior toward inmates, and (c)

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dishonesty or truthfulness1;

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(2)

Documents relating to disciplinary or corrective action relating to the same;

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(3)

Documents relating to the training, policy, and practice of responding and investigating

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inmate administrative complaints of excessive force against correctional staff; and

Documents relating to allegations, complaints, charges, and lawsuits relating to (a) use of

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This would include inmate complaints which are called “staff complaints.”

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(4)

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treatment to inmates.

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Documents relating to the training, policy, and practice of providing and recording medical

To the extent Defendants have asserted the official information privilege as a basis to

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withhold all documents, the Court rejects that argument. Plaintiff has asserted a claim pursuant to

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federal law, i.e., 42 U.S.C. § 1983. Therefore, federal law on privilege is applicable, not state law.

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See Kelly v. San Jose, 114 F.R.D. 653, 655 (N.D. Cal. 1987). While a federal court may still

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consider a privilege based on state law in a federal question case, it does so only as a matter of

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comity; state law is not binding. See id. at 655-56.

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In this District, courts applying comity concerns have generally applied a balancing test
moderately pre-weighted in favor of the disclosure of law enforcement files. See id. at 661. Factors

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For the Northern District of California

United States District Court

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that are considered include:

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(1)
The extent to which disclosure will thwart governmental
processes by discouraging citizens from giving the government
information.

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(2)
The impact upon persons who have given information of
having their identities disclosed.

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(3)
The degree to which government self-evaluation and
consequent program improvement will be chilled by disclosure.

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(4)
Whether the information sought is factual data or evaluative
summary.

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(5)
Whether the party seeking the discovery is an actual or
potential defendant in any criminal proceeding either pending or
reasonably likely to follow from the incident in question.

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(6)

Whether the police investigation has been completed.

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(7)
Whether any intradepartmental disciplinary proceedings have
arisen or may arise from the investigation.

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(8)
Whether the plaintiff’s suit is non-frivolous and brought in
good faith.

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(9)
Whether the information sought is available through other
discovery or from other sources.

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(10)
case.

The importance of the information sought to the plaintiff’s

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Id. at 663.

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Taking into consideration the above factors, the Court concludes that the official information

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privilege should not bar production, especially since Plaintiff has now narrowed the first two

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categories of documents (as described above) to those which may have some bearing on this case.2

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If a Defendant does not have any responsive documents for a particular category, then that

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Defendant shall state such in a declaration.

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As for categories (3) and (4), the Court shall only require Defendants to provide “high level”

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documents. The Court notes that these documents are not as directly relevant to the case as inmate

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complaints; however, they may contain relevant evidence and, notably, Defendants have failed to

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demonstrate that their production would be unduly burdensome. While Defendants have speculated
that there may be a security risk, the Court is hard pressed to see one, especially since Defendants

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For the Northern District of California

United States District Court

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have apparently produced training documents on use of excessive force. Moreover, any such risk is

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easily ameliorated by limiting access to these documents to attorney’s eyes only.

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Accordingly, the Court grants in part and denies in part Plaintiff’s motion to compel. Only

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those documents described above shall be produced. The documents shall be produced pursuant to a

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protective order limiting access to the documents to attorney’s eyes only. The documents shall be

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produced within 21 days of the date of this Order.

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This order disposes of Docket No. 84.

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IT IS SO ORDERED.

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Dated: May 17, 2011

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_________________________
EDWARD M. CHEN
United States Magistrate Judge

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With respect to category (1), the Court notes that Defendants did offer as a compromise the
provision of inmate complaints related to excessive force.

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The Court further notes that, for category (2), Plaintiff asks that the production include
documents identified in Defendants’ privilege log. See Docket No. 91 (Appendix A). All of these
documents, with the exception of one, refer to use of force or false reports, and therefore should be
produced as they would be covered by category (2). As described in the privilege log, AGO-001801
through AGO-001826 do not relate to use of force or false reports; however, if they otherwise fall
within the ambit of category (2), then they should also be produced.

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