Armstrong, et al v. Davis, et al

Filing 2624

ORDER by Judge Claudia Wilken ON 2600 MOTION TO COMPEL. (granting in part and denying in part 2600 ). (ndrS, COURT STAFF) (Filed on 6/22/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN ARMSTRONG et al.,

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Plaintiffs,

United States District Court
For the Northern District of California

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ORDER ON MOTION TO
COMPEL

v.
(Docket No. 2600)
EDMUND G. BROWN, JR. et al.,

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No. C 94-2307 CW

Defendants.
________________________________/
Plaintiffs John Armstrong et al. move for an order to compel

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the California Office of the Inspector General (OIG) to respond to

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Plaintiffs’ subpoena of documents and provide information

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Plaintiffs seek (Docket No. 2600).

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the California Correctional Peace Officers Association, with leave

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from the Court, filed an amicus curiae brief.

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the filings and the amicus curiae brief, the Court GRANTS

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Plaintiffs’ motion to compel to the extent Plaintiffs demonstrate

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that materials they seek are related to this case.

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below, a protective order will be entered, and the OIG may replace

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employee names with unique identifiers in documents produced.

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Court DENIES Plaintiffs’ motion to the extent it seeks material

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that does not appear to be sufficiently related to this case,

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without prejudice to issuance of a narrower subpoena.

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The OIG filed a response, and

Having considered

As discussed

The

In January 2016, counsel for Plaintiffs sought information

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from the OIG related to the OIG’s recent report: “2015 Special

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Review: High Desert State Prison Susanville, CA” (OIG High Desert

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Report).

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document and deposition subpoenas on the OIG.

Docket No. 2567-4.

Later that month, Plaintiffs served
On February 19, the

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OIG provided “certain responsive documents,” objections, a

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declaration from the Chief Deputy Inspector General and a

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privilege log identifying documents and grounds for not producing

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them.

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Ex. 2; Declaration of James C. Spurling, Ex. B.

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Motion to Compel at 8; see Declaration of Corene Kendrick,

An assertion of privilege in federal question cases brought

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under 42 U.S.C. § 1983 is governed by federal law.

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U.S. Dist. Court for N. Dist. of California, 511 F.2d 192, 197

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(9th Cir. 1975); Kelly v. City of San Jose, 114 F.R.D. 653, 655–56

See Kerr v.

United States District Court
For the Northern District of California

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(N.D. Cal. 1987).

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privilege for official information.”

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F.R.D. 603, 613 (N.D. Cal. 1995) (citing Kerr, 511 F.3d at 198).

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The official information privilege requires a balancing of “the

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policies underlying our civil rights laws, public confidence in

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the court system, and doing justice in individual cases” against

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interests of law enforcement and “the privacy rights of officers

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or citizen complainants.”

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71.

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“Federal common law recognizes a qualified
Soto v. City of Concord, 162

Kelly, 114 F.R.D. at 661; id. at 669–

Plaintiffs seek documents related to statements in the OIG

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High Desert Report about (a) a code of silence among correctional

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officers, (b) the California Correctional Peace Officers

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Association’s responses to the OIG’s interviews of California

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Department of Corrections and Rehabilitation (CDCR) employees,

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(c) treatment of inmates in the Disability Placement Program,

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(d) specific allegations of High Desert staff misconduct, and

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(e) agent and investigation assignment practices by the CDCR

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Office of Internal Affairs.

See Declaration of Corene Kendrick,

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Ex. 1 at Appendix A. 1

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the extent it sought case files from the CDCR Office of Internal

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Affairs.

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Plaintiffs have withdrawn their motion to

See Reply at 6. 2

The OIG asserts that the majority of the documents Plaintiffs
seek are not relevant to this case.
Based on the text of the OIG High Desert Report, Plaintiffs’

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subpoena and the OIG’s privilege log, material under Plaintiffs’

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Request 1c and material relating to prisoners with disabilities

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under Request 1d relate to the issues in this case.

United States District Court
For the Northern District of California

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The relevance of material sought under Request 1a, Request

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1b, the remaining incidents appearing in the OIG High Desert

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Report in relation to Request 1d, and Request 1e, however, is not

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clear.

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materials without prejudice to issuance of a narrower subpoena.

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The OIG also argues that its mental impressions of the

Thus, the Court DENIES Plaintiffs’ motion to compel these

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sufficiency of CDCR’s work is not relevant to this case.

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interview materials and analysis of CDCR investigations is

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relevant to show how CDCR has responded to allegations of staff

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misconduct involving Armstrong class members.

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log lists interview reports, transcripts and audio as standalone

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“documents” only in response to Requests 1a and 1b, but the Court

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considers the OIG’s privilege argument regarding interview

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materials, generally, because its privilege log lists “Interview

OIG

The OIG’s privilege

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Plaintiffs’ argument that the OIG has waived its objections
is not persuasive.
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Separately, a Stipulation and Protective Order Regarding
Disclosure of Defendants’ Employees’ Personnel Information and
Corrective Action Plans issued on June 6, 2016. See Docket No.
2612.
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Notes” among other materials in response to Requests 1c and 1d. 3
The OIG’s concerns can be accommodated by the entry of a

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protective order that restricts viewing to attorneys’ eyes only

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and limits use of the information to this action.

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Moreover, to the extent the OIG will produce materials that

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contain employee names, the OIG may remove each name and replace

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it with a unique identifier.

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The Court GRANTS Plaintiffs’ motion to compel with respect to
material under Request 1c and part of 1d that is related to

United States District Court
For the Northern District of California

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inmates with disabilities.

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this order issues, the OIG shall propose a protective order based

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on the Court’s model order available on its website.

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http://www.cand.uscourts.gov/model-protective-orders.

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shall respond within one week, and shall meet and confer with the

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OIG within one week of responding.

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a protective order, within one week they shall submit their

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respective versions with differences highlighted, and the Court

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will select one.

Within one week of the date on which

See
Plaintiffs

If the parties cannot agree on

The OIG shall produce documents within two weeks

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The OIG cites multiple California statutory provisions. The
OIG indicates that it conducted interviews pursuant to California
Penal Code section 6126.5(d) (“The Inspector General may require
any employee of the Department of Corrections and Rehabilitation
to be interviewed on a confidential basis.”).
California Penal Code section 6126.3(c)(5) provides that
“[a]ny papers, correspondence, memoranda, electronic
communications, or other documents pertaining to contemporaneous
public oversight pursuant to Section 6133” are “not public records
. . . , nor shall they be subject to discovery pursuant to
[various provisions] in any manner.”
Also, California Penal Code section 6126.3(c)(3) imposes
restrictions with regard to “[a]ny papers, correspondence,
memoranda, electronic communications, or other documents
pertaining to internal discussions between the Inspector General
and his or her staff, or between staff members of the Inspector
General, or any personal notes of the Inspector General or his or
her staff.”
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of the date on which the Court signs a protective order.

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Court DENIES Plaintiffs’ motion with respect to other material

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that does not appear to be sufficiently related to this case,

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without prejudice to issuance of a narrower subpoena.

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IT IS SO ORDERED.
Dated: June 22, 2016

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

The

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