Ellis v. Navarro et al

Filing 74

ORDER re 73 Letter filed by Nicholas Bart Ellis, Brian Gardner, Frederick Juarez, Anthony Navarro, Chirs E. Wilber. Signed by Judge Beeler on 1/3/2012. (lblc1, COURT STAFF) (Filed on 1/3/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
NICHOLAS BART ELLIS,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,
v.

No. C 07-05126 SBA (LB)
ORDER RE 1/3/2012 JOINT
DISCOVERY LETTER

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SERGEANT A. NAVARRO, et al.,

[ECF No. 73]

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Defendants.
_____________________________________/

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The parties filed a joint discovery letter on January 3, 2012. 1/3/2012 Joint Discovery Letter,

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ECF No. 73. The court conducted a telephonic hearing on the record. Following the hearing, the

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court issues this order, which resolves the disputes.

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A. OIG Files

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Earlier on January 3, 2012, Plaintiff separately lodged a discovery letter (rather than filing the

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joint letter required by the court’s standing order).1 Plaintiff’s ex parte letter referenced a prior

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stipulated court order dated December 20, 2011 requiring the production of certain documents that

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were in the custody of either Pelican Bay State Prison (PBSP) or the California Department of

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Corrections and Rehabilitation (CDCR). See ECF No. 71 (filed under seal because it referenced

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certain inmate identifying information in paragraph 1b). According to Plaintiff’s ex parte letter,

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certain documents were not produced because they were in the custody of the “CDCR’s OIG.”

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By this order, the court orders the letter filed as part of the public record.

C 07-05126 SBA (LB)
ORDER

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Plaintiff’s 1/3/2012 Discovery Letter at 2 (emphasis added). The OIG (or “Office of the Inspector

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General”) represented to Defendants’ counsel that the documents were confidential and would be

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produced only after a court order mandating disclosure under a protective order. See Exhibit B to

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Plaintiff’s 1/3/12 Discovery Letter (letter from OIG to Defendants’ counsel stating that “the

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investigation is confidential . . . and will not be provided absent a federal court order mandating

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[that] OIG release the investigation under a protective order”).

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Because OIG asked only for a court order requiring disclosure pursuant to a protective order, the

today at ECF No. 73, Defendants’ counsel clarified that he does not represent OIG. Still, the court’s

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disclosure order earlier today was appropriate. First, OIG asked only for a court order and raised no

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other objection to producing the report. See Exhibit B to Plaintiff’s 1/3/12 Discovery Letter.

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For the Northern District of California

court ordered disclosure earlier today. See ECF No. 72. In the parties’ separate joint letter filed

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UNITED STATES DISTRICT COURT

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Second, no one disputes the relevancy of the information. Third, OIG’s letter to Defendants’

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counsel also stated that “[y]ou indicated . . . that the OIG provided the original investigative report

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to your client, the California Department of Corrections and Rehabilitation (CDCR). We are unable

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to release the document to any other outside entity.” To the extent that the CDCR has the

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investigative report, the court’s December 20, 2012 order at ECF No. 71 requires its disclosure, and

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the order earlier today presumably facilitates disclosure, albeit by the OIG as opposed to the CDCR.

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B. Time to Prepare Plaintiff

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Plaintiff’s counsel asks the court to order the PBSP warden to make Plaintiff available on

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January 5, 2012 from 8 a.m. to 5 p.m. The December 20, 2011 stipulated order (reached after

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extensive discussion on December 19, 2011) reflects that the warden agreed to make Plaintiff

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available only from 8 a.m. to 1:30 p.m. because PBSP would have to pay overtime from 1:30 p.m. to

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5:00 p.m. The warden also scheduled additional preparation time on January 4, 2012 from 8:00

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a.m. to 1:30 p.m.

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For the reasons stated on the record today, the court will not order the warden to pay overtime

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hours on January 5, 2012. Different possibilities (including Plaintiff’s paying $300 overtime costs

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and additional preparation time from 8 a.m. to 1:30 p.m. on January 4, 2012) are memorialized in the

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December 20 stipulation and order. See ECF No. 71 at ¶ 4. Thus, the uncertainties about the

C 07-05126 SBA (LB)
ORDER

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availability of additional time on January 5 were evident to Plaintiff as of December 19, and the

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parties discussed those uncertainties on December 19 (including the possibility of Plaintiff’s counsel

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having to travel on January 3, 2012 to adequately prepare the client).

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The court acknowledges that Defendants’ counsel was unable to provide a definitive answer

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from the warden about overtime hours until December 30, 2011. The court notes that providing an

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additional 2.5 hours of preparation time (until 4 p.m.) on January 5, 2012 would be a pragmatic

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solution to the deposition preparation issue and would avoid any future argument by Plaintiff that

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Defendants should bear any costs that Plaintiff incurs to travel to PBSP for preparation time on

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January 4, 2012. But the court will not order the additional 2.5 hours given the provision of an

December.

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For the Northern District of California

additional 5.5 hours on January 4, 2012 and Plaintiff’s knowledge of the scheduling issues in

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UNITED STATES DISTRICT COURT

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C. Sufficiency of the Document Disclosures

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At the hearing, Plaintiff raised the sufficiency of document disclosures, referencing its expert’s

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opinion that it seemed unlikely that the disclosures were complete or that Defendants’ search was

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exhaustive. See Plaintiff’s 1/3/12 Discovery Letter at 3.

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To the extent that Plaintiff has a discovery dispute, Plaintiff must comply with the court’s

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discovery procedures, which require a joint letter following an in-person meet-and-confer. At the

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hearing, the court suggested that if Plaintiff had information about the adequacy of the search, it

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should provide that to Defendants’ counsel. To the extent that disputes still exist thereafter, the

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parties should follow the court’s discovery procedures.

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This disposes of ECF No. 73.

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IT IS SO ORDERED.

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Dated: January 3, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 07-05126 SBA (LB)
ORDER

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