Hall v. Tehrani et al

Filing 118

ORDER by Judge Ronald M. Whyte Denying in Part 106 , 109 Motion to Compel. (jg, COURT STAFF) (Filed on 7/29/2011)

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*E-FILED - 7/29/11*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD GARY HALL, JR.,
Plaintiff,
v.
JASMINE A. TEHRANI, et al.,
Defendants.

No. C 09-0057 RMW (PR)
ORDER DENYING IN PART
PLAINTIFF’S MOTIONS TO
COMPEL
(Docket Nos. 106, 109)

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Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights complaint
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pursuant to 42 U.S.C. § 1983. The court found that plaintiff asserted one cognizable claim
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against defendants; that is, that defendants retaliated against him by creating a false
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psychological report because plaintiff filed prison grievances, exercised his right to petition the
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court, and exercised his right to create literary and editorial cartoon works. On December 27,
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2010, defendants filed a motion to dismiss, and in the alternative, a motion for summary
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judgment. On April 14, 2011, and May 24, 2011, plaintiff filed motions to compel discovery.
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On June 8, 2011, defendants filed their opposition. Plaintiff has not filed a response. For the
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reasons stated below, the court DENIES in part plaintiff’s motions to compel.
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DISCUSSION
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Plaintiff moves to compel discovery on the grounds that defendants’ responses to his
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requests for production of documents, numbers 4 and 5, are inadequate. Defendants oppose the
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motion, claiming official privilege and irrelevance in response to number 4, and compliance with
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Order Denying in Part Plaintiff’s Motions to Compel
P:\PRO-SE\SJ.Rmw\CR.09\Hall057mtc.wpd

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number 5.
In request for production of documents number four, plaintiff asked defendants to
produce:
Copy of actual questions [Defendant Murphy] asked plaintiff during [the]
March 3, 2008 interview with him and his actual responses to those questions.

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(Pl. Mot. to Compel (Doc. 109), Ex. 2.) Defendants object to the request on the basis that it is
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not relevant to the claims, and, furthermore is subject to official privilege.
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The federal rules allow liberal discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20,
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34 (1984). The party resisting discovery has the burden of establishing lack of relevance or
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undue burden. Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997). The resisting party
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must demonstrate that the documents are not relevant under the broad scope of relevance
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provided by Rule 26(b)(1) of the Federal Rules of Civil Procedure, or that the documents are “of
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such marginal relevance that the potential harm occasioned by discovery would outweigh the
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ordinary presumption in favor of broad disclosure . . . .” Burke v. New York City Police Dept.,
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115 F.R.D. 220, 224 (S.D.N.Y. 1987). A recitation that the discovery request is “overly broad,
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burdensome, oppressive and irrelevant” is not adequate to voice a successful objection. Josephs
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v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982). The party resisting discovery must instead
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“‘show specifically how . . . each interrogatory [or request for production] is not relevant or how
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each question is overly broad, burdensome or oppressive.’” Josephs, 677 F.2d at 992 (quoting
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Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980)).
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Official information privilege is one of federal common law. Sanchez v. City of Santa
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Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). “To determine whether the information sought is
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privileged, courts must weigh the potential benefits of disclosure against the potential
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disadvantages.” Id. at 1033-34. The balancing test “is moderately pre-weighted in favor of
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disclosure.” Kelly v. San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987). The privilege “must be
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formally asserted and delineated in order to be raised properly,” and the party opposing
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disclosure must “state with specificity the rationale of the claimed privilege.” Kerr v. United
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States Dist. Ct. for the Northern Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975). Kerr requires
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Order Denying Plaintiff’s Motions to Compel
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that to allow the court to decide whether the official information privilege applies, defendants

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must provide with their objection a declaration or affidavit containing (1) an affirmation that the

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agency generated or collected the material in issue and has in fact maintained its confidentiality,

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(2) a statement that the official has personally reviewed the material in question, (3) a specific

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identification of the governmental or privacy interests that would be threatened by disclosure of

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the material to plaintiff and/or his lawyer, (4) a description of how disclosure subject to a

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carefully 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 to the

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threatened interests if the disclosure were made. Kelly, 114 F.R.D. at 670. If the court

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concludes that defendants failed to satisfy its threshold burden, the court should order defendants

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to disclose the requested material. Id. at 671. If defendants made a sufficient threshold showing,

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the court should “order an in camera review and offer defendant[s] an opportunity to submit a

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brief and additional supporting material (e.g., a supplemental affidavit).” Id.

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Defendants have submitted a declaration from Dr. C. Kusaj, Chief Psychologist for the

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California Department of Corrections and Rehabilitations’ Board of Parole Hearings, which

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appears to satisfy the factors set forth above. (Decl. Lewis, Ex. A.) Thus, defendants are

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directed to file under seal for in camera review, no later than thirty (30) days from the filing

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date of this order, documents demonstrating the questions asked and answers given during

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plaintiff’s March 3, 2008 interview with Defendant Murphy. Defendants shall also file with the

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court and serve on plaintiff a proposed protective order and any additional supporting material.

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Within thirty days of plaintiff’s receipt of said papers, he shall file with the court and serve on

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defendants a response thereto, at which time the matter will be submitted for the court’s review.

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After considering all matters pertinent to the dispute, the court will enter its ruling.

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In his request for production of documents number five, plaintiff asked defendants to
produce:

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Copy of [Defendant Murphy’s] credentials which verify that [he] is trained and
therefore qualified to administer the Hare Psychopathy checklist Revised (PCLR) upon California life inmates such as plaintiff.

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(Pl. Mot. to Compel (Doc. 109), Ex. 2.) Defendants object to the request on the basis that they
Order Denying Plaintiff’s Motions to Compel
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have complied. The court finds that defendants have complied with Rule 34 by adequately and

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appropriately providing responses to plaintiff’s request. Rule 34 only allows plaintiff to make a

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request within the scope of Rule 26(b) for production of documents “in the responding party’s

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possession, custody, or control.” Fed. R. Civ. P. 34(a)(1)(A). Defendants have responded that

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they have exhausted their search and produced all responsive materials regarding Murphy’s

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qualifications. Without evidence from plaintiff that defendants are withholding additional

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relevant documents responsive to his request, the court finds no basis upon which to compel

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production by defendants. Therefore, the motion to compel documents in response to request

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number 5 shall be DENIED.

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Plaintiff has filed a motion for sanctions, on the ground defendant improperly refused to

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produce the documents in response to requests numbers 4 and 5. As the court has found

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defendants have met the threshold requirements for proper invocation of privilege for request

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number 4, and that defendants have complied with request number 5, the motion for sanctions

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will be DENIED.

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CONCLUSION
Plaintiff’s motions to compel are DENIED in part and RESERVED in part. Defendants

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shall file under seal for in camera review, no later than thirty (30) days from the filing date of

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this order, documents demonstrating the questions asked and answers given during plaintiff’s

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March 3, 2008 interview with Defendant Murphy. Defendants shall also file with the court and

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serve on plaintiff a proposed protective order and any additional supporting material. Within

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thirty days of plaintiff’s receipt of said papers, he shall file with the court and serve on

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defendants a response thereto, at which time the matter will be submitted for the court’s review.

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Plaintiff’s motion for sanctions is DENIED.
IT IS SO ORDERED.
7/28/11
DATED:
RONALD M. WHYTE
United States District Judge

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Order Denying Plaintiff’s Motions to Compel
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RICHARD G HALL,

Case Number: CV09-00057 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
JASMINE A TEHRAN et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 29, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Richard Gary Hall C-07278
Correctional Training Facility
P.O. Box 689
YW-343up
Soledad, CA 93960-0689

Dated: July 29, 2011
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk