Martinez v. Madden et al

Filing 49

ORDER Granting In Part and Denying In Part 33 Plaintiff's Motion to Compel. Signed by Magistrate Judge Mitchell D. Dembin on 11/13/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALD MARTINEZ,

Case No.: 12cv1298-GPC (MDD)

Plaintiff,

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v.

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

R. MADDEN, et al.,
[ECF No. 33]
Defendants.

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I.

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On May 29, 2012, Plaintiff Ronald Martinez, a state prisoner

Procedural History

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proceeding pro se and in forma pauperis, filed a civil rights lawsuit

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under 42 U.S.C. § 1983. (ECF No. 1). Plaintiff’s operative First

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Amended Complaint alleges that his First Amendment rights were

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violated by Defendants when they allegedly retaliated against him for

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filing inmate grievances. (ECF No. 5). The First Amended Complaint

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alleges Defendants sought to chill his speech by fabricating a piece of

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evidence (a “kite” – a note passed by inmates) that falsely accused him
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of conspiring to assault a peace officer, which resulted in him being

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housed in the Administrative Segregation Unit during the

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investigation, and by unduly prolonging the investigation to extend his

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stay in the Administrative Segregation Unit. (Id. at 2). On September

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5, 2014, Plaintiff filed a motion to compel discovery responses from

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Defendants Gervin and Madden. (ECF No. 33). Specifically, Plaintiff

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seeks responses to requests 1-3, 5-9, and 17 in his Requests for

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Production of Documents (Set 1), requests 5 and 6 in his Requests for

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Production of Documents (Set 2), interrogatories 3, 4, and 8 served on

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Defendant Madden, and interrogatories 2, 3, 5-7, 11 served on

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Defendant Gervin. (Id.). On September 26, 2014, Defendants filed an

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opposition. (ECF No. 37). Plaintiff filed his reply on October 16, 2014.

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(ECF No. 45). After careful consideration of all of the papers filed in

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support of and in opposition to this motion, and the authorities cited

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therein, Plaintiff’s motion to compel is hereby GRANTED in part and

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DENIED in part for the reasons set forth below.

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II. Standard

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Rules 26 through 37 “have been interpreted liberally to allow

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maximum discovery.” Spell v. McDaniel, 591 F. Supp. 1090, 1114 (E.D.
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N.C. 1984) (citing Hickman v. Taylor, 329 U.S. 495 (1947)).

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Accordingly, the burden of resisting discovery is on the party opposing

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discovery. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992)

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(citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

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Rule 26(b)(1) allows discovery regarding any matter that is (1)

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nonprivileged, and (2) relevant to any party's claim or defense.

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Relevant information for discovery purposes includes any information

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“reasonably calculated to lead to the discovery of admissible evidence.”

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Fed. R. Civ. P. 26(b)(1). District courts have broad discretion to

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determine relevancy for discovery purposes. Hallett v. Morgan, 296

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F.3d 732, 751 (9th Cir. 2002). If relevancy is not apparent from the face

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of a request, the propounding party has the burden to show relevance.

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Floyd v. Grannis, Case No. S-08-cv-2346-WBS-JKM-P, 2010 WL

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2850835 at *1 (E.D. Cal. July 19, 2010) (quoting Cardenas v. Dorel

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Juvenile Group, Inc., 232 F.R.D. 377, 382-383 (D. Kan. 2005)).

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Similarly, district courts have broad discretion to limit discovery where

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the discovery sought is “unreasonably cumulative or duplicative, or can

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be obtained from some other source that is more convenient, less

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burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(c).
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III. Analysis

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A. Requests relating to kite evidence
Request for Production of Documents (Set 1) no. 1; Interrogatory to
Defendant Madden no. 3; Interrogatory to Defendant Gervin no. 11

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Document request no. 1 demands “[t]he ‘kite’ evidence utilized to

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implicate Plaintiff in a conspiracy” to assault prison staff. (ECF No. 33

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at 9). The interrogatories ask each Defendant to state verbatim the text

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of the kite. (Id. at 37, 47). Plaintiff states he is seeking the kite

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evidence so that he can prove that it was fabricated as he alleges in his

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operative complaint. One of Plaintiff’s theories is that Defendant

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Gervin wrote the kite and pretended it came from a confidential

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informant, and thus Plaintiff is seeking a copy of the actual kite so that

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he can compare the kite handwriting to Defendant Gervin’s

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handwriting. (ECF No. 33 at 32). Defendants object that the “[o]fficial

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information privilege” excuses them from providing the kite evidence,

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because disclosure would violate privacy, and endanger the safety and

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security of the “institution and staff.” (Id. at 50-55 (Defendants’

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privilege log and declaration of Rebeca Larios in support thereof); ECF

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No. 37 at 3).

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Federal common law recognizes a qualified privilege for official

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information. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th

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Cir. 1990). The official information privilege protects information

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collected by law enforcement agencies. See Kelly v. City of San Jose,

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114 F.R.D. 653, 660 (N.D. Cal. 1987). In determining when a document

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or information falls within the official information privilege, the Ninth

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Circuit has adopted a balancing test. Sanchez, 936 F.2d at 1033-34.

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“[C]ourts must weigh the potential benefits of disclosure against the

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potential disadvantages. If the latter is greater, the privilege bars

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discovery.” Id. Some sister courts have stated that the proper

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operation of the balancing test requires a “balancing approach that is

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moderately pre-weighted in favor of disclosure.” See Kelly, 114 F.R.D.

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at 661 (citations omitted).

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In order to trigger the Court’s balancing of interests, the party

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opposing disclosure must make a substantial threshold showing. Soto

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v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). The party

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opposing disclosure “must submit a declaration or affidavit from a

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responsible official with personal knowledge of the matters to be

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attested to in the affidavit.” Id. The declaration “must include: (1) an
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affirmation that the agency generated or collected the material in issue

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and has in fact maintained its confidentiality… (2) a statement that the

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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

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threatened by disclosure of the material to plaintiff and/or his lawyer,

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(4) a description of how disclosure subject to a carefully crafted

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protective order would create a substantial risk of harm to significant

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governmental or privacy interests, (5) and a projection of how much

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harm would be done to the threatened interests if the disclosure were

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made.” Kelly, 114 F.R.D. at 670.
Once the party asserting the privilege meets the threshold burden,

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the court will review the documents in light of the balancing test

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articulated in Kelly, which includes, but is not limited to: (1) the extent

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to which disclosure will thwart the governmental process by

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discouraging citizens from giving the government information; (2) the

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impact of having their identities disclosed upon persons who have given

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information; (3) the degree to which government self-evaluation and

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consequent program improvement will be chilled by disclosure; (4)

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whether the information sought is factual data or evaluative summary;
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(5) whether the party seeking discovery is an actual or potential

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defendant in any criminal proceeding either pending or reasonably

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likely to follow from the incident in question; (6) whether the

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investigation has been completed; (7) whether any interdepartmental

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disciplinary proceedings have arisen or may arise from the

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investigation; (8) whether the plaintiff’s suit is not frivolous and

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brought in good faith; (9) whether the information sought is available

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from discovery or through other sources; and, (10) the importance of the

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information sought to the plaintiff’s case. See Kelly, 114 F.R.D. at 663

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(citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973.))
Plaintiff asserts that the declaration Defendants provided is

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inadequate under Kelly. (ECF No. 33 at 11-14). Defendants provided a

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declaration explaining that providing the kite would endanger the

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safety of staff and other inmates and hinder future investigations.

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(ECF No. 33 at 50-53). But the declaration is lacking in several

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respects. First, the declarant does not declare that she actually

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reviewed the kite; she merely declares that she is authorized to view

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“prison and CDCR records at Centinela Prison.” (ECF No. 33 at 50-53).

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Second, the declarant attests that disclosing “these documents” “would
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directly threaten the safety of inmates and staff, by revealing the

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identity and nature of confidential sources inside the prison.” (Id. at

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51:17-19). Ms. Larios, however, does not declare that the kite was

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signed by the confidential informant or otherwise explain how

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disclosing the kite evidence would reveal the identity and nature of

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confidential sources. (Id.). The declarant also does not specifically

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address the effect of a protective order. (Id.).

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In their brief, Defendants contend Plaintiff will be able to discern
the identity of the confidential informant from the handwriting, but do

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not offer an explanation as to how Plaintiff could discern the

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informant’s identity if the text of the kite is simply transcribed for him.

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Defendants’ concern that Plaintiff’s true purpose in seeking this

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evidence is to root out “snitches” raises the reasonable and substantial

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concern that if Plaintiff is permitted to keep a copy of the kite, he will

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be able to compare it to the handwriting of other inmates he obtains in

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unrelated contexts in the future, thus endangering the informant and

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chilling disclosures by inmate informants. As a result of such chilling,

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other inmates and staff will be at greater risk, because informants will

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not come forward to prevent imminent safety and security threats. But
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Defendants do not explain why those harms cannot be avoided by

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redacting the identifying portions of the kite from a verbatim

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transcription, or by permitting Plaintiff to view a redacted version of

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the kite for a limited period of time.
Even though the declaration filed by Defendants does not meet all

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of the requirements in Kelly, Defendants’ brief supplements the

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declaration with an explanation of the contents of the kite and the

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potential for harm. Considering these together, the Court finds

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Defendants have made a “substantial threshold showing,” thus

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triggering the balancing test articulated in Kelly.

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The Court has considered the Kelly factors,1 and finds that limited

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disclosure of the kite to Plaintiff is appropriate. There is a substantial

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risk that producing photocopies of the kite to Plaintiff will thwart

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important governmental processes by discouraging inmates from giving

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the prison staff information about threats to safety. Likewise,

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disclosure of personally identifiable information about the confidential

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informant would increase risk of harm to the informant personally.

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Although the Court considered all of the Kelly factors, only the most
pertinent are discussed herein.
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There is no pending or proposed investigation, which weighs in favor of

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disclosure. Also supporting disclosure, in this instance the underlying

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investigation has been completed in Plaintiff’s favor. The ninth factor

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also weighs in favor of disclosure, in that the kite is not available from

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any other source, although the use of discovery-limiting tools, such as

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redaction, a protective order, or a limited inspection, support a finding

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of limited disclosure rather than outright production of the kite.

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Finally, the kite evidence is important to the Plaintiff’s complaint, the

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thrust of which is that Defendants fabricated the kite evidence.

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Accordingly, the Court finds that limited disclosure of the kite evidence,

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tailored to avoid the substantial risk of harm identified by Defendants,

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is appropriate in this instance. The Court hereby ORDERS as follows:

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1. Defendants are hereby ORDERED to make the necessary

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arrangements with Plaintiff and the Litigation Coordinator at

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the facility in which Plaintiff is incarcerated for Plaintiff to

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inspect—but not copy—a true and correct photocopy of the

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redacted kite. Defendants are ORDERED to make true and

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correct photocopy of the kite, but may redact the names of

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inmates and cell numbers and any other personally-identifiable
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information (except for Plaintiff’s), which they shall then provide

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to the appropriate prison official or staff member in advance of

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the inspection.

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2. The inspection of the kite SHALL occur after Defendants have

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provided Plaintiff with the exemplar of Defendant Gervin’s

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handwriting that this Court orders them to produce elsewhere in

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this order. Plaintiff may bring the exemplar of Defendant

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Gervin’s handwriting with him to the inspection.

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3. Plaintiff SHALL be permitted a half hour time period to
review the kite.

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4. Plaintiff IS ORDERED not to take the kite with him and not to

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make any sort of permanent copy (including photocopy or hand-

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tracing).

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5. Plaintiff may take notes on his own paper (not on the kite),
which he may retain.
6. Defendants are ORDERED to arrange for an appropriate

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member of the prison staff or a prison official to be in the room

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during the inspection, and to obtain a declaration signed under

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penalty of perjury from the staff or official attesting that
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Plaintiff was given the kite to review, that the inspection period

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lasted a half hour, that paper and a writing utensil were

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available to Plaintiff to take notes, that Plaintiff was permitted

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to bring the exemplar of Defendant Gervin’s handwriting, that

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Plaintiff did not make a photocopy or trace the kite, and that

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Plaintiff did not retain the kite provided for the inspection.

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B. Requests relating to Lino and his cellmate
Requests for Production of Documents (Set 1) nos. 2-8;
Interrogatory to Defendant Madden no. 8

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In these requests, Plaintiff seeks records relating to inmate Lino

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and Lino’s cellmate, both of whom, Plaintiff explains, were placed in the

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Administrative Segregation Unit with him and were implicated in a

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conspiracy to assault staff. (ECF No. 33 at 20-30, 40-41). Plaintiff is

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seeking the evidence relied on by prison staff to implicate Lino and his

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cellmate, as well as evidence showing Lino’s housing transfers after the

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alleged events occurred. (Id.). Plaintiff and Defendants disagree as to

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whether Lino and his cellmate were implicated in the same conspiracy

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with Plaintiff, or in a separate, unrelated conspiracy. (Id.; ECF No. 37

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at 3:26-28). Defendants contend the evidence sought is not relevant to

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Plaintiff’s claims, and is protected by privacy doctrines. Indeed,
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Plaintiff has not met his burden to show the relevance of this evidence

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to this action. At issue here is whether Defendants fabricated evidence

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against Plaintiff in a conspiracy to retaliate against him for filing

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inmate grievances. Plaintiff does not raise class allegations, or

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allegations that prison staff have a policy or practice of fabricating

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evidence to deter inmate grievances, or allege that Lino or his cellmate

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were being retaliated against for filing grievances. Even if the

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information Plaintiff demands about Lino and his cellmate were of

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liminal relevance, Plaintiff’s and the public’s interest in discovering all

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evidence is outweighed in this instance by Lino’s and his cellmate’s

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privacy rights. For these reasons, Plaintiff’s motion is DENIED as to

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these requests.

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C. Requests relating to modified programming
Request for Production of Documents (Set 1) no. 17; Interrogatory
to Defendant Madden no. 4

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Document request no. 17 seeks Program Status Reports at

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Centinela State Prison from January 2006 through January 2011.

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(ECF No. 33 at 33-36). Defendants contend that this request is moot

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because they have agreed to produce the Reports for a more limited

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period, January 1, 2010 and December 31, 2011. (ECF No. 37 at 5). In
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his reply, Plaintiff acknowledges that the parties agreed to a limited

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period, but contends that the period they agreed to was January 1, 2010

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to December 31, 2012. (ECF No. 45 at 10). The Court finds that the

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two year period running from January 1, 2010 to December 31, 2012 is

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sufficiently tailored to avoid burden and expense to Defendants.

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Consequently, the Court hereby GRANTS Plaintiff’s motion as to

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document request no. 17, and ORDERS Defendants to produce the

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Program Status Reports at Centinela State Prison from January 1,

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2010 to December 31, 2012.

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Relatedly, interrogatory no. 4 to Defendant Madden seeks the

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dates, facilities, and inmate race groups (e.g., Southern Hispanics,

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Mexican Nationals, etc.) who have been placed on modified program

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pending an investigation of a conspiracy to assault staff from November

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2006 through November 2011. (ECF No. 33 at 38-39). Defendants

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assert that the information is not reasonably calculated to lead to the

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discovery of admissible evidence, and that they do not have this

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information in their possession, custody, or control. Defendants further

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argue that their agreement to produce Program Status Reports

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pursuant to document request no. 17 should suffice for this overlapping
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request. The Court agrees with Defendants that the information

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requested is not relevant to Plaintiff’s claims of individualized

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retaliation, because he is not advancing a claim that the prison’s

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procedures for dealing with conspiracies to assault staff are defective.

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Moreover, the Court declines to order Defendants to produce documents

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not within their possession, custody, or control. Accordingly, the Court

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DENIES Plaintiff’s motion to compel further response to interrogatory

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no. 4 to Defendant Madden.

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D. Requests relating to policies for handling inmate conspiracies
Requests for Production of Documents (Set 2) nos. 5, 6

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Requests 5 and 6 seek CDCR and Centinela State Prison manuals,

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policies, and procedures for handling inmate conspiracies to assault

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staff or officers. (ECF No. 33 at 36). Defendants argue that the motion

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is moot as to these requests, because they responded that a search for

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responsive documents was being conducted, that they are in the process

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of completing that search, and that they agree to provide an updated

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response with any responsive documents within thirty days

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(presumably of the date their opposition was filed on September 26,

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2014). (ECF No. 37 at 6:3-7). Plaintiff replied that Defendants’
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assurance they will produce documents is an empty promise, and notes

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that 93 days (as of October 16, 2014) elapsed without any responsive

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documents being produced. The Court disagrees that the motion to

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compel these requests is mooted by Plaintiff’s mere agreement to

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produce the documents. Moreover, the 30 day period Defendants

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permitted themselves expired on October 27, 2014. If Defendants have

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indeed produced the responsive documents, then the motion is mooted.

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But there is no evidence that Defendants have produced the documents

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in the record. Accordingly, the Court GRANTS Plaintiff’s motion to

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compel responsive documents to requests 5 and 6, and ORDERS

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Defendants to produce the documents within 10 days of entry of this

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order, unless Defendants have already produced the documents.

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E. Miscellaneous requests relating to Defendant Gervin
Requests for Production of Documents (Set 1) no. 9; Interrogatories
to Defendant Gervin nos. 2, 3, 5-7

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Document request no. 9 seeks an exemplar of Defendant Gervin’s

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handwriting. (ECF No. 33 at 31-33). Plaintiff explains that he is

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seeking the exemplar in order to compare Defendant Gervin’s

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handwriting to the handwriting on the kite that implicated Plaintiff in

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the conspiracy to assault staff. (Id. at 32). Defendants oppose on the
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basis that they already provided an exemplar in the form of a chrono

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with Defendant Gervin’s handwriting and signature. (ECF No. 37 at

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4:24-27). Plaintiff contends that the chrono only included a few letters

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of handwriting in addition to the signature. (ECF No. 45 at 9). Neither

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party attaches the chrono for the Court to evaluate its sufficiency. The

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Court finds that Plaintiff has shown the relevancy of his request for a

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handwriting exemplar, that the chrono provided may be insufficient,

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and that the burden to Defendants in producing a more lengthy

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handwriting exemplar is minimal. Consequently, the Court hereby

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GRANTS Plaintiff’s motion as to this request and ORDERS that

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Defendant Gervin produce to Plaintiff a more lengthy handwriting

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exemplar.

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Interrogatory no. 2 to Defendant Gervin seeks disciplinary

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information about any misconduct (including off-duty) by Gervin during

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his career. (ECF No. 33 at 41). Defendants object that the demand is

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overly broad, irrelevant, seeks inadmissible character evidence, and

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that the information is private and confidential peace officer records.

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(ECF No. 37 at 7). Defendant’s objections are well taken. Plaintiff has

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not carried his burden to show the relevancy of information about
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Defendant Gervin’s past, unrelated (and hypothetical) misconduct.

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Even if he had, the request is overly broad, and Plaintiff has not shown

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that his interest in obtaining the evidence outweighs Defendant

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Gervin’s privacy interests. Consequently, the Court hereby DENIES

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Plaintiff’s motion as to interrogatory no. 2 to Defendant Gervin.

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Interrogatory no. 3 to Defendant Gervin seeks a list of all lawsuits,

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including case number, filed against Defendant Gervin at anytime.

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(ECF No. 33 at 43). Defendants objected that the interrogatory seeks

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information that is equally available to Plaintiff, and that it seeks

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irrelevant information. (ECF No. 37 at 7-8). Nevertheless, Defendants

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confirm that they did provide Plaintiff with a list of two lawsuits filed

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against Defendant Gervin, including party names, years, locations, and

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the nature of the allegations. (Id.). Plaintiff is not satisfied, and

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demands that Defendants produce the case numbers for the two

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lawsuits. The Court finds that the information sought is equally

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available to Plaintiff, particularly now that Defendants have provided

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the party names, years, and locations of the lawsuits. Consequently,

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Plaintiff’s motion to compel further response to interrogatory no. 3 to

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Defendant Gervin is DENIED.
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Plaintiff’s interrogatories nos. 5-7 to Defendant Gervin are difficult

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to understand. For instance, interrogatory no. 5 asks “what work

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assignments would you have assigned plaintiff to, that he would not

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have liked (in order to be AIA assigned and receive weekend yards).”

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(ECF No. 33 at 44). The Court has attempted to discern the meaning of

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each request, and it appears that the requests ask Defendant Gervin

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what he would have done in hypothetical situations or how Defendant

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Gervin knew things that Plaintiff alleges were not true. (ECF No. 33 at

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44-46). The interrogatories are more akin to arguments relating to

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alleged insults and threats, the content of which is tangential—at

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best—to these proceedings. The truth or falsity of the threats and

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insults Plaintiff alleged Defendant Gervin made are not at issue; only

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evidence as to whether Defendant Gervin made or did not make the

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alleged statements is relevant here. Defendant Gervin appropriately

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objected to these requests as argumentative, vague and ambiguous, and

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irrelevant. Plaintiff’s motion as to interrogatories nos. 5-7 to Defendant

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Gervin is therefore DENIED.

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IV. Conclusion

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In accordance with the foregoing analysis, Plaintiff’s motion is

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GRANTED IN PART, and Defendants are ORDERED:
1. To make the necessary arrangements for Plaintiff to inspect but

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not copy the redacted kite as outlined in more detail above;

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2. To produce the Program Status Reports at Centinela State

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Prison from January 1, 2010 to December 31, 2012;

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3. To produce the documents responsive to Request for Production

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of Documents (Set 1) Nos. 5 and 6 within 10 business days of

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entry of this order, unless Defendants have already produced the

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documents; and,

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4. To produce a more lengthy handwriting exemplar from
Defendant Gervin within 10 business days of entry of this order.
Plaintiff’s motion is in all other respects DENIED.

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IT IS SO ORDERED.
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Dated: November 13, 2014
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