Fernandez v. Duarte et al

Filing 95

ORDER to File Privilege Log and Lodge Documents For In Camera Review. On or before February 3, 2025, Defendant must file on the docket all privilege logs provided to Plaintiff. Signed by Magistrate Judge Valerie E. Torres on 01/27/2025.(All non-registered users served via U.S. Mail Service)(mjw)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK J. FERNANDEZ, Plaintiff, 12 13 v. 14 E. DUARTE, 15 Case No.: 3:22-cv-00446-BAS-VET ORDER TO FILE PRIVILEGE LOG AND LODGE DOCUMENTS FOR IN CAMERA REVIEW Defendant. 16 17 18 Before the Court is Plaintiff Frank Fernandez’s (“Plaintiff”) Motion to Compel 19 Discovery. Doc. No. 81 (“Motion”). Defendant E. Duarte (“Defendant”) timely opposed 20 the Motion. Doc. No. 83 (“Opposition”). Defendant invokes the official information 21 privilege in the Opposition, having withheld materials that are otherwise responsive to 22 many of Plaintiff’s requests for production. Id. at 14–16. Centinela State Prison Litigation 23 Coordinator N. Telles (“Declarant Telles”) filed a supporting declaration, representing that 24 he or she has reviewed or is familiar with material responsive to Plaintiff’s relevant 25 requests for production. Id. at 67. Declarant Telles further represents that producing certain 26 responsive documents, such as Defendant’s personnel file, would present significant safety 27 and security risks that cannot be mitigated through a protective order. Id. at 68–74. 28 Defendant’s counsel also affirms in a separate declaration that she has diligently reviewed 1 3:22-cv-00446-BAS-VET 1 responsive documents and produced all non-privileged documents to Plaintiff. Doc. No. 2 83-1 at 2. 3 However, neither the Motion nor the Opposition attach a privilege log describing the 4 responsive materials being withheld. Defendant’s counsel briefly references a 5 “supplemental privilege log,” see id. at 2, but no privilege log is currently before the Court. 6 Nor does the Court have an adequate understanding of the documents being withheld. 7 Whenever a party withholds discoverable information due to a claim of privilege, they must 8 “describe the nature of the documents, communications, or tangible things not produced or 9 disclosed—and do so in a manner that, without revealing information itself privileged or 10 protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). 11 Further, when the official information privilege is asserted, the Court “must balance the 12 government’s interest in protecting official information from disclosure against the 13 plaintiff’s need for the information.” Edwards v. Cnty. of L.A., No. CV 08-07428 14 GAF(SSx), 2009 U.S. LEXIS 114577, at *2–3 (C.D. Cal. Dec. 9, 2009) (citing Kelly v. 15 City of San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987)). 16 To adequately assess Defendant’s official information privilege claims and conduct 17 the necessary balancing, the Court requires both a privilege log and unredacted copies of 18 the documents withheld for in camera review. See Solomon v. Tapia, No. 1:22-cv-1604- 19 KES-HBK (PC), 2024 U.S. Dist. LEXIS 236148, at *6–7 (E.D. Cal. Dec. 4, 2024) 20 (requiring submission of unredacted report for in camera review and a privilege log in case 21 involving pro se prisoner asserting a First Amendment claim). Therefore, the Court 22 ORDERS the following: 23 24 25 1. On or before February 3, 2025, Defendant must file on the docket all privilege logs provided to Plaintiff in compliance with Fed. R. Civ. P. 26(b)(5)(A)(ii). 2. On or before February 7, 2025, Defendant must lodge with the Court for in 26 camera review all responsive materials being withheld on the basis of the official 27 information privilege. Defendant must lodge unredacted versions of the materials, either 28 electronically or in paper form. If lodging electronically, Defendant may either e-mail the 2 3:22-cv-00446-BAS-VET 1 materials to efile_torres@casd.uscourts.gov as PDF attachments or mail a USB-drive with 2 the saved materials. 3 3. If mailing, Defendant shall address any materials to: Chambers of Magistrate 4 Judge Valerie E. Torres, 333 West Broadway, Suite 420, San Diego, CA 92101. Defendant 5 shall note the case name and number and shall clearly mark as “Confidential Lodgment for 6 In Camera Review/Not for Filing” on the outside of the envelope. 7 IT IS SO ORDERED. 8 9 Dated: January 27, 2025 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:22-cv-00446-BAS-VET

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?