Ayuso v. Butkiewieus et al

Filing 133

RULING. Ruling on Motion to Compel Discovery (Doc. # 105 ). For the reasons set forth in the attached ruling, the Court DENIES, in large part, and GRANTS, in part, plaintiffs motion to compel discovery [Doc. #105]. Signed by Judge Sarah A. L. Merriam on 3/11/19. (Dowie, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
JOSE A. AYUSO
:
:
v.
:
:
BUTKIEWIEUS, et al.
:
:
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Civ. No. 3:17CV00776(AWT)

March 11, 2019

RULING ON MOTION TO COMPEL DISCOVERY [Doc. #105]
Self-represented plaintiff Jose A. Ayuso (“plaintiff”) has
filed a “Motion for Pre-Trial Evidentiary Hearing (In Camera
Review)” seeking in camera review of documents produced by
defendant Lieutenant Roy (“defendant” or “Roy”) in response to
plaintiff’s requests for production (“RFP”) dated July 13, 2018.
Doc. #105. In that motion, plaintiff also seeks production of
additional materials. See id. at 2, 4. Accordingly, the Court
construes plaintiff’s motion as a motion to compel additional
production of documents. Defendant did not object to the motion,
and on January 22, 2019, this Court agreed to conduct the
requested in camera review. See Doc. #114. For the reasons set
forth below, the Court DENIES, in large part, and GRANTS, in
part, plaintiff’s motion to compel [Doc. #105].
I.

Background
Plaintiff, a prisoner, brings this action pursuant to 42

U.S.C. §1983, alleging violations of the First and Eighth

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Amendments to the United States Constitution by correctional
officials working at MacDougall Correctional Institute. See
generally Doc. #54. Specifically, plaintiff brings: “(1) [a]
First Amendment retaliation claim ... against defendants
Butkiewieus and Roy and (2) an Eighth Amendment deliberate
indifference claim against defendants Melendez and Bosque
related to the confiscation and retention of the plaintiff’s
eyeglasses[.]” Doc. #43. Plaintiff alleges a violation of his
rights under the First Amendment based on alleged retaliation
against plaintiff for a grievance he filed on January 12, 2015,
in response to a “shakedown” of his cell conducted in December
2014, which resulted in confiscation of his property. See Doc.
#54 at 5, 11. Plaintiff also claims that he was threatened with
the issuance of a disciplinary report, which would result in the
loss of privileges, if plaintiff did not become an informant for
Roy and Butkiewieus. See id. at 6-9, 14. Additional details
regarding plaintiff’s claims are set forth in the Court’s ruling
on plaintiff’s first motion to compel. See Doc. #93 at 1-4.
As relevant to the instant motion, on July 24, 2018,
counsel for defendant received a set of requests for production
from plaintiff. See Doc. #80 at 22, n.1. Defendant, after an
extension of time was granted, provided his responses and
objections to plaintiff on September 24, 2018. See id. Plaintiff
argued that defendant’s responses were insufficient to meet his
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discovery obligations and filed a motion to compel production of
additional materials. See Doc. #80. Following this Court’s
November 14, 2018, order granting, in part, plaintiff’s first
motion to compel, see Doc. #93, defendant provided plaintiff
with supplemental responses. See Doc. #116; Doc. #117.
On December 27, 2018, plaintiff filed the instant motion
seeking an in camera review of the supplemental responses
provided by defendant. See Doc. #105. This Court granted
plaintiff’s request for in camera review on January 22, 2019,
absent objection, see Doc. #114, and defendant subsequently
provided the Court with separate redacted and unredacted copies
of all material provided to plaintiff in response to plaintiff’s
July 24, 2018, requests for production, see Doc. #116; Doc.
#117; Doc. #118; Doc. #119. Documents #116 and #117 are copies
of the materials plaintiff received in response to his request
for production; Documents #118 and #119 are unredacted versions,
which have not been provided to plaintiff.1

1

When referring to the contents of Doc. #117, Doc. #118, and
Doc. #119, the Court refers to the terminal digits of the Bates
numbers, which appear at the bottom of each page. As to all
other documents, the Court refers to the ECF numbers at the top
of each page. As to Doc. #117, the Court notes that it appears
as though one page of the document Bates numbered 915-939, which
was properly withheld on the basis of attorney-client privilege,
is missing. The Bates numbers in this document are not visible,
so the Court cannot tell exactly which page is missing. The full
contents of that document were provided to the Court in Doc.
#118 at ECF page numbers 72-96, and, as discussed below, the
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II.

Legal Standard
Plaintiff contends that the responses defendant has

produced to date do not satisfy his discovery obligations, and
moves to compel additional production. See generally Doc. #105.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “[T]he burden of demonstrating
relevance [is] on the party seeking discovery.” Bagley v. Yale
Univ., 315 F.R.D. 131, 144 (D. Conn. 2016) (citation and
quotation marks omitted), as amended (June 15, 2016).
“‘Relevance’ under Rule 26(b)(1) of the Federal Rules of Civil
Procedure has been construed broadly to include ‘any matter that
bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.’”
Sullivan v. StratMar Sys., Inc., 276 F.R.D. 17, 19 (D. Conn.

Court has concluded that that entire document was properly
withheld.
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2011) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978)). Once the party seeking discovery has demonstrated
relevance, “[t]he party resisting discovery bears the burden of
showing why discovery should be denied.” Cole v. Towers Perrin
Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
III. Discussion
Plaintiff’s motion seeks review of the redacted contents of
documents produced in response to RFP #11 and #14, and alleges
that defendant’s responses to RFP #1, #2, #3, #5, #6, #8, #10,
#15, and #18 are insufficient.2 See generally Doc. #105.
As a threshold matter, the Court notes that plaintiff
appears to be under the impression that the contents of Doc.
#117, which is defendant’s December 12, 2018, redacted response
to RFP #11 and #14, are intended to be responsive to all of the
July 24, 2018, requests for production. Plaintiff raises
objections to various responses by defendant on the ground that
plaintiff is unable to determine if the responses are complete
due to the heavy redaction. See e.g. Doc. #105 at 3 (noting
concerns related to redaction of documents related to RFP #3,
#5, #6, and #8).
Defendant has provided plaintiff with additional unredacted
materials, and has both provided and identified documents

2

Plaintiff does not seek additional production related to RFP
#4, #7, #9, #12, #13, #16, or #17. See Doc. #105 at 3-5.
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specific to the requests for production as to which the Court
granted plaintiff’s fist motion to compel. See generally Doc.
#116 at 75-99. Doc. #117 is responsive only to RFP #11 and #14.
See Doc. #116 at 100. Defendant’s supplemental responses to
other requests for production, made on December 4, 2018, are
contained at pages 75 to 99 of Doc. #116.
In response to RFP #5, #6, #8, #10, and #18, defendant
states either that he is not in possession of any responsive
materials at all, or that he has provided all responsive
materials in his possession. See Doc. #116 at 78-80, 83. The
Court accepts these representations and finds that no further
response is necessary. See Mirmina v. Genpact LLC, No.
3:16CV00614(AWT)(SALM), 2017 WL 3189027, at * 2 (D. Conn. July
27, 2017) (collecting authorities). Accordingly, plaintiff’s
motion to compel with respect to these requests for production
is DENIED.
The other outstanding requests for production fall broadly
into two categories. As to both sets of requests, “Defendant Roy
maintains all objections raised in his prior response dated
September 24, 2018.” Id. at 75.
a. RFP #1, #2, #3, and #15
As to RFP #1, #2, #3, and #15, defendant has supplemented
his responses, but has not stated whether he has additional
responsive material in his possession, custody, or control, nor
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whether other responsive material exists. See Doc. #116 at 7577, 82. As to these four requests, no privilege log has been
produced.
As he has been previously advised, defendant cannot merely
assert an objection and withhold relevant material; if he
“asserts a privilege, or seeks to redact materials on the
grounds of safety and security concerns, a privilege log must be
produced.” Doc. #93 at 6-7, 9 (emphasis added). Defendant shall
supplement his responses to RFP #1, #2, #3, and #15 to confirm
whether any additional responsive materials exist, and provide a
privilege log if appropriate.
Plaintiff also raises specific concerns regarding two
documents, relevant to RFP #1 and #15. See Doc. #105 at 2, 6.
Plaintiff alleges that he was issued a disciplinary report on
December 19, 2014, and that property was taken from him on that
same date, and that a receipt should have been generated
following that confiscation. See id. No such disciplinary report
or property receipt has been produced.
With respect to RFP #1, the request relevant to the
disciplinary report, plaintiff states: “Defendants produced
records of disciplinary reports, but have not provided the
disciplinary report dated December 19, 2014[.]” Doc. #105 at 2.
No disciplinary report from December 2014 has been produced. As
the Court previously stated: “This case relates directly and
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specifically to events beginning in December 2014, and to
disciplinary reports issued and actions taken thereafter.
Accordingly, disciplinary records including reports and hearing
materials, regarding plaintiff, relating to events occurring on
or after December 1, 2014, are relevant and shall be disclosed.”
Doc. #93 at 5-6. If no disciplinary report was issued to
plaintiff in December 2014, or no such report can be located,
defendant shall expressly confirm that fact in a sworn response.
With respect to RFP #15, the request relevant to the
property receipts, defendant was required to provide
“documentation and receipts related to property taken from
plaintiff on December 19, 2014 ... if no such materials exist
related to those dates, defendant shall expressly confirm that
fact in a sworn response.” Doc. #93 at 13 (emphasis added). In
response to this Court’s order, defendant produced “Inmate
Property Inventory Forms dated 7/30/15[.]” Doc. #116 at 82, 9799. This is the only supplemental production produced by
defendant in response to RFP #15.3 See Doc. #116 at 82. Defendant

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Defendant has provided, in his supplemental response to RFP #3,
documentation related to items “Returned to Inmate” on December
19, 2014, and “Returned to Inmate” or “Discarded” on December
29, 2014. See Doc. #116 at 89-96. Defendant also produced two
“Inmate Property Inventory Form[s]” with illegible dates. See
Doc. #116 at 97-98. Defendant claims that these items are “dated
12/29/14.” Doc. #116 at 77. If defendant asserts that these
materials are also responsive to RFP #15, he should expressly
reference them in that response as well.
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has made no supplemental response relating to property allegedly
taken on December 19, 2014. Defendant shall comply with this
Court’s order: “[I]f no such materials exist related to those
dates, defendant shall expressly confirm that fact in a sworn
response.” Doc. #93 at 13.
b. RFP #11 and #14
As to RFP #11 and #14, Defendant has produced close to
1,800 pages of allegedly responsive, but heavily redacted,
material along with a privilege log. See generally Doc. #117,
Doc. #116 at 101-119. Again, Defendant has not stated whether he
has additional responsive material in his possession, custody,
or control, nor whether other responsive material exists. See
Doc. #116 at 101-119. As noted above, “Defendant Roy maintains
all objections raised in his prior response dated September 24,
2018.” Id. at 75.
As previously advised, defendant cannot merely assert an
objection and withhold relevant material; if he “asserts a
privilege, or seeks to redact materials on the grounds of safety
and security concerns, a privilege log must be produced.” Doc.
#93 at 6-7, 9 (emphasis added). Defendant shall supplement his
responses to RFP #11 and #14 to confirm whether any additional
responsive materials exist, and provide a supplemental privilege
log if appropriate.

9

As to the documents for which a privilege log was produced,
defendant raises two grounds for withholding or redacting the
documents at issue: (1) Attorney-Client Privilege and (2) Safety
and Security Concerns. See Doc. #116 at 101-119. The Court will
address these objections in turn.
i.

Attorney Client Privilege

“A party invoking the attorney-client privilege must show
(1) a communication between client and counsel that (2) was
intended to be and was in fact kept confidential, and (3) was
made for the purpose of obtaining or providing legal advice.” In
re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007). “In civil
suits between private litigants and government agencies, the
attorney-client privilege protects most confidential
communications between government counsel and their clients that
are made for the purpose of obtaining or providing legal
assistance.4” Id. at 418 (footnote in original).

4

As the Second Circuit has stated:
Certain limitations to the government attorney-client
privilege, not implicated here, may render an otherwise
protectable communication unprotected. See Nat’l Council
of La Raza[ v. Dep’t of Justice], 411 F.3d [350, 360–61
(2d Cir. 2005)] (holding that the government could not
invoke the attorney-client privilege to bar disclosure
of a legal memorandum where the government had
incorporated it into its policy by repeatedly, publicly
and expressly relying upon its reasoning and had adopted
its reasoning as authoritative within the agency); see
also Niemeier v. Watergate Special Prosecution Force,
565 F.2d 967, 974 (7th Cir. 1977); Falcone v. IRS, 479
F.Supp. 985, 989–90 (E.D. Mich. 1979).
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The following pages were withheld from plaintiff on the
basis of attorney-client privilege: Bates 759-765, 776-805, 915939, 991-1072, 1096-1151, and 1658-1768. The Court has reviewed
all of these pages and agrees with defendant. These pages
contain communications between Department of Corrections
employees and the Assistant Attorney General representing the
defendants in this case, distributing and discussing case
filings and discovery requests. These communications fall
squarely within the attorney-client privilege and are not
discoverable.
ii.

Safety and Security

Defendant’s remaining productions were redacted or withheld
on the grounds of “Safety and security[.]” Doc. #116 at 101-119.
In reviewing documents withheld for this reason, the Court bears
in mind that the Department of Correction “is likely to have a
better understanding of security risks than a prisoner.” Lopez
v. McEwan, No. 3:08CV0678(JCH), 2010 WL 537744, at *3 (D. Conn.
Feb. 12, 2010). As to relevant documents, however, defendant, as
“[t]he party resisting discovery[,] bears the burden of showing
why discovery should be denied.” Cole, 256 F.R.D. at 80.
While the vast majority of documents were redacted rather
than withheld, hundreds of pages were redacted in their

In re Cty. of Erie, 473 F.3d 413, 418 n.5 (2d Cir. 2007).
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entirety. The bulk of those fully redacted pages, specifically
Bates numbers 22-379, 386-389, 397-417, 420-424, 427-499, 519619, 623-755, 756-758, 766-775, 806-838, 844-872, 880-884, 887899, 907-914, 944-979, 983-990, 1152-1348-1381, 1384-1404, 14071520, and 1522-1657, contain spreadsheets detailing personal
information of prisoners. Plaintiff’s name appears on some, but
not all, of these lists. The lists were sent by e-mail, and the
first names of prison staff who sent or received the e-mail with
the attachments have been redacted as well. The e-mails contain
only a subject line; there is no content in the body of the emails. The substantive content is contained in the spreadsheets
attached to the e-mails.
The Court has already denied plaintiff’s requests for
documents identifying other inmates generally as irrelevant to
this action. See Doc. #93 at 8. Following its review of these
documents specifically, the Court finds that the redactions are
appropriate, and that the potential safety and security concerns
of disclosing this information to plaintiff outweigh any
potential relevance they may have. See Darazs v. Dzurenda, No.
3:14CV01330(JCH), 2016 WL 1732718, at *2 (D. Conn. Apr. 29,
2016) (finding production of documents “redacted to conceal the
personal and identifying information of inmates not involved in
the subject incident” sufficient to meet defendant’s discovery
obligations). Accordingly, to the extent that plaintiff seeks to
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compel additional production of, or to remove redaction from,
these documents, that request is DENIED.
Bates numbers 1-11, 13-17, 21, 380-385, 390-396, 418-419,
425-426, 500-507, 509-510, 512-514, 516-518, 620-622, 839-843,
873-874, 875-879, 885-886, 900-906, 940-943, 980-982, 1073-1095,
1382-1383, 1405-1406, and 1521 were provided to plaintiff with
some redactions. Specifically, in addition to the names of other
prisoners, certain personal information (such as the first
names), of prison staff has been redacted. Defendant contends
these redactions are appropriate to address safety and security
concerns. Courts in this district have routinely decided, absent
a specific need for further identifying information, that “the
release of that information would pose a threat to the security
of other inmates and staff” and such “redactions are
appropriate.” Daniels v. Murphy, No. 3:11CV286(SRU), 2013 WL
587005, at *4 (D. Conn. Feb. 12, 2013); see also Darazs, 2016 WL
1732718, at *2.
Plaintiff has access to the bulk of the content of these
pages, but has not raised any specific argument that an
individual name or any individual document should not be
redacted. This case does not involve the need to identify any
unknown defendants or witnesses. See Doc. #93 at 7-9.

The Court

has reviewed these pages and sees no basis for further
disclosures. Accordingly, to the extent that plaintiff seeks to
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compel additional production of, or to remove redaction from,
these documents, that request is DENIED.
The remaining seven pages, Bates numbers 12, 18-20, 508,
511, and 515, were withheld due to “Safety and security[.]” Doc.
#116 at 101-108. The Court has reviewed these pages in detail,
and concluded that they need not be disclosed. In particular,
these materials fall outside the time range of the “period
between December 1, 2014, and December 31, 2015[,]” Doc. #93 at
12-13, which was a restriction previously imposed by the Court.
Additionally, these documents do not have any apparent relevance
to the events described in the third amended complaint.
Accordingly, to the extent that plaintiff seeks to compel the
production of these documents, that request is DENIED.
IV.

Conclusion
For the reasons set forth herein, the Court DENIES, in

large part, and GRANTS, in part, plaintiff’s motion to compel
discovery [Doc. #105]. In summary:
1. As to RFP #1, #2, #3, and #15, generally, defendant shall
supplement his responses to confirm whether any additional
responsive materials exist, and provide a privilege log if
appropriate.
2. As to RFP #1, specifically, defendant shall provide any
disciplinary report(s) issued to plaintiff in December
2014. If no such report exists, or none can be located,
defendant shall confirm that fact in a sworn response.
3. As to RFP #11 and #14, defendant shall supplement his
responses to confirm whether any additional responsive

14

materials exist, and provide a supplemental privilege log
if appropriate.
4. As to RFP #15, specifically, defendant shall provide
“documentation and receipts related to property taken from
plaintiff on December 19, 2014 ... if no such materials
exist related to those dates, defendant shall expressly
confirm that fact in a sworn response.” Doc. #93 at 13
(emphasis added).
Defendant Roy shall provide supplemental responses to
plaintiff’s requests for production, as described above, on or
before March 29, 2019.
SO ORDERED at New Haven, Connecticut, this 11th day of
March, 2019.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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