Goodrick v. Sandy et al

Filing 54

MEMORANDUM DECISION AND ORDER granting 36 Motion to Seal Document; denying 37 Motion to Stay; denying 41 Motion to Compel; denying 43 Motion to Appoint Counsel; denying 44 Motion to Stay. Plaintiffs opposition to the motion for summary judg ment 33 shall be filed with the Court and served on Defendants no later than 21 days after entry of this Order. Defendants shall file their reply no later than 14 days after the date Plaintiffs opposition is filed. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAN GOODRICK,
Case No. 1:10-cv-00603-EJL
Plaintiff,
v.
ROBIN SANDY, JAY NIELSEN,
CAROLYN MELINE, BRENT
REINKE, PAM SONNEN, KEVIN
KEMPF, TEREMA CARLIN, GALE
MUNDEN, ERIC MacEACHERN, AMY
ANDERSON, WILLIAM UNGER,
PAMELA SWEARIGEN, SHIRLEY
ROANE, KRISTI LYNCH, DANIEL
BYBEE, RANDY HARTNESS, and C/O
HOUNDSHEL,

MEMORANDUM DECISION AND
ORDER

Defendants.

The following motions are currently pending before the Court in this prisoner civil
rights matter: (1) Defendants’ Motion for Summary Judgment (Dkt. 33); (2) Defendants’
Motion to Seal Certain Exhibits Submitted In Support of Defendants’ Motion for
Summary Judgment (Dkt. 36); (3) Defendants’ Motion to Stay Discovery Pending
Determination of Defendants’ Motion for Summary Judgment (Dkt. 37); (4) Plaintiff’s
Motion to Compel Discovery (Dkt. 41); (5) Plaintiff’s Motion to Stay Defendants’

MEMORANDUM DECISION AND ORDER - 1

Motion For Summary Judgment (Dkt. 44); and (6) Plaintiff’s Third Motion for
Appointment of Counsel (Dkt. 43).
The parties have adequately stated the facts and arguments in their briefing, and
the Court will resolve these matters (with the exception of Defendants’ Motion for
Summary Judgment) on the record without oral argument. D. Idaho L. Civil R. 7.1.
For the reasons that follow, the Court will deny Defendants’ Motion to Stay
Discovery Pending Determination of Defendants’ Motion for Summary Judgment,
Plaintiff’s Motion to Compel Discovery, Plaintiff’s Motion to Stay Defendants’ Motion
For Summary Judgment and Plaintiff’s Third Motion for Appointment of Counsel.
Defendants’ Motion to Seal Certain Exhibits Submitted In Support of Defendants’
Motion for Summary Judgment will be granted. The Court will not presently rule on
Defendants’ Motion for Summary Judgment, but will allow Plaintiff a brief extension of
time to file his opposition.
BACKGROUND
At all times relevant to the Complaint, Plaintiff was housed at the Idaho
Correctional Institution in Orofino (ICI-O). On June 17, 2010, Plaintiff was accused of
engaging in prohibited sexual activity with another inmate named Gray. (Dkt. 32-2, ¶ 3.)
During the investigation of the incident, Plaintiff was also accused of engaging in
prohibited sexual activity with an inmate named Brown. (Id., ¶¶ 27-29.) ICI-O officials
pursued two disciplinary offense reports (DORs) against Plaintiff, (Id.,¶¶ 26, 30), in
which they relied upon information provided by confidential witnesses. (Id., ¶¶ 12, 27MEMORANDUM DECISION AND ORDER - 2

29.) Plaintiff was found guilty of sexual misconduct in both of the DORs, and he has
since been transferred to a more restrictive institution and placed in administrative
segregation. (Id., ¶¶ 35-36, 39-40, 46-48.)
Plaintiff filed this lawsuit in December 2010, alleging a variety of claims. (Dkt.
1.) Plaintiff thereafter filed a motion to amend his compliant, along with a proposed
Amended Complaint in August 2012 (Dkt. No. 7). The Court granted Plaintiff’s motion
and issued a Second Initial Review Order, as required by 28 U.S.C. § 1915A. (Dkt. 11.)
The Court found that Plaintiff stated claims under the following causes of action: (1)
Plaintiff’s rights under the First and Fourteenth Amendments were violated when certain
Defendants engaged in allegedly retaliatory conduct based on his previous litigation
activities; (2) Plaintiff was deprived of due process of law under the Fourteenth
Amendment because the two DORs for sexual misconduct were not supported by “some
evidence”; and (3) Plaintiff’s Fourth and Eighth Amendment rights were violated by a
strip search that resulted in naked photographs of Plaintiff. (Id., p. 3.)
Defendants have now filed a motion for summary judgment, seeking to dismiss
Plaintiff’s claims with prejudice. (Dkt. 33.) In support of their motion, Defendants filed
several affidavits. Two of the affidavits, the Affidavit of Shirley Roane and the Affidavit
of Kristi Lynch, include exhibits containing alleged confidential witness information.
(Dkts. 33-3; 33-5; 34; 35.) Defendants argue the release of such exhibits could endanger
the safety of those witnesses. (Dkt. 36-2; 33-3.) Therefore, Defendants filed a motion to
seal the documents. (Dkt. 36.) In addition, Defendants have filed a motion to stay
MEMORANDUM DECISION AND ORDER - 3

discovery pending determination of Defendants’ motion for summary judgment. (Dkt.
37.) Defendants contend that discovery should be stayed until the Court rules on the issue
of qualified immunity. (Id.)
In response, Plaintiff has filed a motion to compel. (Dkt. 41.) Plaintiff seeks,
among other things, disclosure of the identities of the confidential inmate witnesses.
(Dkt. 41-21, pp. 6-8.) Plaintiff argues that Defendants waived any privilege that may
have attached when they inadvertently disclosed the identities of the confidential
witnesses during discovery. (Id.) In addition, Plaintiff has filed a motion to stay the
motion for summary judgment; he contends he has not had an opportunity to complete
discovery. (Dkt. 44.)
MOTION TO STAY DISCOVERY PENDING MOTION FOR
SUMMARY JUDGMENT
1.

Legal Standard
Government officials are entitled to qualified immunity from liability for civil

damages under § 1983 when their “conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is “an entitlement not to stand
trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). The privilege is “an immunity from suit rather than a mere defense to liability;
and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go
to trial.” Id., at 526. In order to minimize the costs incurred by an immune defendant, a

MEMORANDUM DECISION AND ORDER - 4

court must resolve qualified immunity questions at the earliest possible stage in litigation.
Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Accordingly, where defendants have filed
a motion for summary judgement based on qualified immunity, a court should stay
discovery until that threshold question is settled. Crawford-El v. Britton, 523 U.S. 574,
598 (1998) (“[i]f the defendant does plead qualified immunity, the court should resolve
that threshold question before permitting discovery).
2.

Discussion
Defendants move for a stay of discovery pending the Court’s ruling on their

motion for summary judgment based in part on qualified immunity. (Dkt. 37.) Plaintiff
claims the motion should be denied for various reasons, including: (1) Defendants have
already engaged in discovery; (2) Plaintiff needs to conduct discovery to prove
Defendants are not entitled to qualified immunity or summary judgment; and (3) where
Defendants are sued in their official capacities for both declaratory and injunctive relief,
they enjoy no qualified immunity defense. (Dkt. 46-1.)
The Supreme Court has emphasized that qualified immunity questions should be
resolved at the earliest possible stage of a litigation, preferably before discovery is
ordered. Crawford-El v. Britton, 523 U.S. at 598. As noted above, the purpose of the
privilege is to “ minimize the costs incurred by an immune defendant.” Saucier v. Katz,
533 U.S. at 200-01. However, in the present matter, significant discovery has already
occurred. Defendants’ counsel testifies that during the course of discovery, Plaintiff was
provided with over 500 pages of documents, along with audio recordings, photographs
MEMORANDUM DECISION AND ORDER - 5

and a fifteen-page privilege log. (Dkt. 42-1, ¶ 3.) Indeed, the discovery deadline in this
matter, November 16, 2012, and the dispositive motion deadline, December 21, 2012,
have already passed. Although the motion was filed before the close of discovery,
discovery in this matter is now over. Consequently, the policy behind staying discovery
while the Court rules on Defendants’ assertion of qualified immunity is not served in this
case. The Court will deny Defendants’ Motion to Stay Discovery Pending Motion for
Summary Judgment, as it is moot.
Furthermore, when Defendants file for summary judgment on grounds of qualified
immunity and the merits of the claims, they cannot foreclose a plaintiff from obtaining
discovery necessary to respond to the merits arguments.
MOTION TO COMPEL DISCOVERY
1.

Legal Standard
Federal Rule of Civil Procedure 26(b) allows “[p]arties [to] obtain discovery

regarding any matter, not privileged, that is relevant to the claim or defense of any
party. . . .” Fed.R.Civ.P. 26(b)(1). “Relevant” is defined as information that is
“reasonably calculated to lead to the discovery of admissible evidence, noting that it
“need not be admissible at trial.” Id. Although relevance has a broad meaning, district
courts are given broad discretion to apply discovery rules to properly effect the policy of
the Federal Rules of Civil Procedure; namely to “secure the just, speedy, and inexpensive
determination of every action.” Fed.R.Civ.P.1.
If an answering party fails to adequately respond to discovery requests, the
MEMORANDUM DECISION AND ORDER - 6

propounding party can move for an order compelling discovery under Federal Rule of
Civil Procedure 37(a). Generally, a court should deny a motion to compel only if the
information requested falls outside the scope of discovery. See Nugget Hydroelectric,
L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992); cert. denied, 508
U.S. 908 (1993). In other words, a motion to compel “should be granted if the questions
are relevant and proper . . . .” Charles A. Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure § 2286 (1994).
2.

Discussion
Plaintiff moves to compel certain discovery. (Dkt. 41.) First, Plaintiff contends

that Defendants provided impermissible boilerplate or evasive responses to Plaintiff’s
interrogatories and requests for production of documents. (Dkt. 41-21, pp. 3-5.) Second,
Plaintiff contends that he is entitled to the disclosure of witness identities. (Id., pp. 6-8.)
And third, Plaintiff contends that Defendants improperly applied the attorney-client
privilege and work product doctrine. (Id., pp. 11-14.) The Court disagrees.

A.

Responses to Plaintiff’s Interrogatories and Requests for Production of
Documents

The Court has reviewed Plaintiff’s discovery requests and Defendants’
corresponding responses. (Dkts. 41-2; 41-3; 41-4; 41-5; 41-6; 41-7; 41-8; 41-9; 41-10;
41-11; 41-12; 41-13; 41-14; 41-15; 41-16; 41-17; 41-18; 41-19; 41-20.) The Court
concludes that those requests which Defendants refused to answer on the basis that they
were “annoying, unduly burdensome and unduly expensive,” were indeed outside the
MEMORANDUM DECISION AND ORDER - 7

scope of discovery. Plaintiff’s requests sought irrelevant information and were not
calculated to lead to the discovery of admissible evidence. Therefore, Plaintiff is not
entitled to the requested information.
B.

Identities and Information Related to Confidential Witnesses

Plaintiff’s Complaint asserts that he was deprived due process of law under the
Fourteenth Amendment, because two DORs for sexual misconduct were not supported by
“some evidence.” To support this claim, Plaintiff seeks the identities of confidential
witnesses who provided information during the investigation and disciplinary action
related to Plaintiff’s DORs. (Dkt. 41-21, pp. 11-12; Dkt. 50, pp.8-9.) In addition,
Plaintiff seeks unredacted documents concerning information the confidential witnesses
provided. (Dkt. 41-21, pp. 11-12.) While Plaintiff concedes that Defendants have a
qualified privilege to not reveal an informer’s identity, (Id., p. 15), Plaintiff argues that
Defendants waived the security interest in the identities when they inadvertently disclosed
the identities of the confidential witnesses twice during the course of discovery. (Id., pp.
6-8; Dkt. 29.) The Court disagrees.
The need of prison administrators to protect the identities of confidential witnesses
due to compelling interests in inmate safety and prison security is well-established. See
Wolff v. McDonnell, 418 U.S. 539, 568-69 (1974) (due process in a prison disciplinary
hearing does not require that an informant’s identity be revealed to an inmate); Zimmerlee
v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987) (Due process does not require that an
informant’s identity be revealed to inmate subject to prison disciplinary hearing. Rather,
MEMORANDUM DECISION AND ORDER - 8

“[f]indings, that result in the loss of liberty will satisfy due process if there is some
evidence which supports the decisions of the disciplinary board.”). The Zimmerlee Court
recognized the importance of “penological objectives” and explained:
In our search for some evidence, we adhere to the Court’s recent pronouncement
that the “evaluation of penological objectives is committed to the considered
judgment of prison administrators, ‘who are actually charged with and trained in
the running of the particular institution.’” O’Lone v. Shabazz, 482 U.S. 342, 107
S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987) (citations omitted).
We take this opportunity to reaffirm our refusal, even where claims are made
under the First Amendment, to “substitute our judgment on . . . difficult and
sensitive matters of institutional administration”, for the determination of those
charged with the formidable task of running a prison. Id. 107 S.Ct. at 2407
(citations omitted).
Id. 1 Therefore, where prison administrators determine that important penological
objectives necessitate protecting informant identities and related information, courts
generally will not intervene.
In the present case, Defendants submit the Affidavits of Terema Carlin and Shirley
Roane to establish that compelling reasons exist for protecting the identities of the
witnesses in Defendant Roane’s investigation of Plaintiff. (Dkts 36-2; 33-3.) The two
IDOC officials testify to the following:

1

While the Zimmerlee Court recognized that due process does not require that an
informant’s identity be revealed to an inmate, it also acknowledged that information from a
confidential source must be reliable. Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.
1987). Reliability may be established by: (1) the oath of the investigating officer appearing
before the committee as to the truth of his report that contains confidential information, (2)
corroborating testimony, (3) a statement on the record by the chairman of the committee that he
had firsthand knowledge of sources of information and considered them reliable based on the
informant’s past record, or (4) an in camera review of the documentation from which credibility
was assessed. (Footnote omitted.) Id.
MEMORANDUM DECISION AND ORDER - 9

(1)

Releasing the identities would likely subject the offender witnesses to
retaliation or retribution for providing prison authorities with information
implicating Plaintiff in disciplinary offenses. (Dkt. 36-2, ¶¶ 7-11; Dkt. 333, ¶¶ 35, 38.)

(2)

Protecting the safety of offenders in IDOC’s custody is crucial to IDOC’s
ability to obtain truthful, accurate information from offender witness so
IDOC can protect other offenders from sexually violent behavior. (Dkt. 632, ¶¶ 12-14.)

(3)

Obtaining such information from offender witnesses allows IDOC to avoid
large scale disruptions and possible riots amongst the offender population.
(Id., at ¶ 15.)

(4)

Offender witnesses are willing to come forward and provide such crucial
information because they know their identities will not be revealed to other
offenders. (Id., at ¶ 16.)

These statements, along with the Court’s in camera review of the documents filed with
the Court under seal, reveal that indeed a valid interest exists in protecting the identities
of the confidential inmate witnesses.
Nonetheless, Plaintiff contends that Defendants waived the security interest when
they inadvertently disclosed the identities of two offenders on a document disclosed
during the course of discovery, and when Defendant Kristi Lynch identified several
offenders as potential witnesses for the trial in this matter. In the Ninth Circuit, the
inadvertent production of privileged documents is neither a necessary nor a sufficient
condition for finding that the privilege was waived. See Gomez v. Vernon, 255 F.3d
1118, 1131-1132 (9th Cir. 2001) (citing United States v. de la Jara, 973 F.2d 746, 749750 (9th Cir. 1992). Instead, in determining whether a privilege has been waived by the
inadvertent production of privileged documents, courts within the Ninth Circuit consider
MEMORANDUM DECISION AND ORDER - 10

“the circumstances surrounding the disclosure.” Id.
Under the totality of the circumstances approach, courts generally consider the
following five factors:
(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the
time taken to rectify the error: (3) the scope of the discovery; (4) the extent of the
disclosure; and (5) the “overriding issue of fairness.”
U.S. ex rel. Bagley v. TRW, Inc., 204 F.R.D. 170, 177 (C.D.Cal.2001); U.S. v. SDI Future
Health, Inc., 464 F.Supp.2d 1027, 1045 (D.Nev.2006); and In re Sause Brothers Ocean
Towing, 144 F.R.D. 111, 115 (D.Or.1991). While the multi-factor test is useful in
identifying relevant considerations, it should not be applied mechanistically. U.S. ex rel.
Bagley v. TRW, Inc., 204 F.R.D. at 179.
The first factor – the reasonableness of the precautions taken to prevent inadvertent
disclosure – is not specifically addressed by the briefing of the parties. However, the
second factor – the time taken to rectify the error – is discussed and favors Defendants.
Defendants produced a document bates stamped #000217 to Plaintiff on June 16, 2012.
(Dkt. 42-2.) The document was only partially redacted and revealed the identities of
confidential witnesses. (Id.) On July 5, 2012, Plaintiff propounded discovery requests to
Defendants and sought unredacted copies of any and all statements concerning the
identified confidential witnesses. (Dkt. 29, p. 7-8.) On July 20, 2012, Defendants sent a
letter to Plaintiff and advised him of the inadvertent disclosure. (Dkt. 42-2.) Along with
the letter, Defendants produced a purportedly properly redacted page to replace the one
previously produced and demanded return of the previously produced page. (Id.) Thus,
MEMORANDUM DECISION AND ORDER - 11

once Defendants learned that a privileged document had been produced, Defendants
attempted to correct the problem swiftly and effectively.
The third and fourth factors – the scope and extent of the discovery – are
indeterminate. Defendants’ counsel testifies that during the course of discovery, Plaintiff
was provided with over 500 pages of documents, along with audio recordings,
photographs and a fifteen-page privilege log. (Dkt. 42-1, ¶ 3.) This was not a
particularly large document production, and it would seem that Defendants could keep
track of sensitive documents concerning confidential witnesses within this amount.
Nevertheless, Defendants found it necessary to redact many of the 500 pages and only
one page containing two names, which should have been redacted, was inadvertently
disclosed. The ratio of privileged documents produced to all documents produced is
roughly the same as in Lazar v. Mauney, 192 F.R.D. 324, 330 (N.D.Ga.2000) (concluding
that privilege was not waived when three privileged documents were produced along with
about 1,000 other documents). Nonetheless, when Defendants sent the replacement page
“properly redacted,” the cell number and identities of the confidential witnesses were still
not fully redacted. (Dkt. 42-2, pp. 53-54.) Thus, the third and fourth factors do not
significantly favor one party over the other.
The fifth factor – fairness – weighs decidedly in favor of Defendants and is the
deciding factor here. In determining whether an inadvertent production of privileged
material amounts to a waiver, the importance of the informant privilege, should not be
ignored. Prison disciplinary proceedings are not part of a criminal prosecution, and the
MEMORANDUM DECISION AND ORDER - 12

full panoply of rights due an individual in such proceedings does not apply. Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). Instead, disciplinary proceedings take place in a
closed, tightly controlled environment peopled by guards and inmates who co-exist in
direct and intimate contact. Id., at 561-62. The Wolff Court explained:
The reality is that disciplinary hearings and the imposition of disagreeable
sanctions necessarily involve confrontations between inmates and authority and
between inmates who are being disciplined and those who would charge or furnish
evidence against them. Retaliation is much more than a theoretical possibility; and
the basic and unavoidable tasks of providing reasonable personal safety for guards
and inmates may be at stake, to say nothing of the impact of disciplinary
confrontations and the resulting escalation of personal antagonism on the
important aims of the correctional process.
*****
If [the accused] proposes to examine an unknown fellow inmate, the danger may
be the greatest, since the disclosure of the identity of the accuser, and the crossexamination which will follow, may pose a high risk of reprisal within the
institution. Conversely, the inmate accuser, who might freely tell his story
privately to prison officials, may refuse to testify or admit any knowledge of the
situation in question.
Id., at 568. Accordingly, the informant privilege is vital to the success of disciplinary
procedures as it is unwise to treat them like criminal trials. Id., at 569. Instead, the better
course is to leave informant witnesses, cross-examination, and the like, to the sound
discretion of prison officials. Id.
As set forth above, the prison officials in this matter have testified that protection
of the witness identities and related information is critical to inmate safety and prison
security . While Plaintiff may argue that “the cat is out of the bag,” this may be true of
some information sought, but not all. Furthermore, if the information sought is required

MEMORANDUM DECISION AND ORDER - 13

to be produced it may act as a precedence to dissuade other inmates in the future from
reporting wrongful/criminal behavior and helping with investigations.
Because Plaintiff has not demonstrated that his interest in disclosure of the witness
identities and information outweighs Defendants’ security concerns, Plaintiff’s motion to
compel the disclosure of this information will be denied.
C.

Claims of Attorney-Client Privilege and Work Product Doctrine

Plaintiff argues that Defendants improperly asserted the attorney-client privilege or
work product privilege to his discovery requests. Plaintiff does not specify which
particular responses he questions, but he does cite to “Exhibit 2" to his affidavit. (Dkt.
41-21, p. 11.) “Exhibit 2" consists of Defendant Carlin’s Responses to Plaintiff’s Second
Set of Interrogatories and Defendant Carlin’s Responses to Plaintiff’s Second Request for
Production of Documents. (Dkt. 41-3). Defendant Carlin asserted the attorney client
privilege in his response to Request for Production No. 13 as set forth below:
REQUEST FOR PRODUCTION NO 13: Product [sic] any and all
documentation including e-mails and other electronic data between you and any
other IDOC official including the IDOC legal department concerning the false
allegations made by Cruz against the Plaintiff, the lie detection tests, the results
and advice you sought or was given in unredacted form.
RESPONSE: Objected to as annoying, oppressive, unduly burdensome and
unduly expensive to respond due to fact the request does not seek information
which is relevant or reasonably calculated to lead to the discover of admissible
evidence in this matter. Also objected to as seeking attorney-client privileged
communication.
(Id., pp. 6-7.) Plaintiff also notes that Defendants designated certain documents on their
privilege log as protected pursuant to the attorney-client privilege. (Dkt. 41-21, p. 13.)
MEMORANDUM DECISION AND ORDER - 14

Defendants do not address Request for Production No. 13 in their briefing, but
they do address the four documents noted on the privilege log. Defendants argue the
documents were redacted to remove attorney-client privileged communications. (Dkt. 42,
p. 10.) Defendants argue that the four documents contained legal advice rendered by
Deputy Attorneys General representing the Idaho Department of Correction to
representatives of the Department concerning revisions to Department policies. (Id.)
They further argue that the communications were made for the purpose of facilitating
legal services and that the communications were restricted to Department personnel
involved in the policy changes at issue. (Id.)
Application of the attorney-client privilege is governed by federal common law in
this case, because federal law provides the rule of decision. See Fed.R.Evid. 501; United
States v. Zoline, 491 U.S. 554, 562 (1989); Clarke v. American Commerce Nat. Bank, 974
F.2d 127, 129 (9th Cir. 1992). Under the attorney-client privilege, confidential
communications made by a client to an attorney to obtain legal services are protected
from disclosure. Clarke, 974 F.2d at 129. Because the attorney-client privilege has the
effect of withholding relevant information from the factfinder, it is applied only when
necessary to achieve its limited purpose of encouraging full and frank disclosure by the
client to his or her attorney. Id.
The attorney-client privilege applies when (1) legal advice is sought by the client
(2) from a professional legal advisor in his capacity as such, and (3) the communications
relating to that purpose (4) are made in confidence (5) by or to the client. Admiral
MEMORANDUM DECISION AND ORDER - 15

Insurance v. U.S. Dist. Court, 881 F.2d 1486, 1492 (9th Cir. 1989). “The party asserting
an evidentiary privilege has the burden to demonstrate that the privilege applies to the
information in question.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988).
In the present case, Defendants have appropriately applied the attorney-client
privilege. To begin with, Plaintiff’s Request for Production No. 13 specifically asks
for “the results and advice . . . sought or was given” by the IDOC legal department.
(Dkt. 41-3, pp. 6-7.) This is precisely the type of information the privilege was intended
to protect. “The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.” Upjohn
Co. v. United States, 449 U.S. 383, 389 (1981).
As to the four documents noted on the privilege log, Defendants have satisfied the
necessary test. Defense counsel has testified that the four documents contained legal
advice regarding revisions to IDOC policies. (Dkt. 42-1, ¶ 5.) The legal advice was
rendered by legal advisors (Deputy Attorneys General) to its client (IDOC). (Id.) The
advice was rendered for the purpose of facilitating legal services, i.e., proving advice
regarding department policies, and such information was made in confidence, in that it
was restricted to personnel involved with the issue. (Id.) Accordingly, the Court
concludes that the redacted communications are protected from disclosure by the
attorney-client privilege.
Plaintiff also claims that Defendants inappropriately applied the work product
doctrine, (Dkt. 41-21, pp. 11- 14), but he does not specify the application he objects to.
MEMORANDUM DECISION AND ORDER - 16

The Court will not guess. Plaintiff’s motion to compel is denied.
MOTION TO SEAL DOCUMENTS
1.

Legal Standard
A party seeking to seal judicial records must show that “compelling reasons

supported by specific factual findings . . . outweigh the general history of access and the
public policies favoring disclosure.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677
(9th Cir. 2010) (quoting Kamakana v. City & County of Honolulu, 447 F.3d 1172, 117879 (9th Cir. 2006)). This strong presumption in favor of disclosure stems from the
common law right “to inspect and copy public records and documents, including judicial
records and documents.” Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 597 (1978). As
long as the particular document is not one that is “traditionally kept secret,” this
presumption of access “extends to pretrial documents filed in civil cases, including
materials submitted in connection with motions for summary judgment.” Foltz v. State
Farm Mutual Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). The common law right
of access to judicial records, however, is not absolute; “compelling reasons” sufficient to
overcome this presumption of access exist when there is a concern that court documents
may “become a vehicle for improper purposes such as the use of records to gratify private
spite, promote public scandal, circulate libelous statements, or release trade secrets.”
Kamakana, 447 F.3d at 1178-79. However, “the mere fact that the production of records
may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation
will not, without more, compel the court to seal its records.” Id.
MEMORANDUM DECISION AND ORDER - 17

2.

Discussion
Defendants have filed a motion for summary judgment seeking to dismiss

Plaintiff’s remaining claims. In support of their motion, Defendants filed several
affidavits. Defendants seek to seal the following exhibits to the Affidavit of Shirley
Roane: (1) an unredacted investigation report, (2) unredacted interview summaries used
to prepare the report, (3) confidential witness statements, and (4) unredacted copies of
witness statements and confidential witness statements provided to the disciplinary
hearing officer in support of the Disciplinary Offense Reports written by Sergeant Roane.
(Dkt. 36-1, p. 3.) Defendants also seek to seal the following exhibits attached to the
Affidavit of Kristi Lynch: the unredacted copies of witness statements and confidential
witness statements that Roane provided to Lynch in support of the two Disciplinary
Offense Reports. (Id., pp. 3-4.)
Defendants argue that compelling reasons exist for sealing the requested exhibits,
because releasing the identities of the witnesses in the exhibits would likely subject those
offenders to retaliation or retribution. (Id., p. 4.) In addition, Defendants argue that
protecting the safety of offenders in IDOC’s custody is crucial to IDOC’s ability to obtain
truthful, accurate information from offender witnesses in the future. (Id.)
Plaintiff argues that Defendant’s motion seeks to circumvent and deny Plaintiff’s
right to oppose the motion for summary judgment. (Dkt. 45, p. 2.) Plaintiff argues that
he is entitled to unredacted original statements and that summaries prepared by
Defendants are not entitled to sealing. (Id.) Plaintiff further argues that he requires the
MEMORANDUM DECISION AND ORDER - 18

exhibits, because he believes they contain evidence of “prior incidents or abuse of ICI-O
officials that go to motive, opportunity, intent, pattern, routine, habit, plan, scheme,
preparation, etc.” (Id., p. 3.)
The Court has conducted an in camera review of the documents filed by
Defendants under seal and concludes that compelling reasons exist to maintain the seal.
As set forth above in the Court’s opinion regarding the motion to compel, important and
necessary penological objectives are served by protecting the identities of the confidential
witnesses. Plaintiff has received most, if not all, of the documents submitted under seal in
redacted form. The Court finds that the documents in redacted form are sufficient for
Plaintiff to respond to the motion for summary judgment.
As to Plaintiff’s argument that summaries prepared by Defendants are not entitled
to sealing, the Court concludes that the cases cited by Plaintiff in support of his argument
are distinguishable, inapplicable and not precedent, as they do not concern the sealing of
prison records to protect the identity of inmate witnesses. Instead, the cases are fact
specific and concern whether documents prepared by prison officials fall with the
business records exception to the hearsay rule and witness credibility. See Bracey v.
Herringa, 466 F.2d 702, 704-705 (7th Cir. 1972); Romano v. Howarth, 998 F.2d 101, 108
(2d Cir. 1993); Lewis v. Velez, 149 F.R.D. 474, 486 (S.D.N.Y. 1993); and Morales
Feliciano v. Hernandez Colon, 697 F.Supp. 37, 40 (D.P.R. 1998). The Court is also not
convinced that Plaintiff needs the unredacted documents to show “motive, opportunity,
intent, pattern, routine, habit, plan, scheme, preparation, etc.” Plaintiff has not shown
MEMORANDUM DECISION AND ORDER - 19

how the unredacted documents are relevant to his remaining claims.
Accordingly, Defendants’ motion to seal the requested documents is granted.
MOTION TO STAY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1.

Legal Standard
Federal Rule of Civil Procedure 56(d) provides that the court may deny or

continue a motion for summary judgment “[i]f a party opposing the motion shows by
affidavit that, for specified reasons, it cannot present facts essential to justify its
opposition.” The requesting party must show that (1) it has set forth in affidavit form the
specific facts it hopes to elicit from further discovery, (2) the facts sought exist and (3)
the sought-after facts are essential to oppose summary judgment. Family Home & Fin.
Ctr., Inc. v. Fed. Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008).
Summary judgment is disfavored where relevant evidence remains to be discovered,
particularly in cases involving confined pro se plaintiffs. Jones v. Blanas, 393 F.3d 918,
930 (9th Cir. 2004). Summary judgment in the face of requests for additional discovery
in such cases is appropriate only where such discovery would be “fruitless” with respect
to the proof of a viable claim. Id; see also Margolis v. Ryan, 140 F.3d 850, 853-54 (9th
Cir. 1998) (district court correctly denied motion for continuance, given plaintiff did not
provide any basis or factual support for his assertions that further discovery would lead to
the facts and testimony he described, and his assertions appeared based on nothing more
than “wild speculation”).

MEMORANDUM DECISION AND ORDER - 20

2.

Discussion
Plaintiff argues that the Court should stay the motion for summary judgment,

because he has not had an opportunity to complete discovery. (Dkt. 44-1, p. 7.) Plaintiff
claims Defendants have abused the discovery process and wrongfully denied him needed
information for opposing the motion for summary judgment. (Id.) Plaintiff claims
Defendants voluntarily waived any privilege regarding confidential informants and that
he is entitled to all documents regarding such confidential informants, as well as time to
contact and obtain affidavits from such informants. (Id., p. 3.) Plaintiff further argues,
that his affidavit in support of the motion to compel and his declaration in support of his
motion to stay, satisfy his burden to show material facts will be discovered. (Dkt. 51,
p.3.) The Court disagrees.
As set forth above in the Court’s analysis of the motion to compel, the Court has
concluded that important and necessary penological objectives are served by protecting
the identities of the confidential witnesses in this case. Furthermore, Plaintiff has not
satisfied Rule 56(d). Plaintiff has provided an affidavit and declaration in support of his
argument, but he fails to set forth the specific facts he hopes to elicit from further
discovery and how such facts are essential to opposing the motion for summary judgment.
Plaintiff provides arguments against summary judgment, but does not suggest what
specifically he still needs and how that evidence is necessary to bolster his argument.
Plaintiff only states in conclusory fashion that the information sought will support his
claims in his complaint. Such conclusory allegations are not sufficient under Rule 56(d).
MEMORANDUM DECISION AND ORDER - 21

Because Plaintiff has not shown that relevant facts remain to be discovered in
order to oppose summary judgment, the denial of a continuance is appropriate under the
standards contained in Rule 56(d). Therefore, the Court will deny Plaintiff’s motion to
stay. However, the Court finds that a brief extension of time for Plaintiff to file his
opposition is appropriate. Plaintiff’s opposition to the motion for summary judgment
shall be filed with the Court within twenty-one (21) days after entry of this Order.
Defendants shall file their reply no later than fourteen (14) days after the date Plaintiff’s
opposition is filed.
THIRD MOTION FOR APPOINTMENT OF COUNSEL
Before the Court is Plaintiff’s Third Motion for Appointment of Counsel. (Dkt.
43. ) Unlike criminal defendants, prisoners in civil actions have no constitutional right to
counsel unless their physical liberty is at stake. Lassiter v. Dept. of Social Services, 452
U.S. 18, 25 (1981). Whether a court appoints counsel is within the court’s discretion, and
counsel should be appointed only in “extraordinary cases.” Wilborn v. Escalderon, 789
F.2d 1328, 1330-31 (9th Cir. 1986). To determine whether extraordinary circumstances
exist, the court should evaluate two factors: (1) the likelihood of success on the merits of
the case, and (2) the ability of the plaintiff to articulate his claims pro se in light of the
complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991).
The Court previously denied Plaintiff’s request for the assistance of counsel in this
civil rights matter after concluding that he had demonstrated the ability to represent
MEMORANDUM DECISION AND ORDER - 22

himself and that no compelling reasons existed to find volunteer counsel to assist him.
(Dkt. 11, p. 2; Dkt. 32, p. 2.) The Court sees no change in circumstances that would
warrant reconsidering that decision.
Accordingly, Plaintiff’s motion will be denied. If it later appears that Plaintiff’s
claims appear to have potential merit and the case is sufficiently complex to call for the
assistance of counsel, the Court may reconsider its decision at that time.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Stay Discovery Pending Determination of
Defendants’ Motion for Summary Judgment (Dkt. 37) is DENIED.

2.

Plaintiffs’ Motion to Compel Discovery (Dkt. 41) is DENIED.

3.

Defendants’ Motion to Seal Certain Exhibits Submitted in Support of
Defendants’ Motion for Summary Judgment (Dkt. 36) is GRANTED.

4.

Plaintiff’s Motion to Stay Defendants’ Motion for Summary Judgment
(Dkt. 44) is DENIED.

5.

Plaintiff’s Third Motion for Appointment of Counsel (Dkt. 43) is DENIED.

6.

Plaintiff’s opposition to the motion for summary judgment shall be filed
with the Court and served on Defendants no later than twenty-one (21) days
after entry of this Order. Defendants shall file their reply no later than
fourteen (14) days after the date Plaintiff’s opposition is filed.

MEMORANDUM DECISION AND ORDER - 23

SO ORDERED.

DATED: April 22, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 24