Sarnowski v. Peters et al

Filing 44

OPINION AND ORDER:The Court GRANTS IN PART AND DENIES IN PART plaintiffs Motion to Compel Discovery 39 . Defendants shall make themselves available for deposition, respond to plaintiffs discovery requests, and arrange for a tour of TRCI, in accordance with this Opinion and Order. (See 20 page opinion for more information.) Signed on 10/6/17 by Magistrate Judge Patricia Sullivan. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

KATHERINE SARNOWSKI, Personal
Representative of the Estate of Damion
Banks,

Case No. 2:16-cv-00176-SU
OPINION
AND ORDER

Plaintiff,
v.
COLLETTE PETERS, Personally; TONIA
RIDLEY, Personally; BRIDGETT
WHELAN, Personally; JOHN MYRICK,
Personally; and SGT. ANNETTE
HOUSTON, Personally,
Defendants.
_________________________________________
SULLIVAN, United States Magistrate Judge:
Before the Court is plaintiff’s Motion to Compel Discovery (Docket No. 39). Plaintiff
seeks to compel the depositions of defendants Collette Peters, John Myrick, Tonia Ridley, and
Bridgett Whelan, and to compel defendants to respond to certain interrogatories and requests for

Page 1 – OPINION AND ORDER

production. Although plaintiff requested oral argument, the Court has determined that her
Motion is suitable for decision without oral argument. For the following reasons, the Court
GRANTS IN PART AND DENIES IN PART plaintiff’s Motion to Compel.
FACTUAL BACKGROUND
This action concerns the death of Damion Banks, an inmate in Oregon Department of
Corrections (“ODOC”) custody at the Two Rivers Correctional Institution (“TRCI”). 2d Am.
Compl. (Docket No. 21). Defendants are ODOC and TRCI officers and employees. Id. ¶ 4.
Plaintiff alleges that Banks died from inmate assault and severe trauma, and defendants were
deliberately indifferent to his safety, housing, and health.

Id. ¶¶ 28, 32, 34-42.

Medical

examiners reported Banks’ cause of death as natural: “pulmonary hemorrhage due to
pheochromocytosis.” Id. ¶ 22.1 Plaintiff alleges that there are inconsistences as to observations
of Banks’ health, statements in medical records, and evidence of violence. Id. ¶¶ 19, 24-26, 28.
Plaintiff alleges that other TCRI inmates died suspiciously, that gangs threatened Banks, and that
Banks told his family he feared for his life. Id. ¶¶ 10-14, 21. Banks’ injuries were inflicted (or
his health deteriorated) on February 4, 2014, and he died the next day. Id. ¶¶ 15-20, 28-29.
PROCEDURAL BACKGROUND
Plaintiff is Banks’ mother and the personal representative of his estate. Plaintiff brings
two causes of action, under 42 U.S.C. § 1983, for “Eighth Amendment, Cruel and Unusual
Punishment – Failure to Protect,” and “Deliberate Indifference to Serious Medical Need.” 2d
Am. Compl., at 8-9. In support of her § 1983 claims, plaintiff alleges that defendants failed to

1

“A functional chromaffinoma, usually benign, derived from adrenal medullary tissue cells and
characterized by the secretion of catecholamines, resulting in hypertension, which may be
paroxysmal and associated with attacks of palpitation, headache, nausea, dyspnea, anxiety,
pallor, and profuse sweating. Pheochromocytoma is often hereditary . . . .” Pheochromocytoma,
Stedman’s Medical Dictionary 680840 (2014).
Page 2 – OPINION AND ORDER

respond properly to Banks’ request to be transferred to a lower-security facility, which would
have “likely” prevented his death; failed to properly monitor inmate telephone calls, whereby
they could have learned of Banks’ report that he feared for his life; failed to maintain the closed
circuit television system (“CCTV”) in violation of the “ODOC REPAIR program,” where
monitoring would have deterred the violence against Banks; failed to maintain proper staffing
and monitoring of inmates in common areas, thereby permitting intimidation and assault; and
failed to provide Banks medical treatment, or to train and staff medical personnel, who “may
have been able to intercede and save [Banks’] life.” Id. ¶¶ 34-41.
Defendant Peters is the current ODOC director. 2d Am. Compl. ¶ 4. Myrick is the
former TRCI superintendent, and at the times relevant to the pleadings was Assistant
Superintendent of Security at TRCI. Id. Ridley was the Assistant Superintendent of General
Services at TRCI, and Whelan was Medical Services Manager at TRCI. Id.
On April 17, 2017, pursuant to the Court’s informal discovery dispute procedures,
counsel for plaintiff emailed to inform the Court that the parties had a discovery dispute. In a
subsequent email, on April 27, 2017, plaintiff’s counsel presented his position and argument;
defense counsel responded by email on May 8, 2017. The Court held a status conference on
June 14, 2017, regarding the dispute. (Docket No. 36). Because of various deficiencies with
both parties’ presentation of the arguments, the Court directed the parties to submit motions to
compel regarding the disputed discovery requests.
Plaintiff seeks an order compelling the depositions of Peters, Myrick, Ridley, and
Whelan, and responses to interrogatories and requests for production.

Plaintiff served the

discovery requests on March 5, 2017; defendants responded on March 24, 2017. Pl. Mot., at 4
(Docket No. 39). Plaintiff provides the disputed discovery requests as to Peters and Myrick.

Page 3 – OPINION AND ORDER

LEGAL STANDARD
Under Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv), a party may move for an order compelling
answers to interrogatories or the production of requested documents.
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.
Fed. R. Civ. P. 26(b)(1).
On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed . . . if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to obtain the information by
discovery in the action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
“A party seeking to compel discovery has the burden of establishing that its request
satisfies the relevancy requirement of Rule 26(b)(1). In turn, the party opposing discovery has
the burden of showing that discovery should not be allowed and also bears the burden of
clarifying, explaining, and supporting its objections.” Frontier Recovery, LLC v. Lane County,
No. 09-6017-TC, 2009 WL 2253726, at *2 (D. Or. July 24, 2009); Yufa v. Hach Ultra Analytics,
No. 1:09-cv-3022-PA, 2014 WL 11395243, at *1 (D. Or. Mar. 4, 2014) (“If a party elects to
oppose a discovery request, the opposing party bears the burden of establishing that the
discovery is overly broad, unduly burdensome, or not relevant.

Boilerplate, generalized

objections are inadequate and tantamount to not making any objection at all.” (citation and
quotation omitted)). If a party objects to a discovery request, it is the burden of the party seeking
discovery on a motion to compel to demonstrate why the objection is not justified. Weaving v.

Page 4 – OPINION AND ORDER

City of Hillsboro, No. CV-10-1432-HZ, 2011 WL 1938128, at *1 (D. Or. May 20, 2011). In
general, the party seeking to compel discovery must inform the court which discovery requests
are the subject of the motion to compel, and, for each disputed request, inform the court why the
information sought is relevant and why the objections are not meritorious. Id.
“Failure to object to a discovery request within the time permitted by the Federal Rules of
Civil Procedure, or within the time to which the parties have agreed, constitutes a waiver of any
objection.” L.R. 26-5(a); see also Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely
objection is waived . . . .”).
ANALYSIS
I.

Depositions of Defendants Peters, Myrick, Ridley, and Whelan
Plaintiff moves to compel the depositions of Peters, Myrick, Ridley, and Whelan.

Defendants respond that these defendants are “high ranking government officials” who are
normally not subject to deposition.
Defendants cite case law, much of it out-of-circuit, regarding the burden a party must
meet in seeking to depose high ranking government officials. Kyle Eng’g Co. v. Kleppe, 600
F.2d 226, 231 (9th Cir. 1979) (“Heads of government agencies are not normally subject to
deposition,” regarding defendant Administrator of the Small Business Administration); Simplex
Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 580, 586 (D.C. Cir. 1985) (“top Department
of Labor officials, who the ALJ found to have no personal knowledge of the facts surrounding
this particular case”); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993)
(Commissioner of Food and Drug Administration); In re United States (Holder), 197 F.3d 310,
314 (8th Cir. 1999) (Attorney General and Deputy Attorney General); Boga v. City of Boston,
489 F.3d 417, 423 (1st Cir. 2007) (Mayor of Boston); Thomas v. Cate, 715 F. Supp. 2d 1012,

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1048 (E.D. Cal. 2010) (Governor of California); Baine v. Gen. Motors Corp., 141 F.R.D. 332,
335 (M.D. Ala. 1991) (vice president of General Motors Corp.); United States v. Sensient Colors,
Inc., 649 F. Supp. 2d 309, 320 (D.N.J. 2009) (former Environmental Protection Agency Regional
Administrator); Low v. Whitman, 207 F.R.D. 9, 12 (D.D.C. 2002) (Deputy Chief of Staff to the
Administrator of the Environmental Protection Agency). However, the degree of superiority and
authority of the contested deponents in those cases far exceeds that of Myrick, Ridley, and
Whelan. Myrick was the Assistant Superintendent of Security at TRCI; Ridley was the Assistant
Superintendent of General Services; and Whelan was Medical Services Manager. These are
positions directly relevant to plaintiff’s claims regarding housing, monitoring, staffing, security,
safety, and medical care, and not necessarily high ranking officials. Defendants’ objections to
the depositions of Myrick, Ridley, and Whelan are unavailing. The Court GRANTS plaintiff’s
Motion to Compel as to deposing these three defendants.
Peters, however, as the ODOC director, is a high-ranking executive official:
An official may be deemed “high-ranking” when he or she has substantial
authority and seniority, such that a deposition might significantly hinder the
official’s ability to function as a high-level public servant. Individuals with
“substantial authority” have been found to include those who have a high level of
responsibility for budget, personnel and resource issues.
Natty v. Donahoe, No. CV 11-10147-DSF(CWx), 2013 WL 12140158, at *2 (C.D. Cal. Jan. 10,
2013) (citation and quotation omitted). The director of a state’s correctional institutions has
substantial authority and seniority, with responsibility for budgeting, personnel, and resources.2

2

Defendants allege that Peters, as ODOC Director, “oversees the operations and policies of the
corrections agency responsible for managing approximately 14,000 incarcerated individuals in
14 prisons across the State of Oregon and a budget of $1.4 billion.” Defs. Resp., at 4 (Docket
No. 42). Defendants, however, present no evidence of this; they only offer attorney argument.
Despite this deficiency, the Court finds it sufficiently evident that the ODOC director is a highranking executive official. See Oregon Department of Corrections, DOC Administration,
“Director and Deputy Director,” http://www.oregon.gov/doc/ADMIN/pages/director.aspx;
Page 6 – OPINION AND ORDER

The Court thus proceeds to the next stage of the inquiry:
[O]nce the Court determines that an official is entitled to invoke the [deposition]
privilege, the burden shifts to the party seeking to depose the high-ranking
official. A party seeking the deposition of a high-ranking government official
must show: (1) the official’s testimony is necessary to obtain relevant information
that is not available from another source; (2) the official has first-hand
information that cannot reasonably be obtained from other sources; (3) the
testimony is essential to the case at hand; (4) the deposition would not
significantly interfere with the ability of the official to perform his government
duties; and (5) the evidence sought is not available through less burdensome
means or alternative sources.
Thomas, 715 F. Supp. 2d at 1049 (citations omitted); Sargent v. City of Seattle, No. C12-1232
TSZ, 2013 WL 1898213, at *2-3 (W.D. Wash. May 7, 2013); K.C.R. v. County of Los Angeles,
No. CV 13-3806 PSG (SSx), 2014 WL 3434257, at *3-4 (C.D. Cal. July 11, 2014).
Plaintiff makes no argument, and presents no evidence, on any of these elements as to
Peters. She merely argues that Peters “did not properly train and oversee staff” to implement
ODOC policies and execute ODOC operations, that Peters has “oversight and supervision of the
CCTV program and staffing,” and that Peters “is listed at the top of the TRCI Organizational
chart and has final authority” over staffing and CCTV monitoring. Pl. Mot., at 20 (Docket No.
39). These arguments as to Peters’ high-ranking position, rather than establishing why she
should be deposed, in fact support the policy and rule against the deposition of high-ranking
officials, due to their distance from those with first-hand knowledge and their high-level duties.
See Thomas, 715 F. Supp. 2d at 1048 (“[H]igh ranking government officials have greater duties
and time constraints than other witnesses and . . . , without appropriate limitations, such officials
will spend an inordinate amount of time tending to pending litigation.” (quotation omitted)). In
response, defendants argue (though present no evidence) that Peters has no first-hand knowledge

Oregon Department of Corrections, “Central Administration Organizational Chart” (Sept. 1,
2017), http://www.oregon.gov/doc/OC/docs/pdf/org_chart.pdf; see also Or. Rev. Stat. § 423.075
(creating position of ODOC director, establishing responsibilities, and granting powers).
Page 7 – OPINION AND ORDER

and that any relevant information is obtainable from other sources.

Despite defendants’

evidentiary deficiencies, the burden is plaintiff’s, and she has not met it. The Court DENIES
plaintiff’s Motion to Compel the deposition of Peters.
II.

Requests for Production and Interrogatories
A.

Defendants’ Objections
1.

Adequacy of the Pleadings and § 1983 Liability

As to each request for production and interrogatory, defendants object that
it would be unduly burdensome for [them] to respond as Plaintiff has not alleged
or established any facts in her second amended complaint that suggest [they]
personally participated in the alleged Eighth Amendment violation. “Liability
under § 1983 must be based on the personal involvement of the defendant. There
is no respondeat superior liability under section 1983.”
E.g., Pl. Mot., at 4 (Docket No. 39) (quoting Shallowhorn v. Molina, 572 F. App’x 545, 546 (9th
Cir. 2014)).3 Defendants attempt, in response to discovery requests, to argue the merits of their
Motion for Summary Judgment (Docket No. 23). The Court has previously indicated it would
not rule on the Motion for Summary Judgment until the discovery disputes were resolved.
Arguments regarding whether plaintiff has stated a claim, whether the proper defendants
are named in the suit, and whether certain defenses are meritorious are not proper objections to
discovery requests. See, e.g., United States v. Real Property & Improvements Located at 2366
San Pablo Ave., No. 13-cv-02027-JST (MEJ), 2014 WL 2126912, at *2 (N.D. Cal. May 22,
2014) (holding, over objection that claimant was not entitled to discovery on affirmative
defenses because claimant “will not be able to establish any of its affirmative defenses at trial,”
that claimant’s “ability to prove its defenses is not the standard against which relevance is
determined,” and granting motion to compel discovery responses); Wallis v. Centennial Ins. Co.,

3

For most of the discovery requests, this is the only specific objection defendants make.

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No. 2:08-cv-2558 WBS AC, 2013 WL 528472, at *6 (E.D. Cal. Feb. 11, 2013) (holding, “insofar
as defendants [were] attempting to re-litigate the merits of their motion to enforce settlement or
attempting to argue . . . a new theory,” and so did not have to respond to discovery requests, that
the court would “not give weight to this objection” until the court separately ruled on a motion
regarding the enforceability of the settlement agreement); Nance v. May Trucking Co., No. 11cv-0537-LAB (DHB), 2012 WL 1598070, at *3 (S.D. Cal. May 7, 2012) (rejecting argument
that, because of alleged “fatal pleading deficiencies” in complaint, defendant did not have to
respond to production requests: “Whether the . . . claims . . . are deficient or not is not presently
at issue. Those claims . . . are the operative claims, and Plaintiffs are entitled to obtain discovery
relevant to their operative claims.”).

Discovery objections must specifically address the

documents or information requested, and whether a specific request is overbroad, unduly
burdensome, irrelevant, etc. See Frontier Recovery, 2009 WL 2253726, at *2; Yufa, 2014 WL
11395243, at *1.
The Court previously granted defendants’ Motion to Dismiss the First Amended
Complaint with leave to amend as to defendants Peters, Myrick, Houston, Whelan, and Ridley.
(Docket Nos. 17, 19). Plaintiff filed a Second Amended Complaint and amended her allegations
against these defendants. (Docket No. 21). The Court has not ruled on defendants’ Motion for
Summary Judgment. Thus, the Second Amended Complaint is the operative pleading, its claims
are the operative claims, and these defendants are still in this action. Plaintiff is entitled to
relevant and proportional discovery as to these defendants.

Fed. R. Civ. P. 26(b)(1).

Defendants’ objections are not well taken as plaintiff’s ability to survive summary judgment
depends on her ability to obtain the necessary evidence through these discovery requests. It is

Page 9 – OPINION AND ORDER

improper for defendants to attempt to transform each discovery request, and the motion to
compel briefing, into a backdoor motion for summary judgment.
Defendants’ objections regarding the sufficiency of the pleadings and § 1983 liability are
unavailing. The Court will not limit plaintiff’s discovery based on these objections.
2.

Prison Floor Plans and Confidential Information
a)

Defendants’ Objections

In response to plaintiff’s request for TRCI floor plans (Req. for Prod. No. 4), defendants
object that the request “is overbroad, irrelevant, and producing the confidential material
requested would pose a serious security threat to TRCI.” Pl. Mot., at 6 (Docket No. 39). As
support for this proposition, defendants cite a California state case, Procunier v. Superior Court
of Monterey County, 35 Cal. App. 3d 211, 212 (1973). Plaintiff counters that “Defendants in
other corrections cases have produced floor plans , not even under protective order as to the
document. See attached Ex. 2 CCSO floor plan, Dillon, et al v. CCSO et al 3:14-CV-820 YY
(Not marked subject to a Protective Order).” Pl. Mot., at 20-21 (Docket No. 39) (errors in
original).4 Plaintiff argues that because the Court entered a protective order in this action
(Docket Nos. 33, 34), “all security concerns are cured,” Pl. Mot., at 21 (Docket No. 39).

4

The floor plan from the “other corrections case[]” is attached not to plaintiff’s Motion, but to
the Berman Declaration (Docket No. 40). The Declaration states merely that “Plaintiff hereby
declares that the following Exhibits are true copies of the originals: . . . 2. CCJ floor plan[.]” Id.
¶ 1. This is insufficient to authenticate the document. It does not indicate how plaintiff (Banks’
mother) would have any relevant knowledge. Nothing in the Declaration supports the
proposition that the “CCJ” floor plan was produced in an action against corrections officials.
The Court is unable to determine from the unlabeled, cut-off image whether it was marked
confidential or subject to a protective order. Plaintiff also suggests that it was the defendants in
this action who produced the floor plan, but the defendants in Dillon v. Clackamas County, No.
3:14-cv-00820-YY (D. Or. 2014), were Clackamas County and Sheriff Craig Roberts. Despite
these problems with plaintiff’s submission, defendants have not objected to it.
Page 10 – OPINION AND ORDER

Procunier is not relevant or proper authority.

Procunier addressed whether the

defendants waived a California statutory privilege, under the California Evidence Code, to refuse
disclosure of official information (regarding prison floor plans and inmate gang membership
lists), pursuant to California Government Code statutes that forbade such disclosure. 35 Cal.
App. 3d at 212. Such a privilege would apply only in California state court, or a federal civil
action in which California law provided the rule of decision. See Fed. R. Evid. 501. It has no
bearing on a § 1983 action in a federal district court in Oregon. Defendants cite no analogous
federal law (or even Oregon state law) barring such disclosure. Procunier provides no support
for the proposition that a state may object “to a discovery request because this would endanger
the security of the prison system and safety of the citizens of the state.” Defs. Resp., at 9
(Docket No. 42). In fact,the California Supreme Court largely vacated Procunier three years
after the decision, on the very issue defendants cite it for, because the California Public Records
Act contained a provision stating that the disclosure exemptions were not to be interpreted as “in
any manner” affecting the rights of litigants. Shepherd v. Super. Ct. of Alameda Cty., 17 Cal. 3d
107, 124 (1976) (citing Cal. Gov’t Code § 6260), overruled on other grounds by People v.
Holloway, 33 Cal. 4th 96, 131 (2004).5
b)

Security Concerns and Judge Simon’s Order

Defendants have raised serious security and confidentiality concerns regarding the
conduct of Mr. Berman, plaintiff’s counsel, arising out of his representation of a party in a

5

There is, under federal common law, the governmental privilege, also called the official
information privilege or state secret privilege, which, when properly invoked, precludes
disclosure of sensitive or secure information, subject to a balancing of litigants’ needs against
governmental interests, including security. See Kerr v. U.S. Dist. Ct. N. Dist. Cal., 511 F.2d 192,
198 (9th Cir. 1975); Smith v. Coulombe, No. 2:11-cv-00531, 2012 WL 7001533, at *7 n.4 (D.
Or. Nov. 30, 2012). However, the state must formally claim this privilege, and meet other
procedural requirements, to obtain its protections, and defendants have not done so here.
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separate suit against an Oregon correctional institution, Bepple v. Shelton, No. 3:15-cv-727-SI
(D. Or. 2017).

See Washington Decl. ¶¶ 3-5, & Ex. 1 (Docket No. 43).

In Bepple, the

defendants produced to Mr. Berman thumb drives containing prison video surveillance footage.
“The video surveillance footage contained in the thumb drives [was] highly sensitive.” Id., Ex.
1, at 5.

“Release of prison video surveillance could reveal or otherwise identify security

measures or weaknesses or potential weaknesses in security measures. . . . [I]t could be used to
breach or attempt to breach security measures.” Id. The video depicted the faces of inmates and
employees, whose identities might be determined from the video, potentially resulting in their
being targeted. Id. When it came time for Mr. Berman to return the thumb drives to defendants,
he said he had “not been able to locate” them. Id. It seemed that he had lost them. Id. ¶ 3. In an
order, Judge Simon stated, “The Court has serious concerns over the careless handling by Mr.
Berman of the four confidential thumb drives . . . .” Id., Ex. 1, at 5. The order continued, “in
any future litigation in which a plaintiff is represented by Mr. Berman, the Oregon Department
of Justice may present a copy of this Order to any Court considering whether copies of
confidential information should be disclosed to Mr. Berman and, if so, under what circumstances
. . . .” Id., at 6. The present case is such litigation.
Defendants raise this incident to argue against producing sensitive security information
or documents to plaintiff, specifically, TRCI floor plans and CCTV information. They argue that
a protective order is not sufficient to guarantee the protection of sensitive information, as a
protective order had been entered in Bepple.
In light of Judge Simon’s Bepple order, the Court has serious confidentiality and safety
concerns about requiring defendants to disclose confidential or sensitive information—
specifically, the TRCI floor plans and CCTV information, which are the materials as to which

Page 12 – OPINION AND ORDER

defendants raise these concerns—to Mr. Berman. The protective order in this case does not allay
these concerns. Accordingly, the Court will not compel defendants to turn over to plaintiff
documents concerning TRCI floor plans or CCTV operations. Instead, the Court adopts a
version of defendants’ compromise proposal, a tour of TRCI, discussed below.
c)

Tour of TRCI and Deposition of Myrick

As an alternative to producing floor plans and CCTV information, defendants propose
arranging for plaintiff’s counsel to tour TRCI where Banks was housed on the “date alleged” in
order for counsel to observe that location. Defs. Resp., at 11 (Docket No. 42).6
Given the Court’s serious security concerns, the Court finds that allowing Mr. Berman to
tour TRCI is an adequate and appropriate alternative to requiring defendants to turn over
sensitive information regarding prison floor plans or CCTV operations. As to the relevant
discovery requests (Reqs. for Prod. No. 4 - 7 & Interrog. No. 1), the Court will not compel
responses to the requests as written. Instead, the parties shall confer and arrange for plaintiff’s
counsel to tour the areas of TRCI at issue in the Second Amended Complaint. Included on the
tour shall be any areas of the prison which Banks accessed or had access to in January and
February 2014, and the CCTV recording and monitoring of those areas.
Additionally, at Myrick’s deposition, defendants shall bring any documents responsive to
the discovery requests regarding floor plans and CCTV (Reqs. for Prod. No. 4 - 7 & Interrog.
No. 1), but limited to floor plans or CCTV operations, maintenance, monitoring, and staffing
from January and February 2014, and only as to prison areas that Banks accessed or had access
to during those months. Plaintiff may inspect these documents at the deposition, and question
6

Defendants made their security objection, and cited Procunier, only with regard to the floor
plan discovery request (Req. for Prod. No. 4), and did not make the objection as to CCTV
discovery requests (Reqs. for Prod. No. 5 - 7 & Interrog. No. 1), although defendants propose the
TRCI tour as a response to both sets of requests.

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Myrick, as former Assistant Superintendent of Security, about them. However, due to the
Court’s security concerns, neither plaintiff nor her counsel shall be permitted to take with them
any of these documents outside of or after the deposition. The documents shall not be attached
to Myrick’s deposition transcript, filed with the Court, or otherwise disclosed. The documents
shall remain in defendants’ custody and control.
3.

Oregon Public Records Law

In response to discovery requests regarding whether Myrick has been under investigation
in relation to his state employment (Req. for Prod. No. 12 & Interrog. No. 5), defendants object
that these requests seek documents or information “exempt from disclosure under Or. Rev. Stat.
§ 192.501(12).” E.g., Pl. Mot., at 15 (Docket No. 39).
This objection is misplaced. Whether certain information is exempt from Oregon’s
Inspection of Public Records statute, Or. Rev. Stat. § 192.410 et seq., is irrelevant to whether the
documents are relevant and discoverable in a federal court proceeding. That Or. Rev. Stat.
§ 192.501(12) exempts from disclosure “personnel discipline action[s], or materials or
documents supporting th[ose] action[s]” pertains to whether the public can obtain those records
through inspection requests; it places no limit on a federal litigant’s ability to obtain them
through discovery. Brown v. State of Or., Dep’t of Corr., 173 F.R.D. 262, 263-64 (D. Or. 1997);
Estate of Shafer v. City of Elgin, No. 2:12-cv-00407-SU, 2014 WL 1303095, at *2-4 (D. Or.
Mar. 28, 2014). The Court will not limit discovery based on this objection.
B.

Individual Requests for Production

Having considered these overarching concerns, the Court looks to each discovery request
individually. Although defendants’ objections are largely not well-taken, as discussed, plaintiff
provides minimal argument, almost entirely without attention to specific requests or objections,

Page 14 – OPINION AND ORDER

and with no citation of authority, to show why defendants’ objections are not meritorious or why
she is entitled to the discovery she seeks. The Court already informed plaintiff, at the Status
Conference, that such threadbare argumentation is seriously deficient, but plaintiff failed to
expand upon her email briefing in her Motion to Compel. The Court limits plaintiff’s discovery
requests to what is relevant and proportional, under Fed. R. Civ. P. 26(b)(2)(C), as follows:
Req. for Prod. No. 1 (Peters and Myrick): “All documents, including audio and video and
incident reports, logbook entries, or any other writing referring or relating to the subject health
iss[u]es starting November 13, 2012.”
Ruling: The Court interprets “the subject health issues” to be Banks’ reported and alleged
health issues, including those that plaintiff claims, and defendants claim, caused his death. This
information is relevant to claims of denial of medical care and medical deliberate indifference.
The request is proportional. Plaintiff’s Motion to Compel as to this request is GRANTED.
Req. for Prod. No. 2 (Peters and Myrick): “All documents including duty rosters,
employment registers, that reflect the full name for all nursing and corrections staff[.]”
Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited
as to time and location. The Court limits the request to documents reflecting the names of
corrections staff on floors Banks accessed or had access to, and staff who had contact or
communication with Banks, on February 4 and 5, 2014, and documents reflecting the names of
nursing staff on duty at TRCI on those dates. GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 3 (Peters and Myrick): “All documents that reflect lawsuits and filed
complaints, and their resolution, against the State for inmate deaths due to medical or dental
negligence or inattention since 2002.”

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Ruling: This request is overly broad, unduly burdensome, and not proportional. See
Brook v. Carey, 352 F. App’x 184, 185-86 (9th Cir. 2009) (finding prisoner civil rights plaintiff’s
discovery request for “any and all grievances, complaints, or other documents received by the
defendants concerning mistreatment of inmates” to be “overbroad, immaterial . . . and overly
burdensome” (alterations omitted)). The Court limits the request to documents pertaining to
lawsuits and complaints against defendants concerning inmate deaths at TRCI due to medical
negligence or inattention since 2010. GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 4 (Peters and Myrick): “All documents that reflect floor plans for
TRCI and the level on which Banks resided.”
Ruling: As discussed, the Court will not compel disclosure of this information, due to
safety and security concerns. Instead, the Court orders defendants to allow plaintiff’s counsel to
tour the relevant areas of TRCI, and to bring responsive documents to Myrick’s deposition, as
discussed and limited above.7 GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 5 (Peters and Myrick): “All documents that reflect closed circuit
televis[i]on (CCTV) maintenance and operational status from November 2013- the present, and
all rules and regulations regarding maintaining CCTV.”
Ruling: Same as Request No. 4. GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 6 (Peters and Myrick): “All documents that reflect staffing and
stations for corrections in the TRCI, including a demarcation for any areas that are NOT visible
on CCTV.”
Ruling: Same as Request No. 4. GRANTED IN PART AND DENIED IN PART.

7

Documents that reflect floor plans or CCTV operations, maintenance, monitoring, and staffing
from January and February 2014, and only as to areas of the prison that Banks accessed or had
access to during those months.
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Req. for Prod. No. 7 (Peters and Myrick): “All staffing and policies regarding monitoring
CCTV.”
Ruling: Same as Request No. 4. GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 8 (Peters and Myrick): “All staffing and policies regarding monitoring
inmates, and a[t] what interval.”
Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited
as to time and location. The Court limits this request to documents pertaining to “staffing and
policies regarding monitoring inmates,” including at what intervals, in place in January and
February 2014, as to the floor where Banks resided and any other floors he had access to, at
TRCI. GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 9 (Peters and Myrick): “All staffing and policies for monitoring
inmate phone calls, including but not limited to, who listens to inmate call, how often and where
monitoring of calls and their content is logged, if anywhere.”
Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited
as to time and location. The Court limits this request to documents pertaining to “staffing and
policies for monitoring inmate phone calls” for January and February 2014, as to any phones
Banks had access to at TRCI. GRANTED IN PART AND DENIED IN PART.
Req. for Prod. No. 10 (Peters and Myrick): “All policies for housing designations for
inmates, including the criteria for specific housing and grounds to move inmates and change
housing.”
Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited
as to time. The Court limits this request to documents pertaining to housing designation policies
in place in January or February 2014. GRANTED IN PART AND DENIED IN PART.

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Req. for Prod. No. 11 (Myrick): “All documents that delineate your title, duties and job
description in January to June 2014, and what is you employment [status], location, title today.”
Ruling: Myrick’s job title, duties, description, and location are relevant, and this request
is proportional. GRANTED.
Req. for Prod. No. 12 (Myrick): “All documents that reflect or are related to whether you
have been under investigation for your state employment since 2014 and the current state of the
investigation.”
Ruling: The request is overly broad and not proportional, because it is not limited to
investigations relevant to plaintiff’s claims. The Court limits this request to investigations
concerning alleged indifference to inmate safety or health, inmate wrongful death, improper
surveillance or monitoring of inmates, housing of inmates, threats against inmates, improper
medical care, indifference to medical needs, or failure to provide medical treatment. GRANTED
IN PART AND DENIED IN PART.
C.

Individual Interrogatories

Interrog. No. 1 (Peters and Myrick): “What was the operational status of closed circuit
television on F[e]b. 4-6[,] 2014, and the status today?”
Ruling: The CCTV operational status “today” is not relevant. As to the status in
February 2014, the Court will not compel disclosure of this information, due to safety and
security concerns. Instead, the Court orders defendants to allow plaintiff’s counsel to tour the
relevant areas of TRCI, and to permit questioning on CCTV operations at Myrick’s deposition,
as discussed and limited above.8 GRANTED IN PART AND DENIED IN PART.

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Limited to CCTV operations, maintenance, monitoring, and staffing from January and February
2014, and only as to prison areas that Banks accessed or had access to during those months.

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Interrog. No. 2 (Peters and Myrick): “What was the staffing of corrections officer in
Febraury [sic] 2014, as to ratio between inmates and officers?”
Ruling: Plaintiff’s claims address improper staffing and the effect on inmate safety. The
interrogatory is relevant and proportional. GRANTED.
Interrog. No. 3 (Peters and Myrick): “Why was Banks put into general population and
moved after being in segregation, especially after threats of others kicking his ass and being in
fear for his life?” 9
Ruling: Banks’ housing, location, and security, especially in relation to threats against
him, are relevant to plaintiff’s claims. The interrogatory is proportional. GRANTED.
Interrog. No. 4 (Myrick): “When was the first and last time you saw Mr. Banks alive in
TRCI?”
Ruling: The circumstances of Banks’ death are relevant.

The interrogatory is

proportional. GRANTED.
Interrog. No. 5 (Myrick): “Have you ever been investigated regarding your state TRCI
employment, and if so, the reason for the investigation and the current posture/resolution of the
investigation?”
Ruling: As with Request for Production No. 12, this interrogatory is overly broad and
not proportional, because it is not limited to investigations relevant to plaintiff’s claims. The
Court limits this interrogatory to investigations concerning alleged indifference to inmate safety
or health, inmate wrongful death, improper surveillance or monitoring of inmates, housing of

9

The Courts assumes that “kicking his ass” is a quotation of actual threats that Banks allegedly
received, and is not counsel’s own choice of words or characterization of purported threats, as
such language would obviously be inappropriate for an attorney’s submission to the Court.
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inmates, threats against inmates, improper medical care, indifference to medical needs, or failure
to provide medical treatment. GRANTED IN PART AND DENIED IN PART.
CONCLUSION
For these reasons, the Court GRANTS IN PART AND DENIES IN PART plaintiff’s
Motion to Compel Discovery. (Docket No. 39). Defendants shall make themselves available for
deposition, respond to plaintiff’s discovery requests, and arrange for a tour of TRCI, in
accordance with this Opinion and Order.
IT IS SO ORDERED.
DATED this 6th day of October, 2017.

/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge

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