Smith et al v. Washington State et al

Filing 119

ORDER Denying 106 Motion for Judicial Review of Redacted Material, by Magistrate Judge J Richard Creatura.(GMR- cc: pltfs)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROBERT SMITH, et. al.,

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CASE NO. C14-5974 RBL-JRC

Plaintiffs,

ORDER DENYING JUDICIAL
REVIEW OF REDACTED
MATERIAL

v.
STATE OF WASHINGTON, et. al.,
Defendants.

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States

15 Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local
16 Magistrate Judge Rules MJR1, MJR3 and MJR4.
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Presently pending before the Court is the plaintiffs’ Motion for Judicial Review of

18 Redacted Material (“Motion”) filed on July 21, 2016. Dkt. 106. Defendants have opposed the
19 Motion. Dkt. 110. The Court denies plaintiffs’ Motion based on plaintiffs’ failure to meet their
20 burden to justify in camera review of the privileged documents.
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BACKGROUND

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Plaintiffs allege violations of their constitutional rights under the First, Eighth and

23 Fourteenth Amendments. Dkt. 66 at 2. On December 17, 2015, the Court granted defendants’
24 motion to dismiss as to all of plaintiffs’ claims except their unreasonable exposure to
ORDER DENYING JUDICIAL REVIEW OF
REDACTED MATERIAL - 1

1 environmental tobacco smoke claim against defendants Quigley, Clayton, Strong, Dubble,
2 Steinbach, Sziebert, Harris, and McCabe. Dkt. 87. Thus, this case is proceeding on plaintiffs’
3 remaining claim: unreasonable exposure to environmental tobacco smoke against defendants
4 Quigley, Clayton, Strong, Dubble, Steinbach, Sziebert, Harris and McCabe.
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On June 29, 2016, plaintiffs mailed a letter to the Office of the Attorney General

6 requesting to view unredacted versions of documents identified as being subject to attorney7 client privilege or work product. Dkt. 110 at 1. On July 8, 2016 defense counsel responded with
8 a letter denying plaintiffs' request. Id. Plaintiffs subsequently filed their request for in camera
9 inspection of these documents to verify they fall within the attorney-client or work product
10 privilege.
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Plaintiffs request the Court “to review the redacted documents to determine if the

12 information contained in those documents is strictly information protected under Attorney/Client
13 Privilege.” Dkt. 106 at 2. In support of their motion, plaintiffs argue:
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It was obvious after reviewing the discovery material that numerous administrators
at SCC, many of them Defendants, were well aware of the hazards of second hand
smoke. They were also aware of the health risks that exposure to ETS caused staff
and residents long before the Plaintiffs filed this complaint. Their response or lack
thereof demonstrates a callous indifference which make it extremely difficult to
take all their statements at face value.

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Dkt. 106 at 2.
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Defendants assert that plaintiffs have failed to show any factual basis supporting in
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camera inspection of these documents and therefore the Court should deny the Motion. Dkt. 110.
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Defendants explain that they have provided the necessary information for a prima facie showing
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of privilege as well as information necessary to allow the plaintiffs to adequately assess the
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privilege claims. Id. at 2. Defendants provided a privilege log listing the Bates Number of the
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document, the date of the document, the type of document, who sent the document and to whom,
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ORDER DENYING JUDICIAL REVIEW OF
REDACTED MATERIAL - 2

1 the subject line of the document, and the privilege asserted. See Dkt. 111 at 1; Dkt. 111-1. In
2 addition to the privilege log, the produced documents themselves contain this same information
3 in the un-redacted portions of the documents. Dkt. 111-2. Based on this, defendants contend that
4 they have made a prima facie showing the subject documents are privileged and the burden shifts
5 to the plaintiffs to justify in camera review. Dkt. 110.
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DISCUSSION
Once a party asserting the privilege makes a prima facie showing of privilege, the Court

8 must engage in the two-stage Zolin test prior to ordering in camera review. See United States v.
9 Zolin, 491 U.S. 554, 572 (1989).
10 The Zolin court held, in pertinent part:
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(b) However, before a district court may engage in in camera review at the
request of the party opposing the privilege, that party must present evidence
sufficient to support a reasonable belief that such review may reveal
evidence that establishes the exception's applicability. Once this threshold
showing is made, the decision whether to engage in in camera review rests
in the sound discretion of the court. Pp. 2630–2631.

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(c) The party opposing the privilege may use any relevant nonprivileged
evidence, lawfully obtained, to meet the threshold showing, even if its
evidence is not “independent” of the contested communications as the Court
of Appeals uses that term. Pp. 2631–2632.

17 Zolin, 491 U.S. at 555.
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The Ninth Circuit explained in In re Grand Jury Investigation that the use of the Zolin

19 process was appropriate for challenges to privileged materials in civil cases.
20 In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992).
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Other than a generalized distrust of the state privilege log and redacted documents

22 provided to them, plaintiffs have failed to meet their burden of showing that an in camera review
23 of privileged documents is justified. Plaintiffs have not provided any relevant nonprivileged
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ORDER DENYING JUDICIAL REVIEW OF
REDACTED MATERIAL - 3

1 evidence in opposing the privilege asserted by defendants. The Court has reviewed the privilege
2 log and redacted documents attached to defendants’ response.

Dkts 111-1, 111-2.

These

3 documents do not reveal any attempt to assert privilege over non-privileged documents.
4 Therefore, the Court, in its exercise of discretion, declines to conduct the requested in camera
5 review.
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Dated this 7th day of September, 2016.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING JUDICIAL REVIEW OF
REDACTED MATERIAL - 4