Moore v. Lankford et al, No. 3:2019cv02406 - Document 32 (S.D. Cal. 2020)
Court Description: ORDER Denying In Part 27 Plaintiff's Motion for Order Compelling Discovery. Plaintiffs request for an order requiring Defendants to produce paper copies is DENIED S MOOT. Plaintiffs request to compel further response Interrogatory No. 6 to D efendant Lankford, Interrogatory No. 13 to Defendant Strumsky, Interrogatory No. 15 to Defendant Buckel, and nterrogatory No. 6 to Defendant Arellano is DENIED.Defendants must lodge the grievances responsive to Interrogatory No. 16 to Defendant ankfo rd, Interrogatory No. 15 to Defendant Arellano, Interrogatory No. 16 to Defendant Buckle, and Interrogatory No. 14 to Defendant Strumsky as defined by the Court with Judge MajorsChambers on or before November 6, 2020.Plaintiffs request for sanctions is DENIED. Signed by Magistrate Judge Barbara Lynn Major on 10/22/2020. (All non-registered users served via U.S. Mail Service)(mme)
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Moore v. Lankford et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 19CV2406-DMS (BLM) ROBERT MOORE, 13 v. 14 JOE LANKFORD, MERCEDES ARELLANO, R. BUCKEL, AND DAVID STROMSKI, 15 16 ORDER DENYI NG I N PART PLAI NTI FF’S MOTI ON FOR ORDER COMPELLI NG DI SCOVERY Plaintiff, 12 [ ECF No. 27] Defendants. 17 18 19 Currently before the Court is Plaintiff’s September 4, 2020 Motion for Order Compelling 20 Discovery [ ECF No. 27 (“MTC”)], Defendants’ September 22, 2020 Opposition to the motion 21 [ ECF No. 30 (“Oppo.”)] , and Plaintiff’s September 29, 2020 reply [ ECF No. 31 (“Reply”)] . For 22 the reasons set forth below, Plaintiff’s motion is DENI ED I N PART. 23 DI SCOVERY BACKGROUND 24 On July 10, 2020, Plaintiff served written discovery on Defendants that included Requests 25 for Production of Documents (“RFPs”) and Interrogatories. MTC at 18-48 and 49-51 (“Plaintiff’s 26 Decl.”) at ¶ 2; see also Oppo. at 6; ECF No. 30-1, Declaration of Christopher H. Findley In 27 Support of Defendants’ Opposition to Plaintiff’s Motion to Compel (“Findley Decl.”) at ¶ 2. 28 Defendants responded to the requests on August 10, 2020 and produced more than 3,500 1 19cv2406-DMS (BLM) Dockets.Justia.com 1 documents on a compact disc. Plaintiff’s Decl. at ¶ 3; see also Oppo. at 6; Findley Decl. at ¶ 2, 2 Exhs. 1-4. 3 On August 16, 2020, Plaintiff submitted a motion to compel that was received on August 4 21, 2020 and accepted on discrepancy on September 4, 2020. ECF Nos. 25 and 27. On 5 September 8, 2020, the Court issued a briefing schedule requiring Defendants to file their 6 opposition on or before September 22, 2020 and Plaintiff to file any reply on or before October 7 13, 2020. ECF No. 28. The parties timely filed their pleadings in accordance with the Court’s 8 order. See Oppo. and Reply. 9 On September 18, 2020, after the instant motion was filed, Defendants printed the 10 documents previously submitted to Plaintiff on a compact disc and delivered paper copies to 11 Plaintiff. Findley Decl. at ¶ 2. 12 LEGAL STANDARD 13 The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: 14 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. 15 16 17 18 19 20 21 Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26(b)(1). 22 District courts have broad discretion to determine relevancy for discovery purposes. See 23 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion 24 to limit discovery to prevent its abuse. See Fed. R. Civ. P.26(b)(2) (instructing that courts must 25 limit discovery where the party seeking the discovery “has had ample opportunity to obtain the 26 information by discovery in the action” or where the proposed discovery is “unreasonably 27 cumulative or duplicative,” “obtain[ able] from some other source that is more convenient, less 28 burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). 2 19cv2406-DMS (BLM) 1 A party may request the production of any document within the scope of Rule 2 26(b). Fed. R. Civ. P.34(a). “For each item or category, the response must either state that 3 inspection and related activities will be permitted as requested or state with specificity 4 the grounds for objecting to the request, including the reasons.” Id. at 34(b)(2)(B). The 5 responding party is responsible for all items in “the responding party’s possession, custody, or 6 control.” Id. at 34(a)(1). Actual possession, custody or control is not required. Rather, “[ a] 7 party may be ordered to produce a document in the possession of a non-party entity if that 8 party has a legal right to obtain the document or has control over the entity who is in 9 possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). 10 A party may serve interrogatories that relate to any matter within the scope of Fed. R. 11 Civ. P. 26(b). Fed. R. Civ. P. 33(a). “The grounds for objecting to an interrogatory must be 12 stated with specificity,” and any interrogatory not objected to must be answered fully in writing 13 under oath. Fed. R. Civ. P. 33(b). An interrogatory not objected to within 30 days after the 14 responding party has been served is waived, unless the court, for good cause, excuses the 15 waiver. Fed. R. Civ. P. 33(b)(4). The waiver is effective “even in situations where a party had 16 a proper objection to a discovery request.” Reliance Ins. Co. v. Core Carriers, Inc., 2008 WL 17 2414041 * 3 (M.D. Fla. June 11, 2008). 18 DI SCUSSI ON 19 Defendants argue that the Court should deny Plaintiff’s motion because he failed to meet 20 and confer prior to filing the motion and did not include a certificate demonstrating a good faith 21 attempt to meet and confer with his motion. Oppo. at 6, 8-9. 22 While Defendants are correct, and the Court may deny a motion to compel solely due to 23 Plaintiff’s failure to meet and confer prior to filing, “courts can still decide a motion on the merits 24 despite a failure to meet and confer.” Rogers v. Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012) 25 (citing Marine Group, LLC v. Marine Trvelift, Inc., 2012 WL 1155971, at * 2–3, (S.D. Cal. Apr. 6, 26 2012) (explaining failure to meet and confer is grounds for denying a motion, but still addressing 27 the merits)). Here, Plaintiff did not comply with the meet and confer requirements prior to filing 28 the instant motion but the Court declines to deny Plaintiff’s motion on this ground. Id. (finding 3 19cv2406-DMS (BLM) 1 that pro se inmate’s failure to meet and confer prior to filing a motion to compel did “not warrant 2 an outright denial of his Motion to Compel” and waiving the meet and confer requirement) (citing 3 S.D. Cal. CivLR. 1.1(d) (“[ i] n any case for the convenience of the parties in interest, or in the 4 interest of justice, a judge may waive the applicability of these rules.”)). 5 A. 6 Plaintiff seeks an order from the Court requiring Defendants to “transcribe and produce 7 for inspection every document listed in the Plaintiff’s request for production of documents” and 8 to provide Plaintiff with paper copies of the documents instead of a compact disc. MTC at 1-2. 9 Because Plaintiff did not meet and confer with defense counsel, Defendants were unable to 10 resolve this issue without litigation. In their opposition, Defendants explain that they produced 11 their documents on a compact disc due to the volume of the documents (over 3,500 documents) 12 and on the assumption that Plaintiff would be able to view the documents via the prison’s 13 litigation coordinator. Oppo. at 6-7. After receiving Plaintiff’s motion, Defendants “produced 14 the documents to Plaintiff in paper format.” Id. at 7; see also Findley Decl. at ¶ 2 (“[ a] fter 15 receiving this Motion, I caused the documents to be printed, placed in a box, and delivered to 16 Plaintiff on September 18, 2020”). Plaintiff confirmed that he received the paper documents. 17 Reply at 2. Accordingly, the Court DENI ES AS MOOT Plaintiff’s request for an order requiring 18 Defendants to produce paper copies. B. 19 20 Compact Disc Production Interrogatories No. 6 to Defendant Lankford, No. 13 to Defendant Strumsky, No. 15 to Defendant Buckel, and No. 6 to Defendant Arellano 21 Plaintiff seeks an order from the Court compelling further response to Interrogatory No. 22 6 to Defendant Lankford, Interrogatory No. 13 to Defendant Strumsky, Interrogatory No. 15 to 23 Defendant Buckel, and Interrogatory No. 6 to Defendant Arellano. MTC; see also Reply.1 The 24 25 1 26 27 28 Plaintiff seeks further responses to Interrogatory No. 6 to Defendant Arellano and Interrogatory No. 15 to Defendant Buckel on page five of his Reply. It is unclear if Plaintiff intended to also seek further responses to Interrogatory No. 6 to Defendant Lankford and Interrogatory No. 13 to Defendant Strumsky since Plaintiff does not specifically request further response to those interrogatories. The Court will give Plaintiff the benefit of the doubt and include them in its analysis since the interrogatories concern the exact same type of information being sought in 4 19cv2406-DMS (BLM) 1 interrogatories ask “[ h] ave you ever been disciplined if so for what [ ?] ” and “[ h] ave you ever 2 received any write-ups or discipline from any superior supervisors ever, if so what were they 3 for[ ?] ” MTC at 30 (Interrogatory No. 6 to Defendant Lankford), 35 (Interrogatory No. 6 to 4 Defendant Arellano), 46 (Interrogatory No. 13 to Defendant Strumsky) and 41 (Interrogatory 5 No. 15 to Defendant Buckle). 6 Defendants responded to the interrogatories and stated: 7 14 Defendant objects on the ground that the interrogatory is compound.2 Defendant further objects on the grounds that it is not relevant to a claim or defense 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 that the burden or expense of the discovery outweighs its benefits. Fed. R. Civ. P. 26(b)(1). The request would also violate the privacy rights of the third-party inmates. The request would also violate the privacy rights of the Defendant. Finally, the request would violate the official information privilege. Subject to these objections, Defendant responds as follows: No. 15 Findley Decl. at Exhs. 1-4 (citations omitted). Defendants also sent Plaintiff a declaration signed 16 under penalty of perjury from J. Giurbino, a Correctional Counselor currently assigned as the 17 Acting Litigation Coordinator at Richard J. Donovan Correctional Facility (“RJDCF”). Giurbino 18 Decl. at ¶ 1. 19 interrogatories at issue. Id. at ¶ 3 (no responsive documents to Interrogatory No. 6 to Defendant 20 Lankford, No. 13 to Defendant Strumsky, No. 15 to Defendant Buckel, or No. 6 to Defendant 21 Arellano). 8 9 10 11 12 13 Giurbino declares that there are no documents responsive to the four 22 All four defendants responded “No” to the interrogatory and Giurbino’s declaration 23 confirms that there are no responsive documents. Accordingly, Plaintiff’s request to compel 24 25 26 27 28 Interrogatory No. 6 to Defendant Arellano and Interrogatory No. 15 to Defendant Buckel. 2 This first sentence is not included in Defendants’ response to Interrogatory No. 6 to Defendant Lankford, but is included in the responses to the other three interrogatories. Findley Decl. at Exh. 3. 5 19cv2406-DMS (BLM) 1 further response Interrogatory No. 6 to Defendant Lankford, Interrogatory No. 13 to Defendant 2 Strumsky, Interrogatory No. 15 to Defendant Buckel, and Interrogatory No. 6 to Defendant 3 Arellano is DENI ED. 4 C. 5 Interrogatories No. 16 to Defendant Lankford, No. 15 to Defendant Arellano, No. 16 to Defendant Buckle, and No. 14 to Defendant Strumsky 6 Plaintiff seeks an order from the Court compelling further response to Interrogatory No. 7 16 to Defendant Lankford3, Interrogatory No. 15 to Defendant Arellano, Interrogatory No. 16 to 8 Defendant Buckle, and Interrogatory No. 14 to Defendant Strumsky. MTC at 2; see also Reply 9 at 5. Those interrogatories ask 10 Have you ever been written up or grievances filed against you by any inmate while you worked in the canteen, if so how many and for what. 11 Have you ever had a grievance filed against you by any inmate besides the plaintiff, if so for what. 12 13 Have you ever had a 602 grievance filed against you by any other inmate other than the plaintiff, for what. 14 15 16 17 18 Have you ever been written up by inmates if so for what. Id. at 31 (Interrogatory No. 16 to Defendant Lankford), 36 (Interrogatory No. 15 to Defendant Arellano), 41 (Interrogatory No. 16 to Defendant Buckle), and 46 (Interrogatory No. 14 to Defendant Strumsky). 19 Defendants responded to the interrogatories and stated: 20 Defendant objects on the ground that the interrogatory is compound. Defendant further objects on the grounds that it is not relevant to a claim or defense 21 22 23 24 25 26 27 28 3 Plaintiff’s MTC states that he is seeking further response to Interrogatory No. 16 to Defendant Lankford. MTC at 2. Plaintiff’s Reply states that he is seeking further response to Interrogatory No. 14 to Defendant Lankford. Replay at 5. The Court assumes that this is a typographical error and Plaintiff intended to write Interrogatory No. 16 which, similar to the other interrogatories at issue, concerns potential grievances filed against Defendant Lankford by inmates. Id. Interrogatory No. 14 asks Defendant Lankford “On 1-12-19 when you had a disagreement and the Plaintiff reported to work the next day didn’t you tell the Plaintiff that he couldn’t work in the front of the canteen, but that he had to work in the back of the canteen” and does not appear to be at issue in this motion. Findley Decl. at Exh. 3. 6 19cv2406-DMS (BLM) 1 2 3 4 5 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 that the burden or expense of the discovery outweighs its benefits. Fed. R. Civ. P. 26(b)(1). The request would also violate the privacy rights of the third-party inmates. The request would also violate the privacy rights of the Defendant and third-party inmates. Finally, the request would violate the official information privilege. 6 7 Findley Decl. at Exhs. 1-4 (internal citations omitted). 8 Plaintiff seeks an order from the Court requiring Defendants to answer the interrogatories 9 and produce responsive documents. MTC at 2. Plaintiff argues that the interrogatories do not 10 seek privileged information and specifically notes that he is not asking for information “such as 11 addresses, medical data, leaves or vacations etc.” Id. Plaintiff argues that the information is 12 relevant to his case because it demonstrates a pattern and history of racist, discriminatory, and 13 retaliatory behavior. Id. 14 Defendants contend that the inmate grievances Plaintiff seeks (1) are not relevant or 15 within the scope of discovery, (2) violate the privacy rights of Defendants and third-party 16 inmates, and (3) are protected by the official information privilege. Oppo. at 9-15. 17 1. Relevance 18 Defendants argue that the grievances are not relevant or within the scope of discovery 19 because they could not lead to discoverable evidence since they only show that “Defendants 20 acted consistently with the allegations Plaintiff is making in this case” and prior bad acts are 21 inadmissible. Id. at 10. Defendants note that grievances are merely allegations and do not 22 mean that the person named in the grievance has committed whatever act they are accused of 23 committing making the grievances undiscoverable. Id. 24 The Court overrules Defendants’ objection to the extent that they argue that grievances 25 are never relevant and never within the scope of discoverable information. See Tate v. Andres, 26 2020 WL 1984151, at * 3 (E.D. Cal., Apr. 27, 2020) (granting plaintiff’s motion to compel further 27 response to RFPs, finding that “complaints or appeals against defendant based upon the same 28 type of conduct at issue in this action are, in fact, relevant[ ,] ” and noting that “sufficient 7 19cv2406-DMS (BLM) 1 similarities in complaints could potentially demonstrate a pattern of conduct by defendant that 2 would speak to his intent, which is a necessary component to each of the claims against him”); 3 Houston v. Eldridge, 2018 WL 1014459, at * 5 (E.D. Cal., Feb. 22, 2018) (“Plaintiff is entitled to 4 discovery of grievances filed by other inmates alleging that defendants [ ] used physical violence 5 on an inmate.”); Eusse v. Vitela, 2015 WL 9008634, at * 4 (S.D. Cal. Dec. 14, 2015) (“other 6 disciplinary records and substantiated complaints about conduct similar to that alleged in the 7 complaint are relevant and may lead to the discovery of admissible evidence that could bear on 8 Plaintiff's claims”) citing Garcia v. Cluck, 2013 WL 6441474, * 3 (S.D. Cal. Dec. 6, 2013) (finding 9 that complaints by inmates about conduct similar to the plaintiff's allegations of retaliation are 10 relevant, and directing production of same). Plaintiff’s requests seek relevant information but 11 because they are not limited to an appropriate time period and to the specific claims at issue in 12 this case, they also seek irrelevant information. See Houston v. Eldridge, 2018 WL 1014459, at 13 * 5 (“Plaintiff is not entitled to grievances filed against defendant Eldridge alleging physical 14 violence because plaintiff does not allege that defendant Eldridge used excessive force”); Taylor 15 v. O'Hanneson, 2014 WL 2696585 at * 5 (E.D. Cal. 2014) (denying without prejudice plaintiff’s 16 overbroad request for grievances against defendants concerning the mistreatment of prisoners 17 but suggesting that a “properly phrased request. . . . specifically tailored to documents pertaining 18 to Plaintiff's claim of excessive force” would be permitted and noting that “admissibility of 19 character evidence is a proper objection to be raised at trial, but not necessarily in the discovery 20 phase.”). 21 Plaintiff’s complaint alleges cruel and unusual punishment, deliberate indifference to 22 safety, ADA discrimination, equal protection violations, and retaliation. ECF No. 1 (“Compl.”). 23 The alleged wrongful conduct occurred during 2019 and Plaintiff filed his complaint in this court 24 on December 16, 2019. Id. Accordingly, the Court finds the relevant time frame to be January 25 1, 2015 to December 31, 2019. The Court further finds that with regard to the identified 26 interrogatories and the requested grievances, the scope of relevant response for each Defendant 27 is all grievances filed between January 1, 2015 and December 31, 2019 that allege claims similar 28 to the claims alleged against each Defendant in the complaint. 8 19cv2406-DMS (BLM) 1 2. Privacy Rights 2 Defendants contend that Plaintiff’s requests violate the privacy rights of Defendants and 3 third-party inmates because “Defendants have a privacy interest in not disclosing allegations, 4 investigations, or grievances claiming they acted inappropriately” and grievances may contain 5 confidential information such as the names and addresses of staff members and other identifying 6 information. Id. at 12. In addition, grievances may contain statements from witnesses who 7 have been promised confidentiality and producing that information may lead to lower witness 8 participation in future investigations. Id. Defendants request that they be able to redact inmate 9 names if the Court orders the production of the inmate grievances. Id. at 13. 10 Defendants’ privacy objection is overruled. If documents are ordered to be produced, 11 Defendants’ privacy concerns can be addressed with a protective order and/ or the redaction of 12 identifying information. See Lamon v. Adams, 2010 WL 4513405, at * 3–4 (E.D. Cal. Nov.2, 13 2010) (ordering redaction of the names of the inmates who filed grievances against correctional 14 officer before documents were provided to plaintiff); see also Smith v. Kiesz, 2013 WL 1338927, 15 at * 2 (E.D. Cal., Apr. 3, 2013) (ordering defendant to produce documents from defendant's 16 personnel file and noting that any documents disclosed were subject to a protective order that 17 required defense counsel “to redact any and all identifying personal information which might 18 pose a security risk if released, including, but not limited to, the defendant's home addresses, 19 social security numbers, telephone numbers, etc.”); Eusse, 2015 WL 9008634 at * 4 (noting 20 defendants’ privacy concerns and ordering that “the names and identifying information of the 21 individuals who made the complaints, as well as other officers who were not involved in the 22 incident, may be redacted.”); and Thompson v. Morales, 2008 WL 413757, at * 1 (E.D. Cal., Feb. 23 13, 2008) (“Privacy concerns, if any, may be addressed by redaction of names, CDC numbers, 24 and other identifying information, should the defendants be required to produce documents 25 responsive to this request.”). 26 3. Official Information Privilege 27 Finally, Defendants contend that the requested grievances are protected by the official 28 information privilege “which weighs the potential benefits of disclosure against the 9 19cv2406-DMS (BLM) 1 disadvantages of chilling a government agency’s ability to do its job.” Id. Defendants state that 2 when they responded to Plaintiff’s interrogatories, they provided Plaintiff with a declaration from 3 J. Giurbino in support of the contention that the official information privilege applies to the 4 instant dispute. Id. at 14; see also MTC at 13-16 (“Giurbino Decl.”). Defendants argue that a 5 protective order would be insufficient to protect the information being sought because Plaintiff 6 is a pro se prisoner housed at the same facility where Defendants work. Id. at 15. 7 a. Legal Standard 8 “Federal common law recognizes a qualified privilege for official information.” Sanchez 9 v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr v. United States Dist. Ct. 10 for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 11 725 (1976)). The party asserting the privilege has the initial burden of proving the applicability 12 of the privilege. See Kelly v. City of San Jose, 114 F.R.D. 653, 669–71 (N.D.Cal.1987); see also 13 Hampton v. City of San Diego, 147 F.R.D. 227, 230 (S.D.Cal.1993) (“Through this opinion, this 14 court is hereby joining the Northern District's and Central District's procedures outlined in Kelly 15 v. City of San Jose, 114 F.R.D. 653 (N.D.Cal.1987) and Miller v. Pancucci, 141 F.R.D. 292 16 (C.D.Cal.1992) for invoking the official information privilege”); Stewart v. City of San Diego, 17 2010 WL 4909630, at * 1 (S.D. Cal. 2010) (applying Kelly). A party seeking to invoke the official 18 information privilege in response to a discovery request must serve a timely discovery response 19 specifically identifying the official information privilege as a basis for its objection. Kelly, 114 20 F.R.D. at 669. 21 responsible official within the agency who has personal knowledge of the principal matters to 22 be attested to in the affidavit or declaration.” Id. The affidavit or declaration must include: 23 24 25 26 27 28 The objection must be accompanied by a declaration or affidavit “from a (1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality (if the agency has shared some or all of the material with other governmental agencies it must disclose their identity and describe the circumstances surrounding the disclosure, including steps taken to assure preservation of the confidentiality of the material), (2) a statement that the official has personally reviewed the material in question, (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of 10 19cv2406-DMS (BLM) 3 the material to plaintiff and/ or his lawyer, (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, (5) and a projection of how much harm would be done to the threatened interests if the disclosure were made. 4 Id. at 670. “If the nondisclosing party does not meet this initial burden of establishing cause to 5 apply the privilege, the court must order disclosure of the documents; if the party meets this 6 initial burden, the court generally conducts an in camera review of the material and balance[ s] 7 each party's interests.” Bryant v. Armstrong, 285 F.R.D. 596, 605 (S.D. Cal. 2012). 1 2 8 The balance test requires that “courts must weigh the potential benefits of disclosure 9 against the potential disadvantages.” Sanchez, 936 F.2d at 1033-34. The Kelly court provided 10 a non-exhaustive list of factors (taken from Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 11 1973)) that may be considered when engaging in this weighing process: (1) the extent to which 12 disclosure will thwart governmental processes by discouraging citizens from giving the 13 government information; (2) the impact upon persons who have given information of having 14 their identities disclosed; (3) the degree to which government self-evaluation and consequent 15 program improvement will be chilled by disclosure; (4) whether the information sought is factual 16 data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential 17 defendant in any criminal proceeding either pending or reasonably likely to follow from the 18 incident in question; (6) whether the police investigation has been completed; (7) whether any 19 intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) 20 whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the 21 information sought is available through other discovery or from other sources; and (10) the 22 importance of the information sought to the plaintiff's case. Kelly, 114 F.R.D. at 663. In making 23 this determination, courts must conduct “a situation specific analysis of the factors made 24 relevant by the request in issue and the objection to it.” Id. In civil rights cases against police 25 departments, the balancing test should be “moderately pre-weighted in favor of disclosure.” 26 Soto, 162 F.R.D. at 613 (quoting Kelly, 114 F.R.D. at 661). 27 28 b. Analysis Defendants have satisfied their initial burden of proving the applicability of the privilege. 11 19cv2406-DMS (BLM) 1 J. Giurbino’s declaration states that he personally reviewed the documents responsive to 2 Interrogatory No. 16 to Defendant Lankford, No. 14 to Defendant Strumsky, No. 15 to Defendant 3 Arellano, and No. 16 to Defendant Buckel and that the documents contain confidential 4 information including “medical information, information about the inmate’s property, the 5 inmate’s job, and the people with whom the inmate associates.” Id. at ¶ 4. Giurbino explains 6 that the confidential information about other inmates can be used “to extract favors or otherwise 7 weaponize the information” and that releasing the information “would endanger the safety of 8 persons within the prison and jeopardize the security of the institution if disclosed.” Id. Giurbino 9 further explains that the documents contain confidential information about staff members such 10 as “their full names, addresses, and other identifying information” which, if given to an inmate, 11 could be distributed through the inmate population and create a substantial danger for prison 12 staff, their families, and their property. Id. at ¶ 5. Giurbino notes that RJDCF has an interest 13 in keeping the information confidential because it encourages inmates to make truthful 14 statements during investigations and encourages investigators to accurately report their 15 findings. Id. at ¶ 6. 16 fear being identified as a snitch or one who cooperates with authorities which could jeopardize 17 their physical safety. Id. at ¶ 7. Finally, Giurbino declares that even if Plaintiff was represented 18 by counsel, a protective order would be insufficient for protecting the confidential information 19 as Plaintiff could still “learn of the information inadvertently through [ his] lawyer, [ his] lawyer’s 20 staff, or [ his] lawyer’s representatives.” Id. at ¶ 8. An inmate is willing to provide truthful statements if they do not have to 21 Because the Court finds that Defendants have satisfied the threshold requirement for 22 application of the Official Information Privilege with respect to these interrogatories, the Court 23 will perform an in camera review of the relevant grievances and conduct a balancing analysis to 24 determine whether the Official Information Privilege applies. 25 Defendants must lodge a copy of the grievances responsive to Interrogatory No. 16 to 26 Defendant Lankford, Interrogatory No. 15 to Defendant Arellano, Interrogatory No. 16 to 27 Defendant Buckle, and Interrogatory No. 14 to Defendant Strumsky with the Court for in camera 28 review to efile_major@casd.uscourts.gov on or before November 6, 2020. Defendants 12 19cv2406-DMS (BLM) 1 are only required to provide grievances that fit w ithin the Court’s definition of 2 relevance as set forth in Section C.1. The Court will review the documents and issue an 3 order regarding Plaintiff’s motion to compel further response to Interrogatory No. 16 to 4 Defendant Lankford, Interrogatory No. 15 to Defendant Arellano, Interrogatory No. 16 to 5 Defendant Buckle, and Interrogatory No. 14 to Defendant Strumsky. 6 D. 7 Plaintiff requests that the Court sanction Defendants in the amount of $100 “as 8 reasonable expenses in obtaining this order” since Defendants were not substantially justified in 9 hindering Plaintiff’s access to the requested documents. MTC at 3-4. Defendants contend that 10 the Court should not award sanctions against Defendants because (1) “Plaintiff violated the local 11 and federal rules, and is prohibited from moving for sanctions[ ,] ” (2) “Defendants acted with 12 substantial justification[ ,] ” and (3) “a pro per party who acts for himself is not entitled to 13 attorney's fees.” Oppo. at 15-16. 14 15 16 Sanctions Pursuant to Federal Rule of Civil Procedure 37, if a motion to compel discovery is denied, the Court 19 must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. 20 FRCP 37(a)(5)(B). “Discovery conduct is substantially justified if it is a response to a genuine 21 dispute or if reasonable people could differ as to the appropriateness of the contested action.” 22 Izzo v. Wal-Mart Stores, Inc., 2016 WL 409694, at * 7 (D. Nev. Feb. 2, 2016) (citing Pierce v. 23 Underwood, 487 U.S. 552, 565 (1988)). 17 18 24 Here, Plaintiff’s motion to compel response to Interrogatory No. 6 to Defendant Lankford, 25 Interrogatory No. 13 to Defendant Strumsky, Interrogatory No. 15 to Defendant Buckel, and 26 Interrogatory No. 6 to Defendant Arellano has been denied and there is a good faith dispute as 27 to Interrogatory No. 16 to Defendant Lankford, Interrogatory No. 15 to Defendant Arellano, 28 Interrogatory No. 16 to Defendant Buckle, and Interrogatory No. 14 to Defendant Strumsky. 13 19cv2406-DMS (BLM) 1 Because Plaintiff did not comply with the Court’s meet and confer requirements and because his 2 motion to compel was denied in part and disputed in good faith in another part, the Court 3 DENI ES Plaintiff’s request for sanctions. 4 5 6 CONCLUSI ON Plaintiff’s request for an order requiring Defendants to produce paper copies is DENI ED AS MOOT. 7 Plaintiff’s request to compel further response Interrogatory No. 6 to Defendant Lankford, 8 Interrogatory No. 13 to Defendant Strumsky, Interrogatory No. 15 to Defendant Buckel, and 9 Interrogatory No. 6 to Defendant Arellano is DENI ED. 10 Defendants must lodge the grievances responsive to Interrogatory No. 16 to Defendant 11 Lankford, Interrogatory No. 15 to Defendant Arellano, Interrogatory No. 16 to Defendant Buckle, 12 and Interrogatory No. 14 to Defendant Strumsky as defined by the Court with Judge Major’s 13 Chambers at efile_major@casd.uscourts.gov on or before November 6, 2020. An order 14 regarding Plaintiff’s motion to compel responses to those interrogatories will follow. 15 Plaintiff’s request for sanctions is DENI ED. 16 I T I S SO ORDERED. 17 Dated: 10/ 22/ 2020 18 19 20 21 22 23 24 25 26 27 28 14 19cv2406-DMS (BLM)
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