Sylee Castle v. A. Lugo, et al. Case No. 2:18-cv-08827-JVS (JDE) United States District Court, C.D. California Filed April 29, 2020 Counsel Sylee Castle, Lancaster, CA, pro se. Audra C. Call, Colin A. Shaff, CAAG - Office of Attorney General California Department of Justice, Los Angeles, CA, for A. Lugo, et al Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Ruling re Plaintiff's Motion to Compel (Dkt. 68) *1 On October 12, 2018, Plaintiff Sylee Castle (“Plaintiff”), a California state prisoner, proceeding pro se, filed a complaint alleging civil rights violations under 42 U.S.C. § 1983 against A. Lugo (“Defendant” or “Lugo”), allegedly an employee at California State Prison, Los Angeles County (the “Prison”), located in Lancaster, California. Dkt. 1. On January 4, 2019, Plaintiff filed the operative Second Amended Complaint (“SAC”). Dkt. 22. Following a motion to dismiss the SAC, on December 9, 2019, Plaintiff filed a filed a Notice of Election, electing to proceed solely on his Eighth Amendment claim in the SAC. Dkt. 61. Defendant filed his Answer on January 9, 2020. Dkt. 63. On April 6, 2020, Plaintiff filed a Motion to Compel, seeking an order compelling Defendant to produce documents responsive to two Requests for Production (“RFP”), RFP Nos. 3 and 4, seeking documents related to certification, supervision, or training Defendant received on “issuing out loss of privilege.” Dkt. 68 (“Motion”) at 3, 5. Plaintiff also seeks costs and fees incurred in bringing the Motion. See id. at 2. On the same day, the Court issued a minute order directing Defendant to file any opposition papers by April 20, 2020, at which time the Motion would be under submission. Dkt. 70. Defendant filed an Opposition on April 20, 2020, arguing: (1) Plaintiff has not identified any defects with Defendant's responses to his requests for production of documents, (2) Plaintiff has not met his initial burden to show that the documents sought are relevant to his claims in this case; and (3) Defendant properly withheld certain documents because they are confidential and privileged. Dkt. 72 at 1-8 (“Opp.”). In support of their Opposition, Defendant filed a declaration of counsel (Dkt. 72 at 9) and exhibits (Dkt. 72 at 10-48), which includes the Declaration of D. Sanchez, Litigation Coordinator at the Prison (Dkt 72 at 40-44 (the “Sanchez Declaration” or “Sanchez Decl.”), and a privilege log (Dkt. 72 at 45-46 (“Privilege Log”)).[1] The Motion is now fully briefed. Having considered the materials filed in support of and in opposition to the Motion, the Court rules as follows. II. RELEVANT LAW “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. Civil P. (“Rule”) 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted). *2 Relevancy under Rule 26 “should be ‘construed “liberally and with common sense” and discovery should be allowed unless the information sought has no conceivable bearing on the case.’ ” Lopez v. Williams, 2018 WL 6113086, at *4 (C.D. Cal. June 21, 2018) (quoting Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). Although relevance for discovery purposes is defined “very broadly,” Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir. 1998) (citing Hickman v. Taylor, 329 U.S. 495, 506-07 (1947)), it is not without boundaries. See, e.g., Rivera v. NIBCO, 364 F.3d 1057, 1072 (9th Cir. 2004) (“District courts need not condone the use of discovery to engage in fishing expeditions.” (internal quotation marks and citations omitted)); Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citing Hickman, 329 U.S. at 507); Rule 26(b)(2). District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). Under Rule 34(a)(1), a party may serve on any other party requests, within the scope of Rule 26(b), to produce or permit inspection of, among other things, “(A) any designated documents or electronically stored information.” Such requests “must describe with reasonable particularity each item or category of items to be inspected ... [and] must specify a reasonable time, place, and manner for the inspection ....” Rule 34(b)(1)(A), (B). The party responding to a request for production must, “[f]or each item or category, ... either state that inspection ... will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Rule 34(b)(2)(C). A party who withholds information under a claim of privilege must (1) “expressly make the claim,” and (2) “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Rule 26(b)(5)(A). In the Ninth Circuit, “boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). A party responding to discovery should use common sense and attribute ordinary definitions to terms in discovery requests. Advanced Visual Image Design, LLC v. Exist, Inc., 2015 WL 4934178, at *6 (C.D. Cal. Aug. 18, 2015) (citing Bryant v. Armstrong, 285 F.R.D. 596, 606 (S.D. Cal. 2012)). Parties have an “obligation to construe ... discovery requests in a reasonable manner.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007); see also King-Hardy v. Bloomfield Bd. of Educ., 2002 WL 32506294, at *5 (D. Conn. Dec. 8, 2002) (finding the responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity); McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....” (internal quotation marks omitted)). *3 A propounding party may move for an order compelling an answer or production to a request for production if the responding party fails to produce documents or fails to respond as requested under Rule 34. Rule 37(a)(3)(B)(iv). An evasive or incomplete answer or response is treated as a failure to answer or respond. Rule 37(a)(4). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance.” United States v. McGraw–Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted)). Once the minimal showing or relevance is made, “[t]he party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002); see also Hsingching Hsu v. Puma Biotechnology, Inc., 2018 WL 4951918, at *4 (C.D. Cal. June 27, 2018) (“The party opposing discovery is ‘required to carry a heavy burden of showing’ why discovery should be denied.” (quoting Reece v. Basi, 2014 WL 2565986, at *2 (E.D. Cal. June 6, 2014), aff'd, 704 F. App'x 685 (9th Cir. 2017))). III. DISCUSSION By RFP No. 3, Plaintiff requested that Defendant: “Identify and produce a complete copy of any and all written or official certification of Defendant Lugo receiving or being issue training and/or supervision regarding (CSP-LAC) written policy and procedure issuing out loss of privilege from January 16, 2014 to December 31, 2019.” Dkt. 68 at 16; Dkt. 72 at 13. Defendant responded to RFP No. 3, as follows: Defendant objects to this Request on the following grounds: (1) it is vague, ambiguous, and overly broad as to the phrase “any and all written or official certification,” “receiving or being issue training and/or supervision,” “written policy and procedure,” “issuing out,” and “loss of privilege,” requiring Defendant to guess as to the intended meaning; (2) it is overly broad as to time and scope; (3) it lacks foundation and does not describe the material requested with reasonable particularity to determine what is sought and allow the opportunity for appropriate objection; (4) it is compound; (5) it seeks information that is irrelevant to any party's claim or defense and is not proportional to the needs of the case, considering the importance of the issues at stake in the action and the importance of the discovery in resolving the issues; (6) it seeks information shielded from disclosure by the official information privilege pursuant to federal common law, and seeks information that invades the privacy rights of Defendant in peace officer personnel records protected by state and federal privileges, California Penal Code section 832.7 and the California Peace Officer's Bill of Rights and disclosure violates the procedures outlined in California Evidence Code sections 1043 and 1045. Based on the foregoing objections, no documents will be produced. Defendant also produces a Privilege Log and Declaration of D. Sanchez Correctional Counselor II and Litigation Coordinator describing and explaining the privileged and confidential nature of the documents sought by Plaintiff. Dkt. 72 at 13-14. As for RFP No. 4, Plaintiff requested that Defendant: “Identify and produce a complete copy of any all written official written documents and the names of those who train and/or supervised defendant Lugo regarding issuing out loss of privilege from January 16, 2014 to December 31, 2019.” Dkt. 68 at 16; Dkt. 72 at 14. Defendant's response to RFP No. 4 is essentially the same as his response to RFP No.3, with an assertion of an additional objection of “vague, ambiguous, and overly broad in general and, specifically, as to the phrases ‘any and all written official,” “written documents,” ‘regarding issuing out,’ and ‘loss of privilege’ ” and as “overly broad as to time and scope” twice. Dkt. 72 at 14. *4 Plaintiff argues that “Defendant has used deception in his response” and that he is not requesting confidential information to be produced because he “is not requesting any personal data.” Motion at 5-6. Plaintiff also asserts that the requested documents are “crucial, relevant and material admissible evidence.” Motion at 5-6. In addition, Plaintiff maintains that “Defendant and his counsel have acted in bad faith” and have “intentionally delayed discovery request[s] as well as delayed court proceedings and Plaintiff['s] rights to timely litigate this civil matter.” Motion at 6-7. In opposing the Motion, Defendant argues that Plaintiff does not identify “any particular defect in Defendant's” responses or objections, “does not establish that Defendant's claim of privilege is without merit,” and does not “describe why [Plaintiff] believes that D. Sanchez incorrectly assessed the security risks arising from inmates possessing documents describing the training and supervision history of correctional officers.” Opp. at 6. Defendant further contends that Plaintiff “does not explain why records of Defendant's training and supervisorial history are relevant to his Eighth Amendment claim, nor does Plaintiff explain how the documents will serve to establish any claim or defense in this action.” Opp. at 7. “Plaintiff's bare contention that the information sought is ‘crucial, relevant, material admissible evidence’ does not describe any facts showing that the information sought is actually relevant to his claims in this case.” Id. at 6. Lastly, relying on the Sanchez Declaration and Privilege Log, Defendant argues that he appropriately claimed that RFP Nos. 3 and 4 request confidential and privileged documents. Opp. at 7-8. Regarding RFP No. 3, however, Defendant concedes that “[a]lthough ... the official training records are privileged documents, some of the information contained in the documents may not be privileged, and could be produced to Plaintiff.” Opp. at 5 n.3. Defendant neither describes what this unprivileged information consists of nor affirms that the unprivileged information will be produced to Plaintiff. As an initial matter, the Court finds Plaintiff, who is proceeding pro se, has met his burden to show the information sought by RFP Nos. 3 and 4 is discoverable under Rule 26, has identified the documents sought with reasonable particularity using common sense interpretations, and has shown in sufficient detail why Defendant's responses are deficient. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that “[a] document filed pro se is ‘to be liberally construed’ ” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))); see also Advanced Visual Image Design, LLC, 2015 WL 4934178, at *6 (noting parties responding to discovery should use common sense and attribute ordinary definitions to terms in discovery requests); Cache La Poudre Feeds, LLC, 244 F.R.D. at 618-19 (same); see also King-Hardy, 2002 WL 32506294, at *5 (finding the responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity). As to Defendant's overbreadth, undue burden, and proportionality objections, as noted, relevance for discovery purposes is defined broadly and construed liberally. See Garneau, 147 F.3d at 812; Lopez v. Williams, 2018 WL 6113086, at *4. Here, information on the training and supervision Defendant received on issuing loss of privileges may reveal Defendant's knowledge or intent. See Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (en banc) (an inmate must show a defendant acted with “deliberate indifference” to succeed on an Eighth Amendment claim). Plaintiff satisfies the low threshold for relevance here. *5 As to burden and proportionality, Defendant has not set forth any evidence to support of a burden objection, noting only two potentially responsive documents on the Privilege Log. With no evidence of the burden associated with producing two documents, the Court finds that Defendant has not supported his burden objection and finds the requests at issue are 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” under Rule 26(b)(1), with one exception. The period covered by the RFPs, January 16, 2014 to December 31, 2019, is facially overbroad and not proportional to the needs of the case. Plaintiff's Eighth Amendment claim alleges Defendant improperly revoked his outdoor exercise privileges for 90 days beginning September 12, 2017—the date of the disciplinary hearing. See Dkt. 22 at 11-13; Dkt. 22-1 at 11. Records dated after September 12, 2017, are irrelevant to Defendant's knowledge, intent, or state of mind at the time of the disciplinary hearing, and to the extent RFP Nos. 3 and 4 seek documents after September 12, 2017, the requests are disproportionate to the needs of the case. Therefore, the Court finds a period of January 16, 2014, to September 12, 2017 is appropriate, reasonable, and proportional to the needs of the case. Also, because requests for production under Rule 34 may only request a party to produce and permit inspection, copying, testing, and sampling of items, the RFPs' directives to “identify” documents will not be compelled. Turning to Defendant's confidentiality and privilege objections, the Court finds that Defendant has not met his initial burden to show the privilege applies. In Section 1983 cases, questions of privilege are resolved by federal law. Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987). Nevertheless, “[f]ederal common law recognizes a qualified privilege for official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511 F.2d at 198). The official information privilege ensures disclosure of discoverable information without compromising the state's interest in protecting the privacy of law enforcement officials and in ensuring the efficacy of its law enforcement system. Kelly, 114 F.R.D. at 662-63. “To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery.” Sanchez, 936 F.2d at 1033-34. “In the context of civil rights suits against [corrections officials], this balancing approach should be ‘moderately pre-weighted in favor of disclosure.’ ” Soto, 162 F.R.D. at 613 (quoting Kelly, 114 F.R.D. at 661). The party invoking the privilege must at the outset make a “substantial threshold showing” by way of a declaration or affidavit from a responsible official with personal knowledge of the matters attested. Soto, 162 F.R.D. at 613. “The claiming official must ‘have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced’ and state with specificity the rationale of the claimed privilege.” Kerr, 511 F.2d at 198 (citation omitted). The affidavit must include: (1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (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 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, and (5) a projection of how much harm would be done to the threatened interests if disclosure were made. Soto, 162 F.R.D. at 613. Here, Defendant asserts the official information privilege and provided the Sanchez Declaration and Privilege Log in support. The Sanchez Declaration, however, is conclusory as it relates to the specific information sought by Plaintiff and thus insufficient to support Defendant's privilege claim. In essence, the Sanchez Declaration reasons that the two identified responsive documents, “Training Record for A. Lugo” and “CSP-LAC Disciplinary Hearing Officer/Senior Disciplinary Hearing Officer Certification,” are deemed “part of Defendant's personnel file,” and “all staff personnel matters are deemed confidential in nature and the details of any particular CDCR officer's training and training records are not shared with staff, members of the public or offender appellants.” Sanchez Decl. ¶¶ 6, 10-11; see also Privilege Log. Yet Plaintiff's request in RFP Nos. 3 and 4 are more limited in nature: They request “written or official certification[s]” and the names of Defendant's supervisors and trainers. In other words, whereas the Sanchez Declaration refers to issues related to the entirety of the two identified documents being contained in Defendant's personnel file, it does not address the confidentiality or sensitivity of the information requested by Plaintiff in RFP Nos. 3 and 4. *6 Moreover, with respect to RFP No. 3, although the Sanchez Declaration provides that the only responsive documents found are those listed in the Privilege Log and are considered part of Defendant's personnel file, Defendant concedes in his Opposition that, even though “the official training records are privileged documents, some of the information contained in the documents may not be privileged, and could be produced to Plaintiff.” Motion at 5 n.3. Defendant does not further identify the unprivileged information that can be produced, nor does Defendant state whether such unprivileged information has been. In any event, this concession undermines the claim, set forth in Sanchez Declaration, that a protective order would not suffice in preventing “potentially catastrophic results” and security risks. See Sanchez Decl. ¶ 14. Although courts have recognized the potential security risks and privacy issues involved in disclosing prison personnel files, these concerns are to be weighed against the interests of the party seeking discovery. See Soto, 162 F.R.D. at 613; Ibanez v. Miller, 2009 WL 3481679, at *3 (E.D. Cal. Oct. 22, 2009) (conducting the balancing analysis). Here, having balanced any governmental or privacy interests in narrow information sought by Plaintiff—certifications of Defendant's training or supervision as to loss of privileges determinations and names of supervisors/trainers in that regard—the Court concludes that any such interests are outweighed by Plaintiff's need for the information, if it exists. See, e.g., Cota v. Scribner, 2013 WL 3189075, at *5-6 (S.D. Cal. June 21, 2013) (rejecting the defendant's confidentiality and privacy objections, because the defendants' failed to “make a ‘substantial threshold showing’ as a basis for withholding documents under the official information privilege,” and ordering the production of “[a]ll documents in [the defendants'] personnel files relating to [their] employment history with CDCR”). For the reasons stated above, the Sanchez Declaration is inadequate to support a claim of privilege as to the information sought by RFP Nos. 3 and 4, and Defendant fails to make “substantial threshold showing” and meet his initial burden to justify the privilege as to the specific information sought by Plaintiff. However, as it appears that some of the information contained in the documents identified on the Privilege Log may be subject to the official information or other privilege, and as Plaintiff has not shown that information outside of the narrow scope of information he seeks by RFP Nos. 3 and 4 is relevant—to the contrary, Plaintiff affirmative states he does not seek any personal or disciplinary information relating to Defendant (Motion at 5)—the production of such other information would be disproportionate to the needs of the case. As a result, notwithstanding Plaintiff's demand for the “complete” records, Defendant may redact all non-responsive information from the records and only produce unredacted those portions that contain information responsive to RFP Nos. 3 and 4. Finally, Plaintiff's request for expenses pursuant to Rule 37(a)(5) is denied. Plaintiff's Motion is only granted in part, an award would be unjust, and Defendant's position as to some of his nondisclosure, response, and objections was substantially justified. See Rule 37(a)(5)(A)(ii); (a)(5)(B). V. CONCLUSION AND ORDER Therefore, the Motion (Dkt. 68), is granted in part and denied in part, as follows: 1. The Motion is GRANTED in part as to RFP No.3; Defendant shall produce to Plaintiff within 14 days from the date of this Order written or official certification of Defendant having received training or supervision regarding the Prison's written policy and procedure regarding the issuance of loss of inmate privileges from January 16, 2014, to September 12, 2017, although Defendant may redact non-responsive information from responsive documents; and *7 2. The Motion is GRANTED in part as RFP No. 4; Defendant shall produce to Plaintiff within 14 days from the date of this Order any official written document that identifies names of persons who trained or supervised Defendant in relation to the issuance of loss of privileges, for the period January 16, 2014, to September 12, 2017, although Defendant may redact non-responsive information from responsive documents. IT IS SO ORDERED. Initials of Clerk: mba Footnotes [1] Although the Sanchez Declaration states the documents reviewed and listed in the Privilege Log relate to RFP Nos. 3 and 4, the Privilege Log states that the documents relate to “Requests No. 1 & 2.” See Sanchez Decl. ¶¶ 9-11; Privilege Log. Defendant has acknowledged this inconsistency, suggesting the Privilege Log's references to “Requests No. 1 & 2” is a typo. See Motion at 2 n.1.