Carl Jamal Christian v. County of Los Angeles, et al. Case No. 2:18-cv-05792-CJC (JDEx) | United States District Court, C.D. California Filed January 28, 2020 Counsel Carl Jamal Christian, Tehachapi, CA, pro se. John L. Fuentes, Raymond J. Fuentes, Fuentes and McNally LLP, Glendale, CA, for County of Los Angeles, et al. Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Ruling re Plaintiff's Motion to Compel (Dkt. 67) *1 On February 21, 2019, Plaintiff Carl Jamal Christian (“Plaintiff”) filed a Notice of Election, electing to proceed solely on a Fourteenth Amendment excessive force claim in his operative Second Amended Complaint (“SAC”) against Defendant Deputies Schaeper, Carmona, Ghosn, and M. Valdovanos. Dkt. 19. Defendants Schaeper, Ghosn, and Valdovanos (“Defendants”) have answered. See Dkt. 37, 39, 41. On November 27, 2019, Plaintiff filed a one-page Motion for an Order Compelling Discovery, stating that he had requested production of documents from Defendants “with negative results” and therefore seeks an order compelling: (1) housing logs from a certain pod on the date of the incident; (2) “complete disciplinary histories of Defendants”; (3) video and electronically stored information (“ESI”) regarding “the day Nurse Zerna supposedly attempted to render care” to Plaintiff; and (4) any discovery not produced. Dkt. 67 (“Motion”) at 1. On December 3, 2019, the Court issued a minute order requiring briefing on the Motion as follows: any opposition to the Motion by Defendants was due by December 20, 2019; any optional reply by Plaintiff was due by January 10, 2020. Defendants filed an Opposition on December 20, 2019, arguing generally: (1) Plaintiff failed to meet and confer prior to the filing of the Motion under Federal Rule of Civil Procedure 37; (2) Plaintiff's Requests for Production (“RFPs”) that were served on Defendants did not seek Categories Three and Four sought by the Motion; and (3) Defendants have fully complied with most of the RFPs; and (4) where Defendants have not produced responsive documents, they asserted timely and proper objections. Dkt. 69 (“Opposition” or “Opp.”). In support of their Opposition, Defendant's filed a declaration of counsel (Dkt. 69-1), exhibits (Dkt. 69-2), and a proposed protective order (Dkt. 69-3). Plaintiff did not file a timely reply or seek additional time in which to do so. As a result, the Motion is fully briefed. Having considered the materials filed in support of and in opposition to the Motions, 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). 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). *2 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, *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). 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. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” 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); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). III. DISCUSSION As an initial matter, to the extent Plaintiff failed to comply with any meet and confer requirements prior to filing of the Motion, due to his pro se and incarcerated status, the Court excuses any such failure. See Dkt. 43, § D. Starting with Categories Three and Four in the Motion, Defendants are correct, based on their responses, that Plaintiff did not propound RFPs that correspond with those categories. See Dkt. 69-2 at 6-11. Service of a prior Rule 34 RFP is a precondition to a Rule 37 motion to compel. See Rule 37(a)(3)(B)(iv). As a result, the Motion is DENIED as to Categories Three and Four. However, as Category Four seeks production of material requested but not yet produced, Defendants are reminded of their ongoing obligation to supplement disclosures and discovery responses under Rule 37(e)(1)(A), and nothing in this order relieves Defendants of those obligations. With respect to Category One, which seeks inmate housing logs for his “pod” on the date of the incident, Defendants object based on the privacy rights of third parties and overbreadth. Opp. at 6; Dkt. 69-2 at 5, 7 (RFP No. 5). As to Defendants' overbreadth objection, the Court notes that Plaintiff has narrowed the request: in the Motion, he only seeks logs for “F” pod for a single day, whereas in RFP No. 5, Plaintiff sought logs for pods D, E, and F of module 142 for a period of two months. The Court finds Defendants have not met their burden of showing that a housing log for a single pod, of one module, on a single day, is overly broad. The Court also finds Defendants' third-party privacy objection unavailing here. Defendants submit no evidence in support of the claim of a reasonable right to privacy covering an inmate housing roster for one day, more than three years ago. Even if Defendants had shown a right to privacy exists for such limited, dated information, the Court would balance such a right against Plaintiff's need for the information. “Unlike a privilege, the right of privacy is not an absolute bar to discovery. Rather, courts balance the need for the information against the claimed privacy right.” Lind v. United States, 2014 WL 2930486, at *2 (D. Ariz. June 30, 2014); see also E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“[T]he right to privacy is not a recognized privilege or absolute bar to discovery, but instead is subject to the balancing of needs.”); Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.”). While courts have recognized that privacy concerns raised by the disclosure of police files are “not inconsequential,” these privacy interests “must be balanced against the great weight afforded to federal law in civil rights cases against police departments.” Id. (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal. 1987)). Here, the Court having balanced any privacy interests in a jail housing log for a single pod on a single day three years ago, finds that any such interests are outweighed by Plaintiff's need for the information. See, e.g. Sahibi v. Gonzales, 2017 WL 1348959, at * 3 (E.D. Cal. Apr. 5, 2017) (rejecting confidentiality and privacy objections, ordering production of “a roster of inmates housed on Plaintiff's unit at the time the incident occurred”). As a result, the Motion is GRANTED as to Category One. *3 Turning to Category Two, Plaintiff seeks “complete disciplinary histories of Defendants.” Defendants object based on the official information privilege and overbreadth. In Section 1983 cases, questions of privilege are resolved by federal law. Kerr v. U.S. District Court for the Northern District of California, 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, 114 F.R.D. at 655–56. 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. Id. 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, Defendants assert the official information privilege, but have not made a substantial threshold showing by way of a declaration or affidavit from a responsible official with personal knowledge to support the assertion. As a result, Defendants have not met their initial burden to justify the privilege. However, that does not end the inquiry. The request for “complete disciplinary histories” of the Defendants is overly broad in that it would encompass discipline for such irrelevant matters as tardiness, uniform infractions, etc. The only “disciplinary histories” that appear relevant would be discipline relating to excessive or unreasonable force and truthfulness/untruthfulness. In addition, even though the Court finds Defendants have not met their burden to sustain an official information privilege objection, the Court nonetheless finds there is good cause under Rule 26(c) for a protective order limiting the disclosure of any such disciplinary histories generally consistent with the proposed protective order filed by Defendants with their opposition. See Dkt. 69-3. Defendants did not lodge a word-processing version of the proposed protective order with chambers as required by Local Civil Rules 5-1, 5-4.4.1, 5-4.4.2. *4 For the foregoing reasons, the Motion is GRANTED, in part, as to Category Two as limited above, subject to the terms of a protective order. IV. CONCLUSION AND ORDER Therefore, the Motion (Dkt. 67), is granted in part and denied in part, as follows: 1. The Motion is DENIED as to Categories Three and Four, subject to Fed. R. Civ. P. 26(c)(1)(A); 2. The Motion is GRANTED as to Category One; Defendants shall produce to Plaintiff within 14 days from the date of this Order responsive housing logs for the Twin Towers Correctional Facility, Module 142, “F” pod, for the date Plaintiff contends Dep. Valdovanos used excessive force against him, although Defendants may redact information other than the date, name, inmate number, and cell number from responsive documents; and 3. The Motion is GRANTED in part as to Category Two; Defendants shall produce to Plaintiff within 14 days from the date of this Order written “disciplinary histories” of Defendants Ghosn, Schaeper, and/or Valdovanos relating to their use of excessive or unreasonable force and truthfulness/untruthfulness; such production may be made pursuant to a protective order to be entered by the Court. Defendants are ordered to forward a word-processing version of the filed proposed protective order (Dkt. 69-3) to the chambers email for the assigned Magistrate Judge within two days from the date of this Order. Lastly, the Court notes that counsel for Defendants states: “[i]t is important to note that the Defendants have not served Plaintiff with any videos as the state prison does not allow service of such items on a USB drive or a CD. Any disclosure of such videos will require a protective order.” Dkt. 69-1, ¶ 7. It is unclear whether Defendants are withholding relevant, responsive information based upon this assertion. To be clear, Defendants are responsible for producing ESI in the form “in which it is ordinarily maintained or in a reasonably usable form or forms.” As Defendants have not sought a protective order regarding the form of any such production, Defendants are ORDERED to ensure all responsive information, including ESI, has been provided to Plaintiff in a reasonably usable form. IT IS SO ORDERED.