1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paul Kitaj, et al., No. CV-22-00463-TUC-JCH
10 Plaintiffs, ORDER
11 v.
12 Tammy Van Handel, et al.,
13 Defendants. 14 15 On March 6, 2025, the Court held a hearing with the parties to address heavily 16 redacted DCS records Defendants produced to Plaintiffs. See Doc. 135 at 48–74. On 17 March 13, 2025, Defendants1 submitted to the Court 1005 pages of the disclosed records, 18 unredacted for in camera inspection. See Doc. 159. Defendants also provided an ex parte 19 Memorandum explaining Defendants’ redactions to “personal and confidential DCS 20 information” as being made in good faith “according to DCS’s statutorily mandated 21 duties and statutory definitions.” Defendants later worked with Plaintiffs to narrow the 22 list of documents needing in camera inspection. But Defendants argue the remaining 23 approximately 400 pages of documents should not be produced based on various 24 privilege, scope, and relevancy issues. The following ruling addresses those documents’ 25 1 Although Plaintiffs sent the subpoena duces tecum to nonparty DCS, who then moved 26 to quash it (see Doc. 101), Defendants and DCS are represented by the same counsel. These parties are technically distinct, but for purposes of this discovery issue, there is 27 little practical distinction. DCS employed Defendants and is custodian of the records at issue. Defendants argued the Motion to Quash on behalf of DCS at oral argument. For 28 clarity, the Court addresses this Order to Defendants, but the Order equally applies to DCS as needed to facilitate disclosure. 1 discoverability. 2 I. Background 3 Plaintiffs’ Third Amended Complaint references three DCS investigations from 4 2019, 2020, and 2021 involving R.K. (the child of Plaintiffs’ son’s then-partner, 5 Amanda). See generally Doc. 128. At the time of the investigations, R.K., Amanda, and 6 Plaintiffs’ son Matthew lived with Plaintiffs and Plaintiffs believed R.K. was their 7 biological grandchild. DCS ultimately substantiated an allegation of neglect against 8 Plaintiff Valorie Kitaj after the 2021 investigation. 9 Plaintiffs allege one count of First Amendment retaliation. Plaintiffs served a 10 subpoena duces tecum on nonparty DCS.2 Defendants moved to quash the subpoena, 11 arguing the requested records are irrelevant or protected/confidential under A.R.S. § 41- 12 1959(A) and that production is unduly burdensome. See Doc. 101. The Court denied the 13 Motion to Quash (Doc. 127) but agreed to conduct an in-camera review of the records 14 (see Doc. 159). 15 II. Discovery Standard 16 In a § 1983 action, the state’s interest is that of a litigant, not a sovereign. Kerr v. 17 U. S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975), aff’d, 426 U.S. 394 18 (1976) (holding that when the state is a litigant in a federal civil rights action, state laws 19 restricting access to information do not apply). “State privilege doctrine, whether derived 20 from statutes or court decisions, is not binding on federal courts in these kinds of cases.” 21 Kelly v. City of San Jose, 114 F.R.D. 653, 654–55 (N.D. Cal. Feb. 26, 1987) (citing Breed 22 v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976)); see also 23 Pearson v. Miller, 211 F.3d 57, 61 (3d Cir. 2000) (state confidentiality provisions do not 24 bind federal district courts, but district courts can protect confidentially by imposing
25 2 Specifically, the subpoena requests “All documents, ESI, audio/video records, created and received in investigation of Case CS00187575 specifically (a) all files in 26 CHILDS/GUARDIAN, all hard copy materials that relate in any way to investigation of Plaintiffs, including the investigation conducted by DCS investigator Yaya Perez in 27 September, 2019; (b) removals of the child from Plaintiffs’ home on October 5, 2020 and February 25, 2021; (c) communications with or about and investigation of Jo Ann Hall or 28 anyone associated with her; [and] (d) substantiation of allegations against either or both Plaintiffs.” Doc. 101-1 at 5. 1 reasonable discovery restrictions). While state law may provide guidance, “[t]he scope of 2 an evidentiary privilege in a 42 U.S.C. § 1983 civil rights action is a question of federal 3 law.” Breed, 542 F.2d at 1115 (citing Kerr, 511 F.2d at 197). 4 In § 1983 actions, federal policy favors broad discovery. 6 James Wm. Moore et 5 al., Moore’s Federal Practice § 26.46 (3d ed. 2023). District courts have broad discretion 6 when resolving discovery disputes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 7 2002). 8 Under Fed. R. Civ. P. 26(b)(1), a party may obtain discovery regarding “any 9 nonprivileged matter that is relevant to any party's claim or defense and proportional to 10 the needs of the case. . . .” Information need not be admissible to be discoverable. Id. At 11 the discovery stage, relevancy is “construed broadly to encompass any matter that bears 12 on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or 13 may be in the case.” In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th Cir. 2020). 14 III. The Confidential DCS Records Are Discoverable. 15 The records are relevant. The Court will construe relevance broadly at this stage 16 and require Defendants to disclose all DCS records that bear on any issue that is or may 17 be in Plaintiffs’ case, with only the exceptions noted by the Court. While the Court has 18 discretion to review specific documents for relevance, the Court mainly assesses 19 relevance at the categorical level. See UAB “Planner5D” v. Meta Platforms, Inc., 20 746 F. Supp. 3d 806, 808 (N.D. Cal. 2024). 21 Plaintiffs and their home are referenced regularly throughout the DCS records. All 22 notes, observations, and opinions about the Kitajs and their home leading up to the 23 alleged retaliation are directly relevant to Plaintiffs’ claim. In addition to the above DCS 24 investigation documents, the records include documents from a 2016 investigation 25 involving R.K.’s half-sibling, A.S. The 2016 records are relevant based on their temporal 26 proximity to the more recent investigations and because Plaintiffs and their home are 27 mentioned throughout. The 2016 investigation included some sensitive and irrelevant 28 information about nonparties to this matter, which the Court will order redacted. There 1 are also records from earlier DCS investigations in 2001, 2002, and 2006. These 2 investigations are too remote in time and circumstances to be relevant here. Defendant 3 need not produce them. The remaining records shall be produced to Plaintiffs. 4 The records are not privileged. Insofar as Defendants rely on Arizona law to avoid 5 disclosure, their objections are overruled. DCS records are confidential and shielded from 6 public disclosure in general. See A.R.S. § 8-807. But this confidentiality is not the kind 7 of privilege that can defeat a discovery request. Under 42 U.S.C. 8
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paul Kitaj, et al., No. CV-22-00463-TUC-JCH
10 Plaintiffs, ORDER
11 v.
12 Tammy Van Handel, et al.,
13 Defendants. 14 15 On March 6, 2025, the Court held a hearing with the parties to address heavily 16 redacted DCS records Defendants produced to Plaintiffs. See Doc. 135 at 48–74. On 17 March 13, 2025, Defendants1 submitted to the Court 1005 pages of the disclosed records, 18 unredacted for in camera inspection. See Doc. 159. Defendants also provided an ex parte 19 Memorandum explaining Defendants’ redactions to “personal and confidential DCS 20 information” as being made in good faith “according to DCS’s statutorily mandated 21 duties and statutory definitions.” Defendants later worked with Plaintiffs to narrow the 22 list of documents needing in camera inspection. But Defendants argue the remaining 23 approximately 400 pages of documents should not be produced based on various 24 privilege, scope, and relevancy issues. The following ruling addresses those documents’ 25 1 Although Plaintiffs sent the subpoena duces tecum to nonparty DCS, who then moved 26 to quash it (see Doc. 101), Defendants and DCS are represented by the same counsel. These parties are technically distinct, but for purposes of this discovery issue, there is 27 little practical distinction. DCS employed Defendants and is custodian of the records at issue. Defendants argued the Motion to Quash on behalf of DCS at oral argument. For 28 clarity, the Court addresses this Order to Defendants, but the Order equally applies to DCS as needed to facilitate disclosure. 1 discoverability. 2 I. Background 3 Plaintiffs’ Third Amended Complaint references three DCS investigations from 4 2019, 2020, and 2021 involving R.K. (the child of Plaintiffs’ son’s then-partner, 5 Amanda). See generally Doc. 128. At the time of the investigations, R.K., Amanda, and 6 Plaintiffs’ son Matthew lived with Plaintiffs and Plaintiffs believed R.K. was their 7 biological grandchild. DCS ultimately substantiated an allegation of neglect against 8 Plaintiff Valorie Kitaj after the 2021 investigation. 9 Plaintiffs allege one count of First Amendment retaliation. Plaintiffs served a 10 subpoena duces tecum on nonparty DCS.2 Defendants moved to quash the subpoena, 11 arguing the requested records are irrelevant or protected/confidential under A.R.S. § 41- 12 1959(A) and that production is unduly burdensome. See Doc. 101. The Court denied the 13 Motion to Quash (Doc. 127) but agreed to conduct an in-camera review of the records 14 (see Doc. 159). 15 II. Discovery Standard 16 In a § 1983 action, the state’s interest is that of a litigant, not a sovereign. Kerr v. 17 U. S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975), aff’d, 426 U.S. 394 18 (1976) (holding that when the state is a litigant in a federal civil rights action, state laws 19 restricting access to information do not apply). “State privilege doctrine, whether derived 20 from statutes or court decisions, is not binding on federal courts in these kinds of cases.” 21 Kelly v. City of San Jose, 114 F.R.D. 653, 654–55 (N.D. Cal. Feb. 26, 1987) (citing Breed 22 v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976)); see also 23 Pearson v. Miller, 211 F.3d 57, 61 (3d Cir. 2000) (state confidentiality provisions do not 24 bind federal district courts, but district courts can protect confidentially by imposing
25 2 Specifically, the subpoena requests “All documents, ESI, audio/video records, created and received in investigation of Case CS00187575 specifically (a) all files in 26 CHILDS/GUARDIAN, all hard copy materials that relate in any way to investigation of Plaintiffs, including the investigation conducted by DCS investigator Yaya Perez in 27 September, 2019; (b) removals of the child from Plaintiffs’ home on October 5, 2020 and February 25, 2021; (c) communications with or about and investigation of Jo Ann Hall or 28 anyone associated with her; [and] (d) substantiation of allegations against either or both Plaintiffs.” Doc. 101-1 at 5. 1 reasonable discovery restrictions). While state law may provide guidance, “[t]he scope of 2 an evidentiary privilege in a 42 U.S.C. § 1983 civil rights action is a question of federal 3 law.” Breed, 542 F.2d at 1115 (citing Kerr, 511 F.2d at 197). 4 In § 1983 actions, federal policy favors broad discovery. 6 James Wm. Moore et 5 al., Moore’s Federal Practice § 26.46 (3d ed. 2023). District courts have broad discretion 6 when resolving discovery disputes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 7 2002). 8 Under Fed. R. Civ. P. 26(b)(1), a party may obtain discovery regarding “any 9 nonprivileged matter that is relevant to any party's claim or defense and proportional to 10 the needs of the case. . . .” Information need not be admissible to be discoverable. Id. At 11 the discovery stage, relevancy is “construed broadly to encompass any matter that bears 12 on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or 13 may be in the case.” In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th Cir. 2020). 14 III. The Confidential DCS Records Are Discoverable. 15 The records are relevant. The Court will construe relevance broadly at this stage 16 and require Defendants to disclose all DCS records that bear on any issue that is or may 17 be in Plaintiffs’ case, with only the exceptions noted by the Court. While the Court has 18 discretion to review specific documents for relevance, the Court mainly assesses 19 relevance at the categorical level. See UAB “Planner5D” v. Meta Platforms, Inc., 20 746 F. Supp. 3d 806, 808 (N.D. Cal. 2024). 21 Plaintiffs and their home are referenced regularly throughout the DCS records. All 22 notes, observations, and opinions about the Kitajs and their home leading up to the 23 alleged retaliation are directly relevant to Plaintiffs’ claim. In addition to the above DCS 24 investigation documents, the records include documents from a 2016 investigation 25 involving R.K.’s half-sibling, A.S. The 2016 records are relevant based on their temporal 26 proximity to the more recent investigations and because Plaintiffs and their home are 27 mentioned throughout. The 2016 investigation included some sensitive and irrelevant 28 information about nonparties to this matter, which the Court will order redacted. There 1 are also records from earlier DCS investigations in 2001, 2002, and 2006. These 2 investigations are too remote in time and circumstances to be relevant here. Defendant 3 need not produce them. The remaining records shall be produced to Plaintiffs. 4 The records are not privileged. Insofar as Defendants rely on Arizona law to avoid 5 disclosure, their objections are overruled. DCS records are confidential and shielded from 6 public disclosure in general. See A.R.S. § 8-807. But this confidentiality is not the kind 7 of privilege that can defeat a discovery request. Under 42 U.S.C. 8 § 5106a(b)(2)(B)(viii)(V), confidential records shall be made available to a court “upon a 9 finding that information in the record is necessary for the determination of an issue before 10 the court.” The Court finds the DCS records sought here are necessary to adjudicate 11 Plaintiffs’ case. Further, under A.R.S. § 36-568.01(A)(3), DCS must release records if 12 ordered by a court. The Protective Order (Doc. 96) authorizes such disclosure and now, 13 this order requires it. The Court finds Plaintiffs’ right to the relevant DCS records 14 outweighs the named nonparties’ confidentiality interest or the harm that could come 15 from releasing the records. See A.R.S. § 8-807(K). Further, the Court will take several 16 actions to mitigate any potential harms to nonparty confidentiality interests. 17 First, the in-camera review process itself minimizes potential harm. In camera 18 review is an “eminently worthwhile method to insure that the balance between [the 19 defendant’s] claims of irrelevance and privilege and [the] plaintiffs’ asserted need for the 20 documents is correctly struck.” Kerr, 426 U.S. at 405. The in-camera review process 21 allows Plaintiffs to receive necessary disclosures while safeguarding nonparty 22 confidentiality interests. 23 Second, the Court already entered a Protective Order (Doc. 96), which applies to 24 confidential records released in this case and restricts their dissemination. See Hipschman 25 v. Cnty. of San Diego, 738 F. Supp. 3d 1332, 1343 (S.D. Cal. 2024) (a protective order 26 can eliminate or dramatically reduce privacy concerns). Defendant does not explain why 27 the existing Protective Order is inadequate to address any confidentiality concerns. The 28 Protective Order specifies that released records are strictly limited for use in this lawsuit 1 and cannot be used or further disclosed except as authorized. See Doc. 96 at 2–4.3 2 Third, the Court will require Defendants to redact some sensitive information 3 about nonparties that is irrelevant but nested within otherwise relevant, discoverable 4 information. Defendants may also maintain redactions of social security numbers. 5 However, Defendants will not redact any other sensitive information in the DCS records 6 (including the names of minors) because this is a discovery matter, and the privacy 7 requirements of Federal Rule of Civil Procedure 5.2 apply only to filings. The parties’ 8 Stipulation (Doc. 160) otherwise remains in effect and production under this Order does 9 not waive confidentiality or waive either parties’ rights to make future redactions or 10 objections. 11 Fourth, the Court will prevent disclosure of irrelevant records. Defendants 12 produced some records to Plaintiffs that—although wholly redacted—were beyond the 13 scope of Plaintiffs’ subpoena. These documents are not discoverable, and the Court will 14 not require Defendants to release them. 15 Plaintiffs’ request is proportionate to the needs of the case. This action alleges a 16 constitutional rights violation by government actors, and the effects of any potential relief 17 may well reach beyond the immediate parties. The importance of the subject matter 18 favors liberal disclosure. See Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir.1993) (“[W]ide 19 access to relevant facts serves the integrity and fairness of the judicial process by 20 promoting the search for truth.”). 21 The Court finds Plaintiffs’ request for these records is not unduly burdensome. 22 “The party claiming that a discovery request is unduly burdensome must allege specific 23 facts which indicate the nature and extent of the burden, usually by affidavit or other 24 reliable evidence. Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 528–29 (D. Nev. 25 June 18, 1997). Defendants fall short of this requirement. Further, the nature of a 26 retaliation claim warrants broad discovery because Defendants’ motives are a key issue. 27 3 The Court also directs the parties to A.R.S. § 8-807(U): “A person who receives DCS 28 information shall maintain the confidentiality of the information and shall not further disclose the information unless the disclosure is authorized by law or a court order.” 1 IV. ORDER 2 IT IS ORDERED directing Defendants or the Arizona Department of Child || Safety to produce to Plaintiffs the following records, unredacted, unless permitted above: 4|| AZDCS-Kitaj Bates numbers 231-57; 261-65; 268-75; 280-89; 297-389; 391-420; 5 || 440-46; 448-95; 499-536; 543-63; 569-83; 616-21; 624-37; 769-93; 837-38; 847-48; || 850-56; 894-904; 998-1010; 1071-72. 7 IT IS FURTHER ORDERED directing Defendants or the Department of Child 8 || Safety to produce to Plaintiffs the following records after completing the specified redactions to protect sensitive and irrelevant nonparty information: 10 e AZDCS-Kitaj 390, 447, and 849, after redacting the paragraph titled “childhood” 11 in each document; and 12 e AZDCS-Kitaj 496-98, after redacting the portion starting with the “collateral 13 contacts” section on page 496 up until “safety decision” on page 498. 14 IT IS FURTHER ORDERED that Defendants and the Department of Child 15 || Safety shall not produce the following records because they are irrelevant and/or contain 16 || sensitive nonparty information: AZDCS-Kitaj 258-60; 266-67; 276-80; 290-96. 17 Dated this 3rd day of September, 2025. 18 19 /) 50 . | HK Aa— 1 / / John C. Hinderaker _/United States District Judge 22 23 24 25 26 27 28
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