8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
11 ALEX LAMOTA MARTI, No. 2:21-cv-01829 SCR P
12 Plaintiff,
13 v. ORDER AND PROTECTIVE ORDER
14 TODD MANNING, et al.,
15 Defendants.
17 Plaintiff is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. §
18 1983. On November 13, 2024, the undersigned granted in part and denied in part plaintiff’s 19 motion to compel (ECF No. 37) and ordered defendants to submit responsive grievances and 20 appeals to the court for in camera review (ECF No. 89). Having completed the review, the 21 undersigned rules that defendants may withhold the following seven grievances on third-party 22 privacy grounds: (1) 231290; (2) 233850; (3) 239923; (4) 241813; (5) 242824; (6) 244601; and 23 (7) 248112. However, defendants must produce the following fifteen grievances/appeals 24 consistent with the instructions and Protective Order below: (1) 19-00713; (2) 18-04568; (3) 25 139696; (4) 19-04688; (5) 246627; (6) 262149; (7) 18-02819; (8) 18-05051; (9) 18-05095; (10) 26 13-1824; (11) 339799; (12) 17-01598; (13) 20039945; (14) 20045502; (15) 381973. 27 Also before the court are plaintiff’s motion for reconsideration (ECF No. 91), plaintiff’s 28 motion to modify the discovery and scheduling order (ECF No. 94), and plaintiff’s motion to hold 1 defendants in contempt (ECF No. 95). For the reasons described below, plaintiff’s motion for
2 reconsideration is granted, plaintiff’s motion to modify the discovery and scheduling order is
3 granted, and plaintiff’s motion to hold defe ndants in contempt is denied. Finally, the court orders
4 defendants to arrange for plaintiff’s in-person review of videos responsive to RFP Set 1, number
5 8, consistent with the instructions below.
6 PLAINTIFF’S MOTION TO COMPEL
7 I. Background
8 Plaintiff is proceeding under 42 U.S.C. § 1983 on First Amendment retaliation and Eighth
9 Amendment deprivation of outdoor exercise claims against defendants. (See Screening Order,
10 ECF No. 6.) Plaintiff served RFPs on defendants on September 23, 2023, and on October 12,
11 2023, which he named Set 1 and Set 2. (ECF No. 37 at 2.) Plaintiff filed a motion to compel
12 further production under Set 1, numbers 1-7, 9, 10-12, 14, 16, and Set 2, numbers 1 and 2. (ECF
13 No. 37.) Plaintiff argued that defendants’ responses were inadequate and evasive, and that
14 defendants improperly asserted the official information privilege (“OIP”) for many of the
15 requests. (Id. at 12.) Defendants opposed the motion, arguing that they “either produced the
16 documents at issue” or “appropriately objected and withheld documents.” (ECF No. 43 at 1.)
17 As relevant here, defendants produced a privilege log and declaration from Mule Creek
18 State Prison (MCSP) Litigation Coordinator Santos in support of their OIP claims. (Id. at 11-13; 19 ECF No. 43-1.) Santos stated, in sum, that the contested documents contain confidential 20 information that, if disclosed, “could endanger the safety of staff and inmates, reveal internal and 21 confidential investigative techniques and processes, and potentially jeopardize the security of the 22 institution.” (ECF No. 37-1 at 55.) 23 In its order on plaintiff’s motion to compel, the court found that Santos’ declaration met 24 the “substantial threshold showing” required to invoke the OIP. (ECF No. 89 at 8 (citing Kelly v. 25 City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987)).) Under the OIP analysis, the burden 26 then shifted to plaintiff to justify in camera review. (Id.) The undersigned determined that 27 plaintiff had justified in camera review of documents responsive to four specific RFPs covering 28 MCSP inmate grievances and appeals filed against defendants in the last ten years: 1 (1) RFP No. 1 of Set 1 (inmate grievances);
2 (2) RFP No. 2 of Set 1 (inmate grievances processed as staff misconduct complaints);
3 (3) RFP No. 1 of Set 2 (inmate grie vances related to appeals); and
4 (4) RFP No. 2 of Set 2 (inmate grievances processed as staff misconduct complaints
5 related to appeals).
6 (Id. at 8-10.) Defendants were ordered to electronically submit the responsive documents to the
7 court for determinations of: (1) “whether a carefully crafted protective order could protect the
8 security interests discussed in the Santos declaration”; and (2) whether disclosure would “violate
9 the privacy interests of third parties.” (Id. at 10.) The court would then “issue a final order
10 regarding plaintiff’s access to these documents.” (Id.) Plaintiff’s motion to compel was denied as
11 to the remaining RFPs under Sets 1 and 2 on relevancy grounds. (See id. at 11-17.)
12 II. Analysis
13 A. Third-Party Privacy
14 Defendants submitted twenty-two (22) separate grievance investigation files responsive to
15 RFP Set 1, numbers 1 and 2, and RFP Set 2, numbers 1 and 2.1 Before addressing the specific
16 security interests raised in the Santos declaration, the court considers defendants’ more general
17 third-party privacy objections. (See ECF No. 43 at 12; ECF No. 89 at 10.) The Ninth Circuit
18 recognizes a constitutionally protected privacy interest in avoiding disclosure of private personal 19 matters, including medical records. See Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 20 1260, 1269 (9th Cir. 1998). “The right of privacy is not an absolute bar to discovery and courts 21 must balance the need for the information against the claimed privacy right.” Harris v. Kyle, No. 22 1:19-cv-0462-DAD-EPG-PC, 2021 WL 195477, at *2 (E.D. Cal. Jan. 20, 2021) (citing Allen v. 23 Woodford, No. CV-F-05-1104-OWW-LJO, 2007 WL 309485, at *5 (E.D. Cal. Jan. 30, 2007)); 24 see also Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (“Resolution of the 25 privacy objection requires a balancing of the need for the information sought against the privacy 26 right asserted.”).
27 1 Plaintiff references 24 responsive documents. (See ECF No. 37 at 13). However, the privilege 28 log lists grievance numbers 231290 and 246627 twice. (See ECF No. 37-1 at 58.) 1 After in camera review, the undersigned finds that third-party privacy interests outweigh
2 disclosure of the following seven (7) grievances, all involving the same complainant-inmate and
3 general allegations: (1) 231290; (2) 23385 0; (3) 239923; (4) 241813; (5) 242824; (6) 244601; and
4 (7) 248112. The complainant’s medical history and mental health treatment records are so
5 intertwined with the investigations that it is not feasible to protect complainant’s privacy rights
6 through redaction or other protective measures. See Harris, 2021 WL 195477, at *2 (E.D. Cal.
7 Jan. 20, 2021) (prohibiting disclosure of emails containing confidential medical and mental health
8 information after in camera review). The documents are also of comparatively no relevance to
9 plaintiff’s retaliation claims. While the privilege log shows all seven grievances concern
10 defendant Pasioles (see ECF No. 37-1 at 58), Pasioles was just one of twenty-five MCSP staff
11 named in each grievance and was not involved in the underlying events. Thus, because the
12 grievances are not relevant to plaintiff’s retaliation claims and disclosure would reveal
13 complainant’s sensitive medical and mental health records, defendants may withhold the files.
14 B. Official Information Privilege
15 The court next applies defendants’ claim of OIP to the remaining fifteen (15) files.
16 “Federal common law recognizes a qualified privilege for official information.” Sanchez v. City
17 of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990) (citations omitted). Government personnel
18 files and internal investigatory documents are considered official information. See Sanchez, 936 19 F.2d at 1033-34; Miller v. Pancucci, 141 F.R.D. 292, 301 (C.D. Cal. 1992). The official 20 information privilege is subject to the competing interests of the requesting party and is “subject 21 to disclosure especially where protective measures are taken.” Noble v. City of Fresno, No. 1:16- 22 cv-1690-DAD-BAM, 2017 WL 5665850, at *4 (E.D. Cal. Nov. 27, 2017) (quoting Kerr v. United 23 States District Court, Northern District of California, 511 F.2d 192, 198 (9th Cir. 1975)). In the 24 context of civil rights action, “this balancing approach is moderately ‘pre-weight[ed] in favor of 25 disclosure.’” Bryant v. Armstrong, 285 F.R.D. 596, 604 (S.D. Cal. 2012) (quoting Kelly, 114 26 F.R.D. at 661 (alteration in original). 27 As noted above, the Santos declaration provided the necessary foundation to trigger the 28 court’s OIP analysis. (ECF No. 89 at 8.) The government interests identified by Santos are 1 summarized as follows. First, Santos states that the responsive documents contain confidential
2 information and investigatory tactics that must be kept confidential from inmates to protect the
3 safety and security of the staff. (ECF No. 37-1 at 2.) Second, Santos asserts that maintaining the
4 confidentiality of the investigation also protects the privacy of inmate informants. “For example,
5 inmate witnesses might refuse to cooperate for fear that their statements may be revealed to other
6 inmates, which could put them in danger of being labeled a “snitch” and/or threaten their safety.
7 (Id. at 3.)
8 Finally, Santos laid out the potential safety and security risks of disclosing grievance
9 records to an inmate. Fears that the inmate may misuse or disseminate private and confidential
10 information could “chill inmates from availing themselves of the administrative grievance
11 process.” (Id.) On the other hand, because CDCR employees are “routinely subject to false
12 accusations of misconduct,” the information could be in “high demand” to assist in drafting
13 “more detailed [false] accusations.” (Id.) Santos states that a protective order is an “inadequate
14 shield” from these safety and security risks because other inmates not subject to it could obtain
15 the confidential documents and disseminate them through the prison. (Id. at 4.)
16 The security risks presented by Santos are well taken. However, the undersigned does not
17 find the specific documents at issue here to be tactical in nature. The production primarily
18 consists of investigation records (grievances, witness statements, interview notices, etc.) on 19 CDCR templates; it did not reveal any specific investigatory techniques or related CDCR or 20 MCSP policies. This distinguishes the production from the one in Ibanez v. Miller, No. CIV S- 21 06-2668-JAM-EFB-P, 2009 WL 3481679 (E.D. Cal. Oct. 22, 2009), which defendants cite for 22 support. (ECF No. 43 at 12.) There, the court sustained the prison’s objection to turning over an 23 operational procedure regarding tactical responses to disturbances and other prison alarms. The 24 court determined after in camera review that the operational procedure contained “critical prison 25 security information that, if disclosed, could endanger prison staff and compromise tactical 26 responses to prison alarms.” (Id. at *3.) Defendants therefore have failed to establish any tactical 27 risks that outweigh disclosure. See Kahaku v. Wallace, No. 2:20-cv-1807-KJN-P, 2022 WL 28 //// 1 17555402, at *2 (E.D. Cal. Dec. 9, 2022) (ordering release of grievance documents over prison’s
2 objection that release “may disclose investigative techniques”).
3 Next, while recognizing defendant s’ concerns for the safety and privacy of inmate
4 informants, the court finds that redacting witness information is an adequate protective measure.
5 Few of the fifteen investigation files involved witnesses; one involved an unnamed confidential
6 informant, Appeal 18-02819, and only five others involved clearly identified inmate witnesses
7 (e.g., 19-04688, 129372, 139696, 262149, and 20045502). Other judges have found redactions
8 appropriate against similar invocations of the OIP. See, e.g., Wells v. Gonzales, No. 1:17-cv-
9 1240-DAD-EPG-PC, 2019 WL 4054022, at *8 (E.D. Cal. Aug. 28, 2019) (holding defendants
10 may redact names of complaining inmates and any other persons besides defendant from
11 grievances to protect third-party privacy interests); Harris v. German, No. 1:15-cv-1462-DAD-
12 GSA-PC, 2019 WL 4640503, at *8 (E.D. Cal. Sept. 24, 2019) (permitting defendants to redact
13 identifying information of grievance witnesses).
14 Finally, the court believes that a robust protective order, in combination with the redaction
15 of witness information, will adequately account for defendants’ remaining privacy concerns.
16 Defendants have identified a particularized risk in plaintiff’s use of third-party information
17 throughout his motion to compel, including referencing and even attaching the records of other
18 inmates that he received in previous cases. (See ECF No. 43 at 13.) However, the redaction of 19 witness and other third-party information largely accounts for such concerns. And the robust 20 protective order entered below will prevent plaintiff from using the redacted documents for 21 purposes beyond this litigation. 22 Accordingly, the undersigned finds that defendants must disclose, subject to the protective 23 order entered as a part of this order: 24 1.) 19-00713 (23 pages) 6.) 262149 (49 pages) 11.) 339799 (34 pages) 25 2.) 18-04568 (49 pages) 7.) 18-02819 (104 pages) 12.) 17-01598 (21 pages) 26 3.) 139696 (43 pages) 8.) 18-05051 (11 pages) 13.) 20039945 (42 pages) 27 4.) 19-04688 (17 pages) 9.) 18-05095 (11 pages) 14.) 20045502 (45 pages) 28 5.) 246627 (94 pages) 10.) 13-1824 (66 pages) 15.) 381973 (162 pages) 1 These grievance files may be redacted as necessary to protect the privacy interests of inmates and
2 other third-parties. Production shall occur within the next thirty days.
3 PLAINTIFF’S MOT ION FOR RECONSIDERATION
4 I. Background
5 In the motion for reconsideration (ECF No. 91), plaintiff asks the court to reevaluate its
6 order denying his motion to compel Rule Violation Reports (“RVRs”) issued by defendant
7 Pasioles (RFP Set 1, number 7) and defendant Manning (RFP Set 1, number 11) for “falsification
8 of document” pursuant to Cal. Code Regs., tit. 15, § 3021. The undersigned ruled the requests
9 were overbroad and burdensome because they were not limited to MCSP and plaintiff did not
10 show why the RVRs were relevant to his First Amendment retaliation claim. (ECF No. 89 at 14.)
11 Plaintiff claims that prior to his motion compel, defendants reported no responsive RVRs
12 to his request. (See ECF 37-1, Exh. E.) Defendants, however, later identified nine (9) responsive
13 RVRs in the new privilege log attached to their opposition to plaintiff’s motion to compel. (See
14 ECF No. 43, Exh. A.) Plaintiff suggests that in denying his motion to compel, the court did not
15 consider the arguments in his reply brief regarding the narrow scope of the RFPs and the
16 relevancy of the newly discovered RVRs. (ECF No. 91 at 3.) Plaintiff asks the court to order in
17 camera review of the nine RVRs and reconsider their relevancy. (Id. at 3.)
18 In their opposition to plaintiff’s motion for reconsideration, defendants explain that they 19 did not know they could search RVRs by individual staff member until conferring with plaintiff 20 on his motion to compel. They subsequently performed the search and listed the nine responsive 21 RVRs in the revised privilege log attached to their motion to compel opposition brief. (ECF No. 22 92 at 1-2.) Nevertheless, defendants argue that plaintiff’s motion fails to raise new or different 23 facts that warrant reconsideration and the RVRs are in fact irrelevant. (Id. at 3-4.) 24 On reply, plaintiff again argues that the nine RVRs are relevant to Pasiole’s and 25 Manning’s alleged pattern of issuing RVRs as retaliation for filing grievances. (ECF No. 93.) 26 Plaintiff asks for in camera review of the nine RVRs in conjunction with the court’s in camera 27 review of the retaliation grievance and appeal documents to “allow the parties to have a more 28 comprehensive assessment of the relevance of the evidence in this case.” (Id. at 4.) 1 II. Analysis
2 The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d
3 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir.
4 1992). Motions for reconsideration are disfavored, however, and are not the place for parties to
5 make new arguments not raised in their original briefs. Northwest Acceptance Corp. v.
6 Lynnwood Equip., Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). Nor is reconsideration to be used
7 to ask the court to rethink what it has already considered. United States v. Rezzonico, 32 F. Supp.
8 2d 1112, 1116 (D. Ariz. 1998). “A party seeking reconsideration must show more than a
9 disagreement with the Court’s decision, and recapitulation of the cases and arguments considered
10 by the court before rendering its original decision fails to carry the moving party’s burden.” U.S.
11 v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001).
12 Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick
13 Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th
14 Cir. 1983). To succeed, a party must set forth facts or law of a strongly convincing nature to
15 induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield,
16 634 F. Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds
17 828 F.2d 514 (9th Cir. 1987). “[R]econsideration is appropriate ‘if the district court (1) is
18 presented with newly discovered evidence, (2) committed clear error or the initial decision was 19 manifestly unjust, or (3) there is an intervening change in controlling law.’” County of Santa 20 Clara v. Trump, 267 F.Supp.3d 1201, 1207-08 (N.D. Cal. 2017), quoting Sch. Dist. No. 1J, 21 Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Local Rule 230(j) 22 requires a party to show the “new or different facts or circumstances claimed to exist which did 23 not exist or were not shown upon such prior motion, or what other grounds exist for the motion.” 24 The court will grant in part plaintiff’s motion for reconsideration, having erred in not 25 adequately considering the limited scope of the nine responsive RVRs identified in plaintiff’s 26 reply brief when ruling on the motion to compel. As with the requested grievances and appeals, 27 the identified RVRs may “relate to other incidents of retaliation.” ECF No. 89 at 9-10 (“Courts 28 generally order production of complaints that involve allegations of similar incidents or 1 allegations of dishonesty” (quoting Whitely v. CDCR, No. 2:18-cv-01103-RGK-AGR, 2021 WL
2 840067, at *2 (C.D. Cal. Jan. 29, 2021))). The court grants reconsideration only as to requests
3 number 7 and 11, which are now “limited to 9 RVRs.” (ECF No. 91 at 3.) As with the grievance
4 files, the nine RVRs may be redacted as necessary to protect the privacy interests of inmates and
5 other third-parties. Production shall occur within the next thirty days.
6 PLAINTIFF’S REQUEST TO MODIFY THE DISCOVERY AND SCHEDULING ORDER
7 Also before the court is plaintiff’s motion to modify the discovery and scheduling order.
8 (ECF No. 94.) Plaintiff seeks to extend the current deadline to conduct the depositions of all
9 seven defendants 60 days to April 9, 2025, to allow time to review the grievances and appeals and
10 resolve video access issues (discussed in plaintiff’s contempt motion, infra). (Id.) Counsel for
11 defendants does not oppose the extension. (Declaration of Marti ¶ 6, ECF No. 94-1 at 2.)
12 Good cause shown, the court grants plaintiff’s request to modify the discovery and
13 scheduling order. Given the time required to conduct the in camera review of the grievances and
14 address plaintiff’s various discovery motions, the court will extend the deadline to conduct
15 depositions to May 8, 2025, and the deadline for the filing of dispositive motions will be extended
16 to August 8, 2025.
17 PLAINTIFF’S MOTION TO HOLD DEFENDANTS IN CONTEMPT
18 I. Background 19 Plaintiff seeks to hold defendants in contempt and impose sanctions for failure to comply 20 with the court’s order (ECF No. 89) compelling production of RFP 1, number 8, comprising 21 fifteen video files. (ECF No. 95.) In the court’s order, the undersigned granted plaintiff’s motion 22 to compel (ECF No. 41) and ordered defendants to provide plaintiff with a “reasonably usable” 23 copy of the video footage. (ECF No. 89 at 15.) Plaintiff now claims that defendants insist on the 24 same arrangement that precipitated his motion to compel, i.e., defense counsel playing and 25 controlling the video from their location through video conferencing with plaintiff. (ECF No. 95 26 at 2-3.) He cites past instances where he and other inmates were allowed to watch videos without 27 defense counsel present and permitted to stop and start the footage on their own. (Id. at 3-4.) 28 //// 1 Defendants oppose the motion. They argue that they have complied with the court’s order
2 to provide plaintiff opportunities to meaningfully review the footage, because “there is no
3 meaningful difference between a remote a nd in-person viewing.” (ECF No. 4.) They further
4 argue that in-person viewings are burdensome on the prison and that courts generally only order a
5 single in-person viewing. (Id. at 4-5.) Finally, defendants argue that inmates are prohibited from
6 possessing electronic media and that they will lodge the footage on plaintiff’s behalf when
7 needed. (Id. at 3-6.) On reply, plaintiff argues that a meaningful opportunity to review would be
8 “without defense attorneys present or operating the equipment.” (ECF No. 97.) He again
9 references other cases and situations where prison staff have accommodated his and other
10 inmates’ in-person viewings. (Id. at 4-7.)
11 II. Analysis
12 Plaintiff’s motion is pursuant to Federal Rule of Civil Procedure 37(b)(2), which grants
13 courts the authority to hold parties in contempt for failure to obey court orders. Fed. R. Civ. P.
14 37(b)(2)(A)(vii); see also Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1479-80
15 (9th Cir. 1992) (affirming district court’s sanction order against corporation for failure to comply
16 with discovery orders). To support a judgment of contempt, the district court must find, based on
17 clear and convincing evidence, that: (1) the party violated the order; (2) the violation did not
18 constitute “substantial compliance” with the order; and (3) the violation was not based on a good 19 faith and reasonable interpretation of the order. In re Dual-Deck Video Cassette Recorder 20 Antitrust Litigation, 10 F.3d 693, 695 (9th Cir. 1993). 21 The court declines to hold defendants in contempt or issue sanctions for failure to comply 22 with the court’s order (ECF No. 89). Even if the court were to determine that defendants violated 23 that order, the parties’ briefing plainly reveals that the violation would hinge on a good faith, 24 reasonable interpretation of the court’s directive to provide plaintiff with a “reasonably usable” 25 copy of the video footage. Therefore, plaintiff’s motion to hold defendants in contempt is denied. 26 While the court declines to hold defendants in contempt or issue sanctions, it will exercise 27 its authority to resolve the parties’ disagreement over the order. See Fed. R. Civ. P. 37(b)(2)(A) 28 (court may issue “further just orders” to enforce discovery order); see also Brady v. Brown, 60 1 F.3d 832 (9th Cir. 1995) (“there is no question that courts have inherent power to enforce
2 compliance with their lawful orders”) (internal quotations and citation omitted). The court is
3 convinced, based on the numerous discove ry motions filed in this matter already and the parties
4 unsuccessful meet and confer sessions, that waiting to address the parties’ dispute over video
5 access would needlessly prolong the proceedings.
6 In its order, the undersigned stated that “[r]easonably usable means, in this context, that
7 plaintiff must be afforded both a meaningful opportunity to review the videos and a means of
8 filing the footage with the court if he intends to rely on it in subsequent proceedings. (ECF No.
9 89. 15 (citing Foster v. Russell, 2021 WL 6500721, at *2 n.1 (E.D. Cal. Dec 20, 2021)).) The
10 parties offer vastly different interpretations of this definition. The disagreement appears to hinge
11 on three main issues: (1) the method of viewing; (2) the frequency of viewing; and (3) possession.
12 A. Method of Viewing
13 First, regarding the method of viewing, plaintiff objects to videoconferencing because
14 defendants’ counsel controls the session and plaintiff cannot play, stop, or pause the video. (ECF
15 No. 97 at 13.) He further claims that that viewing the videos in the presence of defense counsel
16 will expose his legal strategy and violate his work product. (Id. at 14.)
17 Defendants claim that “there is no meaningful difference between a remote and in-person
18 viewing.” (ECF No. 96 at 4.) For support, defendants cite anecdotal evidence of inmates 19 viewing videos remotely without objection (Declaration of Gray Gilmore ¶ 10, ECF No. 96-1 at 20 3) and several cases, all of which are distinguishable. Defendants cite Martin v. Chavez, No. 21 1:11-CV-01461-AWI, 2014 WL 3385170, at *2 (E.D. Cal. July 10, 2014), where the court 22 ordered OAG to make a video available to plaintiff, a former inmate, at its Sacramento office. 23 While the in-person viewing occurred at defense counsel’s office, the case does not reveal 24 whether defense counsel was present or controlled the video. Further, defendants cite Carter v. 25 Mandy, No. 21-11568, 2022 WL 16796626, at *2 (E.D. Mich. Nov. 8, 2022), where the court 26 ordered defendants to make video available to a prisoner-plaintiff for a one-time viewing or to 27 provide “still-shot photographs captured from the video recording.” It appears defendants are 28 claiming video conferencing goes above and beyond still photographs. But the court in Carter 1 found the still-shot photographs appropriate because the videos had no audio. Id.
2 In short, defendants have failed to show how defense counsel’s presence and control over
3 footage via video conferencing allows plai ntiff meaningful opportunity to review the video. The
4 court will order defense counsel to coordinate with the MCSP Litigation Coordinator to arrange
5 for plaintiff to view the video in-person consistent with further instructions below. While the
6 court appreciates the security, technological, and scheduling barriers to arranging this inspection
7 (see ECF No. 96 at 6-7), “[p]rison litigation coordinators have proven effective at facilitating
8 similar requests.” Foster, 2021 WL 6500721, at *2 n.1 (collecting cases).
9 B. Frequency of Viewing
10 Defendants cite numerous cases where the courts granted motions to compel video
11 footage but ordered only a single viewing. (See ECF No. 96 at 4-5.) Plaintiff for his part
12 suggests that a single viewing lasting two to three hours, “with a possible second opportunity to
13 review the video evidence prior to the depositions,” would constitute a meaningful opportunity.
14 (See ECF No. 97.) The court agrees that a single viewing appears to be standard practice.
15 Further, a single viewing will help mitigate the scheduling and other burdens defendants identify
16 in their opposition. Therefore, the court will order a single in-person viewing of the footage
17 lasting no more than three hours.
18 C. Possession 19 Finally, defendants object to producing physical copies of the video on CDs, DVDs, USB 20 drives, or other electronic media. Yet defendants claim this is all that plaintiff will accept: “In 21 Plaintiff’s mind, production means providing a physical copy to the prison so that he may request 22 viewings at his leisure and as many times as he wants.” (ECF No. 96 at 5.) Plaintiff, however, 23 appears to deny wanting physical copies. (See ECF No. 41 at 3 (“Apparently, Ms. Santos 24 confuses plaintiff’s intention of just viewing the video evidence with possession”).) Regardless, 25 the court agrees that possession is not necessary to provide plaintiff meaningful opportunity to 26 review the video. As plaintiff won’t have possession, defendants offer to lodge the footage on his 27 behalf with the court when needed (ECF No. 96 at 3) is also appropriate. 28 //// 1 Accordingly, the court orders defense counsel to coordinate with the MCSP Litigation
2 Coordinator to arrange for plaintiff to view the videos in-person within 30 days of this order.
3 Plaintiff shall cooperate with these efforts. The in-person viewing shall occur in a single session
4 lasting no more than three hours. Plaintiff shall not be given possession of the fifteen videos and
5 is directed to contact defense counsel regarding any requests to lodge the videos with the court.
6 CONCLUSION
7 This is the second comprehensive order the court has issued in recent months resolving
8 plaintiff’s myriad discovery motions. Such orders are extremely resource-intensive at a time the
9 court is dealing with heavy caseloads. The court advises plaintiff, as well as defendant, to
10 consider the “Informal Discovery Resolution” process detailed in pages 3-4 of the
11 undersigned’s civil standing order if further discovery disputes arise.2 Through this process, the
12 undersigned will seek to resolve discovery disputes outside the formal Local Rule 251 procedures
13 by conducting an informal telephonic conference with the parties.
14 Accordingly, IT IS HEREBY ORDERED that:
15 1. Following in camera review of grievances and appeals responsive to plaintiff’s RFPs,
16 Set 1, numbers 1 and 2, and Set 2, numbers 1 and 2, the court finds that:
17 a. Defendants may withhold the following seven grievances: (1) 231290; (2) 233850;
18 (3) 239923; (4) 241813; (5) 242824; (6) 244601; and (7) 248112. 19 b. Defendants must produce the following fifteen grievances/appeals within 30 days 20 of this Order: (1) 19-00713; (2) 18-04568; (3) 139696; (4) 19-04688; (5) 246627; 21 (6) 262149; (7) 8-02819; (8) 18-05051; (9) 18-05095; (10) 13-1824; (11) 339799; 22 (12) 17-01598; (13) 20039945; (14) 20045502; (15) 381973. The files may be 23 redacted as necessary to protect the privacy interests of inmates and other third- 24 parties. 25 26
27 2 The court’s civil standing order is available at: https://www.caed.uscourts.gov/caednew/assets/File/MASTER_2024_08_11%20SCR%20Civil% 28 20Standing%20Order%20(DOF%20edits)%20scr%20V2.pdf. 1 c. Plaintiff’s receipt and use of the grievances/appeals is subject to the Protective
2 Order entered below.
3 2. Plaintiff’s motion for reconsiderati on (ECF No. 91) is granted in part, as follows:
4 a. Defendants must produce the nine response RVRs within 30 days of this Order.
5 The files may be redacted as necessary to protect the privacy interests of inmates
6 and other third-parties.
7 b. Plaintiff’s receipt and use of the RVRs is subject to the Protective Order
8 entered below.
9 3. Plaintiff’s request to modify the discovery and scheduling order (ECF No. 94) is
10 granted. The court will extend the deadline to conduct depositions to May 8, 2025, and the
11 deadline for the filing of dispositive motions will be extended to August 8, 2025.
12 4. Plaintiff’s motion to hold defendants in contempt for failure to comply with a court
13 order (ECF No. 95) is denied.
14 5. The court orders defense counsel to coordinate with the MCSP Litigation Coordinator
15 to arrange for plaintiff’s in-person review of the fifteen videos responsive to RFP Set 1, number
16 8, within 30 days of this order. The in-person viewing shall occur in a single session lasting no
17 more than three hours. Plaintiff shall not be given possession of the fifteen videos and is directed
18 to contact defense counsel regarding any requests to lodge the videos with the court. 19 6. The Clerk of the Court is directed to serve a copy of the court’s civil standing order on 20 plaintiff. 21 PROTECTIVE ORDER 22 The Court expressly limits plaintiff Alex Lamota Marti’s use of the redacted 23 grievances/appeals and RVRs to be disclosed by defendants (the “Protected Documents”) to the 24 following purpose: pursuit of his claims in this lawsuit. Plaintiff is prohibited from showing or 25 otherwise disclosing any of the Protected Documents to any other incarcerated person or from 26 filing any of the Protected Documents in a different lawsuit without a further prior order from this 27 Court allowing such filing. Violation of this Protective Order by plaintiff may subject him to 28 //// 1 | sanctions, including a recommendation that this lawsuit be dismissed. However, this Protective 2 || Order does not prevent plaintiff from filing any of the Protected Documents in this lawsuit. 3 || DATED: March 4, 2025 4 5 6 SEAN C. RIORDAN 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15