ADAM SHARPE, No. 1:19-cv-00711-DAD-EPG (PC) Plaintiff, ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN v. CAMERA REVIEW C. CRYER, et al., (ECF No. 49) Defendants. ORDER GRANTING MOTION FOR EXTENSION OF TIME (ECF No. 52) ORDER GRANTING IN PART, AND DENYING IN PART, MOTION TO STAY (ECF No. 51) On January 25, 2021, the parties attended a telephonic status and discovery conference. Plaintiff Adam Sharpe (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, appeared telephonically pro se. Counsel Andrea Sloan and Lawrence Bragg appeared telephonically on behalf of Defendants. Pending for review at the hearing were (1) the privilege log and documents for in camera review submitted by Defendants on December 15. 2020, (ECF No. 49); (2) Plaintiff’s motion for an extension of time, as to the deadline for Plaintiff to file a motion to compel, (ECF No. 52); and (3) Defendants’ motion to stay discovery as to Defendant Smith, (ECF No. 51). For the reasons set forth below, and stated on the record, the Court orders as follows: Under to the Court’s scheduling order, “if a party is claiming a right to withhold witness statements and/or evidence gathered from investigation(s) into the incident(s) at issue in the complaint based on the official information privilege, the withholding party shall submit the withheld witness statements and/or evidence to the Court for in camera review, along with an explanation of why the witness statements and/or evidence is privileged.” (ECF No. 32 at 2-3). On December 15, 2020, Defendants filed a privilege log and submitted certain documents for in camera review. (ECF No. 49). The documents, which were responsive to Plaintiff’s discovery request for “records of any complaints, (if they exist) against Defendant S. Smith as they pertain to his role as ADA Coordinator,” (ECF No. 49-1 at 2), were withheld pursuant to the official information privilege. (ECF No. 49-2). A. Legal Standards In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government’s claim of the official information privilege as a basis to withhold documents sought under the Freedom of Information Act. It explained that the “common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure . . . .” Id.at 198 (internal citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of interests in ruling on the government’s claim of the official information privilege. See, e.g., Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming a magistrate judge order compelling disclosure and stating “Federal common law recognizes a qualified privilege for official information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (quoting Kerr, 426 U.S. at 406) (“Also, as required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (internal citations omitted) (“Government personnel files are considered official information. 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.”). In interpreting the official information privilege in this context, the Court also looks to the U.S. Supreme Court’s statements related to the requirement that prisoners exhaust administrative remedies. The Supreme Court has upheld the “proper exhaustion” requirement in part because of the evidentiary value of the documents generated as a result of that process. Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“Finally, proper exhaustion improves the quality of those prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.”). B. Documents Withheld by Defendants Under the Official Information Privilege Defendants have withheld a short memorandum written by staff concerning Plaintiff; a worksheet concerning Plaintiff’s accommodation requests; and documents concerning other prisoners’ requests for accommodations. C. Analysis of Official Information Privilege The Court has conducted an in camera review and finds that the documents concerning Plaintiff are relevant to the dispute and do not implicate any legitimate security interest. They do not concern other inmates. They do not concern informants or any other safety and security concern. Indeed, Defendants’ submission refers only to other complaints against Defendant Smith and does not provide any reason why the documents as to Plaintiff should be withheld, besides the general desire for confidentiality of all internal documents. These documents should be produced. However, the Court will not order the production of the remaining documents. These concern allegations by other inmates against Defendant Smith and others regarding incidents unrelated to Plaintiff. The relevance to the litigation is minimal, if any. The sensitivity of these documents is material in that they concern other inmates and their specific situations. Indeed, at least one concerns an issue that is subject to confidentiality rules. After undertaking the balancing test, the Court declines to order production of those documents. Therefore, the Court will order Defendants to produce DEFS PRIV. 4-8 to Plaintiff within fourteen days. Defendants may withhold the remaining documents. On January 8, 2021, Plaintiff filed a motion for an extension of time, seeking an extension of time to respond to Defendants’ motion for summary judgment and to file a motion to compel. (ECF No. 52). Previously, the Court granted Plaintiff’s request for an extension of time to respond to Defendants’ motion for summary judgment but held Plaintiff’s request for an extension of time to file a motion to compel in abeyance. (ECF No. 53). That latter issue is now before the Court. At the conference, Plaintiff stated he sent interrogatories to Defendants that they never answered. Defendants indicated they had provided substantive answers to the questions. Defendants agreed to resend their responses to Plaintiff. Therefore, the Court will order Defendants to re-serve their answers to the interrogatories no later than January 29, 2021. Plaintiff may file a motion to compel, as to those interrogatories only, no later than February 17, 2021. If Plaintiff files such a motion, Defendants shall respond no later than March 12, 2021. The motion to compel deadline is therefore extended as described solely for the purpose of filing a motion to compel regarding Defendants’ responses to interrogatories. The request to extend the motion to compel deadline for any other motion is denied. On December 24, 2020, Defendants filed a motion to
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ADAM SHARPE, No. 1:19-cv-00711-DAD-EPG (PC) Plaintiff, ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN v. CAMERA REVIEW C. CRYER, et al., (ECF No. 49) Defendants. ORDER GRANTING MOTION FOR EXTENSION OF TIME (ECF No. 52) ORDER GRANTING IN PART, AND DENYING IN PART, MOTION TO STAY (ECF No. 51) On January 25, 2021, the parties attended a telephonic status and discovery conference. Plaintiff Adam Sharpe (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, appeared telephonically pro se. Counsel Andrea Sloan and Lawrence Bragg appeared telephonically on behalf of Defendants. Pending for review at the hearing were (1) the privilege log and documents for in camera review submitted by Defendants on December 15. 2020, (ECF No. 49); (2) Plaintiff’s motion for an extension of time, as to the deadline for Plaintiff to file a motion to compel, (ECF No. 52); and (3) Defendants’ motion to stay discovery as to Defendant Smith, (ECF No. 51). For the reasons set forth below, and stated on the record, the Court orders as follows: Under to the Court’s scheduling order, “if a party is claiming a right to withhold witness statements and/or evidence gathered from investigation(s) into the incident(s) at issue in the complaint based on the official information privilege, the withholding party shall submit the withheld witness statements and/or evidence to the Court for in camera review, along with an explanation of why the witness statements and/or evidence is privileged.” (ECF No. 32 at 2-3). On December 15, 2020, Defendants filed a privilege log and submitted certain documents for in camera review. (ECF No. 49). The documents, which were responsive to Plaintiff’s discovery request for “records of any complaints, (if they exist) against Defendant S. Smith as they pertain to his role as ADA Coordinator,” (ECF No. 49-1 at 2), were withheld pursuant to the official information privilege. (ECF No. 49-2). A. Legal Standards In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government’s claim of the official information privilege as a basis to withhold documents sought under the Freedom of Information Act. It explained that the “common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure . . . .” Id.at 198 (internal citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of interests in ruling on the government’s claim of the official information privilege. See, e.g., Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming a magistrate judge order compelling disclosure and stating “Federal common law recognizes a qualified privilege for official information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (quoting Kerr, 426 U.S. at 406) (“Also, as required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (internal citations omitted) (“Government personnel files are considered official information. 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.”). In interpreting the official information privilege in this context, the Court also looks to the U.S. Supreme Court’s statements related to the requirement that prisoners exhaust administrative remedies. The Supreme Court has upheld the “proper exhaustion” requirement in part because of the evidentiary value of the documents generated as a result of that process. Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“Finally, proper exhaustion improves the quality of those prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.”). B. Documents Withheld by Defendants Under the Official Information Privilege Defendants have withheld a short memorandum written by staff concerning Plaintiff; a worksheet concerning Plaintiff’s accommodation requests; and documents concerning other prisoners’ requests for accommodations. C. Analysis of Official Information Privilege The Court has conducted an in camera review and finds that the documents concerning Plaintiff are relevant to the dispute and do not implicate any legitimate security interest. They do not concern other inmates. They do not concern informants or any other safety and security concern. Indeed, Defendants’ submission refers only to other complaints against Defendant Smith and does not provide any reason why the documents as to Plaintiff should be withheld, besides the general desire for confidentiality of all internal documents. These documents should be produced. However, the Court will not order the production of the remaining documents. These concern allegations by other inmates against Defendant Smith and others regarding incidents unrelated to Plaintiff. The relevance to the litigation is minimal, if any. The sensitivity of these documents is material in that they concern other inmates and their specific situations. Indeed, at least one concerns an issue that is subject to confidentiality rules. After undertaking the balancing test, the Court declines to order production of those documents. Therefore, the Court will order Defendants to produce DEFS PRIV. 4-8 to Plaintiff within fourteen days. Defendants may withhold the remaining documents. On January 8, 2021, Plaintiff filed a motion for an extension of time, seeking an extension of time to respond to Defendants’ motion for summary judgment and to file a motion to compel. (ECF No. 52). Previously, the Court granted Plaintiff’s request for an extension of time to respond to Defendants’ motion for summary judgment but held Plaintiff’s request for an extension of time to file a motion to compel in abeyance. (ECF No. 53). That latter issue is now before the Court. At the conference, Plaintiff stated he sent interrogatories to Defendants that they never answered. Defendants indicated they had provided substantive answers to the questions. Defendants agreed to resend their responses to Plaintiff. Therefore, the Court will order Defendants to re-serve their answers to the interrogatories no later than January 29, 2021. Plaintiff may file a motion to compel, as to those interrogatories only, no later than February 17, 2021. If Plaintiff files such a motion, Defendants shall respond no later than March 12, 2021. The motion to compel deadline is therefore extended as described solely for the purpose of filing a motion to compel regarding Defendants’ responses to interrogatories. The request to extend the motion to compel deadline for any other motion is denied. On December 24, 2020, Defendants filed a motion to stay discovery as to Defendant Smith only. (ECF No. 51). The motion was filed contemporaneously with Defendants’ motion for summary judgment as to Defendant Smith on the issue of exhaustion. (ECF No. 50). To the extent the motion seeks a stay of discovery, the Court denies the motion. The Court is ordering a limited amount of discovery as to Defendant Smith now. Only if Plaintiff files a motion to compel, as discussed above, might Defendants need to provide extra discovery as to Defendant Smith. Thus, denying the stay imposes only a minimal burden on Defendants. Moreover, there is a benefit in finishing discovery as to all defendants at the same time. Thus, the Court will deny the request to stay discovery as to Defendant Smith. To the extent Defendant seeks to stay a for the dispositive motion filing regarding Defendant Smith only, the Court grants Defendant’s motion. The Court will not require Defendant Smith to prepare a second dispositive motion while the first dispositive motion on the issue of exhaustion remains pending. Should Defendant Smith’s exhaustion-based dispositive motion be denied, the Court will lift the stay and set a new deadline for Defendant Smith to file a dispositive motion on any issue besides exhaustion of administrative remedies. Accordingly, it is HEREBY ORDERED that: 1. Defendants shall produce DEFS PRIV. 4-8 to Plaintiff within fourteen days. Defendants may withhold the remaining documents submitted for in camera review; 2. Plaintiff’s motion for an extension of time (ECF No. 52) is GRANTED, IN PART, and DENIED, IN PART; 3. Defendants shall re-serve their interrogatory responses no later than January 29, 2021. Plaintiff may file a motion to compel as to those interrogatories no later than February 17, 2021. If Plaintiff files such a motion, Defendants shall respond no later than March 12, 2021. The motion to compel deadline is not extended for any other motion; and 4. Defendant Smith’s motion to stay (ECF No. 51) is GRANTED IN PART and DENIED IN PART. Discovery will not be stayed as to Defendant Smith. The deadline for non-exhaustion dispositive motions, and dates following that deadline, are stayed as to Defendant Smith, to be reset if necessary following the ruling on Defendant’s Smith pending summary judgment motion on non-exhaustion of administrative remedies. Dated: _ January 27, 2021 [sf hey UNITED STATES MAGISTRATE JUDGE
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