1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM SHARPE, No. 1:19-cv-00711-DAD-EPG (PC) 12 Plaintiff, ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN 13 v. CAMERA REVIEW 14 C. CRYER, et al., (ECF No. 49) 15 Defendants. ORDER GRANTING MOTION FOR EXTENSION OF TIME 16 (ECF No. 52) 17 ORDER GRANTING IN PART, AND 18 DENYING IN PART, MOTION TO STAY 19 (ECF No. 51) 20 21 On January 25, 2021, the parties attended a telephonic status and discovery conference. 22 Plaintiff Adam Sharpe (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, 23 appeared telephonically pro se. Counsel Andrea Sloan and Lawrence Bragg appeared 24 telephonically on behalf of Defendants. 25 Pending for review at the hearing were (1) the privilege log and documents for in camera 26 review submitted by Defendants on December 15. 2020, (ECF No. 49); (2) Plaintiff’s motion for 27 an extension of time, as to the deadline for Plaintiff to file a motion to compel, (ECF No. 52); and 28 (3) Defendants’ motion to stay discovery as to Defendant Smith, (ECF No. 51). For the reasons 1 set forth below, and stated on the record, the Court orders as follows: 2 I. DOCUMENTS SUBMITTED FOR IN CAMERA REVIEW 3 Under to the Court’s scheduling order, “if a party is claiming a right to withhold witness 4 statements and/or evidence gathered from investigation(s) into the incident(s) at issue in the 5 complaint based on the official information privilege, the withholding party shall submit the 6 withheld witness statements and/or evidence to the Court for in camera review, along with an 7 explanation of why the witness statements and/or evidence is privileged.” (ECF No. 32 at 2-3). 8 On December 15, 2020, Defendants filed a privilege log and submitted certain documents 9 for in camera review. (ECF No. 49). The documents, which were responsive to Plaintiff’s 10 discovery request for “records of any complaints, (if they exist) against Defendant S. Smith as 11 they pertain to his role as ADA Coordinator,” (ECF No. 49-1 at 2), were withheld pursuant to the 12 official information privilege. (ECF No. 49-2). 13 A. Legal Standards 14 In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), 15 aff'd, 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government’s claim 16 of the official information privilege as a basis to withhold documents sought under the Freedom 17 of Information Act. It explained that the “common law governmental privilege (encompassing 18 and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, 19 contingent upon the competing interests of the requesting litigant and subject to disclosure . . . .” 20 Id.at 198 (internal citations omitted). 21 The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing 22 of interests in ruling on the government’s claim of the official information privilege. See, e.g., 23 Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming a magistrate judge order 24 compelling disclosure and stating “Federal common law recognizes a qualified privilege for 25 official information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 26 1976) (quoting Kerr, 426 U.S. at 406) (“Also, as required by Kerr, we recognize ‘that in camera 27 review is a highly appropriate and useful means of dealing with claims of governmental 28 privilege.’”); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended 1 on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (internal 2 citations omitted) (“Government personnel files are considered official information. To 3 determine whether the information sought is privileged, courts must weigh the potential benefits 4 of disclosure against the potential disadvantages. If the latter is greater, the privilege bars 5 discovery.”). 6 In interpreting the official information privilege in this context, the Court also looks to the 7 U.S. Supreme Court’s statements related to the requirement that prisoners exhaust administrative 8 remedies. The Supreme Court has upheld the “proper exhaustion” requirement in part because of 9 the evidentiary value of the documents generated as a result of that process. Woodford v. Ngo, 10 548 U.S. 81, 94-95 (2006) (“Finally, proper exhaustion improves the quality of those prisoner 11 suits that are eventually filed because proper exhaustion often results in the creation of an 12 administrative record that is helpful to the court. When a grievance is filed shortly after the event 13 giving rise to the grievance, witnesses can be identified and questioned while memories are still 14 fresh, and evidence can be gathered and preserved.”). 15 B. Documents Withheld by Defendants Under the Official Information Privilege 16 Defendants have withheld a short memorandum written by staff concerning Plaintiff; a 17 worksheet concerning Plaintiff’s accommodation requests; and documents concerning other 18 prisoners’ requests for accommodations. 19 C. Analysis of Official Information Privilege 20 The Court has conducted an in camera review and finds that the documents concerning 21 Plaintiff are relevant to the dispute and do not implicate any legitimate security interest. They do 22 not concern other inmates. They do not concern informants or any other safety and security 23 concern. Indeed, Defendants’ submission refers only to other complaints against Defendant Smith 24 and does not provide any reason why the documents as to Plaintiff should be withheld, besides 25 the general desire for confidentiality of all internal documents. These documents should be 26 produced. 27 However, the Court will not order the production of the remaining documents. These 28 concern allegations by other inmates against Defendant Smith and others regarding incidents 1 unrelated to Plaintiff. The relevance to the litigation is minimal, if any. The sensitivity of these 2 documents is material in that they concern other inmates and their specific situations. Indeed, at 3 least one concerns an issue that is subject to confidentiality rules. After undertaking the balancing 4 test, the Court declines to order production of those documents. 5 Therefore, the Court will order Defendants to produce DEFS PRIV. 4-8 to Plaintiff within 6 fourteen days. Defendants may withhold the remaining documents. 7 II. MOTION FOR AN EXTENSION OF TIME 8 On January 8, 2021, Plaintiff filed a motion for an extension of time, seeking an extension 9 of time to respond to Defendants’ motion for summary judgment and to file a motion to compel. 10 (ECF No. 52). 11 Previously, the Court granted Plaintiff’s request for an extension of time to respond to 12 Defendants’ motion for summary judgment but held Plaintiff’s request for an extension of time to 13 file a motion to compel in abeyance. (ECF No. 53). That latter issue is now before the Court. 14 At the conference, Plaintiff stated he sent interrogatories to Defendants that they never 15 answered. Defendants indicated they had provided substantive answers to the questions. 16 Defendants agreed to resend their responses to Plaintiff. 17 Therefore, the Court will order Defendants to re-serve their answers to the interrogatories 18 no later than January 29, 2021.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM SHARPE, No. 1:19-cv-00711-DAD-EPG (PC) 12 Plaintiff, ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN 13 v. CAMERA REVIEW 14 C. CRYER, et al., (ECF No. 49) 15 Defendants. ORDER GRANTING MOTION FOR EXTENSION OF TIME 16 (ECF No. 52) 17 ORDER GRANTING IN PART, AND 18 DENYING IN PART, MOTION TO STAY 19 (ECF No. 51) 20 21 On January 25, 2021, the parties attended a telephonic status and discovery conference. 22 Plaintiff Adam Sharpe (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, 23 appeared telephonically pro se. Counsel Andrea Sloan and Lawrence Bragg appeared 24 telephonically on behalf of Defendants. 25 Pending for review at the hearing were (1) the privilege log and documents for in camera 26 review submitted by Defendants on December 15. 2020, (ECF No. 49); (2) Plaintiff’s motion for 27 an extension of time, as to the deadline for Plaintiff to file a motion to compel, (ECF No. 52); and 28 (3) Defendants’ motion to stay discovery as to Defendant Smith, (ECF No. 51). For the reasons 1 set forth below, and stated on the record, the Court orders as follows: 2 I. DOCUMENTS SUBMITTED FOR IN CAMERA REVIEW 3 Under to the Court’s scheduling order, “if a party is claiming a right to withhold witness 4 statements and/or evidence gathered from investigation(s) into the incident(s) at issue in the 5 complaint based on the official information privilege, the withholding party shall submit the 6 withheld witness statements and/or evidence to the Court for in camera review, along with an 7 explanation of why the witness statements and/or evidence is privileged.” (ECF No. 32 at 2-3). 8 On December 15, 2020, Defendants filed a privilege log and submitted certain documents 9 for in camera review. (ECF No. 49). The documents, which were responsive to Plaintiff’s 10 discovery request for “records of any complaints, (if they exist) against Defendant S. Smith as 11 they pertain to his role as ADA Coordinator,” (ECF No. 49-1 at 2), were withheld pursuant to the 12 official information privilege. (ECF No. 49-2). 13 A. Legal Standards 14 In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), 15 aff'd, 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government’s claim 16 of the official information privilege as a basis to withhold documents sought under the Freedom 17 of Information Act. It explained that the “common law governmental privilege (encompassing 18 and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, 19 contingent upon the competing interests of the requesting litigant and subject to disclosure . . . .” 20 Id.at 198 (internal citations omitted). 21 The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing 22 of interests in ruling on the government’s claim of the official information privilege. See, e.g., 23 Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming a magistrate judge order 24 compelling disclosure and stating “Federal common law recognizes a qualified privilege for 25 official information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 26 1976) (quoting Kerr, 426 U.S. at 406) (“Also, as required by Kerr, we recognize ‘that in camera 27 review is a highly appropriate and useful means of dealing with claims of governmental 28 privilege.’”); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended 1 on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (internal 2 citations omitted) (“Government personnel files are considered official information. To 3 determine whether the information sought is privileged, courts must weigh the potential benefits 4 of disclosure against the potential disadvantages. If the latter is greater, the privilege bars 5 discovery.”). 6 In interpreting the official information privilege in this context, the Court also looks to the 7 U.S. Supreme Court’s statements related to the requirement that prisoners exhaust administrative 8 remedies. The Supreme Court has upheld the “proper exhaustion” requirement in part because of 9 the evidentiary value of the documents generated as a result of that process. Woodford v. Ngo, 10 548 U.S. 81, 94-95 (2006) (“Finally, proper exhaustion improves the quality of those prisoner 11 suits that are eventually filed because proper exhaustion often results in the creation of an 12 administrative record that is helpful to the court. When a grievance is filed shortly after the event 13 giving rise to the grievance, witnesses can be identified and questioned while memories are still 14 fresh, and evidence can be gathered and preserved.”). 15 B. Documents Withheld by Defendants Under the Official Information Privilege 16 Defendants have withheld a short memorandum written by staff concerning Plaintiff; a 17 worksheet concerning Plaintiff’s accommodation requests; and documents concerning other 18 prisoners’ requests for accommodations. 19 C. Analysis of Official Information Privilege 20 The Court has conducted an in camera review and finds that the documents concerning 21 Plaintiff are relevant to the dispute and do not implicate any legitimate security interest. They do 22 not concern other inmates. They do not concern informants or any other safety and security 23 concern. Indeed, Defendants’ submission refers only to other complaints against Defendant Smith 24 and does not provide any reason why the documents as to Plaintiff should be withheld, besides 25 the general desire for confidentiality of all internal documents. These documents should be 26 produced. 27 However, the Court will not order the production of the remaining documents. These 28 concern allegations by other inmates against Defendant Smith and others regarding incidents 1 unrelated to Plaintiff. The relevance to the litigation is minimal, if any. The sensitivity of these 2 documents is material in that they concern other inmates and their specific situations. Indeed, at 3 least one concerns an issue that is subject to confidentiality rules. After undertaking the balancing 4 test, the Court declines to order production of those documents. 5 Therefore, the Court will order Defendants to produce DEFS PRIV. 4-8 to Plaintiff within 6 fourteen days. Defendants may withhold the remaining documents. 7 II. MOTION FOR AN EXTENSION OF TIME 8 On January 8, 2021, Plaintiff filed a motion for an extension of time, seeking an extension 9 of time to respond to Defendants’ motion for summary judgment and to file a motion to compel. 10 (ECF No. 52). 11 Previously, the Court granted Plaintiff’s request for an extension of time to respond to 12 Defendants’ motion for summary judgment but held Plaintiff’s request for an extension of time to 13 file a motion to compel in abeyance. (ECF No. 53). That latter issue is now before the Court. 14 At the conference, Plaintiff stated he sent interrogatories to Defendants that they never 15 answered. Defendants indicated they had provided substantive answers to the questions. 16 Defendants agreed to resend their responses to Plaintiff. 17 Therefore, the Court will order Defendants to re-serve their answers to the interrogatories 18 no later than January 29, 2021. Plaintiff may file a motion to compel, as to those interrogatories 19 only, no later than February 17, 2021. If Plaintiff files such a motion, Defendants shall respond no 20 later than March 12, 2021. 21 The motion to compel deadline is therefore extended as described solely for the purpose 22 of filing a motion to compel regarding Defendants’ responses to interrogatories. The request to 23 extend the motion to compel deadline for any other motion is denied. 24 III. MOTION TO STAY 25 On December 24, 2020, Defendants filed a motion to stay discovery as to Defendant 26 Smith only. (ECF No. 51). The motion was filed contemporaneously with Defendants’ motion for 27 summary judgment as to Defendant Smith on the issue of exhaustion. (ECF No. 50). 28 To the extent the motion seeks a stay of discovery, the Court denies the motion. The Court 1 is ordering a limited amount of discovery as to Defendant Smith now. Only if Plaintiff files a 2 motion to compel, as discussed above, might Defendants need to provide extra discovery as to 3 Defendant Smith. Thus, denying the stay imposes only a minimal burden on Defendants. 4 Moreover, there is a benefit in finishing discovery as to all defendants at the same time. Thus, the 5 Court will deny the request to stay discovery as to Defendant Smith. 6 To the extent Defendant seeks to stay a for the dispositive motion filing regarding 7 Defendant Smith only, the Court grants Defendant’s motion. The Court will not require 8 Defendant Smith to prepare a second dispositive motion while the first dispositive motion on the 9 issue of exhaustion remains pending. Should Defendant Smith’s exhaustion-based dispositive 10 motion be denied, the Court will lift the stay and set a new deadline for Defendant Smith to file a 11 dispositive motion on any issue besides exhaustion of administrative remedies. 12 IV. ORDER 13 Accordingly, it is HEREBY ORDERED that: 14 1. Defendants shall produce DEFS PRIV. 4-8 to Plaintiff within fourteen days. 15 Defendants may withhold the remaining documents submitted for in camera 16 review; 17 2. Plaintiff’s motion for an extension of time (ECF No. 52) is GRANTED, IN PART, 18 and DENIED, IN PART; 19 3. Defendants shall re-serve their interrogatory responses no later than January 29, 20 2021. Plaintiff may file a motion to compel as to those interrogatories no later than 21 February 17, 2021. If Plaintiff files such a motion, Defendants shall respond no 22 later than March 12, 2021. The motion to compel deadline is not extended for any 23 other motion; and 24 4. Defendant Smith’s motion to stay (ECF No. 51) is GRANTED IN PART and 25 DENIED IN PART. Discovery will not be stayed as to Defendant Smith. The 26 deadline for non-exhaustion dispositive motions, and dates following that deadline, 27 are stayed as to Defendant Smith, to be reset if necessary following the ruling on 28 Defendant’s Smith pending summary judgment motion on non-exhaustion of 1 administrative remedies. 2 3 IT IS SO ORDERED. Dated: _ January 27, 2021 [sf hey 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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