Opinion
Case No.: 19CV2406-DMS (BLM)
11-12-2020
ROBERT MOORE, Plaintiff, v. JOE LANKFORD, MERCEDES ARELLANO, R. BUCKEL, AND DAVID STRUMSKI, Defendants.
ORDER FOLLOWING IN CAMERA REVIEW
On August 16, 2020, Plaintiff submitted a motion to compel that was received on August 21, 2020 and accepted on discrepancy on September 4, 2020. ECF Nos. 25 and 27. Defendants opposed the motion on September 22, 2020. ECF No. 30. Plaintiff replied on September 29, 2020. ECF No. 31
On October 22, 2020, the Court issued an Order Denying In Part Plaintiff's Motion for Order Compelling Discovery. ECF No. 32. In the order, the Court found that with respect to Interrogatory No. 16 to Defendant Lankford, No. 14 to Defendant Strumski, No. 15 to Defendant Arellano, and No. 16 to Defendant Buckel, Defendants satisfied the threshold requirement for application of the Official Information Privilege. Id. at 11-12. The Court ordered Defendants to lodge with the Court a copy of the grievances responsive to those interrogatories on or before November 6, 2020, so the Court could conduct an in camera review and determine whether the Official Information Privilege applies. Id. at 12.
On November 5, 2020, in accordance with the Court's order, Defendants lodged their responsive documents. See AGO 3586-3610. The lodged documents indicate that no relevant grievances (as defined by the Court's order, ECF No. 32) were submitted by any inmate against Defendants Arellano, Buckel, and Strumski. Id. at AGO 3586, 3587 & 3610. Defendants identified one relevant grievance submitted against Defendant Lankford. Id. at AGO 3588-3609.
After a thorough review, the Court finds that the Official Information Privilege does not prohibit the production of any of the documents that were submitted for in camera review. As set forth in the Court's previous order, when a party satisfies the threshold requirement for application of the Official Information Privilege, the Court will conduct an in camera review of the requested documents and perform the required balancing analysis to determine the applicability of the Official Information Privilege. ECF No. 32 at 11. The test requires that "courts must weigh the potential benefits of disclosure against the potential disadvantages." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990). In civil rights cases against police departments [or correctional officers], the balancing test should be "moderately pre-weighted in favor of disclosure." Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 661. (N.D. Cal. 1987)). With regard to the three documents indicating that there were no relevant grievances filed against Defendants Arellano, Buckel and Strumski, there is no disadvantage to producing those documents and Defendants are ordered to produce them.
With regard to the grievance submitted against Defendant Lankford, the Court has considered the Kelly factors. Initially, the Court notes that in the instant case, Plaintiff alleges that he was working in the canteen and he had a work dispute with his supervisor, Defendant Lankford. ECF No. 1 at 3. Plaintiff alleges that he told Defendant Lankford that his disability prevented him from doing the work directed by Defendant Lankford and Defendant Lankford responded that he was the boss and Plaintiff had to do what the boss ordered. Id. In the third party grievance, the complainant was working in the canteen and alleged that Officer Lankford harassed him and racially discriminated against him and then prevented him from working in the canteen for two months. AGO 3605-06. The Court finds that this grievance, while relevant, has minimal importance to Plaintiff's case so this factor mildly favors non-disclosure. On the other hand, Plaintiff's case is non-frivolous and brought in good faith, the discovery is unavailable from other sources, the police investigation in both cases has been completed, Plaintiff is not an actual or potential defendant in a criminal case arising from this incident, and no intradepartmental disciplinary proceedings have arisen. All of these factors favor disclosure. The Court also finds while the submitted documents contain both factual and evaluative information, the evaluative information is minimal, unlikely to chill government self-evaluation, and does not prejudice Defendants. Similarly, there is no evidence that disclosure will discourage citizens from giving information and the impact on third parties is minimized because identifying information is redacted. As a result, in this case, these factors also support disclosure. Accordingly, the Court finds that the Official Information Privilege does not bar disclosure of the documents submitted to this Court for in camera review. The Court finds that the documents submitted to the Court include irrelevant and personal identifying information and on those grounds directs that the following pages NOT be produced: AOG 3591-3595 and AOG 3601-03. Defendants are ordered to produce pages AOG 3586-90, AOG 3596-3600, and AOG 3604-10 to Plaintiff on or before November 30 , 2020 . Defendants may redact all personal identifying information from the documents being produced.
The Kelly court provided a non-exhaustive list of factors (taken from Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)) that may be considered when engaging in this weighing process: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. Kelly, 114 F.R.D. at 663. --------
IT IS SO ORDERED. Dated: 11/12/2020
/s/_________
Hon. Barbara L. Major
United States Magistrate Judge