(PC) Caruso v. Hill

— 1 — — 2 — — 3 — — 4 — — 5 — 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA — 8 — 9 GINA CARUSO, Case No. 1:20-cv-00084-AWI-EPG (PC) 10 Plaintiff, ORDER RE: DOCUMENTS WITHHELD 11 v. ON THE BASIS OF THE OFFICIAL INFORMATION PRIVILEGE — 12 — MOLLY HILL, et al., (ECF Nos. 62, 63, & 64) — 13 — Defendants. — 14 — 15 This case proceeds on Plaintiff’s First Amendment retaliation against defendants Hill 16 and Montes based on Plaintiff’s allegations that Defendants transferred Plaintiff as a result of 17 her filings in a different lawsuit and refused to transfer her back, despite documented enemy 18 concerns. (ECF Nos. 25, 33, & 57). 19 The parties have requested that the Court review in camera documents related to an 20 adverse action taken against defendant Montes, and have filed briefs in support of their 21 positions. (ECF Nos. 62-64). 22 The Court has reviewed the filings and the applicable law, and finds that Defendants 23 may withhold the documents related to the adverse action taken against defendant Montes 24 pursuant to the official information privilege. 25 I. LEGAL STANDARDS 26 Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery 27 regarding any non-privileged matter that is relevant to any party’s claim or defense and 28 proportional to the needs of the case, considering the importance of the issues at stake in the 1 action, the amount in controversy, the parties’ relative access to relevant information, the 2 parties’ resources, the importance of the discovery in resolving the issues, and whether the 3 burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 4 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be 5 discoverable.” Id. 6 The “common law governmental privilege (encompassing and referred to sometimes as 7 the official or state secret privilege) … is only a qualified privilege, contingent upon the 8 competing interests of the requesting litigant and subject to disclosure….” Kerr v. U.S. Dist. 9 Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (citations omitted). The Ninth 10 Circuit has since followed Kerr in requiring in camera review and a balancing of interests in 11 ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. 12 Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we 13 recognize ‘that in camera review is a highly appropriate and useful means of dealing with 14 claims of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 15 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), 16 as amended on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) 17 (“Government personnel files are considered official information. To determine whether the 18 information sought is privileged, courts must weigh the potential benefits of disclosure against 19 the potential disadvantages. If the latter is greater, the privilege bars discovery.”) (citations 20 omitted). 21 II. ANALYSIS 22 After reviewing the documents related to the adverse action taken against defendant 23 Montes, the Court finds that Defendants may withhold the documents pursuant to the official 24 information privilege. 25 The Court has reviewed the documents at issue in camera. It has confirmed that the 26 adverse action at issue is not relevant to the claims proceeding in this case. It does not involve 27 Plaintiff, Plaintiff’s prison transfers, prison transfers in general, or any other inmate. Moreover, 28 as Defendants point out, the conduct at issue in the adverse action occurred months after ——_———— mE EI IEE I I EE EEO 1 || Plaintiff's transfer. 2 Plaintiff argues that the documents could be relevant because they may show that 3 || defendant Montes lied in a declaration, in which he stated that his departure from his job as 4 |) Warden at California Institution for Women was for personal reasons and not for disciplinary 5 ||reasons or job performance reasons. (ECF No. 63, p. 2). However, based on a review of the 6 || adverse action, it does not appear that defendant Montes lied in his declaration. The notice of 7 || adverse action post-dates Defendant’s transfer to CIW and does not order Defendant Montes to 8 transferred. Additionally, Defendants have agreed to “[a] limited inquiry into the general 9 nature of the personal reasons for Montes leaving CIW in October 2020” at defendant Montes’ 10 || deposition, which should satisfy any legitimate need for inquiry into the truthfulness of 11 defendant Montes’ representation in his declaration. (ECF No. 64, p. 2).! 12 Il. ORDER 13 Defendants may withhold the documents related to the adverse action taken against 14 defendant Montes, which are identified on the privilege log at ECF No. 62, p. 12, pursuant to 15 || the official information privilege. — 16 — 4 IT IS SO ORDERED. ‘8 |! Dated: _ September 28, 2021 [sf ey 19 UNITED STATES MAGISTRATE JUDGE — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — ' Given Defendants’ assertion that the reasons for that transfer are personal and not due to the adverse 28 |] action, the Court will not preemptively deem such testimony regarding the reason for the transfer as highly confidential, attorney’s eyes only, as requested by defense counsel.