Ramirez v. Gutierrez

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] Case No.: 20-cv-1109-MMA(BLM) 12 ALIVER RAMIREZ, 13 Plaintiff, ORDER FOLLOWING IN CAMERA REVIEW 14 v. 15 R. GUTIERREZ, et al., 16 Defendants. [17] 18 On June 29, 2021, Plaintiff submitted a motion to compel discovery that was received by 19 the Court on July 13, 2021 and accepted on discrepancy on July 19, 2021. ECF Nos. 31 & 32. 20 Defendants opposed the motion on August 17, 2021. ECF No. 40. Plaintiff replied on September 21 30, 2021. ECF No. 44. 22 On October 12, 2021, the Court issued an Order Granting In Part and Denying In Part 23 Plaintiff’s Motion to Compel. ECF No. 45. In the order, the Court found that with respect to 24 Plaintiff’s request to compel further response to Request for Production (“RFP”) Nos. 4 and 6, 25 Defendants satisfied the threshold requirement for application of the Official Information 26 Privilege. See Id. at 15. The Court ordered Defendants to lodge unredacted copies of the 27 memoranda dated August 12, 2020, November 9, 2020, and June 17, 2019, so the Court could 28 determine whether the Official Information Privilege applies. Id. at 10. The Court also ordered 1 Defendants to lodge unredacted and redacted versions of documents responsive to RFP Nos. 1, 2 2, 5, and 8 so the Court could determine whether the redactions were appropriate. See Id. at 3 7-9. On October 22, 2021, Defendants lodged the required documents with the Court and filed 4 under seal pursuant to this Court’s order a pleading explaining the redactions and withholdings. 5 ECF Nos. 46-47. 6 The Court has reviewed all of the documents submitted by the Defendants. For the 7 reasons detailed below, Defendants are ORDERED to produce portions of the August 12, 2020 8 and November 9, 2020 memoranda. 9 I. Plaintiff’s Request for Production of Documents No. 1, 2, and 5 10 Defendants produced bates-stamped documents AG1-20 in response to RFP Nos. 1, 2, 11 and 5. These documents contained redactions. ECF No. 40-1, Declaration of Blair H. Pickus 12 (“Pickus Decl.”) at Exh. 2, p. 13. Defendants supplemented their responses with AG31-36. 13 These documents were not redacted. Id. 14 Defendants explain that the redacted information includes employee absence codes, such 15 as sick leave or vacation leave, and notations related to an unassociated incident. Defendants 16 also state that none of the redacted information applies to the named Defendants in this case. 17 The Court has reviewed the documents and finds that none of the redacted information is 18 relevant to this case. As such, Defendants do not have to produce the unredacted versions. 19 II. Plaintiff’s Request for Production of Documents No. 8 20 RFP No. 8 requests the disclosure of other civil lawsuits in which the Defendants are 21 named as defendants, including the short title (case name) and the case number. ECF No. 32 22 at 52. In response, Defendant Aviles produced the document bates-stamped AG38, which lists 23 the lawsuits in which Defendant Aviles is a named defendant. Defendant Aviles redacted the 24 following information from AG38: his first name, matter identification numbers, area of law 25 codes, and various contact information. Defendants claim that the redacted information has 26 minimal relevance to the instant case, is protected by privacy and confidentiality concerns, and 27 constitutes attorney work product of the Attorney General. ECF No. 32 at 52. Plaintiff’s original 28 concern was that the document was so heavily redacted he could not determine where the cases 1 were filed and could not use the information in this case. ECF No. 44 at 8. 2 The Court rejects Defendants’ argument that any of the redacted information is protected 3 by the attorney work-product doctrine. The Court finds that some of the information, such as 4 full names and Defendant’s phone number, present privacy concerns. However, the most 5 significant factor for the Court is that the redacted information has minimal, if any, relevance to 6 the instant litigation. The redacted document provides Plaintiff with exactly what he requested: 7 “Short Title (case name) and the Case Number.” ECF No. 32 at 53. The document does not 8 identify the court in which each case was filed. While Plaintiff cannot force Defendants to add 9 information to a document in response to an RFP [see Fed. R. Civ. P. 34(b)(2)], the undersigned 10 recognizes all of the judges and case numbers identified in the listed cases and confirms that all 11 of the cases were filed in the Southern District of California or Ninth Circuit. As such, Plaintiff 12 can use the case title and number to obtain the complaint and additional information regarding 13 the allegations and parties involved. Defendants do not have to produce an unredacted version. 14 III. Plaintiff’s Request for Production of Documents Nos. 4 & 6 15 In response to the Court’s order on RFP Nos. 4 and 6, Defendants provided unredacted 16 copies of the memoranda dated August 12, 2020, November 9, 2020, and June 17, 2019, so the 17 Court could determine whether the Official Information Privilege applies. See ECF No. 45 at 10. 18 The first two documents are disciplinary proceedings (“Notice of Adverse Action”) against 19 Defendant Aviles obtained from his personnel file. The third document details Lieutenant A. 20 Aguirre’s confidential investigation into Plaintiff’s 602 prison grievance. Because Defendants 21 satisfied the threshold requirement for application of the Official Information Privilege, the Court 22 must review the identified documents and perform the required analysis to determine the 23 applicability of the Official Information Privilege. See ECF No. 45 at 13-14. The balancing test 24 requires that “courts must weigh the potential benefits of disclosure against the potential 25 disadvantages.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990). “In civil 26 rights cases against police departments [or correctional officers], the balancing test should be 27 ‘moderately pre-weighted in favor of disclosure.’” Moore v. Lankford, Case No. 19cv240628 DMS(BLM), 2020 WL 6700515 , at *1 (S.D. Cal. Nov. 12, 2020) (quoting Soto v. Concord, 162 1 F.R.D. 603, 613 (N.D. Cal. 1995) (citing Kelly v. City of San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 2 1987))). 3 The Kelly court provided a non-exhaustive list of factors (taken from Frankenhauser v. 4 Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)) that may be considered when engaging in this weighing 5 process: (1) the extent to which disclosure will thwart governmental processes by discouraging 6 citizens from giving the government information; (2) the impact upon persons who have given 7 information of having their identities disclosed; (3) the degree to which government self8 evaluation and consequent program improvement will be chilled by disclosure; (4) whether the 9 information sought is factual data or evaluative summary; (5) whether the party seeking the 10 discovery is an actual or potential defendant in any criminal proceeding either pending or 11 reasonably likely to follow from the incident in question; (6) whether the police investigation has 12 been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may 13 arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good 14 faith; (9) whether the information sought is available through other discovery or from other 15 sources; and (10) the importance of the information sought to the plaintiff's case. Kelly, 114 16 F.R.D. at 663. In making this determination, courts must conduct “a situation specific analysis 17 of the factors made relevant by the request in issue and the objection to it.” Id. 18 With regard to the tenth factor, Defendants argue that information in the August 12, 19 2020 and November 9, 2020 memoranda is not relevant to this case, except to impermissibly 20 attack Defendant Aviles’ credibility using character evidence. The Court disagrees and finds that 21 the Notice of Adverse Action reports are relevant to this case as potential impeachment evidence 22 because the facts of the August 12, 2020 investigation could support a conclusion that Defendant 23 Aviles submitted a false report and the November 9, 2020 report specifically found that 24 Defendant Aviles engaged in “dishonesty.” See Darraj v. County of San Diego, Case No. 25 11cv1657-AJB(BGS), 2012 WL 5966854 , at *5 (S.D. Cal. 2012) (finding that evidence of false 26 reports or false statements “may lead to valuable motive, intent, pattern, or credibility 27 evidence”). As such, this factor weighs heavily in favor of producing the reports. Id. (finding 28 that the need for documents related to other incidents of false reports or false statements can 1 outweigh an officer’s confidentiality interest under the Official Information Privilege balancing 2 analysis). Factors 8 and 9 also weigh in favor of production as Plaintiff’s case is non-frivolous 3 and brought in good faith and the information regarding Defendant Aviles’ misconduct is not 4 available from any other source. Factors 4, 5, and 6 also weigh in favor of production as Plaintiff 5 is seeking factual information, Plaintiff is not a defendant in the incidents in the reports, and the 6 investigation in both reports has been completed. Defendants argue that factors 1, 2, and 3 7 favor enforcement of the Official Information Privilege because opening up an officer’s personnel 8 file will have a direct, chilling result on CDCR’s ability to both recruit new employees and retain 9 current employees, and the disclosure of such reports will put significant strain on an already 10 tenuous relationship between custodial officers and inmates. Defendants argue that a protective 11 order will not deter Plaintiff from sharing the contents of the memoranda with fellow inmates. 12 The Court agrees that these concerns generally favor protection; however, in this case, the fact 13 that Defendant Aviles was found to have engaged in misconduct mitigates the potential impact 14 on future officers and officers who do not engage in misconduct. The Court also finds that the 15 concerns are minimized since Defendant Aviles no longer works for the CDCR. Finally, the Court 16 finds that factor 7 is neutral as the reports at issue are the intradepartmental disciplinary 17 proceedings. 18 After weighing the relevant facts, the Court finds that the benefits of disclosure outweigh 19 the potential disadvantages and that the Official Information Privilege does not bar disclosure 20 of the August 12, 2020 and November 9, 2020 reports. Defendants argue that if the Court 21 orders the production of these documents, the production should be limited to the Statement of 22 Facts and all personal information should be redacted. The Court has reviewed both documents 23 and finds that the relevant portions are the “III. Statement of Causes” and “V. Statement of 24 Facts.” Defendants must produce those portions of each Notice of Adverse Action report 25 pursuant to the protections set forth at the end of this order. Defendants must produce the 26 entire section but may redact the name (other than first initial of each name) of every inmate 27 and CDCR employee (including Internal Affairs Special Agents) and the identifying number of 28 each inmate. 1 Regarding Lieutenant Aguirre’s June 17, 2019 memorandum, Defendants explain that it 2 details the confidential investigation into Plaintiff’s 602 prison grievance arising out of the 3 incident at issue in this litigation. Defendants state that the supporting documents reviewed by 4 Lieutenant Aguirre were produced to Plaintiff in discovery.1 Defendants argue that the need to 5 retain confidentiality of the investigative report is of the utmost importance. 6 In support of factors 1, 2, and 3, Defendants argue that appeal investigations are 7 intentionally confidential because disclosure of such information may put the interviewed 8 inmates at extreme risk because any perception of cooperation by inmates with custody staff 9 can subject, and has subjected, perceived cooperators to extreme violence. Additionally, 10 Defendants explain that because Plaintiff lived in close proximity to the interviewed inmates, 11 redacting the names of the inmates interviewed will not guarantee the necessary anonymity to 12 protect them. The Court agrees with these concerns for the reasons stated. The Court also 13 finds that disclosure of this confidential investigation could discourage individuals from giving 14 information to prison officials, thereby negatively impacting prison processes, including the 15 prison’s ability to perform self-evaluation and program improvement. Accordingly, these factors 16 strongly favor enforcement of the Official Information Privilege. Factor 4 also weighs in favor 17 of enforcement of the privilege, although less strongly, because while the memorandum contains 18 both factual data and an evaluative summary, most of the relevant factual information has been 19 provided to Plaintiff. Factors 5 and 6 weigh in favor of production of the report because Plaintiff 20 is not a defendant in the investigation and the investigation is complete. Factor 7 is neutral 21 because it is unclear if any intradepartmental disciplinary proceeding occurred as a result of the 22 investigation. Factor 8 weighs in favor of production of the memorandum because Plaintiff’s 23 case is non-frivolous and brought in good faith. Factors 9 and 10 weigh against production as [25] 1 Defendants produced the supporting documents, including the response to Plaintiff’s 602 [26] appeal, bed assignments, and an administrative segregation unit placement notice, at AG21-30. 27 ECF Nos. 32 at 50-51; 40 at 15-16; 45 at 10. The Court has reviewed the redactions on AG29 and finds the redactions are proper as they have minimal if any relevance to this case and for [28] 1 the factual information in the memorandum (interviews of potential witnesses) is available by 2 other methods of discovery. In addition, the factual information in the report is not helpful to 3 Plaintiff’s case. After conducting the required balancing analysis, the Court finds that the 4 potential benefits of disclosure are dramatically outweighed by the potential disadvantages. 5 Accordingly, the Court finds that the Official Information Privilege bars disclosure of the June 6 17, 2019 memorandum. 7 CONCLUSION 8 For the reasons set forth above, Defendants must produce portions of the August 12, 9 2020 and November 9, 2020 Notice of Adverse Action reports concerning Defendant Aviles 10 disciplinary proceedings by December 3, 2021 in accordance with the procedures set forth 11 below: 12 1. August 12, 2020 Notice of Adverse Action: Defendants must produce the “Notice of 13 Adverse Action, F. Aviles, Correctional Officer, Richard J. Donovan Correctional Facility” at the 14 top of page 1, the entire Section III. Statement of Causes at the bottom of page 1 and top of 15 page 2, and the entire Section V. Statement of Facts at pages 3-5. The Court finds that the 16 information set forth in the rest of the document is not relevant to the instant litigation. 17 Defendants may redact the name (other than first initial of each name) of every inmate and 18 CDCR employee (including Internal Affairs Special Agents) and the identifying number of each 19 inmate. 20 2. November 9, 2020 Notice of Adverse Action: Defendants must produce the “Notice of 21 Adverse Action, F. Aviles, Correctional Officer, Richard J. Donovan Correctional Facility” at the 22 top of page 1, the entire Section III. Statement of Causes at the bottom of page 1, and the 23 entire Section V. Statement of Facts at pages 10-14. The Court finds that the information set 24 forth in the rest of the document is not relevant to the instant litigation. Defendants may redact 25 the name (other than first initial of each name) of every inmate and CDCR employee (including 26 Internal Affairs Special Agents) and the identifying number of each inmate. 27 3. The two Notice of Adverse Action reports are being provided to Plaintiff pursuant to a 28 court-ordered protective order. Specifically, Plaintiff must comply with the following conditions: 1 a. Plaintiff may not give or show the documents or copies thereof to any 2 person. Plaintiff may not tell, or otherwise share, with another person any of the 3 information contained in the documents. 4 b. Plaintiff must seek permission of the Court before Plaintiff uses the 5 documents or information contained within the documents in any way. If Plaintiff wants 6 to file the documents or information contained in the documents to support or oppose a 7 motion, Plaintiff must seek permission from the Court to file the documents and 8 information under seal. 9 C. The documents and information contained therein may be used only for 10 purposes of this litigation. Upon final termination of this action, Plaintiff must return both 11 documents to defense counsel. 12 d. If Plaintiff violates any of the conditions of this protective order, the Court 13 may impose monetary and/or evidentiary sanctions against Plaintiff, including excluding 14 evidence, dismissing the case, and contempt of court. 15 IT IS SO ORDERED. 16 Dated: 11/22/2021 lxirbee Mager 17 Hon. Barbara L. Major United States Maqistrate Judde