*1 In his Second Amended Complaint, Plaintiff alleges that on September 19, 2012 at California State Prison, Los Angeles County: (1) Defendant Wiard performed an inappropriate search of Plaintiff during which Defendant Redding gripped Plaintiff's neck; (2) Defendant Wiard pepper-sprayed Plaintiff in the face without provocation while Defendants Redding, Batrez, Castellano, Lopez-Flores, and Batrez beat Plaintiff; and (3) Defendant Bell ordered that Plaintiff's shirt be pulled over his head, causing Plaintiff to gasp for air. (Dkt. 11 or “SAC” at 5-11.)

Plaintiff has filed two motions to compel. In the first, he argues that Defendants Lopez-Flores and Redding (the “MTC One Defendants”) have failed to respond adequately to certain requests for production (“RFPs”) propounded by Plaintiff. (Dkt. 80 or “MTC One.”) In the second, he argues that Defendants Bell, Castellano, Batrez, and Wiard (the “MTC Two Defendants”) have failed to respond adequately to certain RFPs propounded by Plaintiff. (Dkt. 94 or “MTC Two.”) Both sets of Defendants have filed respective oppositions to the MTCs (Dkt. 93, 94), and Plaintiff has not filed any replies.

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).

Federal privilege law applies to federal question cases, such as this one. Fed. R. Evid. 501; Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1492 (9th Cir. 1989). Federal common law recognizes a qualified privilege for official information. Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975). The official information privilege is subject to the competing interests of the requesting party, and information is “subject to disclosure especially where protective measures are taken.” Id. “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.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990) (as amended).

According to one oft-cited Northern District of California case, to properly support the objection, a party must have provided with its discovery responses a declaration or affidavit containing: (1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality, (2) a statement that the official has personally reviewed the material in question, (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to the plaintiff, (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, and (5) a projection of how much harm would be done to the threatened interests if the disclosure were made. Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. Cal. Feb. 26, 1987). Subsequent California District Court opinions have followed this approach. See, e.g., Lawrence v. City & Cty. of San Francisco, No. 14-00820, 2016 WL 3254232, at *3 (N.D. Cal. June 14, 2016); Salas v. Gomez, No. 14-01676, 2016 WL 97456, at *3 (N.D. Cal. Jan. 8, 2016); Edwards v. Cty. of Los Angeles, No. 08-07428, 2009 WL 4707996, at *3 (C.D. Cal. Dec. 9, 2009).

*2 The Kelly declaration provides the court with the information it needs to make a reasoned assessment of the weight of the interests that line up against the requested disclosure, and also gives the plaintiff a fair opportunity to challenge the bases for asserting the privilege. Kelly, 114 F.R.D. at 670.

RFP Set One, No. 1 demands documents reflecting the training issued to Bell, Redding, and Wiard “on 9-282012 regarding Incident log # LAC-BYRD-12-09-0518 and referenced in the Crime/Incident Report Part A1.” (Dkt. 93-2 at 4.) The MTC One Defendants produced Redding's in-service sign-in sheet dated September 21, 2012. (Id. at 2.) They objected to producing the “Use of Force Critique” on the basis of the official information privilege. (Id. at 4.)

It is unclear from the briefing what kind of document the “Use of Force Critique” is and whether it is relevant to Plaintiff's claims. The MTC One Defendants have stipulated that they will make the Use of Force Critique available for in camera review, but ask that if it is produced, it be under a protective order. (Dkt. 93 at 2, 9-10.)

It is also unclear from the MTC One Defendants' briefing whether they fulfilled the Kelly requirements to invoke the official information privilege by submitting with their responses the Kelly declaration described above. Ordinarily, the Court would not undertake an in camera review until it had determined that the objecting party had met the threshold burden. See Kelly, 114 F.R.D. at 670-71. However, as this matter has been briefed, if the MTC One Defendants wish to invoke the privilege, they must submit this declaration to the Court and to Plaintiff, and lodge with this Court a copy of the Use of Force Critique. Plaintiff will then be given an opportunity to contest the grounds of the privilege.

If the MTC One Defendants wish to invoke the official information privilege, the Court ORDERS the MTC One Defendants to (1) serve on Plaintiff and file with this Court a Kelly declaration, and (2) lodge a copy of the Use of Force Critique for the Court's in camera review, both within ten (10) days of this order. Plaintiff will then have fourteen (14) days from the date of service to file a brief with this Court contesting Defendants' grounds for asserting the privilege. If the MTC One Defendants do not file and serve a Kelly declaration by the deadline, then this Court will assume that they have waived the privilege and will order disclosure of the Use of Force Critique.

RFP Set One, Nos. 11 and 13 demand documents showing, evidencing, or mentioning the MTC One Defendants being “disciplined for, sued for complained against, and/or recieved any adverse action for [their] involvement or alleged involvement of excessive force, unprofessionalism, or employee misconduct of any kind in [their] personal file or non confidential file [sic].” (Dkt. 93-2 at 6-7.) The MTC One Defendants objected that: (1) the request sought irrelevant information and information not reasonably calculated to lead to the discovery of admissible evidence; (2) “complained against” and “etc.” are vague and ambiguous; (3) civil lawsuits are matters of public record; (4) the request is overly burdensome in that it requires defendants to search for all court actions he was a party to, regardless of whether he was served; (5) the request is overly broad, seeks irrelevant documents, invades the privacy rights of the defendants and third parties, and is protected by the Official Information Privilege. (Id.)

*3 The first objection employs an outdated Rule 26 standard, and as explained below, the RFPs do seek some potentially relevant evidence.

As for the second objection, the Court agrees that “etc.” is vague and ambiguous, but disagrees that “complained against” is. Plaintiff clearly seeks any records showing internal discipline, complaints by anyone, or adverse action taken against the MTC One Defendants.

As for the third and fourth objections, the Court agrees that the MTC One Defendants do not need to search the public record for lawsuits of which they are unaware (because such records are not in their possession, custody, or control), but disagrees that they should not have to produce information regarding lawsuits known to them. The burden on them would be far less than on Plaintiff to discover such records. The Court therefore GRANTS Plaintiff's Motion to Compel as to legal complaints and, if applicable, judgments filed in lawsuits involving alleged misconduct by the MTC One Defendants related to the MTC One Defendants' employment in law enforcement. The MTC One Defendants are ordered to produce to Plaintiff these documents, if they exist, within ten (10) days of this order.

As for the fifth objection, the Court agrees that the request is overly broad and potentially seeks irrelevant documents. The MTC One Defendants need not search for every document “showing, evidencing, or mentioning” discipline, complaints, lawsuits, or adverse actions arising out of any kind of alleged misconduct. In addition, “unprofessionalism” could encompass a variety of minor infractions in no way relevant to an excessive force charge. It is enough that the defendants produce for in camera review documents reflecting the actual discipline, complaints, lawsuits, or adverse actions arising out of alleged dishonesty or inmate mistreatment. In a vacuum, the Court is not inclined to find that the request invades the defendants' privacy rights, insofar as the request seeks relevant information, but is concerned by the idea of disclosing names and information regarding other inmates.

The MTC One Defendants expand on their fifth objection in their briefing. First, they argue that no responsive documents after September 19, 2012 could be relevant. (Dkt. 93 at 5.) The Court disagrees. If multiple inmates have complained about beatings by a particular defendant, even after September 2012, this information could give Plaintiff's claims more credence.

Second, the MTC One Defendants argue that mere allegations of wrongdoing, as opposed to findings of misconduct, would have no probative value. (Id.) Again, the Court disagrees. Whether or not the allegations have been investigated or substantiated, if one defendant has received a disproportionately large number of complaints regarding inmate mistreatment, this would be relevant to Plaintiff's excessive force claims.

Third, the MTC One Defendants argue that responsive documents would be inadmissible character evidence, and would not be “reasonably calculated” to lead to the discovery of admissible evidence. (Id.) (The MTC Two Defendants similarly argue that the evidence would be inadmissible as prior bad acts. [See Dkt. 94 at 5.]) The revised Rule 26(b) standard for discoverability states: “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Defendants' arguments are based on the old Rule 26 standard.

*4 Fourth, the MTC One Defendants argue that the request is overly burdensome because all complaints before 2009 are stored in a location known as “Conex,” and are organized by year but not in good order or tabbed. (Dkt. 93 at 6.) It takes sixty minutes to travel to and from Conex, and the Litigation Coordinator estimates it would take 40-50 hours over several days to find complaints against Redding and Lopez-Flores, copy them, and return them. (Dkt. 93-1 at 1-2.) The Court is persuaded that the burden of obtaining responsive documents predating 2009 outweighs the potential benefits.

As for the official information privilege, the qualified privilege protects government personnel files. Sanchez, 936 F.2d at 1033. However, courts regularly grant plaintiffs in excessive force cases leave to obtain the defendant officers' disciplinary files. See, e.g., Nehad v. Browder, 2016 WL 2745411, at *2 (S.D. Cal. May 10, 2016); Zackery v. Stockton Police Dep't, 2007 WL 1655634, at *2 (E.D. Cal. June 7, 2007) (noting that in excessive force cases, the officers' “personnel file information has been found to be quite relevant because they may reveal the defendant officers' credibility, motive and patterns of behavior.”); Soto v. City of Concord, 162 F.R.D. 603, 615 (N.D. Cal. 1995) (“Records of complaints against defendant officers relating to their use of excessive force has been found to be relevant to a plaintiff's civil rights claim.”).

If the MTC One Defendants wish to invoke the privilege, they must submit a Kelly declaration to the Court and to the Plaintiff, and lodge with this Court a copy of the responsive documents.

In order to determine whether documents reflecting the discipline of, complaints against, or adverse action taken against the MTC One Defendants between 2009 and the present day are relevant or implicate privacy concerns, and whether a protective order would be sufficient to protect the interests at stake, the Court ORDERS the MTC One Defendants to lodge a copy of these documents for the Court's in camera review within ten (10) days of this order.

In addition, if the MTC One Defendants wish to invoke the official information privilege, the Court ORDERS the MTC One Defendants to serve on Plaintiff and file with this Court a Kelly declaration within ten (10) days of this order. Plaintiff will then have fourteen (14) days from the date of service to file a brief with this Court contesting Defendants' grounds for asserting the privilege. If the MTC One Defendants do not file and serve a Kelly declaration by the deadline, then this Court will assume that they have waived the privilege.

RFP Set Two, No. 1 demands all documents showing, evidencing, or mentioning the “C.S.P. – L.A.C. ‘Used of force handbook’ [sic]” for 2012. (Dkt. 93-2 at 10.) RFP Set Two, No. 2 demands all documents showing, evidencing, or mentioning “C.D.C.R. use of force policy/policies.” (Id.) The MTC One Defendants objected that they do not have possession, custody, or control of these documents, and that Plaintiffs should look to the Attorney General's Office. (Id. at 10-11.)

In their briefing, the MTC One Defendants have represented that they do not have possession, custody, or control over a “use of force” handbook specific to California State Prison – Los Angeles County, and have been advised that none exists. (Dkt. 93-2 at 2, 10.) The Court therefore DENIES Plaintiff's Motion to Compel the MTC One Defendants to respond further to RFP Set Two, No. 1.

The MTC One Defendants represent that they do not have possession, custody, or control of documents responsive to RFP Set Two, No. 2. (Id. at 10-11.) They represent that either they or the Deputy Attorney General's Office has produced Title 15, section 3268, and the Department Operations Manual on use of force. (Id. at 2.) The Court cannot compel a party to produce documents that they do not possess. The Court therefore DENIES Plaintiff's Motion to Compel the MTC One Defendants to respond further to RFP Set Two, No. 2.

*5 RFP Set One, No. 4 demands all photos taken as evidence of Wiard, Batrez, and Plaintiff as referenced in the relevant crime report. (Dkt. 94-1 at 8, 31-32.) The MTC Two Defendants objected: (1) “all photos” is vague and ambiguous;” (2) the request “assumes the truth of disputed facts;” and (3) the production would jeopardize inmate and correctional staff safety. (Id.) The defendants also responded that the relevant photos had been sent to the Litigation Coordinator at California State Prison—Sacramento to be made available for Plaintiff's viewing, but not to possess in his cell. (Id. at 9, 31-32.) According to a declaration by this litigation coordinator, and a confirming memorandum from a sergeant at the facility, Plaintiff viewed sixty-one photographs and a video-audio recording on July 18, 2016 for twenty-five minutes. (Dkt. 94-2 at 1-2, 4.) This was several weeks before the MTC Two Defendants' supplemental response to RFP No. 4, stating that additional photographs had been sent to the Litigation Coordinator, and that Plaintiff could contact his Correctional Counselor to make arrangements to view them. (Dkt. 94-1 at 32.)

The Court disagrees that RFP No. 4 was vague and ambiguous or assumed the truth of disputed facts. Clearly these photos exist, and clearly the MTC Two Defendants were able to identify and produce them. It also appears that Plaintiff has access to the photographs he demands. The MTC Two Defendants submitted a declaration from the Litigation Coordinator at Plaintiff's prison, representing that allowing Plaintiff to physically possess these photographs could incite other inmates to violence or be used to brag about the injuries to the defendants. (See Dkt. 94-2.) The Court concludes that, as long as Plaintiff can access these photographs when needed (as the defendants represent he can, see Dkt. 94 at 1), Plaintiff does not need to physically possess them. The Court therefore DENIES Plaintiff's Motion to Compel the MTC Two Defendants to respond further to RFP Set One, No. 4.

RFP Set One, Nos. 10, 12, 14, and 15 demand the same documents with respect to the MTC Two Defendants as Nos. 11 and 13 described above. (Dkt. 94-1 at 12-16, 32-33.) The MTC Two Defendants objected that: (1) the request was vague, ambiguous, and overly broad as to “all documents,” “show, evidence, or mention,” “Employee misconduct of any kind,” and “non confidential File;” (2) the request assumes facts not in evidence; (3) the request seeks irrelevant information disproportionate to the needs of the case; (4) the information sought “may be” protected from disclosure by the Official Information Privilege. (Id.) The MTC Two Defendants also protest that: the information is “confidential” under Cal. Code Reg., Title 15, section 3321, and therefore inmates cannot possess them under section 3450(d); disclosure might jeopardize the safety of inmates and staff; the defendants are protected by Cal. Penal Code sections 832.7 and 832.58, Evid. Code sections 1043 and 1045; the request violates privacy rights of other inmates; and Title 15, section 3370(b) provides that no inmate shall access another's record. (Id.) The MTC Two Defendants represent that Wiard, Bell, Castellano, and Batrez have no history of discipline or adverse action. (Id.)

The analysis set out above with respect to RFP Set One, Nos. 11, 13 applies here.

In order to determine whether documents reflecting the discipline of, complaints against, or adverse action taken against the MTC Two Defendants between 2009 and the present day are relevant or implicate privacy concerns, and whether a protective order would be sufficient to protect the interests at stake, the Court ORDERS the MTC Two Defendants to lodge a copy of these documents for the Court's in camera review within ten (10) days of this order.

If the MTC Two Defendants wish to invoke the official information privilege, the Court ORDERS the MTC Two Defendants to serve on Plaintiff and file with this Court a Kelly declaration within ten (10) days of this order. Plaintiff will then have fourteen (14) days from the date of service to file a brief with this Court contesting Defendants' grounds for asserting the privilege. If the MTC Two Defendants do not file and serve a Kelly declaration by the deadline, then this Court will assume that they have waived the privilege.

*6 Initials of Clerk jd