*1 On February 7, 2017, Plaintiff Cathy Bonner filed a “Motion to Compel Defendant COLA to Provide Responses and Produce Documents to Plaintiff's Requests for Production of Documents.” (“Motion,” Dkt. No. 73). The Parties filed a Joint Stipulation pursuant to Local Rule 37-2, (“Jt. Stip.,” id.), as well as the declarations of Joseph R. Finnerty (“Finnerty Decl.,” Dkt. No. 74) in support of the Motion and the declaration of Jennifer R. Jacobs (“Jacobs Decl. I,” Dkt. No. 77) in opposition to the Motion.[1] On February 21, 2017, Defendant filed a Supplemental Memorandum of Points and Authorities in opposition to the Motion (“D. Supp. Memo.”) including a second declaration of Jennifer R. Jacobs (“Jacobs Decl. II”) and the declaration of Lt. Maxine Kallenberger (“Kallenberger Decl.”).[2] (Dkt. No. 79). Plaintiff did not file a Supplemental Memorandum.

Plaintiff seeks an Order compelling the production of documents responsive to eight requests for production (“RFP”), i.e., RFP Nos. 8, 10, 13-14, 20, 22, and 25-26. For the following reasons, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

A. Scope Of Permissible Discovery

Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:

Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401.

The 2015 amendments to the Federal Rules of Civil Procedure further refined the meaning of relevance for discovery purposes. As one court explained,

*2 Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016) (quoting John Roberts, 2015 Year-End Report on the Federal Judiciary 6 (Dec. 31, 2015) (internal citations omitted)).

B. Privacy

“Federal Courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.” Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (citing, inter alia, Breed v. United States Dist. Ct. for Northern Dist., 542 F.2d 1114, 1116 (9th Cir. 1976), and Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992)). “Unlike a privilege, the right of privacy is not an absolute bar to discovery. Rather, courts balance the need for the information against the claimed privacy right.” Lind v. United States, 2014 WL 2930486, at *2 (D. Ariz. June 30, 2014); see also E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“[T]he right to privacy is not a recognized privilege or absolute bar to discovery, but instead is subject to the balancing of needs.”); Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 (C.D. Cal. 1995) (same); Soto, 162 F.R.D. at 616 (“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.”). While courts have recognized that privacy concerns raised by the disclosure of police files are “not inconsequential,” these privacy interests “must be balanced against the great weight afforded to federal law in civil rights cases against police departments.” Id. (quoting Kelly, 114 F.R.D. at 660).

C. Rule 34

Pursuant to Federal Rule of Civil Procedure 34(a), a party may request documents “in the responding party's possession, custody, or control.” Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1)(A). “The test for reasonable particularity is whether the request places a party upon reasonable notice of what is called for and what is not.” Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (internal quotation marks omitted); see also Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649-50 (10th Cir. 2008) (“Though what qualifies as ‘reasonabl[y] particular’ surely depends at least in part on the circumstances of each case, a discovery request should be sufficiently definite and limited in scope that it can be said ‘to apprise a person of ordinary intelligence what documents are required and [to enable] the court ... to ascertain whether the requested documents have been produced.’ ”) (quoting Wright & Miller, 8A Federal Practice and Procedure § 2211, at 415). “ ‘All-encompassing demands’ that do not allow a reasonable person to ascertain which documents are required do not meet the particularity standard of Rule 34(b)(1)(A).” In re Asbestos Products Liability Litigation (No. VI), 256 F.R.D. 151, 157 (E.D. Pa. 2009).

Following a reasonable investigation to locate responsive materials, a responding party must serve a written response to each request either (1) stating that the materials requested will be produced, in whole or in part; (2) affirming that no responsive documents exist in the party's possession, custody or control, or (3) posing an objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2). Pursuant to the revisions to the Federal Rules effective December 1, 2015, if objections are posed, the “objection must state whether any responsive materials are being withheld on the basis of that objection.” Rule 34(b)(2)(C) (emphasis added). The 2015 Advisory Committee Notes to Rule 34 explain:

Fed. R. Civ. P. 34, Advisory Committee Notes (2015 Amendment).

A proper written response should also provide sufficient information for the requesting party and the court to be satisfied that the responding party conducted an adequate investigation for responsive materials. As one court has explained:

Atcherley v. Clark, 2014 WL 4660842, at *1 (E.D. Cal. Sept. 17, 2014) (internal citations omitted); see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (boilerplate objections are insufficient to assert a privilege).

However, a court cannot order a party to produce documents that do not exist. A party's mere suspicion that additional documents must exist is an insufficient basis to file a motion to compel. See Bethea v. Comcast, 218 F.R.D. 328, 330 (D. D.C. 2003). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (representation by defendants that they are unable to locate responsive documents precludes the grant of a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”); Ayala v. Tapia, 1991 WL 241873, at *2 (D. D.C. Nov. 1, 1991) (denying motion to compel where moving party could not identify withheld documents).

Plaintiff seeks further written responses and production of documents responsive to RFP Nos. 8, 10, 13-14, 20, 22, and 25-26. The Court rules as follows.

Defendant responded, in part, to the above-referenced RFP by stating that it is “unduly burdensome and oppressive.” (Jt. Stip. at 16, 21). Claims that discovery requests for production of documents are unduly burdensome should be supported by a statement, generally an affidavit or declaration, with specific information demonstrating how the request is overly burdensome. Defendant does not specifically cite to a declaration in their opposition to RFP No. 8. However, Defendant submitted Kallenberger's declaration with its Supplemental Memorandum. Kallenberger's declaration was prepared for another case in response to a similar request. Defendant apparently seeks to demonstrate how RFP No. 8 is overly burdensome through this declaration. The Court finds that the declaration is inadequate to demonstrate that the request in the current case is overly burdensome or that the request cannot be narrowed to address the burdensomeness concerns.

*4 To address Defendant's concerns, the parties shall meet and confer to establish a mutually agreed-upon methodology by which Defendant can generate a sampling of documents responsive to RFP No. 8. The Parties shall meet and confer to develop a narrowed version of RFP No. 8 within seven days of the date of this Order.

To the extent that Defendant seeks to limit Plaintiff's request to include only complaints about arm pain, such a limitation is too specific. Although a particular inmate's complaint may not arise out of the specific type of medical care at issue in the current case, that complaint may still be relevant to Plaintiff's Monell claim. A case with materially different facts may still demonstrate a violation of an inmate's general and well-recognized right to adequate medical care. Moreover, even factual circumstances that have not yet found a parallel in case law can easily implicate the denial of this right. “[T]here doesn't need to be a prior case with materially similar facts in order for a right to be clearly established.” Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010). “In order to find that the law was clearly established, however, [the court] need not find a prior case with identical, or even materially similar, facts. [The court's] task is to determine whether the preexisting law provided the defendants with fair warning that their conduct was unlawful.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136–37 (9th Cir. 2003) (internal citation omitted). Thus, limiting this request to complaints that are factually identical to the one at hand would potentially exclude relevant discovery.

Defendant also contends that the requested documents are not relevant to the needs of this case. (Jt. Stip. at 15, 23). The Court disagrees. “[T]o prevail on a claim against a municipal entity for a constitutional violation, a plaintiff must also show that his or her injury is attributable ‘to official municipal policy of some nature.’ ” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir. 2016) (citing Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978)). “[T]he Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal citations omitted). “A plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident or unconstitutional action by a non-policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (emphasis in original). A section 1983 plaintiff may “attempt to prove the existence of a custom or informal policy with evidence of repeated constitutional violations for which the errant municipal officials were not discharged or reprimanded.” Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). Plaintiff cannot prove the existence of a municipal policy based solely on the alleged incident involving her. Instead, she needs to provide evidence of repeated constitutional violations. Thus, Defendant COLA's responses to other inmates' requests for medical care may be relevant discovery for the purposes of Plaintiff's Monell claim.

*5 However, the time period encompassed by RFP No. 8 is overbroad and, accordingly, RFP No. 8 should be narrowed in scope to encompass one year before the alleged February 6, 2013 incident through one year after her January 2014 release (i.e., February 2012 through January 2015). Given the volume of inmates involved, this time period should be sufficient for Plaintiff's purposes. Defendant need only produce those documents responsive to RFP No. 8 which are dated within this timeframe. This limitation should still capture any custom or policy, if such custom or policy exists.

Defendant also asserts that state and federal privacy rights of inmates must be considered when producing documents. (Jt. Stip. at 23). To the extent that such records are requested, relevant state and federal privacy concerns can be addressed through an appropriate protective order as well as redactions. As stated at the hearing, Defendant may redact inmate names from medical records, but not the inmate's booking number or any other unique identification number. Furthermore, Defendant must produce to Plaintiff the name of any inmate whose name was redacted pursuant to this Order within seven days of service of a request by Plaintiff for the name. Furthermore, as the Court also stated at the hearing, the Parties should jointly submit a proposed Protective Order governing the production of confidential materials in this litigation as soon as possible. Defendant's privacy objection, therefore, is not a basis for withholding entire documents.

Lastly, Defendant contends that while it cannot determine all objections and privileges that may apply, it “prophylactically objects to this request to the extent it is interpreted as seeking documents protected by the attorney-client privilege and/or attorney work-product doctrine.” (Jt. Stip. at 16).[3] According to the Advisory Committee Notes (2015 Amendment), an objection to a Rule 34 request must state whether any documents are being withheld on the basis of the objection. Therefore, to the extent that Defendant relies on this objection in opposing RFP No. 8, it does not satisfy the standards required by the current version of Rule 34. Defendant must state how the attorney-client privilege and/or work-product privilege apply to the withheld documents to properly assert this objection.

Accordingly, Plaintiff's Motion with respect to RFP No. 8 is GRANTED, subject to the limitations set forth above. Defendant shall produce additional documents and provide supplemental responses by the deadline described in the conclusion of this Order.

Defendant objects to this RFP by stating that it interprets it as essentially duplicative of RFP No. 8, and incorporates its response to RFP No. 8 as though it were set forth in full. As with RFP No. 8, RFP No. 10 should be narrowed in scope to encompass one year before the alleged February 6, 2013 incident through one year after Plaintiff's January 2014 release. Defendant need only produce those documents responsive to RFP No. 10 which are dated within this timeframe. This limitation should still capture any custom or policy maintained by Defendant.

*6 Depending on the number of responsive documents after such restrictions are applied, the Court may consider further narrowing this request by ordering the parties to apply a mutually agreed-upon methodology by which Defendant can generate a sampling of responsive documents. To the extent that the same -- or same types of -- documents responsive to RFP No. 8 are also responsive to RFP No. 10, the same methodology which the Parties agree to apply to the search for documents responsive to RFP No. 8 shall be applied to the search for documents responsive to RFP No. 10.

To the extent that records implicating the privacy rights of other inmates are requested, relevant state and federal privacy concerns can be addressed through redactions and an appropriate protective order, as discussed with respect to RFP No. 8. Accordingly, Plaintiff's Motion with respect to RFP No. 10 is GRANTED, subject to the limitations set forth above and the schedule set forth in the conclusion of this Order.

As the Court has previously stated, to prevail on a Monell claim, Plaintiff must show that her injury is due to an official policy of some kind. See Kirkpatrick, 843 F.3d at 788. Plaintiff cannot prove the existence of a municipal policy based solely on the alleged incident involving her. See Davis, 869 F.2d at 1233. Through RFP Nos. 13 and 14, Plaintiff seeks information related to a former senior deputy's report regarding Defendant's response to another inmate's request for medical care. Defendant COLA's responses to other inmates' requests for medical care may be relevant discovery for the purposes of Plaintiff's Monell claim.

Defendant objects to these RFPs to the extent that they seek “documents prepared in anticipation of litigation and protected by the attorney work product doctrine and/or attorney-client privilege.” (Jt. Stip. at 29, 33). According to the Advisory Committee Notes (2015 Amendment), an objection to a Rule 34 request must state whether any documents are being withheld on the basis of the objection. Therefore, to the extent that Defendant relies on this objection in opposing RFP Nos. 13-14, it does not satisfy the standards required by Rule 34. Defendant must state how the attorney-client privilege and/or work-product privilege apply to the withheld documents to properly assert this objection.

Moreover, to the extent that custodial staff's privacy rights are implicated in the production of these documents, relevant state and federal privacy concerns can be addressed through redactions and an appropriate protective order, as discussed with respect to RFP No. 8. Accordingly, Plaintiff's Motion with respect to RFP Nos. 13 and 14 is GRANTED, subject to the limitations set forth above and on the schedule set forth in the conclusion of this Order.

Defendant responds to this RFP, in part, by stating that if it is ordered to produce these documents, it requests that the names of its personnel and any inmates identified therein be redacted to protect their privacy. (Jt. Stip. at 38). At the hearing, however, Defendant argued that the Twin Towers activity log is irrelevant because Plaintiff testified at her deposition that she had no contact or communications with Twin Towers personnel, a fact that Plaintiff's counsel did not dispute. In light of Defendant's representation, Plaintiff's Motion with respect to RFP No. 20 is DENIED. No further response is required.

Defendant represents that it is not aware of the existence of any documents responsive to RFP No. 22. (Jt. Stip. at 39). In light of Defendant's representation, Plaintiff's Motion with respect to RFP No. 22 is DENIED.

The focus of Plaintiff's claims is Defendant's alleged systematic and widespread custom or practice of failing to provide adequate medical care and failing to investigate claims of employee misconduct. Plaintiff's motion to compel seeks documents “show[ing] that Defendant COLA has a policy or custom of providing inadequate medical care to inmates.” (Jt. Stip. at 7). Plaintiff's claims do not turn on whether the medical care rendered is timely or “prompt.”

Therefore, information sought by RFP Nos. 25 and 26 regarding the timeliness of medical care is irrelevant to Plaintiff's claims against Defendant. Accordingly, Plaintiff's Motion with respect to RFP Nos. 25 and 26 is DENIED.

For the reasons stated above, Plaintiff's Motion to Compel Defendant COLA to Provide Responses and Produce Documents (Dkt. No. 73) is GRANTED IN PART and DENIED IN PART. The Parties shall meet and confer as required by this Order within seven days of the date of this Order. Further responses shall be provided within fourteen days of the date of the Parties' conference of counsel, contingent upon the Parties' submission to Judge Wu of a stipulated request for a continuance of the discovery cut off and Judge Wu's grant of the request.

Jacobs' declaration appears to have been erroneously docketed in the first instance at Dkt. No. 75 “in support of” the Motion along with a redundant copy of the Joint Stipulation. The declaration was refiled on February 8, 2017 without the Joint Stipulation at Dkt. No. 77.

Kallenberger's declaration is attached as “Exhibit 18” to Jacobs' second declaration, but will be referred to here as though it were filed separately, as reflected on the caption of Defendant's Supplemental Memorandum. (See Dkt. No. 79).

While it does not appear, from the face of its objections, that Defendant intends to assert the Official Information Privilege (“OIP”) in response to RFP Nos. 8 or 10, Kallenberger's declaration asserts the privilege in response to two similar requests made in a separate case. To the extent that Defendant intends to assert the OIP through Kallenberger's declaration, the privilege has not been properly asserted.