United States District Court, D. Nevada
ORDER re: Doc. #38
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's Motion to Compel the Disclosure of Privileged Documents. (Doc. # 38.) The Defendants have opposed the motion. (Doc. # 41.) Plaintiff has replied. (Doc. # 46.)
Plaintiff's motion pertains to the Request for Production of Documents which he served on the Defendants in August of 2014. Generally, Plaintiff complains the Defendants refused to disclose and produce certain documents based on state law privileges. Plaintiff also references in his motion a First Set of Interrogatories which he received from counsel for the Defendants on November 7, 2014, about which he vaguely complains. (Doc.# 38 at 2.) Unfortunately, Plaintiff did not attach the disputed discovery to his motion, as is required by Local Rule 26-7(a). What Plaintiff did include in his motion was a list of 12 requests for production under a heading section entitled "Requested Documents Sought to be Compelled." ( Id, at 4-5.)
Defendants's opposition, however, attached Plaintiff's first request for production of documents as Exhibit A and the Defendants' responses as Exhibit B. (Docs. ## 42, 42-1, 42-2.) Defendants further note that the requests summarized in Plaintiff's motion do not match Plaintiff's original request for production and in fact, constitute new requests which were contained in Plaintiff's second request for production to Defendants. (Doc. # 42 at 2.) Plaintiff's first request for production sought 7 categories of documents (Doc. #42-1), while the list Plaintiff has included in his motion contains 12 requests (Doc. # 38 at 4-5). Plaintiff's reply addresses this contradiction, stating he "accidently submitted" the items sought in his second request for production which he served in December. (Doc. # 46 at 1.) "In error, the Plaintiff [referring to himself] submitted his Second Set of Production Documents...instead of [illegible] the original Documents from the Plaintiff First Request." ( Id., at 2.)
Although the Plaintiff did not attach the disputed discovery responses pertaining to his first request for production, and instead only discussed his second requests for production (Doc. # 38 at 4-5), as noted above, the Defendants provided their responses to Plaintiff's first request for production. Defendants also addressed the productions of documents they have made and discussed the substance of their objections and privilege/confidentiality assertions lodged with respect to Plaintiff's requests. As noted above, while Plaintiff in his reply acknowledges his mistake regarding his first and second requests for production, he provides no substantive comments other than generally objecting to the Defendants' assertion of privilege. Plaintiff states he "requires physical copies of the above stated documents to research study, prepare for further litigation." In conclusion, Plaintiff states:
Defendants have complied with Plaintiff's (First) Request for Production of Documents, and the Plaintiff has corrected his error in the motion herein and ask that this Honorable Court to compell and order the Defendants to produce the Plaintiff with (all) physical copies of the documents Plaintiff requested in his First Request for Production that was denied to him by the Defendants, as privileged, classified and confidential which where submitted to the Warden's Office, only for review. (sic)
(Doc., # 46 at 2-3.)
Nevertheless, the court, albeit without the benefit of Plaintiff's specific objections to the discovery responses, will resolve the parties' issues which appear to remain as to this discovery dispute.
I. RELEVANCE AND PRIVILEGE
The first limitation on permissible discovery is that it be relevant. See, e.g., Dowell v. W.T. Griffin, 275 F.R.D. 613, 617 (S.D. Cal. Aug. 17, 2011) (stating that the court must address whether the requested documents are relevant before engaging in the privilege analysis). Relevance "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppehnheimer Fund, Inc. v. Sanders, 437 U.S. 340, 3511978 ( citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
The second limitation on discovery is that the matter sought be nonprivileged. In a federal question case, such as this one brought pursuant to 42 U.S.C. § 1983, privilege is determined by federal common law. Fed.R.Evid. 501; United States v. Zolin, 491 U.S. 554, 562 (1989); Breed v. United States Dist. Ct. for Northern Dist., 542 F.2d 1114, 1115 (9th Cir. 1976) (action brought under 42 U.S.C. § 1983).
Federal law governing privilege has not been codified; instead, "[t]he common law - as interpreted by United States courts in the light of reason and experience - governs any claim of privilege" unless otherwise provided by "the United States Constitution; a federal statute; or rules prescribed by the Supreme Court." Fed.R.Evid. 501.
"In a civil rights case brought under federal statutes questions of privilege are resolved by federal law." Kerr v. U.S. Dist. Ct. for the No. Dist. of CA, 511 F.2d 192, 197; Fed.R.Evid. 501. As the United States District Court for the Northern District of California pointed out:
It... would make no sense to permit state law to determine what evidence is discoverable in cases brought pursuant to federal statutes whose central purpose is to protect citizens from abuses of power by state and local authorities. If state law controlled, state authorities could effectively insulate themselves from constitutional norms simply by developing privilege doctrines that made it virtually ...