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Kell v. Crowther

United States District Court, D. Utah, Central Division

December 12, 2016

TROY MICHAEL KELL, Petitioner,
v.
SCOTT CROWTHER, WARDEN, UTAH STATE PRISON, Respondent.

          Clark Waddoups District Judge.

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER United States Magistrate Judge.

         District Judge Clark Waddoups referred this matter to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Before the court is Petitioner Troy Michael Kell's (“Mr. Kell”) Supplemental Memorandum in response to the court's July 19, 2016, Order[2] and Mr. Kell's Motion for Clarification of Briefing Schedule.[3] Having reviewed the parties' briefs and the relevant law, the court renders the following Memorandum Decision and Order.[4]

         BACKGROUND

         Respondent the Utah Department of Corrections and Rollin Cook, Executive Director, (collectively “UDC”) previously sought to quash or modify Mr. Kell's subpoena to Mr. Cook.[5] In granting in part and denying in part UDC's motion, the court stated:

UDC has not made the required ‘substantial showing' of the harm that would result from producing the documents on the privilege log to Mr. Kell's counsel, partly because such a finding would require the court to assume the worst about the discovery process and Mr. Kell's counsel without any basis for doing so, and partly because UDC has not articulated why producing the documents on the privilege log pursuant to the protective order would result in the harm that it predicts.
. . . .
Without the threshold showing of privilege made by UDC, the court will not engage in the balancing test to determine the relevance of the requested discovery.[6]

         UDC filed a partial objection to the order, which was overruled.[7] In overruling the objection, Judge Waddoups granted UDC leave to file supplemental material to attempt to establish that UDC had met the “substantial threshold standard” articulated in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987).[8]

         Based on the supplemental briefing, the court found that UDC had met the substantial threshold requirement with regard to its assertion of the official information privilege.[9]Therefore, the court ordered Mr. Kell “to submit additional briefing and declarations describing specifically how each of the requested documents are relevant to the litigation, and what interests would be harmed if the material was not disclosed.”[10] On August 5, 2016, Mr. Kell filed supplemental briefing.[11]

         During the briefing for UDC's Motion to Quash, Mr. Kell requested a six-month extension of discovery.[12] On July 19, 2016, the court denied Mr. Kell's Motion for Extension of Time and Modification of Discovery Order.[13] On October 28, 2016, Mr. Kell filed a Motion for Clarification of Briefing Schedule.[14] The case management schedule provides that either party may file a motion for an evidentiary hearing within 60 days of the close of discovery.[15] The pendency of UDC's Motion to Quash calls into question the triggering dates in the case management schedule. Therefore, Mr. Kell has requested clarification from the court.

         DISCUSSION

         A. UDC's Motion to Quash

         There are three groups of documents at issue in UDC's Motion to Quash. First, UDC has stipulated to the production of certain documents, with limitations. Second, there are documents for which Mr. Kell has failed to offer any argument in support of production. Finally, with respect to Mr. Kell's Request for Production (“RFP”) Nos. 7, 8, 10, and 13, there remain documents for which the parties dispute whether Mr. Kell has met his burden to show the documents are relevant to his claims.

         i. UDC's Withdrawal of Objections

         UDC has agreed to produce the following documents to Mr. Kell's counsel pursuant to the protective order currently in place: UDC 00041-00070; UDC 00311-00326; UDC 00717-00718; UDC 00831-00875; and UDC 07851-07969.[16] Documents UDC 00831-00875 are responsive to Mr. Kell's RFP Nos. 18, 19, 20, and 22 and documents UDC 00717-00718 are responsive to RFP No. 9.[17] Accordingly, UDC's objections to production of these documents are DISMISSED as moot. Additionally, the court previously found UDC 00717-00718 and UDC 00831-00875 to be protected by the government informer's privilege.[18] Therefore, consistent with the court's prior rulings, UDC may redact the names and identifying information of the informants before producing UDC 00717-00718 and UDC 00831-00875.

         ii. Mr. Kell's Failure to Argue Relevance

         In his supplemental briefing, Mr. Kell states that he offers “no argument in support of disclosure of the withheld documents responsive to RFP Nos. 16 and 28, as identified in ECF No. 148, Exh. F.”[19] Additionally, Mr. Kell fails to argue the relevance of the following documents: UDC 00103-00118 (“Early Warning Inmate Verification Process”); UDC 00327-00608 (“Transportation of Inmates”); and UDC 00609-00672 (“Off Property Medical Facility Security Procedures”).[20] Because Mr. Kell does not argue the relevance of these documents, the court GRANTS UDC's Motion to Quash with respect to these documents.

         iii. Mr. Kell Has Failed to Carry His Burden to Demonstrate He is Entitled to the Remaining Documents Responsive to RFP Nos. 7, 8, 10, and 13.

         With regards to the remaining documents, the parties dispute whether Mr. Kell has met his burden to show the documents are relevant to Mr. Kell's claims against UDC. Federal common law recognizes an “official information privilege” that prevents the disclosure of governmental information where disclosure would be contrary to the public interest. See Myers v. Koopman, No. 09-CV-02802-REB-MEH, 2010 WL 1488005, at *2 (D. Colo. Apr. 13, 2010). The official information privilege “extends to the security considerations applicable to correctional facilities.” Whitington v. Sokol, No. 06-CV-01245-EWN-CBS, 2008 WL 435277, at *1 (D. Colo. Feb. 14, 2008). Importantly, however, the official information privilege is not absolute. Ind v. Colorado Dep't of Corr., No. 09-CV-00537-WJM-KLM, 2011 WL 578731, at *3 (D. Colo. Feb. 9, 2011). To determine “what level of protection should be afforded by this privilege, courts conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D.Cal.1995); see also See Everitt v. Brezzel, 750 F.Supp. 1063, 1066-67 (D. Colo. 2008).

         As delineated in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987), once UDC has made a “substantial threshold showing” asserting the official information privilege, the burden shifts to Mr. Kell to demonstrate how the disputed documents are relevant and what interests would be harmed by nondisclosure. Id. at 669-71; see Myers, 2010 WL 1488005, at *3 (“Neither privilege is absolute; ‘if the party seeking disclosure makes a proper showing of need, the privilege will give way.'” (quoting In the Matter of Search of 1638 E. 2nd St., Tulsa, Okl., 993 F.2d 773, 774 (10th Cir. 1993)). Specifically, Mr. Kell is required to: (1) show how the requested information is relevant to litigation or reasonably calculated to lead to the discovery of admissible evidence; (2) identify what interest would be harmed by nondisclosure; and (3) specify how that harm would occur and how extensive it would be if nondisclosure occurred. See Kelly, 114 F.R.D. at 671. Moreover, Mr. Kell may discuss “why it would be impossible or impracticable to acquire information of equivalent value through alternative means.” Id.

         The remaining documents relate to Mr. Kell's RFP Nos. 7, 8, 10, and 13. Mr. Kell claims that documents responsive to RFP Nos. 7, 8, 10, and 13 will support Claims Eight and Nine in Mr. Kell's Amended Petition for Writ of Habeas Corpus.[21] Claim Eight asserts that the Utah Attorney General's Office's “mysterious and questionable appearance as prosecutor” was improper and that the Utah Attorney General's Office may have had some interest in the outcome of Mr. Kell's trial.[22] Similarly, Claim Nine asserts that UDC's attorneys improperly participated in Mr. Kell's prosecution, despite UDC's interest in the outcome of Mr. Kell's trial.[23] Mr. Kell claims that the Utah Attorney General's Office and UDC's attorneys sought to “protect the state's financial interests in a pending lawsuit brought by the family of the victim, Lonnie Blackmon.”[24] Mr. Kell argues that documents responsive to RFP Nos. 7, 8, 10, and 13, will demonstrate that the “Attorney General's Office sought to restrict Mr. Kell's access to discovery materials, evidence, and witnesses, to prohibit the testimony of witnesses that would open the State to civil liability, and to otherwise improperly influence the direction of the case.”[25]

         To this end, RFP Nos. 7, 8, 10, and 13 request the following:

Request for Production No. 7: Any and all Documents related to or concerning the policies and practices governing the classification, housing and management of inmates at CUCF in effect from January 1, 1992, through December 31, 1998.
Request for Production No. 8: Any and all Documents related to or concerning UDOC or CUCF guidelines for assessing, classifying, and validating an inmate as a gang or severe threat group member, associate, or affiliate for the ...

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