United States District Court, D. Utah, Central Division
Waddoups District Judge.
MEMORANDUM DECISION AND ORDER
M. WARNER United States Magistrate Judge.
Judge Clark Waddoups referred this matter to Magistrate Judge
Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Petitioner Troy
Michael Kell's (“Mr. Kell”) Supplemental
Memorandum in response to the court's July 19, 2016,
Order and Mr. Kell's Motion for
Clarification of Briefing Schedule. Having reviewed the
parties' briefs and the relevant law, the court renders
the following Memorandum Decision and Order.
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. 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.
filed a partial objection to the order, which was
overruled. 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).
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.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.” On August 5, 2016, Mr. Kell filed
the briefing for UDC's Motion to Quash, Mr. Kell
requested a six-month extension of discovery. On July 19,
2016, the court denied Mr. Kell's Motion for Extension of
Time and Modification of Discovery Order. On October
28, 2016, Mr. Kell filed a Motion for Clarification of
Briefing Schedule. The case management schedule provides
that either party may file a motion for an evidentiary
hearing within 60 days of the close of
discovery. 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.
UDC's Motion to Quash
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.
UDC's Withdrawal of Objections
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. 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. 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. 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.
Mr. Kell's Failure to Argue Relevance
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.” 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”). Because Mr.
Kell does not argue the relevance of these documents, the
court GRANTS UDC's Motion to Quash with respect to these
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.
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).
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
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. 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. 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. 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.” 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
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 ...