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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

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9 TRENELL MONSON, Case No. 1:17-cv-00395-EPG (PC)

10 Plaintiff,

ORDER RE: DOCUMENTS

11 v. WITHHELD ON THE BASIS OF THE

OFFICIAL INFORMATION

12 PRIVILEGE

R. MELKONIAN,

13 Defendant. 14 15 Trenell Monson (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in 16 this civil rights action. This case now proceeds on Plaintiff’s Second Amended Complaint 17 (ECF No. 10) against defendant R. Melkonian on Plaintiff’s claim for failure to protect in 18 violation of the Fourteenth Amendment (ECF Nos. 12, 24, & 39). Plaintiff’s claim stems from 19 the allegation that Defendant Melkonian knew the danger of leaving a door open to a general 20 population module while escorting inmates from segregated housing, but failed to check the 21 doors as required. This led to general population inmates assaulting Plaintiff and another 22 inmate. 23 Before the Court are documents submitted for in camera review by third party Fresno 24 County Sheriff’s Office (“the County”), in response to a third party subpoena by Plaintiff. The 25 County objected to production of internal confidential video and memoranda on the basis of the 26 official information privilege, among other objections. The County also objected to the 27 production of photographs of inmate Walker. Pursuant to the Court’s order, the County 28 1 submitted the withheld documents and video footage for in camera review. The County also 2 filed a memorandum supporting the official information privilege and the Declaration of 3 Lieutenant Michael Porter, employed by Fresno County Sheriff-Coroner’s Office, Jail 4 Administration Programs Bureau. (ECF No. 73). 5 The Court has reviewed the submitted information and applicable law and overrules the 6 County’s objection in part. 7 The “common law governmental privilege (encompassing and referred to sometimes as 8 the official or state secret privilege) . . . is only a qualified privilege, contingent upon the 9 competing interests of the requesting litigant and subject to disclosure. . . .” Kerr v. U.S. Dist. 10 Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The 11 Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of 12 interests in ruling on the government’s claim of the official information privilege. See, e.g., 13 Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required 14 by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of 15 dealing with claims of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of 16 Cal., 426 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th 17 Cir. 1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 18 24, 1991) (“Government personnel files are considered official information. To determine 19 whether the information sought is privileged, courts must weigh the potential benefits of 20 disclosure against the potential disadvantages. If the latter is greater, the privilege bars 21 discovery.”) (internal citations omitted). 22 The Court holds overrules the County’s official information privilege as to the 23 following documents, with the noted limitations. While the Court appreciates certain security 24 risks inherent in disclosing this information, it believes that the relevance of the information is 25 high. The Court has also incorporated all proposed redactions and otherwise limited disclosure 26 to minimize the potential disadvantages to safety and security. 27 - Video footage of the incident, labelled video 1, from start until 1:23:35. The faces 28 of all inmates other than Plaintiff may be redacted/blurred. The security tower and 1 entrance may be redacted, as proposed by counsel for the County. The County may 2 work with Plaintiffs institution of confinement to prevent Plaintiff from 3 maintaining a copy of the video, so long as he may see it soon after production, as 4 needed in preparation for summary judgment and trial, and may submit it to the 5 Court as needed for summary judgment and trial. 6 - Video footage of the general population pod, labelled video 2, from start until 7 1:25:43. The faces of all inmates may be redacted/blurred. The County may work 8 with Plaintiffs institution of confinement to prevent Plaintiff from maintaining a 9 copy of the video, so long as he may see it soon after production, as needed in 10 preparation for summary judgment and trial, and may submit it to the Court as 11 needed for summary judgment and trial. 12 - Report 1, with all proposed redactions as submitted by counsel for the County. 13 - Report 2, pages 1 and 2 only, with all proposed redactions as submitted by counsel 14 for the County. 15 - Report 3, with all proposed redactions as submitted by counsel for the County. 16 - Summary, pages | and 30 only, with all proposed redactions as submitted by 17 counsel for the County. 18 The remainder of the documents submitted may be withheld under the official 19 |]information privilege because the concerns regarding safety and security of the Jail outweigh 20 relevance of the material. 21 For the foregoing reasons, it is ordered that the materials identified above be provided 22 Plaintiff in the manner described no later than thirty days from the date of service of this 23 || order. 24

IT IS SO ORDERED.

26 Dated: _ November 19, 2019 [Je hey 27 UNITED STATES MAGISTRATE JUDGE 28

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