1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 BRIAN C. APPLEGATE, Case No. 19-cv-05448-LB

12 Plaintiff,

DISCOVERY ORDER

13 v. Re: ECF No. 101 14 CALIFORNIA DEPARTMENT OF

CORRECTIONS & REHABILITATION,

15 Defendant. 16 17 INTRODUCTION 18 The court has an evidentiary hearing set for June 23, 2022, to resolve fact disputes about 19 whether the plaintiff Brian Applegate, who is representing himself, exhausted administrative 20 remedies for his claim that the California Department of Corrections and Rehabilitation (CDCR) 21 violated his requests for accommodation under the Americans with Disabilities Act (ADA). The 22 parties dispute (1) the sufficiency of the CDCR’s responses to discovery propounded by the 23 plaintiff’s former counsel in October 2021 and (2) the CDCR’s refusal to produce more discovery 24 that Mr. Applegate requested in March 2022. The court can decide the dispute without oral 25 argument. N.D. Cal. Civ. L. R. 7-1(b). The court generally denies Mr. Applegate’s motion to 26 compel the discovery: except for its response to subpart 1 of RFP 3, the CDCR responded 27 sufficiently to the October 2021 discovery requests, and Mr. Applegate’s March 2022 discovery 1 2021. For RFP 3, subpart 1, the court allows withholding of privileged and work-product 2 information and redactions for any privacy concerns, but it orders production of responsive 3 information by June 14, 2022. 4 STATEMENT 5 After the court denied the CDCR’s motion for summary judgment and ordered an evidentiary 6 hearing under Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), on the issue of exhaustion, the court 7 appointed pro bono counsel.1 The court set a November 19, 2021, cutoff for written discovery 8 requests.2 On October 7, 2021, Mr. Applegate’s counsel served requests for admissions and 9 production of documents.3 Counsel withdrew from the case on January 3, 2022, before the CDCR’s 10 responses to the discovery were due.4 On March 17, 2022, Mr. Applegate made additional discovery 11 requests and proposed compromises.5 On April 11, 2022, the parties conferred for over an hour and a 12 half about their discovery disputes.6 The CDCR responded to the October discovery requests on April 13 19, 2022.7 The current disputes are in Mr. Applegate’s letter brief filed on May 13, 2022, and the 14 CDCR’s opposition filed on June 3, 2022.8 The parties met and conferred for about an hour and 15 fifteen minutes on June 2, 2022, but they were unable to resolve the discovery disputes.9 16 17 ANALYSIS 18 Federal Rule of Civil Procedure 26(b)(1) limits discovery to matters that are (1) “relevant to 19 any party’s claim or defense” and (2) “proportional to the needs of the case, considering the 20 21 1 Order – ECF No. 49. Citations refer to the Electronic Case File (ECF); pinpoint citations are to the 22 ECF-generated page numbers at the top of documents. 23 2 Order – ECF No. 69 at 3. 3 Resps., Exs. A & B to Zalesny Decl. – ECF No. 106-2 at 1–13. 24 4 Order – ECF No. 78. 25 5 Letter Br. – ECF No. 101 at 8–10; Opp’n – ECF No. 106 at 4. 26 6 Opp’n – ECF No. 106, Zalesny Decl. – ECF No. 106-1 at 2 (¶ 4). 7 Resps., Exs. D & E to Zalesny Decl. – ECF No. 106-2 at 19–51. 27 8 Letter Br. – ECF No. 101; Opp’n – ECF No. 106. 1 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 2 access to relevant information, the parties’ resources, the importance of the discovery in resolving 3 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 4 benefit.” Rule 26(c)(1) authorizes courts “for good cause, [to] issue an order to protect a party or 5 person from annoyance, embarrassment, oppression, or undue burden or expense[.]” 6 7 1. October 2021 Discovery Requests 8 1.1 Requests for Admissions (RFAs) 9 Mr. Applegate moved to compel admissions to the following RFAs: 10 No. 1: Other inmates have accused Salinas Valley State Prison (SVSP) of failing to 11 process grievances. 12 No. 2: At SVSP, the process described in the Declaration of R. Mojica in support of the 13 summary-judgment motion was not always followed from August 2016 through June 2018. 14 No. 3: At SVSP, there were times when only a single person would collect and count the 15 forms submitted via the secured lock box from August 2016 through June 2018.10 16 The CDCR objected to the requests as vague and ambiguous, irrelevant to the issues for the 17 Albino hearing, and overly broad in light of the thousands of inmates at the facility during the time 18 period for the information sought. Without waiving its objections, it responded to the requests by 19 stating that it lacked sufficient personal knowledge to admit or deny each request and thus denied 20 the requests.11 In his letter brief, Mr. Applegate contended that (1) the CDCR’s response to his 21 first request is contradicted by an investigation by the Prison Law Office, (2) the response to the 22 second request is inadequate because the processes and practices described by R. Mojica are 23 different than those described in the Department Operations Manual, and (3) the response to the 24 25 26

27 10 Letter Br. – ECF No. 101 at 1–3. 1 third request is inadequate because R. Mojica’s statement can be confirmed only with evidence 2 from other prison staff regarding the chain of custody.12 3 As a practical matter, the important issues in cases generally are disputed and thus often cannot 4 be resolved by RFAs. RFAs are useful, if at all, for less important issues. Cal. Prac. Guide: Civ. P. 5 Before Trial § 11:1972 (The Rutter Guide 2022). The RFAs here are about how the CDCR might 6 have lost or failed to process Mr. Applegate’s appeals. But trying to use the RFAs to get at that 7 issue creates undue burden and generally is too vague an approach. Instead, the issue can be tested 8 best through witness testimony. The CDCR has several witnesses on its list to testify about 9 procedures for processing appeals. Mr. Applegate can call those witnesses or cross-examine them 10 about these disputed issues. For example, R. Mojica is a witness, and Mr. Applegate can examine 11 him about his declaration. Mr. Applegate also can put on evidence of his own, he can attempt to 12 authenticate that evidence through witness testimony (for example by showing CDCR witnesses 13 the documents), and he can examine the witnesses about facts relevant to his theory of the case. 14 1.2 Requests for Production (RFPs) 15 Mr. Applegate moved to compel the CDCR to respond to the following RFPs: 16 No. 1: All Forms 22s related to Mr. Applegate from September 2016 through June 2018. 17 No. 2: All communications between Appeals Coordinators Medina, Lomeli, and Mojica 18 and Mr. Applegate from September 2016 through June 2018, not including Forms 602s, 19 602-HCs or 1824s. 20 No. 3: Documents related to SVSP’s actions in response to (1) the Prison Law Office’s 21 reporting of thirty-three allegations of staff interference with appeals in May 2017 (related 22 to Armstrong class-action monitoring), (2) the plaintiff’s reporting in April 2017 of “appeal 23 insecurity in A-5” made “via Inmate Advisory Council (IAC)/Americans with Disabilities 24 Act (ADA) Subcommittee Agenda, items #1–12,” and (3) the plaintiff’s in-person verbal 25 reporting of appeals missing from the secure lock box “made into CDCR at the 11/21/17 26 IAC meeting.” 27 1 No. 4: All documents that support the CDCR’s contention that the plaintiff submitted no 2 other 602s related to the allegations in this case from September 2016 through June 2018, 3 not including any materials that are contained within the Inmate Appeals Tracking System. 4 No. 11: Documents that describe the policies and practices at SVSP regarding the handling 5 of inmates’ grievances from the time of their initial submissions until they are logged in 6 the Inmate Appeals Tracking System from September 2016 to June 2018.13 7 The CDCR objected to the requests as vague and ambiguous and irrelevant and overbroad 8 regarding the exhaustion at issue in the Albino hearing. Without waiving its objections, it responded 9 to RFPs 1, 2, and subparts 2 and 3 of RFP 3 by saying that was searching for responsive documents. 10 For subpart 1 of RFP 3, the CDCR refused to respond on several grounds, including the grounds 11 that the RFP could encompass information protected from disclosure by attorney-client privilege 12 and the work-product doctrine and also could infringe on the privacy rights of other inmates and 13 staff not related to the case. For RFP 4, it said that the discovery was premature and would be 14 identified at a later date before the evidentiary hearing, and it also said that it was searching for 15 responsive information. For RFP 11, it said that it would produce responsive documents and 16 supplement its responses if its continuing search resulted in more responsive documents.14 17 For all disputes except for subpart 1 of RFP 3, there is no dispute. The CDCR said that it 18 would search for and produce responsive documents, and it confirmed that it would supplement its 19 productions, as it must under Federal Rule of Civil Procedure 26(e). For RFP 4, the discovery is 20 no longer premature. Mr. Applegate contends that the prison staff should have preserved the 21 documents and suggests that they purged documents improperly.15 Those are fair points to make 22 through his examination of witnesses. But the CDCR can produce only the documents that it has. 23 The court trusts that the CDCR understands its discovery obligations and has supplemented its 24 responses under Rule 26(e). For clarity, the court deems the discovery relevant and 25

26 13 Letter Br. – ECF No. 101 at 3–5 (challenging only the five RFPS and not RFPs 5 through 10). He withdrew RFP 12. Zalesny Decl. – ECF No. 106-1 at 2 (¶ 4); Letter, Ex. C to id. at 16. 27 14 Resp., Ex. E to Zalesny Decl. – ECF No. 106-2 at 26–30. 1 nonburdensome and would order its production if the CDCR had not represented that it has 2 already produced the documents. 3 As to subpart 1 of RFP 3, the CDCR can withhold any privileged or work-product information, 4 and it can redact any productions to address privacy concerns. But on its face, the RFP is relevant 5 and not burdensome. Moreover, the redactions do not interfere with Mr. Applegate’s ability to 6 show other instances of alleged interference with inmate appeals. The CDCR must produce the 7 information forthwith to Mr. Applegate. The court suggests that the production must be delivered 8 to him directly no later than June 14, 2022, so that he can raise any concerns at the prehearing 9 conference on June 16, 2022. 10 11 2. 2022 Discovery Requests 12 Mr. Applegate sought additional discovery from the CDCR on March 17, 2022.16 The discovery 13 is untimely because the deadline to serve written discovery requests was November 19, 2021. To the 14 extent that his 2022 requests demand prison manuals about the processing of appeals, that request is 15 subsumed in his earlier RFP 11. The CDCR responded to the RFP with the relevant portions of the 16 relevant operations manuals. To the extent that the March 2022 request clarifies the earlier request, 17 the CDCR may not rely on the timing of the request to deny supplementing its response to RFP 11. 18 19 3. Sanctions 20 Mr. Applegate seeks sanctions for the CDCR’s failure to respond to his requests.17 The court 21 denies sanctions. 22 When a district court decides to impose sanctions or discipline, it must clearly delineate its 23 authority to ensure that the attendant requirements are met. Weissman v. Quail Lodge, Inc., 179 F.3d 24 1194, 1200 (9th Cir. 1999) (“For a sanction to be validly imposed, the conduct must be sanctionable 25 under the authority relied on.”). “The imposition of sanctions requires a statement of reasons for the 26

27 16 Id. at 10. 1 district court’s action, including the need for the particular sanctions imposed.” Couveau v. Am. 2 || Airlines, Inc.,218 F.3d 1078, 1081 (9th Cir. 2000) (“If the district court ultimately imposes 3 sanctions, detailed findings are necessary to identify the objectionable conduct and provide for 4 || meaningful appellate review.”). 5 Because there is no relevant discovery order, Fed. R. Civ. P. 37(b)(2)(A), any sanctions are 6 || under the court’s inherent authority. Courts are invested with inherent powers that are “governed 7 || not by rule or statute but by the control necessarily vested in courts to manage their own affairs so 8 as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S 9 || 32, 43 (1991) (cleaned up). The Ninth Circuit has held that sanctions are available under the court’: 10 || inherent power if preceded by a finding of “bad faith or conduct tantamount to bad faith,” such as 11 recklessness “combined with an additional factor such as frivolousness, harassment, or an □□□□□□□□ 12 || purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). “A federal trial court has the inherent E 13 discretionary power to make appropriate evidentiary rulings in response to the destruction or 14 || spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). 3 15 Here, the record does not support the imposition of sanctions: (1) the RFAs — while fine to 16 || propound — ultimately were not a good vehicle for narrowing the issues in dispute; (2) the CDCR i 17 || objected to the RFPS but generally responded to them; and (3) the privilege and privacy issues Z 18 about the response to RFP 3, subpart 1, were appropriately raised with the court. 19 20 CONCLUSION 21 The court denies Mr. Applegate’s motion to compel except that it orders the CDCR to respond 22 || to RFP 3, subpart 1, by Tuesday, June 14, 2022, by delivering the discovery to Mr. Applegate 23 directly (perhaps through SVSP’s litigation coordinator), along with a copy of this order. The 24 || court denies the motion for sanctions. 25 This resolves ECF No. 101. 26 IT IS SO ORDERED. Li BC 27 Dated: June 9, 2022

LAUREL BEELER

28 United States Magistrate Judge