The three-judge federal panel that was convened to consider reducing California’s prison population, so as to remedy constitutionally inadequate medical care and mental health care, has granted a motion to compel filed by the prisoner-plaintiffs. The court compelled the California Department of Corrections and Rehabilitation (CDCR) to produce documents that had been withheld due to various claims of “privilege.” The documents relate to what (if anything) California is doing to address the CDCR’s overcrowding problem before the federal court steps in and simply takes over.
The plaintiffs had requested the documents on September 5, 2007 in preparation for a January 2008 trial date, which was later postponed. CDCR waffled, and by early November 2007 had provided very few of the documents. Their reasons for non-compliance were grounded in obfuscation, legally parsed into five categories: 1) adequate “privilege logs,” 2) deliberative process privilege, 3) attorney-client privilege, 4) attorney work-product, and 5) privacy issues.
The court examined each of these claims. As to the adequacy of the “privilege logs” (lists of requested documents that were refused, along with a legally adequate reason for denying production of those records), the court found CDCR’s “reasons” to be boilerplate and not grounded in factual assertions. Indeed, it found the asserted reasons were “frivolous.”
“Deliberative process privilege” protects agencies from being prematurely forced to divulge advisory opinions and early planning regarding the formulation of government policy. CDCR proffered affidavits asserting that such protection from disclosure was needed, but the court found the affidavits inadequate. In particular, the court observed that none of the declarants had averred they had personally reviewed any of the documents for which they had claimed this privilege.
Attorney-client privilege protects what a client tells a lawyer. Since no such specific communications were identified, none qualified for protection. Further, as to attorney work-product privilege, while the court agreed that “official information” could be protected, it found the privilege claimed by the defendants to be a blanket assertion lacking in details, and thus ordered production of the documents for in camera review.
Finally, the court agreed that the documents produced should not reveal personal private data including social security numbers, prisoner ID numbers, telephone numbers or e-mail addresses.
In summary, the court granted the plaintiffs’ motion to compel production of all the requested documents, subject to court review of designated sensitive material and redaction of privacy information. See: Coleman v. Schwarzenegger, U.S.D.C. (E.D. Cal.), Case No. 2:90-cv-00520-LKK-JFM. (Order, December 6, 2007).
Despite the clear directive of the court, the state defendants apparently continued to frustrate discovery requests. Additional motions to compel were filed by the plaintiffs on April 18, July 31 and August 12, 2008, requesting production of an unredacted report from the Office of the Inspector General, production of data used to create a “Risk Assessment Instrument” for evaluating the risk of releasing prisoners, and production of non-privileged documents that had been improperly withheld, respectively.

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