Judge: William D. Claster, Case: 18-00983799, Date: 2022-10-21 Tentative Ruling
1. [REDACTED] Plaintiffs
People for the Ethical Operation of Prosecutors and Law Enforcement
(P.E.O.P.L.E.); Bethany Webb; Theresa Smith, and Tina Jackson's Motion to Compel
Further Responses to Plaintiffs' Second Set of Special Interrogatories to
Defendant Todd Spitzer in his Official Capacity as Orange County District
Attorney in Place of Anthony Rackauckas ROA 572
2. Plaintiffs People for the Ethical Operation of Prosecutors and Law
Enforcement (P.E.O.P.L.E.); Bethany Webb; Theresa Smith, and Tina Jackson's
Motion to Compel Further Responses to Plaintiffs' First Set of Requests for
Admission to Defendant Todd Spitzer in his Official Capacity
MOTIONS TO COMPEL
Plaintiffs have filed two motions to compel further responses from Defendant Todd Spitzer, sued in his official capacity as the Orange County District Attorney. (The Court refers to “OCDA” unless Spitzer’s personal identity is relevant.) Because the motions overlap, the Court considers them together, and rules as follows:
I. “Informant”
Several of the discovery requests at issue (all SROGs and RFAs 1 and 4) involve a dispute over the definition of the word “informant.” In their requests, Plaintiffs defined “INFORMANT” as “any person who has provided, or offered to provide, to any law enforcement or correctional personnel, information regarding any inmate, or statements made by any inmate, while that inmate was incarcerated within the Orange County jails.”
OCDA’s general objection 4 provides, in relevant part:
Responding Party objects to the definitions employed by Plaintiffs in their Interrogatories, particularly respecting the defined terms “INFORMANT” . . . . The Responding Party expressly incorporates his definitional objections and own definitions of defined terms set forth in his Supplemental Responses to Plaintiffs’ Requests for Production, Set One, dated April 7, 2021, as if set forth fully herein. Accordingly, the Responding Party will use the following definition of INFORMANT, supplied by California Penal Code Section 1127a(a), when responding to the Requests: “INFORMANT” means “a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides information about a defendant based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.”
In meet and confer discussions, Plaintiffs offered to redefine “informant” as “a person, other than a codefendant, accomplice, or coconspirator who provides or offers to provide information about a defendant based upon statements made by the defendant while both the defendant and the informant are held within the correctional institution.” This modifies OCDA’s preferred definition in two ways: (1) it removes the exclusion for percipient witnesses, and (2) it adds persons who offer to provide information (as opposed to persons who actually provide information) to the definition.
A. Waiver
Both sides argue the other has waived its arguments. The Court disagrees.
Plaintiffs contend, not without reason, that OCDA improperly incorporates general objections into its responses in violation of the Civil Discovery Act, and that OCDA compounds that violation because the general objection itself incorporates by reference objections to a completely different set of discovery. Missing from Plaintiffs’ briefing, however, is any authority holding that an objection actually asserted is waived simply because it has been asserted improperly. The Court also notes that Plaintiffs’ opening memoranda relegate the general objection issue to footnotes that make no mention of waiver, suggesting this argument may itself be waived.
OCDA contends, also not without reason, that it identically redefined “informant” in response to Plaintiffs’ earlier document requests (which resulted in considerable document production), and that Plaintiffs didn’t file a motion about the prior redefinition. (To be clear, Plaintiffs raised the issue in a prior separate statement, but from the Court’s review of the briefing on that motion to compel, the issue was never raised in the briefs.) As a result, it is asserted that Plaintiffs have waived the ability to complain about it now. But OCDA identifies no authority holding that a party must define the same word the same way in all sets of discovery. Furthermore, Plaintiffs represent in reply that their argument is limited to these motions. They do not seek to reopen the prior document production. The Court accepts that representation, and as a result finds no waiver.
B. Scope of “Informant”
As the Court understands the briefs, only two issues remain in dispute: whether percipient witnesses and persons who “offer to provide” information should be included in the definition of “informant.”
1. Percipient Witnesses
As noted above, OCDA’s definition of “informant” comes from Penal Code § 1127a(a), which defines “in-custody informant” as “a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.” This is nearly word-for-word identical to how OCDA’s Informant Policy Manual (“Manual”) defines “jailhouse informant”: “a person other than a co-defendant, percipient witness, accomplice or co-conspirator whose testimony is based upon statements made by the defendant while both the defendant and the jailhouse informant are in a custodial setting.” (Flores Decl., Ex. 7, at p. 9.) As this case concerns an alleged illegal jailhouse informant program, OCDA contends that its definition corresponds to what’s actually at issue.
Plaintiffs note that the Manual elsewhere states an informant could be “a participant in the crime or a percipient witness to the crime.” (Id., at p. 6.) They reason that if the Manual says percipient witnesses can be informants, then OCDA has no reason to object to their inclusion here. But the Manual recognizes numerous types of informants, including “citizen informants, paid informants, defendant informants, accomplice informants and/or jailhouse informants.” (Ibid.) This case concerns only jailhouse informants, and percipient witnesses are excluded from the definition of “jailhouse informant” or “in-custody informant” by both the Manual and the Penal Code.
OCDA also points out that crimes happen in jails, and Plaintiffs’ definition would turn inmates who witness those crimes into informants, even if everyone agrees those inmates are not what this case is about. Plaintiffs argue otherwise, expressing a concern about inmates who are misclassified as percipient witnesses in order to conceal that they are informants. Plaintiffs contend the limitation to “information about a defendant based upon statements made by a defendant” means real percipient witnesses will be excluded, and only misclassified percipient witnesses will be covered. OCDA, however, notes a case involving an inmate who witnessed a solicitation of murder in jail. In solicitation of murder, the statements themselves are the crime. Even a “true” percipient witness to solicitation of murder provides information based on statements made by the defendant.
Plaintiffs also identify nothing suggesting misclassification of informants as percipient witnesses is a live issue in this case. They point to paragraphs 51-52 and 80-82 of the FAC and a recent Central District of California habeas case. (Alvarez v. Montgomery (C.D.Cal. 2022) 2022 WL 868889.) But neither the cited portions of the FAC nor the Alvarez case involves misclassification of an informant as a percipient witness. Rather, they involve inmates who testified about things the defendants said while they were cellmates, but allegedly lied about altruistic motives. Under OCDA’s preferred definition of “informant,” these inmates would be informants. They do not provide a basis to include percipient witnesses in the definition of “informant.”
For these reasons, the Court agrees with OCDA’s exclusion of percipient witnesses from the definition of “informant.”
2. “Offers to Provide”
After reviewing the parties’ briefing, the Court is unsure what including “offers to provide” in the definition of “informant” would accomplish. The Court’s confusion is not helped by Plaintiffs, whose papers appear to have no explanation of the phrase’s purpose.
OCDA represents at page 13 of its briefing that if “offers to provide” means “came forward with statements from another inmate, but OCDA didn’t use that information for some reason,” then OCDA considers this person covered by its existing definition of “informant.” The offeror has “provided information about a defendant based upon statements made by the defendant” because the offer itself is information: it communicates that the defendant has made statements the offeror finds noteworthy. OCDA also says that in its prior document production, it’s included documents relating to such persons. If this is what Plaintiffs mean by “offers to provide,” the Court agrees it accomplishes nothing on its own, as these persons are already covered. All it does is introduce ambiguity.
Indeed, OCDA flags a way the term is ambiguous. “Offers to provide” could fairly be read to mean a person who doesn’t have any information now, but is willing to obtain it in the future—essentially, someone who volunteers to be an informant the next time law enforcement wants to conduct an informant operation. If this is what “offers to provide” means, then Plaintiffs’ definition of “informant” includes people who, by definition, haven’t provided any information about a defendant.
In reply, Plaintiffs seize on this, arguing that if OCDA has policies pertaining to volunteers for future informant operations, they’re entitled to that information as well. This argument gives the Court pause, because it lines up with its previously stated concerns: Plaintiffs may have filed suit based on suspicions that current practices matched past practices, and they hoped to use the discovery process to find evidence confirming their suspicions. The Court will not permit Plaintiffs to leverage their failure to clearly define “offers to provide” to get information about a hypothetical scenario OCDA only described because it is confused about what “offers to provide” means.
For these reasons, the Court agrees with OCDA’s exclusion of “offers to provide” from the definition of “informant.”
II. RFA 1 (Non-“Informant” Issues)
RFA 1 provides: “Admit that in at least one instance between January 7, 2019 and the present, YOU have failed to make all of the disclosures required under Code of Criminal Procedure 1054 et seq. at least 30 days prior to the trial, without having shown good cause as defined in [Penal Code] 1054.7.”
In addition to its general objections incorporated by reference, OCDA raises overbreadth and undue burden objections. OCDA then responds, subject to its objections: “[B]ased on a reasonable and good faith inquiry, Responding Party denies that a court has made a finding that, between January 7, 2019 and the present, any OCDA prosecutor failed to make all of the INFORMANT-related disclosures required under Penal Code Section 1054 et seq. at least 30 days prior to the trial, without having shown good cause as defined in California Penal Code Section 1054.7.”
It appears to the Court that the overbreadth and undue burden remain at issue.
A. Overbreadth: Informant-Related Disclosures
OCDA limited its response to disclosures involving jailhouse informants. Plaintiffs argue OCDA must provide a response regarding all discovery required by § 1054.7, not just the jailhouse informant issues that are the subject of this litigation.
The Court agrees with OCDA. This case isn’t about discovery compliance generally, but an alleged illegal jailhouse informant program specifically. (See P.E.O.P.L.E. v. Spitzer (2020) 53 Cal.App.5th 391, 405 [“The only issues the court here will need to determine is whether the CI program is ongoing and whether it is unlawful.”].) Suppose that in numerous cases, a prosecutor at OCDA purposefully and without cause withheld evidence that another person confessed to the crime. This would doubtless violate OCDA’s discovery obligations under Brady and § 1054.7. But how would it lead to admissible evidence that tends to prove or disprove the existence of an illegal jailhouse informant program?
Plaintiffs’ theory is that it goes to OCDA’s defenses. That is, OCDA claims in defense that Spitzer has introduced new policies and revamped OCDA’s culture to prevent a recurrence of the Dekraai issues (and other problems) present under former District Attorney Rackauckas. They argue that general discovery into § 1054.7 violations is probative of that defense because the existence of any violations affects OCDA’s credibility. The Court agrees this is theoretically probative of OCDA’s defenses, but on this record, the request appears to be a fishing expedition: asking OCDA to go through its own case files in the hopes that at least one of them has some kind of § 1054.7 violation that can be used for credibility purposes. Again, the Court is concerned that Plaintiffs may have filed suit based on suspicions and hoped to use discovery to find evidence that confirms their suspicions.
For these reasons, RFA 1 is limited to disclosures concerning jailhouse informant issues.
B. Overbreadth: Court Findings
In its response, OCDA “denie[d] that a court has made a finding that” OCDA violated § 1054.7. Plaintiffs offer several arguments on this point.
First, they claim that OCDA cannot raise an overbreadth objection on these grounds because this particular overbreadth objection was never raised. The Court agrees that OCDA doesn’t appear to have raised this issue as an objection, but its papers make clear that OCDA has always understood RFA 1 to refer only to cases where a court has made a finding of a violation. That is, OCDA argues Plaintiff is trying to broaden the definition after the fact. No matter how phrased, the Court believes OCDA has adequately asserted and preserved this argument.
As to the merits, OCDA contends a court finding is necessary because it’s a court’s job to find good cause (or here, lack thereof). Plaintiffs contend this has the burden backwards. They argue that under § 1054.7, the prosecution has a burden to make timely disclosures. If it fails to do so, it bears the burden of establishing good cause. Unless it meets that burden—unless a court finds good cause—the prosecution has violated § 1054.7. A finding of “no good cause” is unnecessary for a violation. To the contrary, any time a prosecutor fails to make a disclosure without a subsequent finding of good cause, the statute is violated.
The Court believes Plaintiffs have the better construction of the statute. Consider the hypothetical prosecutor who repeatedly conceals confessions from the real perpetrator. If the prosecutor is careful, perhaps neither the defendant nor the court will ever know of the confession. Under OCDA’s construction of § 1054.7, this prosecutor’s intentional concealment of confessions would be non-responsive to RFA 1 because no court had ever found a violation. His behavior is outside the scope of the RFA because he’s too good at breaking the law. This cannot be correct.
For these reasons, OCDA may not limit its response to cases where a court has made a finding of no good cause.
C. Undue Burden
Because OCDA cannot limit its response to cases with a finding of no good cause, RFA 1 presents a serious undue burden problem. As the Court suggested at the September 22, 2022 status conference, a proper response would require OCDA to review all of its case files to assess informant-related compliance with § 1054.7.
OCDA puts on evidence that there are likely around 200,000 such files in the responsive time period, with an average of 100 new cases per day. This would take thousands, if not tens of thousands, of person-hours, because even a single violation is enough to require an admission.
Plaintiffs argue in reply that OCDA could simply do what it did to prepare its unilaterally limited response: ask its prosecutors whether there have been any violations. This is not an accurate description of OCDA’s procedure. Its response was limited to court-determined violations of § 1054.7, with additional cross-checks against registers of actions. It stands to reason that a prosecutor would be far more likely to recall a court specifically finding that he or she violated the law than to recall the discovery-related details of countless cases over several years. The Court does not see how a prosecutor could adequately respond without reviewing his or her own voluminous past case files.
That said, Plaintiffs make clear that they are willing to limit the responsive time period to a point where OCDA’s burden is no longer undue. Based on the evidence before the Court, Plaintiffs’ offer of one year is still unduly burdensome, and shorter periods may be unduly burdensome as well. The Court questions whether a time period short enough to be non-burdensome would be long enough to satisfy Plaintiffs’ desire for a representative sample. Nevertheless, because Plaintiffs have offered to shorten the time period as needed, the parties are ordered to meet and confer on an appropriate time period. If the parties cannot reach agreement, they are to inform the Court on or before November 4, 2022.
III. RFA 2
RFA 2 provides: “Admit that YOU directly contacted a criminal defendant, Rafael Farias, at a time when Mr. Farias was represented by counsel.” OCDA incorporated its general objections, objected on relevance grounds, and refused to answer.
Context for this request is provided by a Voice of OC article linked in Plaintiffs’ opening papers. (See Gerda, High-Ranking OC Prosecutor Quits, Says DA Spitzer Jeopardized Mass Shooting Prosecution, Voice of OC (Feb. 23, 2022) < https://voiceofoc.org/2022/02/high-ranking-oc-prosecutor-quits-says-da-spitzer-jeopardized-mass-shooting-prosecution/> [as of October 19, 2022].) According to the article, Matthew Farias, a nine-year-old boy, was one of the victims of the 2021 mass shooting in an office building in Orange. His father was Rafael Farias. At some point, Spitzer reached out to speak to Rafael Farias about the shooting. At the time of the conversation, Rafael Farias was also a defendant, represented by counsel, in an unrelated pending criminal prosecution brought by OCDA. Exactly what transpired in this conversation is disputed, but according to the article, Spitzer gave a statement in which he acknowledged the conversation took place. Essentially, RFA 2 asks OCDA to admit under oath that the conversation took place.
Turning to the objections, OCDA’s objections were limited to its general objections and relevance. As a result, OCDA has waived two arguments made for the first time in its opposition: (1) that the request is designed to vex, harass, or embarrass Spitzer, and (2) that the request implicates sensitive information about a non-party. (In any event, the Court takes Plaintiffs at their word that they have no desire to learn sensitive information about Farias.)
As to relevance, the Court again agrees with OCDA that this case is about an allegedly illegal jailhouse informant policy, not other alleged misconduct. The Court again agrees with Plaintiffs that this request is at least theoretically relevant to OCDA’s defense of overhauled policies and office culture. But unlike RFA 1, the Court does not believe this request is a fishing expedition. It is based on allegations reported in the media that, per the article, Spitzer himself confirmed in broad details. This conversation may be of only tangential relevance, but it has a basis in public reporting. Furthermore, because it appears Spitzer has already acknowledged the conversation’s existence, the Court sees no reason why OCDA cannot admit the same under oath.
To be sure, OCDA may dispute the particulars of the article, and it may deny any implications that can be made from the existence of the conversation. But these issues can easily be addressed with a qualified admission and a supplemental response to Form Interrogatory 17.1. (Of course, if OCDA takes the position that the article is incorrect, and the conversation never took place, it may issue a denial under oath.)
For these reasons, the Court orders a further response to RFA 2.
MOTIONS TO SEAL
Plaintiffs move to seal portions their opening papers in support of (1) their motion to compel further responses to special interrogatories from OCDA, and (2) their motion to compel further responses to requests for admissions from OCDA. Specifically, Plaintiffs wish to permanently seal ROAs 564, 565, 566, 576, 577, and 578. Plaintiffs have filed redacted versions of these papers in the public record.
On July 9, 2021, the Court entered a stipulated protective order in this matter. (ROA 321.) All documents at issue on this motion are marked Confidential under the protective order or describe the details of items marked Confidential. (Flores Decl., ¶ 3.) For discovery motions, to which CRC 2.550 and 2.551 are inapplicable, the protective order provides that Confidential material may be filed under seal without any further sealing order required. (ROA 321, ¶ 3.)
Accordingly, pursuant to the terms of the protective order, the motion to seal is GRANTED.