Salas v. Forkner

Background

Rafael Salas, an inmate at Kern Valley State Prison, brought this action under 42 U.S.C. § 1983 against officials at Pelican Bay State Prison, where he had previously been housed. As relevant to this discovery dispute, Salas alleged that Defendant Barneburg and another defendant searched his cell and planted a blade there in retaliation for Salas’s grievances against other defendants.

In an earlier summary-judgment ruling, Judge Tigar found a genuine factual dispute about whether Barneburg ordered the cell search after receiving confidential information that Salas possessed a blade, or instead arranged the search and planted the blade to retaliate against Salas’s protected grievance and litigation activity. The earlier ruling also found a factual dispute about whether Barneburg falsely stated in a confidential memorandum that he had received that information.

Discovery Request

Salas moved to compel an unredacted version of Barneburg’s September 12, 2014 confidential memorandum. His lawyers wanted to learn the confidential informant’s identity so they could depose the informant. They proposed that the memorandum be produced to counsel under a protective order and marked for attorneys’ eyes only, meaning Salas himself would not be told the informant’s identity.

The defendants opposed disclosure, including disclosure under a protective order. They relied on a declaration from Z. Basnett describing the risks to the informant and the potential effect of disclosure on prison officials’ ability to cultivate relationships with confidential sources.

Court’s Analysis

The parties agreed that the federal official-information privilege and informant’s privilege governed the dispute. The official-information privilege generally favors disclosure but requires the court to examine a government showing of harm. The informant’s privilege requires balancing the public interest in protecting the flow of information against the party’s need to prepare the case; the party seeking disclosure bears the burden of showing that its need outweighs the government’s interest in nondisclosure.

Judge Hixson concluded that producing the unredacted memorandum would create some risk that the informant’s identity could be accidentally disclosed in a filing or trial exhibit. The court found that the risk could be deadly if members or sympathizers of the informant’s former security-threat group learned his identity. The court also concluded that producing the memorandum would not benefit Salas unless the informant were questioned.

The court found that a deposition or interview would likely expose the informant to substantial danger. Other inmates might notice the deposition, rumors could spread, and the informant could face pressure to testify in a way that protected his life. The court also considered the possibility of retaliation by prison officials and the broader chilling effect that disclosure could have on the use of confidential informants in prisons.

The court determined that the informant’s testimony was not necessary for either side to present its case. Salas could rely on his own testimony and the testimony of inmates Hernandez and Canon, while Barneburg could rely on his own testimony.

Ruling

Judge Thomas S. Hixson held that the balance of Salas’s need for disclosure against the potential harms favored nondisclosure. The court therefore denied Salas’s motion to compel. This order addressed the discovery request and did not decide the underlying retaliation claim.