1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAFAEL SALAS, Case No. 17-cv-00663-JST (TSH)

8 Plaintiff, DISCOVERY ORDER 9 v. Re: Dkt. No. 78 10 FORKNER, 11 Defendants.

12 13 Plaintiff Rafael Salas, an inmate at Kern Valley State Prison, filed this action pursuant to 14

against prison officials at Pelican Bay State Prison, where he was previously 15 housed. As relevant here, he asserts a First Amendment retaliation claim against Defendant 16 Barneburg, alleging that he and a co-Defendant searched Salas’s cell and planted a blade in 17 retaliation for his grievances against other Defendants. ECF No. 51 at 20 (summary judgment 18 order). On summary judgment, Judge Tigar found “a triable issue of material fact as to whether 19 Defendant Barneburg ordered the search of Plaintiff’s cell and planted a blade in Plaintiff’s cell 20 because of Plaintiff’s litigation and grievance activity.”

. Specifically, Judge Tigar 21 found that:

22 It is undisputed that, in 2013 and 2014, Defendant Barneburg reviewed and responded to Plaintiff’s grievances alleging retaliation 23 by PBSP officers. Defendant Barneburg alleges that he had Plaintiff’s cell searched on September 12, 2014 because he received information 24 earlier that day indicating that there was a razor blade hidden in inmate Canon’s cell and that Plaintiff and his cellmate were in 25 possession of a razor blade as well. In support of this allegation, Defendant Barneburg provides a confidential memorandum dated 26 September 12, 2014, detailing how the confidential information was received and the specifics of the confidential information received. 27 The confidential memorandum also discusses the cell searches, memorandum. He denies possessing a knife and describes witnessing 1 Defendant Barneburg enter his cell with a blade and exiting without the blade. He provides affidavits from inmate Hernandez who also 2 witnessed Defendant Barneburg enter Plaintiff’s cell with a blade and exiting without the blade, and from inmate Canon who witnessed 3 Defendant Barneburg exit the officer’s station with the blade, head towards the general direction of Plaintiff’s cell, and then return 4 without the blade. Viewing the evidence in the light most favorable to Plaintiff, there is a triable issue of material fact as to (1) whether 5 Defendant Barneburg initiated the search of Plaintiff’s cell because he received confidential information that Plaintiff and his cellmate 6 possessed a blade, or because he intended to plant the blade in Plaintiff’s cell in retaliation for Plaintiff’s protected conduct, and as 7 to (2) whether Defendant Barneburg falsely stated in the confidential memorandum that he received information that Plaintiff and his 8 cellmate possessed a blade. Defendant Barneburg is therefore not entitled to summary judgment with respect to the cell search unless 9 he is entitled to qualified immunity. 10

. 11 Plaintiff now moves to compel an unredacted version of Barneburg’s September 12, 2014 12 confidential memorandum that was discussed in the summary judgment order (ECF No. 25-25, 13 discussed at ECF No. 25-24 ¶7). Salas’s counsel want to know the identity of the confidential 14 informant so they can depose him. They observe that Judge Tigar found a triable question of 15 material fact as to whether Barneburg learned from the confidential informant that Salas had a 16 weapon in his cell or whether Barneburg lied about that, and they figure the only other person who 17 has knowledge about that is the confidential informant. They propose that the Court order the 18 unredacted report produced to them under a protective order and subject to an “attorneys’ eyes 19 only” designation, understanding that they cannot tell their client the informant’s identity. 20 Defendants oppose any disclosure of the informant’s identity, even pursuant to a protective order. 21 They argue it would put the informant at tremendous risk and would jeopardize prison officials’ 22 ability to cultivate relationships with confidential informants. Defendants have submitted the 23 Declaration of Z. Basnett, ECF No. 87, which details those risks. 24 The parties agree that the federal official information and informant privileges govern the 25 Court’s inquiry. ECF No. 78. The official information privilege “is moderately pre-weighted in 26 favor of disclosure,” Kelly v. City of San Jose,

(N.D. Cal. 1987). “If the 27 government makes the equivalent of a prima facie showing of harm, courts must conduct a 1 it.”

. Similarly, “[t]he decision whether or not to disclose the identity of a confidential 2 informant calls for balancing the public interest in protecting the flow of information against the 3 individual’s right to prepare his [case].” Percelle v. Pearson,

, at *1 (N.D. Cal. 4 Sept. 8, 2014) (citation and quotation marks omitted). “For the informant’s privilege to give way, 5 the party seeking disclosure has the burden of showing that its need for the information outweighs 6 the government’s interest in nondisclosure.”

(citation and quotation marks omitted). 7 This is a tough discovery dispute because at first blush the conflicting interests seem so 8 stark. Salas says he absolutely needs this information so he can prove his claim, and Defendants 9 say that providing this information puts the informant’s life at risk. 10 Maybe it helps to break it down into two pieces. First, there is the confidential 11 memorandum that contains the name of the informant. Ordering the Defendants to produce this to 12 Salas’s counsel creates some risk of disclosure of the informant’s identity. Not much risk, just 13 some. The risk is that counsel might erroneously include the unredacted document in a filing or 14 otherwise inadvertently disclose it, or that the unredacted document might get admitted as a trial 15 exhibit. These errors don’t happen often, but they happen sometimes. If that error were to 16 happen, and if someone (whether incarcerated or not) in the informant’s former Security Threat 17 Group (“STG”) learned his identity, the result could be deadly for the informant. See Basnett 18 Decl., ECF No. 87, ¶¶ 5-31; see also Ashker v. Cate,

, at *3 (N.D. Cal. July 12, 19 2013) (ordering redaction of names of confidential informants and debriefers and explaining that 20 “[b]y this order, the court in no way suggests that Plaintiffs’ counsel would reveal the identity of 21 these individuals to their clients. The court only recognizes that accidental disclosures can happen 22 and that the identity of these persons must be afforded the greatest protection.”). The thing is, 23 even if the Court were willing to take on this small risk of a terrible thing happening, just 24 producing the unredacted memorandum doesn’t seem to do Salas any good. The entire 25 justification for learning the informant’s identity is to depose him. So, producing the unredacted 26 memorandum is not worthwhile in and of itself. It’s only worth doing if the informant should be 27 deposed. 1 explanation that the informant would be in significant danger if any member of his former STG 2 learned that he was the informant, that the STG’s members and sympathizers are distributed 3 widely throughout CDCR’s prisons and are also outside the prisons, and that the informant is still 4 in CDCR’s custody and will be for at least 15 more years. A deposition of a prison inmate is 5 highly likely to be noticed by other inmates. They will want to know what happened, will ask 6 questions, may be suspicious, and might start rumors. If the informant is deposed within the 7 prison, it seems unlikely that could be kept confidential from the other inmates; and if he were 8 released for the deposition, that would be even more visible to others. The deposition would put a 9 spotlight on the informant. If he doesn’t have a pending lawsuit of his own against the prison 10 guards, people will realize it’s about someone else’s case. And they may begin to wonder whose 11 side he was on.1 12 The Defendants are also right that this deposition could chill the ability to work with 13 confidential informants within the prison. Certainly, this informant would likely be alarmed to 14 learn that information he provided in confidence – information that could get him killed if others 15 learned he provided it – was turned over in litigation and now he’s being deposed about it. 16 There’s no way he would provide information to prison guards again. And if the worst happened 17 and other inmates learned the informant was deposed about information he provided about the 18 STG in a debriefing, this story would become a legendary cautionary tale in California’s prisons, 19 spreading fear and chilling other attempts to work with informants. 20 We also have to be realistic about the value of this deposition. Testimony is at its most 21 useful when the witness is unbiased. Many witnesses have some bias, however, because they are 22 the litigants or are in some manner affiliated with one side or the other. But sometimes a witness 23 has so much personally at stake that you really have to wonder what value his testimony has. In 24

25 1 During oral argument, Salas’s counsel suggested they might interview the informant rather than depose him. The Court views this suggestion with skepticism because Plaintiff’s counsel’s 26 interview notes would be inadmissible at trial. But even if we play along and imagine that the Defendants would stipulate that something short of a formal deposition transcript could be 27 admissible at trial, any of the plausible alternatives (such as a recorded interview) would 1 this case, the informant would have a lot at stake. First, he would have to consider whether his 2 testimony could cause him to be murdered by the STG or its sympathizers, which might lead him 3 to deny that he provided Barneburg with any information. The Basnett declaration persuasively 4 establishes that any testimony by the informant that he did indeed tell Barneburg that Salas had a 5 weapon in his cell could get him killed by STG members or sympathizers. Presumably the 6 informant understands this as well. During the deposition, his testimony would be recorded and 7 possibly there would be a video of him testifying. The informant would know that the transcript 8 would be in the hands of multiple people with conflicting interests (unlike the confidential 9 memorandum Barneburg wrote) to be used in some manner in a lawsuit, so it would probably end 10 up being submitted to the Court. And, of course, his testimony would end all deniability because 11 these words would be coming out of his mouth. It would only be natural under these 12 circumstances for the informant to be terrified. All the assurances in the world about how there is 13 a protective order that governs the use of his testimony could hardly be reassuring. What if 14 someone makes a mistake? What if someone doesn’t comply with the protective order? Can he 15 really be sure his videoed deposition won’t get uploaded to YouTube tomorrow, and then 16 (depending on what his testimony is) he’s a dead man? 17 Interestingly, the informant also faces another pressure. Having abandoned his STG (if we 18 accept that as true), he now depends for his life on the prison guards not revealing that he is an 19 informant. He also, more generally, lives under the rule of prison guards, so has to fear possible 20 retaliation by prison officials if he does something to anger them. What happens to him if he 21 testifies in favor of Salas, calling Barneburg a liar? If the informant knows that’s actually the 22 truth, then he also knows that Barneburg is a retaliatory kind of guy who seeks revenge on inmates 23 who get him in trouble – yikes! And if the informant testifies in Salas’s favor knowing it is all a 24 lie, the informant would be throwing Barneburg under the bus, wrongly calling him a liar – not a 25 way to get prison guards to like you. 26 Perhaps the informant has unflinching moral courage and will simply tell the truth, without 27 fear that he will be murdered by his former STG if he testifies one way or retaliated against by 1 also acknowledge the very realistic possibility that if the Court subjects the informant to this life- 2 || threatening deposition (or interview, see n.1), he will just say whatever he thinks will most likely 3 keep him alive. And so, perhaps the interests that seemed so conflicting as an initial matter really 4 || don’t conflict at all. The official information and informant privileges are often described as 5 weighing the need for truth against other values. Kelly,

. But maybe we 6 || aren’t trading the truth for anything because truth would not have been the driving factor behind 7 || the informant’s testimony anyway — rather, self-preservation would have been. 8 We should remember that this is not a criminal case where the disclosure of the identity of 9 || aconfidential source is inevitable at trial simply as part of the government’s burden to prove its 10 case. See, e.g., United States v. Reyes,

(N.D. Cal. Feb. 10, 2016) (dispute was 11 about how far in advance of trial the confidential source’s identity had to be revealed). Trial does 12 || not require the informant’s testimony, for either side. Salas does not need the informant’s 13 testimony to prove his retaliation claim against Barneburg. He can use his, Hernandez’s and 14 || Canon’s testimony, as he did on summary judgment. And for his part, Barneburg can use his own 15 testimony. Thus, we are not faced with the situation where the lack of the informant’s testimony 16 || cuts off the ability of one side or the other to prove its case.” 3 17 Accordingly, balancing the need for disclosure against the potential harms it may cause, as S 18 || both of these qualified privileges require, the Court finds that the balance tips against disclosure, 19 || and Salas’s motion to compel is DENIED. 20 IT IS SO ORDERED. 21 22 Dated: May 15, 2020 23 7 LU \ - THOMAS S. HIXSON 24 United States Magistrate Judge 25 26 ? Cordoba v. Pulido,

(N.D. Cal., Sept. 21, 2016) is inapplicable. In that case, 07 “Defendant [did] not proffer[] any reason specific to Plaintiff or this case why the disclosure of the witnesses’ identity pose any risk or would otherwise undermine the public interest in effective law 28 enforcement.” Jd. at *3. Here, the Basnett declaration provides that information.