Kerr v. U.S. Dist. Court for Northern Dist. of California

Decision Date17 January 1975
Docket NumberNo. 74--2206,74--2206
Citation511 F.2d 192
PartiesHenry W. KERR et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent; John VAN GELDERN et al., Real Parties in Interest.
CourtU.S. Court of Appeals — Ninth Circuit

Karl S. Mayer, Deputy Atty. Gen. (argued), San Francisco, Cal., for petitioners.

B. E. Bergesen, III (argued), Youth Law Center, San Francisco, Cal., for real parties in interest.

James L. Browning, Jr., U.S. Atty., San Francisco, Cal., for respondent.

Before HAMLEY, MERRILL and DUNIWAY, Circuit Judges.


HAMLEY, Circuit Judge:

Petitioners seek from this court a writ of mandamus or prohibition under 28 U.S.C. § 1651, vacating an order of respondent district court which granted a motion of the real parties in interest requiring petitioners to produce various documents by way of discovery under Rules 34 and 37 of the Federal Rules of Civil Procedure. We deny the petition.

The real parties in interest, who seek the documents, are seven California state prisoners who have joined as plaintiffs in a civil rights action against petitioners in the respondent district court. 1 Plaintiffs in that suit assert district court jurisdiction under 28 U.S.C. § 1343, 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. §§ 2201 and 2202. Plaintiffs brought the action on behalf of themselves and of a class, divided into several subclasses, consisting of all others similarly situated. 2

Petitioners in this mandamus proceeding are the defendants in the civil rights action described above. They constitute the members of the California Adult Authority, two state administrative officers, their agents, employees and successors in interest, as described in the caption of the complaint.

Plaintiffs in the civil rights action seek both declaratory and injunctive relief. They request a declaratory judgment that the acts of the defendants pertaining to the revocation, rescission or suspension of parole, the fixing or refixing of sentences, and the imposition of sanctions for alleged infractions of rules, as described in numerous paragraphs of the complaint, contravene the rights of the plaintiffs and their class under the Fifth, Sixth and Eighth Amendments and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.

The injunctive relief plaintiffs seek is an order requiring defendants and their agents to accord plaintiffs and their class certain specified procedural rights with regard to all proceedings for the revocation, suspension or rescinding of parole, the fixing or refusing to fix the terms of sentences, and the imposing of serious disciplinary sanctions. The rights sought pertain to giving notice of such proceedings, providing an opportunity to be heard, to present witnesses, and to cross-examine witnesses; according the right to be represented by counsel; providing the right to be heard by an unbiased panel or official and the right to challenge any panel or official for cause; and providing a verbatim transcript of any such hearing and a written statement of the reason for the action taken and the evidence relied on.

During the course of discovery in the civil rights action, plaintiffs served upon petitioners a set of interrogatories under Fed.R.Civ.P. 33 and a request for production of documents under Fed.R.Civ.P. 34. Petitioners made objections to the requests for documents and to certain interrogatories. As to the requested documents, petitioners also argued that an in camera inspection was necessary in order to determine relevancy and evaluate their claimed privileges. Plaintiffs thereupon moved under Fed.R.Civ.P. 37 to compel discovery. The district court referred the motion to a United States magistrate for findings and recommendations.

Following a hearing, the magistrate recommended that all requests for production of documents be granted, that some but not all of the interrogatories be answered, and that costs in the amount of $500 be levied against petitioners under Fed.R.Civ.P. 37(a)(4). Protective orders concerning certain of the document requests were also suggested. 3

Petitioners sought a review by the district court of the magistrate's findings and recommendations, complaining primarily about the granting of the requests for the production of documents. After such a review, the district court, with reference to the documents here in issue, followed the magistrate's recommendations, including denial of the request for in camera inspection. However, the district court modified the recommended protective order by being more restrictive of the persons to whom the documents in request number seven could be revealed. 4 Subsequently, the district court refused to stay the discovery order pending the disposition of this petition.

Being dissatisfied with the district court's order under Fed.R.Civ.P. 37, petitioners instituted this mandamus or prohibition proceeding and requested a stay pending its disposition. The petitioners contend that it was improper for the district court to allow discovery of the documents requested under Fed.R.Civ.P. 34, specifically those sought in requests numbers 7, 14, 15, 18, 20, 21 and 22 of the plaintiffs' request for production of documents. 5 This court stayed the district court's order on September 20, 1974, at which time it also designated this petition for oral argument.

Preliminarily, it is necessary to examine the nature of the vehicle which brings the district court's order before this court for review. This is a petition for mandamus or prohibition pursuant to the All Writs Act, 28 U.S.C. § 1651. Mandamus is an extraordinary remedy. It is appropriately exercised where the district court has exceeded its jurisdiction, or has improperly failed to exercise jurisdiction, or has taken action amounting to an 'usurpation of power.' Will v. United States, 389 U.S. 90, 95--96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). This court set out its standard for granting mandamus in Hartley Pen Co. v. United States District Court, etc., 287 F.2d 324, 328 (9th Cir. 1961):

'In our view the remedy is available in an ordinary case within our jurisdiction if ordinary remedies are inadequate and there are present exceptional and extraordinary circumstances which require the issuance of an extraordinary writ to prevent a grave miscarriage of justice. . . .' 6

From an examination of Hartley, three factors are evident which determine the appropriateness of granting mandamus: the degree to which the district court's actions can be legally questioned, the damage to petitioner (not correctable on appeal), and the ability to correct the district court's actions by appeal. See Heathman v. United States District Court, 503 F.2d 1032 (9th Cir. 1974); Belfer v. Pence, 435 F.2d 121 (9th Cir. 1970).

Petitioners first direct their attention to the documents described in request number seven. See note 5, supra. These documents consist of the personnel files maintained by petitioners pertaining to each member of the Adult Authority, each hearing representative, and the Executive Officer of the Adult Authority. On the merits of the district court order, petitioners argue that the contents of these personnel files have no relevance to the subject matter of the civil rights action, and for this reason alone, the district court discovery order should be vacated with regard to request number seven.

One of the plaintiffs' allegations in their civil rights complaint is that members and executive personnel of the Adult Authority have 'no expertise in arriving at fair decisions' because of their narrow partisan backgrounds, their bias against prisoners, their inexperience, and their failure to reflect a representative cross section of the population of California. As indicated by the earlier review of the relief sought in the civil rights suit, plaintiffs do not attack the qualifications of petitioners with an expectation of obtaining a judicial determination that an Adult Authority so constituted cannot accord due process to prisoners who come before them. Instead, they expect that, by proving such an allegation, they will demonstrate the need of imposing stringent procedural requirements governing the functioning of the Adult Authority.

Since this would appear to be a proper line of attack for plaintiffs, the district court's holding of the personnel files relevant for discovery purposes is not so questionable as to invoke mandamus. For the question of relevancy 'is to be more loosely construed at the discovery stage than at the trial.' 8 Wright & Miller, Federal Practice and Procedure, § 2008 at 41 (1970). Thus under Fed.R.Civ.P. 26(b)(1), it is no ground for objection that information sought in pretrial discovery would not be admissible at trial, "if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.' . . .' Olympic Refining Company v. Carter,332 F.2d 260, 266 (9th Cir. 1964). In addition to discovering information pertaining to a party's case in chief, it is entirely proper to obtain information for other purposes such as cross-examination of adverse witnesses. See United States v. Meyer, 398 F.2d 66, 72 (9th Cir. 1968).

Because the issue of relevancy in discovery matters is subject to such a broad standard, a district court's decision will rarely be overturned by a petition for mandamus. 7 Heathman v. United States District Court, 503 F.2d at 1035. Cf. Hartley Pen Co. v. United States District Court, 287 F.2d at 328--332.

Petitioners further argue, however, that established principles of California law and federal law create an absolute or qualified privilege for the personnel files covered by request number seven and all documents sought under requests numbers fourteen, fifteen, eighteen, twenty, twenty-one...

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