- 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSHUA BLAND, Case No. 1:20-cv-00478-DAD-EPG (PC) 10 Plaintiff, ORDER DIRECTING DEFENDANTS TO 11 FILE NOTICE INDICATING WHETHER v. THEY INTEND TO CLAIM THAT THE USE 12 OF FORCE CRITIQUE FOUND THE FORCE ROBERT RODRIGUEZ, et al., TO BE WITHIN POLICY 13 Defendants. (ECF No. 57) 14 15 16 Joshua Bland (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. 18 On July 26, 2021, Defendants filed a brief regarding documents submitted for in 19 camera review. (ECF No. 62-1). Defendants argue that “[t]he Court should find that the use of 20 force critique (UFC) documents for incident log number KVSP-FDY-17-11-0711 are protected 21 from disclosure by the official information privilege.” (Id.). However, Defendants also 22 mention this document in their scheduling conference statement. They state that “[t]he use of 23 force was also critiqued and found to be within CDCR policy.” 24 A party may not use a privilege as both a sword and a shield. See, e.g., Rock River 25 Commc’ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 353 (9th Cir. 2014) (“[a] party 26 who affirmatively places its attorney-client communications at issue in a litigation implicitly 27 waives the privilege. The attorney client privilege may not be used both as a sword and 28 shield.”) (citation and internal quotation marks omitted); Oracle Am., Inc. v. Innovative Tech. een eee EE IIE IIE IIE IIE EIEIO ESE 1 || Distributors, LLC, 2011 WL 2559825, at *2 (N.D. Cal. June 28, 2011) (“If Oracle wants the 2 || Court to consider the documents it considers privileged in connection with the disqualification 3 || motion, then Oracle cannot, at the same time, deny ITD access to the same materials. 4 || Otherwise, Oracle would obtain the improper advantage of using the privileged documents as 5 || both shield and sword.”) (citations and internal quotation marks omitted). 6 It is thus relevant to the Court’s evaluation of privilege over the use of force critique 7 documents to understand whether Defendants intend to argue in this case that the result of that 8 || critique was that the force was found to be within CDCR policy. 9 Based on the foregoing, IT IS HEREBY ORDERED that Defendants have fourteen 10 || days from the date of service of this order to file a notice indicating whether they intend to use 11 evidence in this case that the use of force was critiqued and found to be within CDCR 12 || policy. 13 IT IS SO ORDERED. ‘5 |! Dated: _ August 30, 2021 [see hey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 1:20-cv-00478
Filed Date: 8/30/2021
Precedential Status: Precedential
Modified Date: 6/19/2024