(PC) Head v. County of Sacramento ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 2: 19-cv-1663 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiff is a federal prisoner, proceeding without counsel, with a civil action. Pending 18 before the court is plaintiff’s motion to compel defendant Endrizzi to produce recordings 19 responsive to request for production of documents set 1A, request no. 1. (ECF No. 84.) For the 20 reasons stated herein, plaintiff’s motion to compel is denied. 21 Background 22 This action proceeds on plaintiff’s first amended complaint filed October 15, 2020, 23 against defendants Sacramento County Deputy Sheriff Shelton and (former) Assistant United 24 States Attorney Endrizzi. (ECF No. 39.) Plaintiff alleges that defendant Shelton provided 25 defendant Endrizzi with recordings of privileged telephone calls between plaintiff and his lawyer 26 (Scott Tedmon) while plaintiff was housed in the Sacramento County Jail during criminal 27 proceedings. Plaintiff alleges that the purpose of these disclosures was to give defendant Endrizzi 28 an unfair advantage in the prosecution of plaintiff in two criminal trials held in the United States 1 District Court for the Eastern District of California. 2 This action proceeds on plaintiff’s claims that defendant Shelton violated the Wiretap Act 3 and that defendant Endrizzi violated the Wiretap Act, Stored Communications Act, California 4 Invasion of Privacy Act and the right to privacy in the California Constitution. 5 Discussion 6 In request no. 1, plaintiff sought, “Any and all audio recordings of Charles Head’s phone 7 conversations recorded while he was an inmate at the Sacramento County Jail.” (ECF No. 84 at 8 12.) Defendant responded that she had no responsive recordings in her possession, custody or 9 control. (Id.) 10 In the motion to compel, plaintiff argues that it is undisputed that the recordings he seeks 11 exist and are in the possession of the defendant’s counsel, the U.S. Attorney’s Office. (Id. at 4.) 12 Plaintiff observes that in the answer, defendant admits that following plaintiff’s indictment, “she 13 received copies of certain inmate phone calls made by Plaintiff and certain inmate mail sent by 14 plaintiff.” (ECF No. 70 at 2 (defendant’s answer).) Plaintiff also contends that in response to a 15 request for admissions, defendant Endrizzi admitted that she requested that defendant Shelton 16 give her copies of plaintiff’s recorded phone conversations made from the Sacramento County 17 Jail and that she recalls arranging with Sacramento County Jail staff to obtain recordings of non- 18 legal calls of jail inmates. (ECF No. 84 at 8.) 19 In the opposition, defendant argues that the motion to compel should be denied because 20 she does not have the recordings in her possession, custody or control. In support of the 21 opposition, defendant provides her own declaration. In her declaration, defendant states that she 22 was an Assistant United States Attorney in the Eastern District of California from approximately 23 March 2005 through October 2011. (ECF No. 85-1 at 1.) Defendant was the attorney of record 24 in United States of America v. Charles Head, 2: 08-cr-00093 KJM AC (Head I), and United 25 States of America v. Charles Head, 2: 08-cr-00116 KJM AC (Head II). (Id.) Defendant 26 presented the cases to a federal grand jury, which returned indictments and later superseding 27 indictments against plaintiff. (Id. at 1-2.) In both cases, senior Assistant U.S. Attorneys were 28 assigned as co-counsel and were listed on the indictments and superseding indictments. (Id.) 1 Defendant’s involvement in Head I and Head II ended when she accepted a detail to the 2 Office of the Deputy Attorney General, based at the United States Embassy in Baghdad, Iraq. 3 (Id.) Defendant was not physically present in the Eastern District of California from July 2010 to 4 October 2011. (Id.) Defendant did not personally appear as counsel in Head I or Head II after 5 July 25, 2010, and she has not had access to the files in those cases since that date. (Id.) 6 Defendant’s participation as counsel in Head I formally concluded on May 4, 2011 when 7 the U.S. Attorney’s Office for the Eastern District filed a document designating another Assistant 8 U.S. Attorney to replace defendant. (Id.) Defendant’s participation as counsel in Head II 9 formally concluded on July 13, 2011, when the U.S. Attorney’s Office for the Eastern District of 10 California filed a document designating another Assistant U.S. Attorney to replace defendant as 11 counsel. (Id.) Defendant did not serve as trial counsel or participate in trial preparation in the 12 two jury trials in which plaintiff was found guilty. (Id.) 13 In her declaration, defendant states that she recalls arranging with the Sacramento County 14 Jail to obtain recordings of nonprivileged phone calls made by jail inmates. (Id.) Defendant 15 believes that this included phone calls involving plaintiff. (Id.) Defendant states that she recalls 16 that defendant Shelton provided her with copies of correspondence taken from plaintiff’s cell. 17 (Id.) By letter dated January 6, 2010, defendant disclosed all such correspondence to plaintiff’s 18 counsel, Mr. Tedmon. (Id.) 19 Defendant states that she recalls going to the Sacramento County Jail to pick up a disk of 20 materials from defendant Shelton, but she does not recall whether that disk contained recorded 21 jail calls or the inmate correspondence. (Id.) Defendant states that she has not had physical 22 access to the case files since July 2010, and does not know whether recordings of plaintiff’s jail 23 calls still exist or, if they do exist, where they might be found. (Id. at 2-3.) Defendant does not 24 have any such recordings in her possession. (Id. at 3.) 25 Defendant observes that the final exhibit lists filed in Head I and Head II show that no 26 recorded phone calls made by plaintiff from the Sacramento County Jail were used as exhibits in 27 plaintiff’s two trial. (Id.) 28 //// 1 Defendant states that she did not request from defendant Shelton or from any other person 2 at the jail recordings between plaintiff and his counsel. (Id.) Defendant does not recall receiving 3 or reviewing any jail recordings between plaintiff and his counsel. (Id.) Defendant’s 4 understanding was and is that the telephone number of plaintiff’s attorney would have been 5 registered with the Sacramento County Jail for exclusion from the jail’s recording system. (Id.) 6 Defendant states that it was and is her practice that if she were to inadvertently receive 7 potentially privileged material, as soon as she recognized that fact, she would place the item in an 8 envelope, seal it, and request that a filter attorney (an attorney with no connection with the case) 9 be assigned to review the item and determine whether it was privileged. (Id.) 10 In support of the opposition, defendant also filed the declaration of Assistant U.S. 11 Attorney Hall, counsel of record for defendant. (ECF No. 85-2.) Mr. Hall is employed in the 12 Fresno Office of the United States Attorney. (Id. at 1.) In his declaration, Mr. Hall states that he 13 has not withheld from production to plaintiff any audio recordings of plaintiff’s jail telephone 14 calls. (Id. at 2.) Mr. Hall states that he made substantial efforts to locate any such recordings in 15 the files of the United States Attorney’s Office. (Id.) On September 29, 2021, Mr. Hall traveled 16 from Fresno to the Sacramento office to personally review the voluminous case files in Head I 17 and Head II. (Id.) Defendant located the jail correspondence that defendant Shelton provided to 18 defendant Endrizzi, and which defendant Endrizzi produced to Scott Tedmon, plaintiff’s counsel, 19 by letter dated January 6, 2010. (Id.) Mr. Hall produced that letter and the jail correspondence, 20 Bates-stamped HEAD-LTRS-001 through HEAD-LTRS-291, to plaintiff in response to his 21 request for production of documents. (Id. at 2-3.) Mr. Hall states that he was unable to locate any 22 audio recordings of plaintiff’s jail telephone calls. (Id. at 3.) 23 Mr. Hall states that he asked the Assistant U.S. Attorneys most recently assigned to the 24 Charles Head criminal litigation if they were aware of any jail telephone recordings of plaintiff. 25 (Id.) At Mr. Hall’s request, the office’s FOIA officer conducted an additional review of the case 26 files in an attempt to locate the audio recordings plaintiff requested. (Id.) Despite these efforts, 27 Mr. Hall states that his office has been unable to locate any such recordings. (Id.) Had Mr. Hall 28 located such recordings, he would have produced them to plaintiff in response to his request. 1 | dd) 2 Defendant’s opposition demonstrates that the recordings plaintiff's requests cannot be 3 || located after a reasonable inquiry and diligent search. Rogers v. Giurbino, 288 F.R.D. 469, 485 4 | (S.D. Cal. 2012) (citations omitted) (“A party must make a reasonable inquiry to determine 5 || whether responsive documents exist, and if they do not, the ‘party should so state with sufficient 6 || specificity to allow the Court to determine whether the party made a reasonable inquiry and 7 || exercised due diligence.’”) The undersigned cannot compel defendant to produce recordings that 8 | cannot be located after a reasonable inquiry and diligent search. See Belinda C. Muhammad v. 9 | Bretanniyia Jenkins, 2021 WL 5911684, at *5 (C.D. Cal. Sept. 8. 2021) (citations omitted) (“At 10 || the same time, the court cannot order a party to produce documents that do not exist. A mere 11 || suspicion that additional documents must exist is insufficient basis to grant a motion to compel.”). 12 | Accordingly, plaintiff's motion to compel is denied. 13 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to compel (ECF No. 84) 14 || is denied. 15 || Dated: December 29, 2021 6 Aectl Aharon 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 Head1663.com(2) 22 23 24 25 26 27 28