Page 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PENDLETON DIVISION 

KATHERINE SARNOWSKI, Personal Case No. 2:16-cv-00176-SU 

Representative of the Estate of Damion 

Banks, OPINION

AND ORDER 

 Plaintiff, 

v. 

COLLETTE PETERS, Personally; TONIA 

RIDLEY, Personally; BRIDGETT 

WHELAN, Personally; JOHN MYRICK, 

Personally; and SGT. ANNETTE 

HOUSTON, Personally, 

 Defendants. 

_________________________________________ 

SULLIVAN, United States Magistrate Judge: 

Before the Court is plaintiff’s Motion to Compel Discovery (Docket No. 39). Plaintiff 

seeks to compel the depositions of defendants Collette Peters, John Myrick, Tonia Ridley, and 

Bridgett Whelan, and to compel defendants to respond to certain interrogatories and requests for 
Page 2 – OPINION AND ORDER 

production. Although plaintiff requested oral argument, the Court has determined that her 

Motion is suitable for decision without oral argument. For the following reasons, the Court 

GRANTS IN PART AND DENIES IN PART plaintiff’s Motion to Compel. 

FACTUAL BACKGROUND 

This action concerns the death of Damion Banks, an inmate in Oregon Department of 

Corrections (“ODOC”) custody at the Two Rivers Correctional Institution (“TRCI”). 2d Am. 

Compl. (Docket No. 21). Defendants are ODOC and TRCI officers and employees. Id. ¶ 4. 

Plaintiff alleges that Banks died from inmate assault and severe trauma, and defendants were 

deliberately indifferent to his safety, housing, and health. Id. ¶¶ 28, 32, 34-42. Medical 

examiners reported Banks’ cause of death as natural: “pulmonary hemorrhage due to 

pheochromocytosis.” Id. ¶ 22.1

 Plaintiff alleges that there are inconsistences as to observations 

of Banks’ health, statements in medical records, and evidence of violence. Id. ¶¶ 19, 24-26, 28. 

Plaintiff alleges that other TCRI inmates died suspiciously, that gangs threatened Banks, and that 

Banks told his family he feared for his life. Id. ¶¶ 10-14, 21. Banks’ injuries were inflicted (or 

his health deteriorated) on February 4, 2014, and he died the next day. Id. ¶¶ 15-20, 28-29. 

PROCEDURAL BACKGROUND 

Plaintiff is Banks’ mother and the personal representative of his estate. Plaintiff brings 

two causes of action, under 42 U.S.C. § 1983, for “Eighth Amendment, Cruel and Unusual 

Punishment – Failure to Protect,” and “Deliberate Indifference to Serious Medical Need.” 2d 

Am. Compl., at 8-9. In support of her § 1983 claims, plaintiff alleges that defendants failed to 

 

1

 “A functional chromaffinoma, usually benign, derived from adrenal medullary tissue cells and 

characterized by the secretion of catecholamines, resulting in hypertension, which may be 

paroxysmal and associated with attacks of palpitation, headache, nausea, dyspnea, anxiety, 

pallor, and profuse sweating. Pheochromocytoma is often hereditary . . . .” Pheochromocytoma, 

Stedman’s Medical Dictionary 680840 (2014). 
Page 3 – OPINION AND ORDER 

respond properly to Banks’ request to be transferred to a lower-security facility, which would 

have “likely” prevented his death; failed to properly monitor inmate telephone calls, whereby 

they could have learned of Banks’ report that he feared for his life; failed to maintain the closed 

circuit television system (“CCTV”) in violation of the “ODOC REPAIR program,” where 

monitoring would have deterred the violence against Banks; failed to maintain proper staffing 

and monitoring of inmates in common areas, thereby permitting intimidation and assault; and 

failed to provide Banks medical treatment, or to train and staff medical personnel, who “may 

have been able to intercede and save [Banks’] life.” Id. ¶¶ 34-41. 

Defendant Peters is the current ODOC director. 2d Am. Compl. ¶ 4. Myrick is the 

former TRCI superintendent, and at the times relevant to the pleadings was Assistant 

Superintendent of Security at TRCI. Id. Ridley was the Assistant Superintendent of General 

Services at TRCI, and Whelan was Medical Services Manager at TRCI. Id. 

On April 17, 2017, pursuant to the Court’s informal discovery dispute procedures, 

counsel for plaintiff emailed to inform the Court that the parties had a discovery dispute. In a 

subsequent email, on April 27, 2017, plaintiff’s counsel presented his position and argument; 

defense counsel responded by email on May 8, 2017. The Court held a status conference on 

June 14, 2017, regarding the dispute. (Docket No. 36). Because of various deficiencies with 

both parties’ presentation of the arguments, the Court directed the parties to submit motions to 

compel regarding the disputed discovery requests. 

Plaintiff seeks an order compelling the depositions of Peters, Myrick, Ridley, and 

Whelan, and responses to interrogatories and requests for production. Plaintiff served the 

discovery requests on March 5, 2017; defendants responded on March 24, 2017. Pl. Mot., at 4 

(Docket No. 39). Plaintiff provides the disputed discovery requests as to Peters and Myrick. 
Page 4 – OPINION AND ORDER 

LEGAL STANDARD 

Under Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv), a party may move for an order compelling 

answers to interrogatories or the production of requested documents. 

Parties may obtain discovery regarding any nonprivileged matter that is relevant 

to any party’s claim or defense and proportional to the needs of the case, 

considering the importance of the issues at stake in the action, the amount in 

controversy, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether the 

burden or expense of the proposed discovery outweighs its likely benefit. 

Fed. R. Civ. P. 26(b)(1).

On motion or on its own, the court must limit the frequency or extent of discovery 

otherwise allowed . . . if it determines that: (i) the discovery sought is 

unreasonably cumulative or duplicative, or can be obtained from some other 

source that is more convenient, less burdensome, or less expensive; (ii) the party 

seeking discovery has had ample opportunity to obtain the information by 

discovery in the action; or (iii) the proposed discovery is outside the scope 

permitted by Rule 26(b)(1). 

Fed. R. Civ. P. 26(b)(2)(C). 

 “A party seeking to compel discovery has the burden of establishing that its request 

satisfies the relevancy requirement of Rule 26(b)(1). In turn, the party opposing discovery has 

the burden of showing that discovery should not be allowed and also bears the burden of 

clarifying, explaining, and supporting its objections.” Frontier Recovery, LLC v. Lane County, 

No. 09-6017-TC, 2009 WL 2253726, at *2 (D. Or. July 24, 2009); Yufa v. Hach Ultra Analytics, 

No. 1:09-cv-3022-PA, 2014 WL 11395243, at *1 (D. Or. Mar. 4, 2014) (“If a party elects to 

oppose a discovery request, the opposing party bears the burden of establishing that the 

discovery is overly broad, unduly burdensome, or not relevant. Boilerplate, generalized 

objections are inadequate and tantamount to not making any objection at all.” (citation and 

quotation omitted)). If a party objects to a discovery request, it is the burden of the party seeking 

discovery on a motion to compel to demonstrate why the objection is not justified. Weaving v. 
Page 5 – OPINION AND ORDER 

City of Hillsboro, No. CV-10-1432-HZ, 2011 WL 1938128, at *1 (D. Or. May 20, 2011). In 

general, the party seeking to compel discovery must inform the court which discovery requests 

are the subject of the motion to compel, and, for each disputed request, inform the court why the 

information sought is relevant and why the objections are not meritorious. Id.

“Failure to object to a discovery request within the time permitted by the Federal Rules of 

Civil Procedure, or within the time to which the parties have agreed, constitutes a waiver of any 

objection.” L.R. 26-5(a); see also Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely 

objection is waived . . . .”). 

ANALYSIS 

I. Depositions of Defendants Peters, Myrick, Ridley, and Whelan 

Plaintiff moves to compel the depositions of Peters, Myrick, Ridley, and Whelan. 

Defendants respond that these defendants are “high ranking government officials” who are 

normally not subject to deposition. 

Defendants cite case law, much of it out-of-circuit, regarding the burden a party must 

meet in seeking to depose high ranking government officials. Kyle Eng’g Co. v. Kleppe, 600 

F.2d 226, 231 (9th Cir. 1979) (“Heads of government agencies are not normally subject to 

deposition,” regarding defendant Administrator of the Small Business Administration); Simplex 

Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 580, 586 (D.C. Cir. 1985) (“top Department 

of Labor officials, who the ALJ found to have no personal knowledge of the facts surrounding 

this particular case”); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993) 

(Commissioner of Food and Drug Administration); In re United States (Holder), 197 F.3d 310, 

314 (8th Cir. 1999) (Attorney General and Deputy Attorney General); Boga v. City of Boston, 

489 F.3d 417, 423 (1st Cir. 2007) (Mayor of Boston); Thomas v. Cate, 715 F. Supp. 2d 1012, 
Page 6 – OPINION AND ORDER 

1048 (E.D. Cal. 2010) (Governor of California); Baine v. Gen. Motors Corp., 141 F.R.D. 332, 

335 (M.D. Ala. 1991) (vice president of General Motors Corp.); United States v. Sensient Colors, 

Inc., 649 F. Supp. 2d 309, 320 (D.N.J. 2009) (former Environmental Protection Agency Regional 

Administrator); Low v. Whitman, 207 F.R.D. 9, 12 (D.D.C. 2002) (Deputy Chief of Staff to the 

Administrator of the Environmental Protection Agency). However, the degree of superiority and 

authority of the contested deponents in those cases far exceeds that of Myrick, Ridley, and 

Whelan. Myrick was the Assistant Superintendent of Security at TRCI; Ridley was the Assistant 

Superintendent of General Services; and Whelan was Medical Services Manager. These are 

positions directly relevant to plaintiff’s claims regarding housing, monitoring, staffing, security, 

safety, and medical care, and not necessarily high ranking officials. Defendants’ objections to 

the depositions of Myrick, Ridley, and Whelan are unavailing. The Court GRANTS plaintiff’s 

Motion to Compel as to deposing these three defendants. 

Peters, however, as the ODOC director, is a high-ranking executive official: 

An official may be deemed “high-ranking” when he or she has substantial 

authority and seniority, such that a deposition might significantly hinder the 

official’s ability to function as a high-level public servant. Individuals with 

“substantial authority” have been found to include those who have a high level of 

responsibility for budget, personnel and resource issues. 

Natty v. Donahoe, No. CV 11-10147-DSF(CWx), 2013 WL 12140158, at *2 (C.D. Cal. Jan. 10, 

2013) (citation and quotation omitted). The director of a state’s correctional institutions has 

substantial authority and seniority, with responsibility for budgeting, personnel, and resources.2

 

2

 Defendants allege that Peters, as ODOC Director, “oversees the operations and policies of the 

corrections agency responsible for managing approximately 14,000 incarcerated individuals in 

14 prisons across the State of Oregon and a budget of $1.4 billion.” Defs. Resp., at 4 (Docket 

No. 42). Defendants, however, present no evidence of this; they only offer attorney argument. 

Despite this deficiency, the Court finds it sufficiently evident that the ODOC director is a highranking executive official. See Oregon Department of Corrections, DOC Administration, 

“Director and Deputy Director,” http://www.oregon.gov/doc/ADMIN/pages/director.aspx; 
Page 7 – OPINION AND ORDER 

The Court thus proceeds to the next stage of the inquiry: 

[O]nce the Court determines that an official is entitled to invoke the [deposition] 

privilege, the burden shifts to the party seeking to depose the high-ranking 

official. A party seeking the deposition of a high-ranking government official 

must show: (1) the official’s testimony is necessary to obtain relevant information 

that is not available from another source; (2) the official has first-hand 

information that cannot reasonably be obtained from other sources; (3) the 

testimony is essential to the case at hand; (4) the deposition would not 

significantly interfere with the ability of the official to perform his government 

duties; and (5) the evidence sought is not available through less burdensome 

means or alternative sources. 

Thomas, 715 F. Supp. 2d at 1049 (citations omitted); Sargent v. City of Seattle, No. C12-1232 

TSZ, 2013 WL 1898213, at *2-3 (W.D. Wash. May 7, 2013); K.C.R. v. County of Los Angeles, 

No. CV 13-3806 PSG (SSx), 2014 WL 3434257, at *3-4 (C.D. Cal. July 11, 2014). 

 Plaintiff makes no argument, and presents no evidence, on any of these elements as to 

Peters. She merely argues that Peters “did not properly train and oversee staff” to implement 

ODOC policies and execute ODOC operations, that Peters has “oversight and supervision of the 

CCTV program and staffing,” and that Peters “is listed at the top of the TRCI Organizational 

chart and has final authority” over staffing and CCTV monitoring. Pl. Mot., at 20 (Docket No. 

39). These arguments as to Peters’ high-ranking position, rather than establishing why she 

should be deposed, in fact support the policy and rule against the deposition of high-ranking 

officials, due to their distance from those with first-hand knowledge and their high-level duties. 

See Thomas, 715 F. Supp. 2d at 1048 (“[H]igh ranking government officials have greater duties 

and time constraints than other witnesses and . . . , without appropriate limitations, such officials 

will spend an inordinate amount of time tending to pending litigation.” (quotation omitted)). In 

response, defendants argue (though present no evidence) that Peters has no first-hand knowledge 

 

Oregon Department of Corrections, “Central Administration Organizational Chart” (Sept. 1, 

2017), http://www.oregon.gov/doc/OC/docs/pdf/org_chart.pdf; see also Or. Rev. Stat. § 423.075 

(creating position of ODOC director, establishing responsibilities, and granting powers). 
Page 8 – OPINION AND ORDER 

and that any relevant information is obtainable from other sources. Despite defendants’ 

evidentiary deficiencies, the burden is plaintiff’s, and she has not met it. The Court DENIES 

plaintiff’s Motion to Compel the deposition of Peters. 

II. Requests for Production and Interrogatories 

A. Defendants’ Objections 

1. Adequacy of the Pleadings and § 1983 Liability 

As to each request for production and interrogatory, defendants object that 

it would be unduly burdensome for [them] to respond as Plaintiff has not alleged 

or established any facts in her second amended complaint that suggest [they] 

personally participated in the alleged Eighth Amendment violation. “Liability 

under § 1983 must be based on the personal involvement of the defendant. There 

is no respondeat superior liability under section 1983.” 

E.g., Pl. Mot., at 4 (Docket No. 39) (quoting Shallowhorn v. Molina, 572 F. App’x 545, 546 (9th 

Cir. 2014)).3 Defendants attempt, in response to discovery requests, to argue the merits of their 

Motion for Summary Judgment (Docket No. 23). The Court has previously indicated it would 

not rule on the Motion for Summary Judgment until the discovery disputes were resolved. 

Arguments regarding whether plaintiff has stated a claim, whether the proper defendants 

are named in the suit, and whether certain defenses are meritorious are not proper objections to 

discovery requests. See, e.g., United States v. Real Property & Improvements Located at 2366 

San Pablo Ave., No. 13-cv-02027-JST (MEJ), 2014 WL 2126912, at *2 (N.D. Cal. May 22, 

2014) (holding, over objection that claimant was not entitled to discovery on affirmative 

defenses because claimant “will not be able to establish any of its affirmative defenses at trial,” 

that claimant’s “ability to prove its defenses is not the standard against which relevance is 

determined,” and granting motion to compel discovery responses); Wallis v. Centennial Ins. Co., 

 

3

 For most of the discovery requests, this is the only specific objection defendants make. 
Page 9 – OPINION AND ORDER 

No. 2:08-cv-2558 WBS AC, 2013 WL 528472, at *6 (E.D. Cal. Feb. 11, 2013) (holding, “insofar 

as defendants [were] attempting to re-litigate the merits of their motion to enforce settlement or 

attempting to argue . . . a new theory,” and so did not have to respond to discovery requests, that 

the court would “not give weight to this objection” until the court separately ruled on a motion 

regarding the enforceability of the settlement agreement); Nance v. May Trucking Co., No. 11-

cv-0537-LAB (DHB), 2012 WL 1598070, at *3 (S.D. Cal. May 7, 2012) (rejecting argument 

that, because of alleged “fatal pleading deficiencies” in complaint, defendant did not have to 

respond to production requests: “Whether the . . . claims . . . are deficient or not is not presently 

at issue. Those claims . . . are the operative claims, and Plaintiffs are entitled to obtain discovery 

relevant to their operative claims.”). Discovery objections must specifically address the 

documents or information requested, and whether a specific request is overbroad, unduly 

burdensome, irrelevant, etc. See Frontier Recovery, 2009 WL 2253726, at *2; Yufa, 2014 WL 

11395243, at *1. 

 The Court previously granted defendants’ Motion to Dismiss the First Amended 

Complaint with leave to amend as to defendants Peters, Myrick, Houston, Whelan, and Ridley. 

(Docket Nos. 17, 19). Plaintiff filed a Second Amended Complaint and amended her allegations 

against these defendants. (Docket No. 21). The Court has not ruled on defendants’ Motion for 

Summary Judgment. Thus, the Second Amended Complaint is the operative pleading, its claims 

are the operative claims, and these defendants are still in this action. Plaintiff is entitled to 

relevant and proportional discovery as to these defendants. Fed. R. Civ. P. 26(b)(1). 

Defendants’ objections are not well taken as plaintiff’s ability to survive summary judgment 

depends on her ability to obtain the necessary evidence through these discovery requests. It is 
Page 10 – OPINION AND ORDER 

improper for defendants to attempt to transform each discovery request, and the motion to 

compel briefing, into a backdoor motion for summary judgment. 

Defendants’ objections regarding the sufficiency of the pleadings and § 1983 liability are 

unavailing. The Court will not limit plaintiff’s discovery based on these objections. 

2. Prison Floor Plans and Confidential Information 

a) Defendants’ Objections 

In response to plaintiff’s request for TRCI floor plans (Req. for Prod. No. 4), defendants 

object that the request “is overbroad, irrelevant, and producing the confidential material 

requested would pose a serious security threat to TRCI.” Pl. Mot., at 6 (Docket No. 39). As 

support for this proposition, defendants cite a California state case, Procunier v. Superior Court 

of Monterey County, 35 Cal. App. 3d 211, 212 (1973). Plaintiff counters that “Defendants in 

other corrections cases have produced floor plans , not even under protective order as to the 

document. See attached Ex. 2 CCSO floor plan, Dillon, et al v. CCSO et al 3:14-CV-820 YY 

(Not marked subject to a Protective Order).” Pl. Mot., at 20-21 (Docket No. 39) (errors in 

original).4

 Plaintiff argues that because the Court entered a protective order in this action 

(Docket Nos. 33, 34), “all security concerns are cured,” Pl. Mot., at 21 (Docket No. 39). 

 

4

 The floor plan from the “other corrections case[]” is attached not to plaintiff’s Motion, but to 

the Berman Declaration (Docket No. 40). The Declaration states merely that “Plaintiff hereby 

declares that the following Exhibits are true copies of the originals: . . . 2. CCJ floor plan[.]” Id.

¶ 1. This is insufficient to authenticate the document. It does not indicate how plaintiff (Banks’ 

mother) would have any relevant knowledge. Nothing in the Declaration supports the 

proposition that the “CCJ” floor plan was produced in an action against corrections officials. 

The Court is unable to determine from the unlabeled, cut-off image whether it was marked 

confidential or subject to a protective order. Plaintiff also suggests that it was the defendants in 

this action who produced the floor plan, but the defendants in Dillon v. Clackamas County, No. 

3:14-cv-00820-YY (D. Or. 2014), were Clackamas County and Sheriff Craig Roberts. Despite 

these problems with plaintiff’s submission, defendants have not objected to it. 
Page 11 – OPINION AND ORDER 

Procunier is not relevant or proper authority. Procunier addressed whether the 

defendants waived a California statutory privilege, under the California Evidence Code, to refuse 

disclosure of official information (regarding prison floor plans and inmate gang membership 

lists), pursuant to California Government Code statutes that forbade such disclosure. 35 Cal. 

App. 3d at 212. Such a privilege would apply only in California state court, or a federal civil 

action in which California law provided the rule of decision. See Fed. R. Evid. 501. It has no 

bearing on a § 1983 action in a federal district court in Oregon. Defendants cite no analogous 

federal law (or even Oregon state law) barring such disclosure. Procunier provides no support 

for the proposition that a state may object “to a discovery request because this would endanger 

the security of the prison system and safety of the citizens of the state.” Defs. Resp., at 9 

(Docket No. 42). In fact,the California Supreme Court largely vacated Procunier three years 

after the decision, on the very issue defendants cite it for, because the California Public Records 

Act contained a provision stating that the disclosure exemptions were not to be interpreted as “in 

any manner” affecting the rights of litigants. Shepherd v. Super. Ct. of Alameda Cty., 17 Cal. 3d 

107, 124 (1976) (citing Cal. Gov’t Code § 6260), overruled on other grounds by People v. 

Holloway, 33 Cal. 4th 96, 131 (2004).5 

b) Security Concerns and Judge Simon’s Order 

Defendants have raised serious security and confidentiality concerns regarding the 

conduct of Mr. Berman, plaintiff’s counsel, arising out of his representation of a party in a 

 

5

 There is, under federal common law, the governmental privilege, also called the official 

information privilege or state secret privilege, which, when properly invoked, precludes 

disclosure of sensitive or secure information, subject to a balancing of litigants’ needs against 

governmental interests, including security. See Kerr v. U.S. Dist. Ct. N. Dist. Cal., 511 F.2d 192, 

198 (9th Cir. 1975); Smith v. Coulombe, No. 2:11-cv-00531, 2012 WL 7001533, at *7 n.4 (D. 

Or. Nov. 30, 2012). However, the state must formally claim this privilege, and meet other 

procedural requirements, to obtain its protections, and defendants have not done so here. 
Page 12 – OPINION AND ORDER 

separate suit against an Oregon correctional institution, Bepple v. Shelton, No. 3:15-cv-727-SI 

(D. Or. 2017). See Washington Decl. ¶¶ 3-5, & Ex. 1 (Docket No. 43). In Bepple, the 

defendants produced to Mr. Berman thumb drives containing prison video surveillance footage. 

“The video surveillance footage contained in the thumb drives [was] highly sensitive.” Id., Ex. 

1, at 5. “Release of prison video surveillance could reveal or otherwise identify security 

measures or weaknesses or potential weaknesses in security measures. . . . [I]t could be used to 

breach or attempt to breach security measures.” Id. The video depicted the faces of inmates and 

employees, whose identities might be determined from the video, potentially resulting in their 

being targeted. Id. When it came time for Mr. Berman to return the thumb drives to defendants, 

he said he had “not been able to locate” them. Id. It seemed that he had lost them. Id. ¶ 3. In an 

order, Judge Simon stated, “The Court has serious concerns over the careless handling by Mr. 

Berman of the four confidential thumb drives . . . .” Id., Ex. 1, at 5. The order continued, “in 

any future litigation in which a plaintiff is represented by Mr. Berman, the Oregon Department 

of Justice may present a copy of this Order to any Court considering whether copies of 

confidential information should be disclosed to Mr. Berman and, if so, under what circumstances 

. . . .” Id., at 6. The present case is such litigation. 

Defendants raise this incident to argue against producing sensitive security information 

or documents to plaintiff, specifically, TRCI floor plans and CCTV information. They argue that 

a protective order is not sufficient to guarantee the protection of sensitive information, as a 

protective order had been entered in Bepple. 

In light of Judge Simon’s Bepple order, the Court has serious confidentiality and safety 

concerns about requiring defendants to disclose confidential or sensitive information—

specifically, the TRCI floor plans and CCTV information, which are the materials as to which 
Page 13 – OPINION AND ORDER 

defendants raise these concerns—to Mr. Berman. The protective order in this case does not allay 

these concerns. Accordingly, the Court will not compel defendants to turn over to plaintiff 

documents concerning TRCI floor plans or CCTV operations. Instead, the Court adopts a 

version of defendants’ compromise proposal, a tour of TRCI, discussed below. 

c) Tour of TRCI and Deposition of Myrick 

As an alternative to producing floor plans and CCTV information, defendants propose 

arranging for plaintiff’s counsel to tour TRCI where Banks was housed on the “date alleged” in 

order for counsel to observe that location. Defs. Resp., at 11 (Docket No. 42).6

 

Given the Court’s serious security concerns, the Court finds that allowing Mr. Berman to 

tour TRCI is an adequate and appropriate alternative to requiring defendants to turn over 

sensitive information regarding prison floor plans or CCTV operations. As to the relevant 

discovery requests (Reqs. for Prod. No. 4 - 7 & Interrog. No. 1), the Court will not compel 

responses to the requests as written. Instead, the parties shall confer and arrange for plaintiff’s 

counsel to tour the areas of TRCI at issue in the Second Amended Complaint. Included on the 

tour shall be any areas of the prison which Banks accessed or had access to in January and 

February 2014, and the CCTV recording and monitoring of those areas. 

Additionally, at Myrick’s deposition, defendants shall bring any documents responsive to 

the discovery requests regarding floor plans and CCTV (Reqs. for Prod. No. 4 - 7 & Interrog. 

No. 1), but limited to floor plans or CCTV operations, maintenance, monitoring, and staffing 

from January and February 2014, and only as to prison areas that Banks accessed or had access 

to during those months. Plaintiff may inspect these documents at the deposition, and question 

 

6

 Defendants made their security objection, and cited Procunier, only with regard to the floor 

plan discovery request (Req. for Prod. No. 4), and did not make the objection as to CCTV 

discovery requests (Reqs. for Prod. No. 5 - 7 & Interrog. No. 1), although defendants propose the 

TRCI tour as a response to both sets of requests. 
Page 14 – OPINION AND ORDER 

Myrick, as former Assistant Superintendent of Security, about them. However, due to the 

Court’s security concerns, neither plaintiff nor her counsel shall be permitted to take with them 

any of these documents outside of or after the deposition. The documents shall not be attached 

to Myrick’s deposition transcript, filed with the Court, or otherwise disclosed. The documents 

shall remain in defendants’ custody and control. 

3. Oregon Public Records Law 

In response to discovery requests regarding whether Myrick has been under investigation 

in relation to his state employment (Req. for Prod. No. 12 & Interrog. No. 5), defendants object 

that these requests seek documents or information “exempt from disclosure under Or. Rev. Stat. 

§ 192.501(12).” E.g., Pl. Mot., at 15 (Docket No. 39). 

This objection is misplaced. Whether certain information is exempt from Oregon’s 

Inspection of Public Records statute, Or. Rev. Stat. § 192.410 et seq., is irrelevant to whether the 

documents are relevant and discoverable in a federal court proceeding. That Or. Rev. Stat. 

§ 192.501(12) exempts from disclosure “personnel discipline action[s], or materials or 

documents supporting th[ose] action[s]” pertains to whether the public can obtain those records 

through inspection requests; it places no limit on a federal litigant’s ability to obtain them 

through discovery. Brown v. State of Or., Dep’t of Corr., 173 F.R.D. 262, 263-64 (D. Or. 1997); 

Estate of Shafer v. City of Elgin, No. 2:12-cv-00407-SU, 2014 WL 1303095, at *2-4 (D. Or. 

Mar. 28, 2014). The Court will not limit discovery based on this objection. 

B. Individual Requests for Production 

Having considered these overarching concerns, the Court looks to each discovery request 

individually. Although defendants’ objections are largely not well-taken, as discussed, plaintiff 

provides minimal argument, almost entirely without attention to specific requests or objections, 
Page 15 – OPINION AND ORDER 

and with no citation of authority, to show why defendants’ objections are not meritorious or why 

she is entitled to the discovery she seeks. The Court already informed plaintiff, at the Status 

Conference, that such threadbare argumentation is seriously deficient, but plaintiff failed to 

expand upon her email briefing in her Motion to Compel. The Court limits plaintiff’s discovery 

requests to what is relevant and proportional, under Fed. R. Civ. P. 26(b)(2)(C), as follows: 

Req. for Prod. No. 1 (Peters and Myrick): “All documents, including audio and video and 

incident reports, logbook entries, or any other writing referring or relating to the subject health 

iss[u]es starting November 13, 2012.” 

Ruling: The Court interprets “the subject health issues” to be Banks’ reported and alleged 

health issues, including those that plaintiff claims, and defendants claim, caused his death. This 

information is relevant to claims of denial of medical care and medical deliberate indifference. 

The request is proportional. Plaintiff’s Motion to Compel as to this request is GRANTED. 

Req. for Prod. No. 2 (Peters and Myrick): “All documents including duty rosters, 

employment registers, that reflect the full name for all nursing and corrections staff[.]” 

Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited 

as to time and location. The Court limits the request to documents reflecting the names of 

corrections staff on floors Banks accessed or had access to, and staff who had contact or 

communication with Banks, on February 4 and 5, 2014, and documents reflecting the names of 

nursing staff on duty at TRCI on those dates. GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 3 (Peters and Myrick): “All documents that reflect lawsuits and filed 

complaints, and their resolution, against the State for inmate deaths due to medical or dental 

negligence or inattention since 2002.” 
Page 16 – OPINION AND ORDER 

Ruling: This request is overly broad, unduly burdensome, and not proportional. See 

Brook v. Carey, 352 F. App’x 184, 185-86 (9th Cir. 2009) (finding prisoner civil rights plaintiff’s 

discovery request for “any and all grievances, complaints, or other documents received by the 

defendants concerning mistreatment of inmates” to be “overbroad, immaterial . . . and overly 

burdensome” (alterations omitted)). The Court limits the request to documents pertaining to 

lawsuits and complaints against defendants concerning inmate deaths at TRCI due to medical 

negligence or inattention since 2010. GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 4 (Peters and Myrick): “All documents that reflect floor plans for 

TRCI and the level on which Banks resided.” 

Ruling: As discussed, the Court will not compel disclosure of this information, due to 

safety and security concerns. Instead, the Court orders defendants to allow plaintiff’s counsel to 

tour the relevant areas of TRCI, and to bring responsive documents to Myrick’s deposition, as 

discussed and limited above.7 GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 5 (Peters and Myrick): “All documents that reflect closed circuit 

televis[i]on (CCTV) maintenance and operational status from November 2013- the present, and 

all rules and regulations regarding maintaining CCTV.” 

Ruling: Same as Request No. 4. GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 6 (Peters and Myrick): “All documents that reflect staffing and 

stations for corrections in the TRCI, including a demarcation for any areas that are NOT visible 

on CCTV.” 

Ruling: Same as Request No. 4. GRANTED IN PART AND DENIED IN PART. 

 

7

 Documents that reflect floor plans or CCTV operations, maintenance, monitoring, and staffing 

from January and February 2014, and only as to areas of the prison that Banks accessed or had 

access to during those months. 
Page 17 – OPINION AND ORDER 

Req. for Prod. No. 7 (Peters and Myrick): “All staffing and policies regarding monitoring 

CCTV.” 

Ruling: Same as Request No. 4. GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 8 (Peters and Myrick): “All staffing and policies regarding monitoring 

inmates, and a[t] what interval.” 

Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited 

as to time and location. The Court limits this request to documents pertaining to “staffing and 

policies regarding monitoring inmates,” including at what intervals, in place in January and 

February 2014, as to the floor where Banks resided and any other floors he had access to, at 

TRCI. GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 9 (Peters and Myrick): “All staffing and policies for monitoring 

inmate phone calls, including but not limited to, who listens to inmate call, how often and where 

monitoring of calls and their content is logged, if anywhere.” 

Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited 

as to time and location. The Court limits this request to documents pertaining to “staffing and 

policies for monitoring inmate phone calls” for January and February 2014, as to any phones 

Banks had access to at TRCI. GRANTED IN PART AND DENIED IN PART. 

Req. for Prod. No. 10 (Peters and Myrick): “All policies for housing designations for 

inmates, including the criteria for specific housing and grounds to move inmates and change 

housing.” 

Ruling: This request is overly broad and unduly burdensome. It is apparently unlimited 

as to time. The Court limits this request to documents pertaining to housing designation policies 

in place in January or February 2014. GRANTED IN PART AND DENIED IN PART. 
Page 18 – OPINION AND ORDER 

Req. for Prod. No. 11 (Myrick): “All documents that delineate your title, duties and job 

description in January to June 2014, and what is you employment [status], location, title today.” 

Ruling: Myrick’s job title, duties, description, and location are relevant, and this request 

is proportional. GRANTED. 

Req. for Prod. No. 12 (Myrick): “All documents that reflect or are related to whether you 

have been under investigation for your state employment since 2014 and the current state of the 

investigation.” 

Ruling: The request is overly broad and not proportional, because it is not limited to 

investigations relevant to plaintiff’s claims. The Court limits this request to investigations 

concerning alleged indifference to inmate safety or health, inmate wrongful death, improper 

surveillance or monitoring of inmates, housing of inmates, threats against inmates, improper 

medical care, indifference to medical needs, or failure to provide medical treatment. GRANTED 

IN PART AND DENIED IN PART. 

C. Individual Interrogatories 

Interrog. No. 1 (Peters and Myrick): “What was the operational status of closed circuit 

television on F[e]b. 4-6[,] 2014, and the status today?” 

Ruling: The CCTV operational status “today” is not relevant. As to the status in 

February 2014, the Court will not compel disclosure of this information, due to safety and 

security concerns. Instead, the Court orders defendants to allow plaintiff’s counsel to tour the 

relevant areas of TRCI, and to permit questioning on CCTV operations at Myrick’s deposition, 

as discussed and limited above.8

 GRANTED IN PART AND DENIED IN PART. 

 

8

 Limited to CCTV operations, maintenance, monitoring, and staffing from January and February 

2014, and only as to prison areas that Banks accessed or had access to during those months. 
Page 19 – OPINION AND ORDER 

Interrog. No. 2 (Peters and Myrick): “What was the staffing of corrections officer in 

Febraury [sic] 2014, as to ratio between inmates and officers?” 

Ruling: Plaintiff’s claims address improper staffing and the effect on inmate safety. The 

interrogatory is relevant and proportional. GRANTED. 

Interrog. No. 3 (Peters and Myrick): “Why was Banks put into general population and 

moved after being in segregation, especially after threats of others kicking his ass and being in 

fear for his life?” 9 

Ruling: Banks’ housing, location, and security, especially in relation to threats against 

him, are relevant to plaintiff’s claims. The interrogatory is proportional. GRANTED. 

Interrog. No. 4 (Myrick): “When was the first and last time you saw Mr. Banks alive in 

TRCI?” 

Ruling: The circumstances of Banks’ death are relevant. The interrogatory is 

proportional. GRANTED. 

Interrog. No. 5 (Myrick): “Have you ever been investigated regarding your state TRCI 

employment, and if so, the reason for the investigation and the current posture/resolution of the 

investigation?” 

Ruling: As with Request for Production No. 12, this interrogatory is overly broad and 

not proportional, because it is not limited to investigations relevant to plaintiff’s claims. The 

Court limits this interrogatory to investigations concerning alleged indifference to inmate safety 

or health, inmate wrongful death, improper surveillance or monitoring of inmates, housing of 

 

9

 The Courts assumes that “kicking his ass” is a quotation of actual threats that Banks allegedly 

received, and is not counsel’s own choice of words or characterization of purported threats, as 

such language would obviously be inappropriate for an attorney’s submission to the Court. 
Page 20 – OPINION AND ORDER 

inmates, threats against inmates, improper medical care, indifference to medical needs, or failure 

to provide medical treatment. GRANTED IN PART AND DENIED IN PART. 

CONCLUSION 

For these reasons, the Court GRANTS IN PART AND DENIES IN PART plaintiff’s 

Motion to Compel Discovery. (Docket No. 39). Defendants shall make themselves available for 

deposition, respond to plaintiff’s discovery requests, and arrange for a tour of TRCI, in 

accordance with this Opinion and Order. 

IT IS SO ORDERED. 

 DATED this 6th day of October, 2017. 

 /s/ Patricia Sullivan 

 PATRICIA SULLIVAN 

 United States Magistrate Judge