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March 24, 2003


The opinion of the court was delivered by: James F. Stiven, United States Magistrate Judge


On January 14, 2003, Plaintiff Abel Garcia ("Plaintiff") filed the instant motion to compel discovery of certain Defendant City of El Centro ("City") police department records relating to officers Alfredo Hernandez ("Hernandez") and Crispin Beltran ("Beltran"). Specifically, Plaintiff seeks interviews conducted by the City claims adjuster of the witnesses and participants in the incident which is the subject of the instant action.

Defendants City, Hernandez and Beltran (collectively "Defendants") filed their opposition to Plaintiff's motion on January 21, 2003. Defendants oppose the production of such documents, claiming that the documents are subject to the attorney-client and/or work product privileges. For the reasons contained herein, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to compel discovery.


A. Factual History

On or about October 20, 2000, Plaintiff and his girlfriend, Angie Espinoza ("Espinoza"), were attending a football game at Southwest High School in El Centro, California. Hernandez and Beltran were assigned to patrol the game. According to police reports, Hernandez and Beltran were dispatched to investigate a disturbance in the student parking lot at Southwest High School. Hernandez and Beltran received reports from witnesses in the area that Plaintiff had physically assaulted his girlfriend, Espinoza. Hernandez and Beltran claim that they approached Plaintiff because they believed Plaintiff was trying to leave the scene.*fn1 Hernandez and Beltran assert that they verbally ordered Plaintiff to stop but that he refused. Plaintiff claims that he heard Hernandez and Beltran run up behind him before tackling Plaintiff to the ground. Hernandez and Beltran claim that only after Plaintiff refused to stop, did they physically detain him. The officers contend that they took him to the ground only after he resisted and threatened the officers.

Plaintiff claims that Hernandez's and Beltran's treatment was so violent that he suffered a fractured and dislocated shoulder. Plaintiff claims that he was yelling in pain and pleaded with Hernandez and Beltran to remove the handcuffs, but that they refused to do so. Eventually an ambulance was summoned to the scene, and Plaintiff was transported to Pioneers Hospital where he was treated for a dislocated shoulder.

Hernandez and Beltran detained but did not arrest Plaintiff, however, criminal charges were later filed by the district attorney for the City of El Centro against Plaintiff for obstructing an officer in the performance of his duties and for domestic violence.*fn2 All charges against Plaintiff were later dismissed.

On July 10, 2001, Plaintiff filed the instant lawsuit alleging that Defendants treatment of Plaintiff on October 20, 2000 constitutes excessive force in violation of 42 U.S.C. § 1983.

B. Procedural History

On October 28, 2002, Plaintiff served on Defendants a request for production of documents which included interviews conducted by the City claims adjuster of the witnesses and participants to the incident which is the subject of the instant action. Defendants objected to the production of these documents under the attorney-client and work product privileges. The parties met to attempt to resolve the issue without the Court's intervention, but were unable to do so.

On December 18, 2002, the Court conducted a Mandatory Settlement Conference with the parties. At the December 18, 2002 conference, the parties raised the discovery dispute regarding the above mentioned items. Pursuant to the parties' arguments at the December 18, 2002 conference, the Court issued an order requiring the parties to brief the issue.

Pursuant to the Court's briefing schedule, Plaintiff filed his motion to compel discovery on January 9, 2003. Plaintiff seeks production of the above referenced witness and participant interviews. On January 21, 2003, Defendants filed their opposition to Plaintiff's motion to compel. The Court conducted a hearing on Plaintiff's motion to compel on January 29, 2003.*fn3


Pursuant to Federal Rule of Civil Procedure 26(b),

[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, . . . and location of any books, documents, or other tangible things. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1) (emphasis added). Pursuant to Rule 34, parties can request for any other party to "(1) produce and permit the party making the request . . . to inspect and copy, any designated document . . . or to inspect and copy, test, or sample any tangible things which constitute or contain matter within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served." Fed.R.Civ.P. 34(a)(1). "The Party upon whom the request is served shall serve a written response within 30 days after the service of the request." Fed.R.Civ.P. 34(b).*fn4
If a party . . . in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to secure the information or material without court action.
Fed.R.Civ.P. 37(a)(2)(B).


A. Witness and Participant Interviews

1. Standard of law — attorney-client privilege

"The party asserting the attorney-client privilege has the burden of proving that the privilege applies to a given set of documents or communications. To meet this burden, a party must demonstrate that its documents [or communications] adhere to the essential elements of the attorney-client privilege adopted by this court." U.S. v. The Corporation, 974 F.2d 1068, 1070 (9th Cir. 1992). The eight essential elements necessary to assert an attorney-client privilege are: (1) legal advice of any kind was sought, (2) the legal advice was sought from a professional legal adviser in his capacity as an advisor, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at the client's instance, permanently protected (7) from disclosure by the client or by the legal advisor, (8) unless the protection is waived. See id. at 1071, n. 2.; see also U.S. v. Martin, 278 F.3d 988, 999 (9th Cir. 2002).

2. Analysis — attorney client privilege

Defendants argue that the claims adjuster's interviews of the participants, specifically of Officers Beltran and Hernandez, are privileged under the attorney-client doctrine, and as such are not "subject to discovery.

However, "[b]ecause it impedes full and free disclosure of the truth, the attorney-client privilege is strictly construed." Martin, 278 F.3d at 999. In the instant case, the communications that took place were between the claims adjuster and Officers Beltran and Hernandez. Even if the interviewing claims adjuster were an attorney (there has been no evidence offered that the interviewing claims adjuster is in fact an attorney), the attorney-client privilege would not attach because Officers Hernandez and Beltran were not seeking legal advice from the claims adjuster. The claims adjuster's capacity here was principally to determine whether to pay Plaintiff's claim, not to offer legal advice to Officers Beltran and/or Hernandez.

Additionally, the claims adjuster was conducting the interviews on behalf of its client, Defendant City, not Officers Beltran and/or Hernandez.*fn5 Accordingly, the Court FINDS that no attorney-client privilege attaches to the claims adjuster's interviews of ...

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