The opinion of the court was delivered by: James Larson United States Magistrate Judge
ORDER TO PRODUCE DOCUMENTS (Granting in Part Docket # 57)
The parties filed a Joint Statement of Discovery Dispute recounting Plaintiff's motion to compel Defendants to produce documents. The Court heard oral argument. Pamela Price appeared for Plaintiff, Bernard Knapp appeared for Defendants.The Court ruled from the bench that Defendants within ten days produce all requested documents, with the exception of the report of attorney Linda A. Tripoli, (the "Tripoli Report") prepared at the request of Deputy County Counsel Andrea W. Cassidy, and the report of Leslie T. Knight, Director of Human Resources for Contra Costa County, (the "Knight Report") prepared at the request of Silvano Marchesi, Contra Costa County Counsel. The Court ordered Defendants to produce these two documents for in camera review. The Court conducted its in camera review, considered the legal authorities cited by the parties and conducted considerable legal research sua sponte and hereby issues its order.
Clark Walker is a Battalion Chief with the Contra Costa County Fire Protection District ("CCCFPD"). In 2000 and again in 2003 Mr. Walker, an African American, was passed over for promotion to the position of Assistant Fire Chief. In 2000 a more senior applicant filled the position and in 2003 two outside candidates, both Caucasian males, were also hired. Defendant Keith Richter, the CCCFPD Fire Chief since 1998, was partially responsible for hiring Assistant Fire Chiefs in both 2000 and 2003. Plaintiff filed a claim with the California Department of Fair Employment and Housing ("DFEH") in 2003 after he lost the promotion. After the DFEH charge was filed, Contra Costa Deputy County Counsel Andrea Cassidy engaged Linda Tripoli, an attorney, to investigate the charge and report to County Counsel on the merits of Walker's claim. Also in 2003*fn1 various people spoke to the Contra Costa County Board of Supervisors at a public meeting about the failure to promote Plaintiff. As a result of these public comments the Board requested a report be prepared by the County's Human Resources Department. This report was prepared and presented to the Board in a closed session. Plaintiff now requests copies of both Ms. Tripoli's report (the "Tripoli Report") and the Human Resources Department report (the "Knight Report"). Plaintiff also requests that Defendants be directed to answer four interrogatories propounded to Defendants on October 13 and 28, 2004.
On December 18, 1975 the County entered into a Consent Decree requiring it to take affirmative action to promote women and minorities in job classifications where they are not proportionally represented. Croskrey v. Contra Costa County, U.S. District Court Case No. C 73-0906. The Consent Decree is still in effect in Contra Costa County and is assigned to Judge Spero. Ms. Price, Plaintiff's attorney in the case at bar, is the attorney for the plaintiffs in the Croskrey case.
Plaintiff Clark Walker filed charges with the Equal Employment Opportunity Commission ("EEOC") before bringing this suit and received his right to sue letter on June 13, 2003.
Walker filed this race discrimination suit against Contra Costa County and Keith Richter in his individual capacity on August 8, 2003. Plaintiff alleges discrimination in violation of 42 U.S.C. §1981 against both Defendant Richter and the County. Against Defendant Richter alone Plaintiff alleges race discrimination in violation of §1983. Against the County alone Plaintiff alleges two Title VII violations, race discrimination and retaliation, as well as a violation of §1983 based on the County's custom, policy and practice of discrimination.
Defendants answered Walker's complaint on December 12, 2003 denying all allegations and asserting twelve affirmative defenses including that "plaintiff's claims are barred because CCCFPD took and had taken reasonable steps to prevent and promptly correct any discrimination and/or harassment in the workplace, and plaintiff unreasonably failed to take advantage of the preventative and corrective opportunities provided by the CCCFPD or avoid harm otherwise." Defendant demanded a jury trial.
Trial in this case is set for July 12, 2005. Discovery cut-off was January 17, 2005 and the deadline for motions to compel was January 27, 2005. A further settlement conference is scheduled with Judge Spero for May 11, 2005.
Self-Evaluative Privilege Because this is a federal question case, the court applies federal common law principles governing the self-critical analysis or self-evaluative privilege. Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423 at 425-26 (9th Cir. 1992) (citing Note, Self Critical Analysis Privilege, 96 Harv. L. Rev. 1083). The Ninth Circuit also notes that the privilege will not apply unless the document at issue was prepared with the expectation that it would be kept confidential and it was in fact kept confidential. Id.
The self-evaluative privilege evolved to protect internal evaluations disclosure of which would chill self-critical analyses that might benefit the public. Cases are all over the map on whether the self-evaluative privilege exists in employment discrimination cases. The privilege is a creature of the state trial courts, and there is little uniformity of law even within particular states. (Rule 501, Federal Rules of Civil Procedure) One can find several cases recognizing the privilege and several cases rejecting the privilege in the same state.
Even those states which pay lip service to the privilege often find it waived in the employment context. The privilege has been asserted -- so far without success -- to try to protect harassment investigative reports from disclosure. Courts that recognize the privilege as protecting internal investigations usually find the privilege is waived when the company relies on its investigation as an affirmative defense, as discussed below. Volpe v U.S. Airways, Inc., 184 F.R.D. 672 (M.D. Fla. 1998)
Privileges Are Waived When Investigation is Offered as Affirmative Defense
Employers in discrimination cases, like Defendants in the case at bar, will use investigations as part of their affirmative defense. Indeed, in the aftermath of Faragher, Ellerth*fn2 and the most recent EEOC regulations, they have little choice.
Defendants like the County in the case at bar assert that they promptly investigated claims and effected the appropriate remedies in order to avoid or limit their liability. In doing so, they lose some or all of the privileges such as the ...