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Barsamian v. City of Kingsburg

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA -- FRESNO DIVISION


February 19, 2009

KIMBERLY BARSAMIAN, PLAINTIFF,
v.
CITY OF KINGSBURG, MARTIN SOLIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF KINGSBURG POLICE DEPARTMENT AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States Judge

ORDER ALLOWING DEFENDANT, MARTIN SOLIS', FILING OF TRIAL BRIEF UNDER SEAL Trial: March 3, 2009

On July 23, 2007, the Court entered a protective order related to certain documents based on a stipulation between the parties. (Document 16) In the Stipulation, Defendant City of Kingsburg indicated its belief that documents requested by Plaintiff Kimberly Barsamian including the personnel file of Martin Solis, contain information that is:

1. Confidential, sensitive, or potentially invasive of an individual's privacy interest as protected by Article I, § 1 to the California Constitution;

2. Protected from disclosure pursuant to the provisions of California Penal Code §§ 832.5 AND 832.7, as well as Evidence Code § 1045;

3. Substantially and sufficiently dissimilar in nature so as to be irrelevant and not subject to production;

4. Not generally known or available to the general public; and/or

5. Not normally revealed to the public or third parties or, if disclosed to third parties would require such third parties to maintain the information in confidence.

Pursuant to said stipulation and order, on February 17, 2009, Defendant, Martin Solis, needs Court approval to file the following document under seal:

1. Defendant, Martin Solis', Trial Brief.

Defendant Martin Solis has requested the Court file, under seal, the above-entitled document due to the sensitivity and nature of said document not only with regard to privileged information concerning Officer Solis, but also as to Plaintiff.

Analysis

Defendant Martin Solis has asserted a constitutional right of privacy based on the California Constitution and protections from disclosure based on the California Penal Code and Evidence Code sections, as well as general objections that the documents are not generally known, available or revealed to the public, including those that are regarding Plaintiff's sexual history. In federal question cases, privileges asserted in Federal Rules of Evidence, Rule 501; United States v. Zolin, 491 U.S. 554, 562 (1989); Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 197 (9th Cir. 1975). Federal common law recognizes a qualified privilege for official information, also known as the governmental privilege, or state secret privilege. Kerr, 511 F.2d at 198. The application of the official information privilege is "contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken." Id. Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (finding city police personnel files not subject to discovery for general search). To determine whether the information sought is privileged, courts must "weigh the potential benefits of disclosure against the potential disadvantages." Id. At 1033-1034.

After conducting an in camera review, the court finds that the above-mentioned document is sensitive in nature and privileged under California Constitution, and should be filed under seal.

IT IS SO ORDERED.

20090219

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