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Allison v. Johanson


June 12, 2009


The opinion of the court was delivered by: Gregory G. Hollows Allison United States Magistrate Judge


On April 29, 2009, this court conducted an informal telephone conference at the parties' request. At issue were documents requested by plaintiffs over which defendants had claimed privilege. On conclusion of the conference, this court directed the parties to file letter briefs which have now been submitted.*fn1 Defendants have also submitted two documents for in camera review. After reviewing the letter briefs and the documents, the court now issues the following order.


Plaintiffs Mr. and Mrs. Allison were at the Vallejo campus of Solano County Community College on December 17, 2007 to conduct business. Mr. Allison claims that defendant Johanson, at that time a police officer employed by the Solano County Community College District ("District") used excessive force to make a false arrest, violating Mr. Allison's civil rights under 42 U.S.C. § 1983. He also alleges false police report and denial of due process. Criminal charges were dismissed before trial. Mrs. Allison claims negligent infliction of emotional distress in addition to violation of her civil rights based on her presence at the incident. Both plaintiffs have also sued Mike Dawson, District Police Chief, for supervisory liability in failing to properly train and supervise Johanson. The complaint additionally contains state law claims and seeks compensatory damages against both defendants and punitive damages against defendant Johanson.

The documents submitted for in camera review concern an incident which occurred on February 12, 2008 and involved Johanson. Officer Johanson was hired by the District on November 12, 2007, and he was released from probation and his employment terminated on February 26, 2008. Defendants claim the documents are privileged, subject to Johanson's privacy rights, irrelevant, and not likely to lead to discovery of admissible evidence.


General. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party...." Fed. R. Civ. P. 26(b)(1). Relevancy is to be considered broadly, to include "any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389. Accordingly, the court must determine whether the information sought is relevant and not privileged.

Federal law applies to privilege based discovery disputes involving federal claims, even if supported by pendent state law claims. See, e.g., Pagano v. Oroville Hospital, 145 F.R.D. 683, 687 (E.D.Cal. 1993);*fn2 Martinez v. City of Stockton, 132 F.R.D. 677, 681-83 (E.D.Cal. 1990). Privileges are narrowly construed, because they impede the full and fair discovery of the truth. Eureka Financial Corp. v. Hartford Acc. and Indemnity Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). Further, the party asserting a privilege has the burden to establish that it applies. See, e.g., United States v. O'Neill, 619 F.2d 222, 227 (3rd Cir. 1980).

The Supreme Court has reemphasized that privileges are not favored: The common-law principles underlying the recognition of testimonial privileges can be stated simply. "'For more than three centuries it has now been recognized as a fundamental maxim that the public . . . has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.'"

Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 1927 (1996) (citing United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed.1940)); see also Maricopa Audubon Soc. v. U.S.F.S., 108 F.3d 1082, 1085-86 (9th Cir. 1997).

In cases presenting 42 U.S.C. § 1983 civil rights claims concurrently with state law claims, courts disagree about the extent to which state privilege law remains applicable in discovery disputes. The Supreme Court explicitly noted in Jaffee that the issue is unsettled.

Jaffe, 518 U.S. at 15 n.15, 116 S.Ct. at 1931 n.15 (noting disagreement concerning the proper rule in cases in which both federal and state claims are asserted in federal court.) This court has found that in mixed federal and state claim cases, although federal law is ultimately binding, state privilege law which is consistent with its federal equivalent significantly assists in applying privilege law to discovery disputes. See Pagano; Martinez; Cook v. Yellow Freight, 132 F.R.D. 548 (E.D.Cal. 1990). Other courts, however, disagree. See, e.g., Jackson v. County of Sacramento, 175 F.R.D. 653, 654 (E.D.Cal. 1997) (stating that Pagano/Martinez/Cook have been overruled);*fn3 Allen v. Woodford, 2007 WL 309485 (E.D. Cal. 2007).

This court considers state law in mixed federal/state claims. See Pagano. While federal law is controlling, id. at 687, state law is nevertheless relevant, especially in mixed claims where one of the elements of the federal claim is that a state actor was acting under color of state law when the federal right was violated -- a category which includes every 42 U.S.C. § 1983 action.*fn4 It has been the policy of this court, "when state privilege law is consistent, or at least compatible, with federal privilege law," to read the two together "in order to accommodate the legitimate expectations of the state's citizens." Id. at 688; accord Martinez, 132 F.R.D. at 681 ("application of state rules [is appropriate] when that application would not be inconsistent with federal law"); but see Folb v. Motion Picture Industry Pension & Health Plans, 16 F. Supp.2d 1164, 1170 (C.D. Cal., 1998) (refusing to consider state privilege law); Jackson, 175 F.R.D. 653, 654 (E.D.Cal. 1997) (same). Several reasons justify this policy. First, as previously mentioned, the Supreme Court explicitly noted in Jaffe that the matter is unsettled.

Second, not only this court, but others as well, use state law to assist in defining the parameters of federal privilege. See, e.g., Memorial Hospital etc. v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981); Hysell v. Pliler, 2007 WL 273882 *1 (E.D. Cal. 2007); Gottleib v. Wiles, 143 F.R.D. 235, 237 (D.Colo. 1992); Wei v. Bodner, 127 F.R.D. 91, 94-95 (D.N.J. 1989); Unger v. Cohen, 125 F.R.D. 67, 69 (S.D.N.Y. 1989); Lora v. Board of Education, 74 F.R.D. 565 (E.D.N.Y. 1977).

Third, federal courts frequently look to state law for guidance in § 1983 lawsuits. Indeed, the Supreme Court has recognized:

In 42 U.S.C. 1988, Congress quite clearly instructs federal courts to refer to state statutes when federal law provides no rule of decision for actions brought under § 1983 . . . . [B]y its terms, §1988 authorizes federal courts to disregard an otherwise applicable state rule of law only if the state law is inconsistent with the Constitution and laws of the United States.

Board of Regents, etc v. Tomanio, 446 U.S. 478, 484-85, 100 S.Ct. 1790, 1795 (1980) (quotations and citiations omitted).

Further, the Court has acknowledged:

This statutory reliance on state law obviously means that there will not be nation-wide uniformity on these issues [contemplated by §1988].

Robertson v. Wegmann, 436 U.S. 584, 594 (n.11), 98 S.Ct. 1991, 1997 (1978). See also Moor v. County of Alameda, 411 U.S. 693, 701-702, 93 S.Ct. 1785, 1791-1792 (1973) (§ 1988 does not permit wholesale incorporation of state causes of action, but state law may supplement established federal law). The preceding Supreme Court cases, while not directly on-point with the privilege issues presented by this discovery dispute, nevertheless stand as strong authority for the principle that application of state law is not foreign to § 1983 jurisprudence. Lower court cases such as Kelly, concluding "[i]t would make no sense to permit state law to determine what evidence is discoverable in cases brought pursuant to federal statutes whose central purpose is to protect citizens from abuses of power by state and local authorities," Kelly v. City of Stockton, 114 F.R.D. 653, 656 (N.D. Cal. 1987), assuming such cases advocate no role for state law, fail to consider congressional intent that state law play an important, and at times dispositive, role in § 1983 litigation.*fn5

Fourth, recognition of important state interests which do not conflict with federal law is a bedrock principle of our federal system. "Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state laws." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128 (1981) (preemption case). While it is at times necessary to flex the federal muscle when federal and state law conflict, such flexing should be done only as a last resort. While preemption is not the issue here, there is no reason to ignore basic principles of federalism in applying privilege law.

Finally, this entire action, including the federal § 1983 claim, could have been brought in state court.*fn6 The state court would apply state privilege law. In addition, in a federal court civil rights case in which the federal claims drop out, it is not beyond the pale to have a case in which supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, is exercised over only state claims. In such cases, only state privileges seemingly would apply. Thus, in mixed claim cases where federal and state privileges are consistent, federal cases which fail to consider state privilege law run an unnecessary risk of creating ad hoc, or varyingly stated, privilege standards, depending on whether the lawsuit is brought in state or federal court, or whether federal claims ultimately survive.*fn7

The inevitable question is -- if the state and federal privileges at issue are consistent, why not simply apply federal privilege law? As discussed in Pagano, the point of considering state law as a guide is not to determine whether a specific privilege exists, but to determine how to perform the "balancing" that most privilege determinations, state or federal, require. Judges frequently are tempted to create multi-pronged tests for deciding federal common law privilege issues, born from individual creativity (and sometimes from the myopia of having considered the issues in particular cases). In contrast, similar state privileges frequently are codified privileges which have received the attention and consideration of the peoples' representatives in the respective legislatures, including competing considerations of any balancing applicable to those privileges. In terms of setting policy, the wisdom of the collective legislature is generally greater than the wisdom of particular judges. Our system of government is based on this premise. Moreover, the standards set forth by the legislature are generally more structured and more specific, and therefore provide a uniform starting point for any analysis. Therefore, it makes little sense to avoid using as a guidepost standards the legislature has already provided.

For all of the above reasons, in deciding whether privilege should preclude disclosure of documents in a civil rights case, this court will continue to consider applicable state statutes establishing policy and criteria for disclosure. Jackson, supra and its progeny are incorrect in their premise that the undersigned's cases have been overruled, and respectfully, incorrect in their substance.

Governmental Privilege.*fn8 The federal privilege applicable to the government interest in preserving confidentiality of law enforcement records has various names: (1) the "official information privilege," Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1991) (employment discrimination case which raised only federal claims); (2) the "law enforcement privilege," In re Department of Investigation of City of New York, 856 F.2d 481, 483-84 (2d Cir. 1988) (applying privilege to protect investigative agency with dual criminal and civil functions); Morrissey v. City of New York, 171 F.R.D. 85, 90 (S.D.N.Y. 1997) (finding, with guidance from state law enforcement privilege, that law enforcement privilege is somewhat narrower than official information privilege); and (3) a type of "executive privilege," Siegfried v. City of Easton, 146 F.R.D. 98, 101 (E.D. Pa. 1992). The federal privileges are based on the following rationale:

The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.

In re Dept. of Investigation, 856 F.2d at 484.

This federal "qualified" governmental privilege is consistent with California statutes according a qualified privilege to peace officer personnel records. Cal. Penal Code § 832.7.*fn9 Peace officer personnel records may be disclosed only pursuant to court order. Id. Disclosure requires "good cause" (Cal. Evid. Code §1043),*fn10 relevance, and unavailability by other means (Cal. Evid. Code §1045).*fn11

The California statutes codifying the governmental privilege balance the need for disclosure with the government's legitimate need to acquire and maintain confidential information for sensitive activities. See County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 22 Cal. Rptr. 2d 409 (1993); People v. Superior Court for County of Sacramento, 19 Cal. App. 3d 522, 97 Cal. Rptr. 118 (1971). As these cases demonstrate, the California Legislature understood quite well the need for some secrecy in government affairs, and was aware that permitting unrestricted disclosure might chill the ability of government officials to obtain candid, confidential information from persons otherwise reluctant to become involved or influenced by interests of self-preservation. It is critical to note that Cal. Evid. Code § 1045 strikes the state balance in favor of disclosing internal investigations pertaining to the manner in which a peace officer performed his or her duties, so long as they are relevant to pending litigation. Accordingly, relevance is the dispositive factor in directing disclosure of internal affairs investigations.*fn12

Individual Privilege. In considering whether the privacy interests of individuals outweigh the need for disclosure of information in a civil rights case such as this, this court will continue to consider the following factors in balancing individual interests against the need for disclosure of sensitive information:

(1) the probable encroachment of the individual's privacy right if the contested action is allowed to proceed, and the magnitude of that encroachment; (2) whether the encroachment of the privacy right would impact an area that has traditionally been off limits for most regulation; (3) whether the desired information is available from other sources with less encroachment of the privacy right; (4) the extent to which the exercise of the individual's privacy rights impinge on the rights of others; and (5) whether the interests of society at large encourage a need for the proposed encroachment.

Pagano, 145 F.R.D. at 698-699.


Both parties have submitted letter briefs. Defendants have submitted for in camera review two documents concerning an incident that occurred on February 12, 2008, involving defendant Johanson. The court has reviewed the documents submitted and the arguments of the parties.

The essence of this case is excessive force, and pursuant to Martinez, the only standard applicable for adjudicating such cases is an objective reasonableness standard. Martinez, 132 F.R.D. at 682, citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989). Any evidence of evil intent or sadistic motive is not relevant to the inquiry. Id. Therefore, discovery of such evidence serves no purpose. The only caveats to this standard are where a municipality or county is named in regard to ratification of an officer's actions such that there may be a custom or policy, or where punitive damages are alleged. Id. at 682-83. Where punitive damages are claimed, evidence of evil intent or reckless disregard does become relevant. Nevertheless, such an exception does not warrant completely eliminating the general rule. This court set forth two situations permitting discovery of an officer's past record where punitive damages are alleged: where proof of the allegations in the complaint would probably result in a punitive damage award, and where the requested discovery indicates a reasonable possibility that its disclosure would result in a verdict of punitive damages. Id. at 683. Therefore, a degree of balancing the need for discovery against the privilege claimed is still required.

The letter brief submitted by defendant Dawson indicates that he testified that the confidential documents do not pertain to the Allison incident and do not concern the issue of why defendant Johanson was released from probation on February 26, 2008. It is true that plaintiffs seek punitive damages and therefore other evidence of evil motive or malicious intent may be relevant. Martinez, 132 F.R.D. at 683; Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993). Nevertheless, the documents submitted in camera concern events which are not relevant to the claims in this action as they do not pertain to how defendant Johanson may have conducted himself in performing his duties in regard to this incident, especially because the other incident occurred almost two months after the incident which is the subject of this litigation. The timing renders it difficult to ascribe evil motive to Officer Johanson earlier in time.

Nor are the documents relevant to the allegation of supervisory liability by defendant Dawson for the same reason. The allegation of failure to train and supervise Johanson is premised on his knowledge before the incident, not after it was over. Furthermore, plaintiffs do not seek punitive damages against defendant Dawson.

Because the court finds the documents are not sufficiently relevant to the instant litigation, Johanson's privacy interests will outweigh the need for disclosure, all factors being considered.


Accordingly, after in camera review, IT IS ORDERED that the documents submitted shall not be produced.

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