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. ...