The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge
On November 6, 2009, this court issued a summary order concerning plaintiff's motion to compel, and indicated that a more detailed order [and memorandum] would follow. The court will expand its analysis in two areas:
1. Production of internal affairs reports related to complaints in other matters;
2. Use of a defendant's employee by plaintiff for purposes of acquiring expert testimony.
Plaintiff alleges in this case that the individual police officers entered his residence without a warrant or probable cause. During the events that followed, plaintiff was tasered, and according to plaintiff, subjected to excessive force such that his neck was broken rendering him permanently disabled. Further, plaintiff alleges that the City itself is liable for improper supervision, training, and because it ratified the officer's actions. Plaintiff seeks relief pursuant to 42 U.S.C. section 1983 as well as various state law claims. Defendants deny plaintiff's allegations; however, the substance of plaintiff's case has not been dismissed up to this point.
A. Internal Affairs Reports
Plaintiff sought internal affairs reports relating to citizen complaints alleging excessive force and unlawful entry (Request for Production 22). The City objected on grounds that responding would violate "confidential" and "privacy" privileges. The City also related, not waiving objections, that it did not organize citizen complaints by year, and therefore, no production could be required.
During the meet and confer, and again at hearing, the City's problems with ascertaining citizen complaints by year dissipated. The court determined at hearing that the City would be required to allow plaintiff's counsel to view citizen complaints filed in the previous two years.*fn1 Plaintiff's counsel was to identify those files of interest, and the City would provide those files for in camera review. A number of complaints were presented to the court; the undersigned has reviewed every one of them.
The court is unsure that the City maintains its confidentiality objection in that it was not briefed and referenced only by the vaguest citation to the Federal and State constitutions. To the extent that the City has maintained such an objection pursuant to Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), it has been waived for insufficient support. Kerr v. United States District Court (N.D. Cal.), 511 F.2d 192, 198 (9th Cir. 1975).
The court notes the obviousness of the privacy objection, and that the City is raising such on behalf of individuals in its capacity as holder of the documents. 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 v. Redmond, 518 U.S. 1, 15 n. 15, 116 S.Ct. 1923, 1931 (1996) (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 v. Oroville Hospital, 145 F.R.D. 683, 687 (E.D.Cal.1993); Martinez v. City of Stockton, 132 F.R.D. 677, 681-83 (E.D.Cal.1990); 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).*fn2
Pagano at 698 described useful criteria to judge whether a privacy interest is unduly infringed. In this case, the encroachment on the privacy of others is substantial in that most associated with the process, especially the officers, understand that a certain degree of confidentiality will attach to the complaint process. Moreover, the undersigned is perplexed about the usefulness of complaint information in this litigation. Surely, for Monell purposes, plaintiff must demonstrate some type of deficient policy, be it by pattern or ratification, in order to recover against the City entity. That is often accomplished, if possible, by demonstrating repeated instances of deficient conduct. Nevertheless, a review of the various complaints submitted to the undersigned demonstrate facts discrete to each complaint situation and varying individual officers against whom the complaint has been made.*fn3 Although the complaints have a common theme, the allegedly volcanic, enraged citizen versus the allegedly control-freak police officers, sorting out the truth of these themes in this litigation to establish any accurate pattern would involve an unreasonable expenditure of resources with costs ...