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McKenney v. Hernandez

November 15, 2010

JOE L. MCKENNEY, JR., PLAINTIFF,
v.
R. HERNANDEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR DISCOVERY [Document No. 53]

On August 12, 2010, Plaintiff filed a Motion for Discovery. (Doc. 53.) Plaintiff seeks documents as to Defendants Hernandez, Stout, Tillman, Gasgonia, and Ramirez related to prior complaints of excessive force, violence, racial prejudice, dishonesty, and violation of state or federal laws. (Id.) On September 20, 2010, Defendants filed an Opposition to Plaintiff's Motion. (Doc. 66.) Defendants contend the requested documents seek irrelevant information and information not reasonably calculated to lead to the discovery of admissible evidence. (Id.)

Pursuant to the Court's September 29, 2010 order (Doc. 67), on October 19, 2010, Defendants lodged all documents responsive to Plaintiff's requests as to Defendants R. Hernandez, M.F. Stout, L.V. Tillman, G.E. Gasgonia, and R. Ramirez with the Court for an in camera review. Upon reviewing the parties' moving papers, relevant law, and conducting an in camera review of the documents at issue, the Court hereby GRANTS Plaintiff's Motion for Discovery.

"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. 26(b)(1). In actions brought under section 1983, courts have repeatedly held that government personnel files and documents are relevant and discoverable. See Voth v. Albright, 2006 WL 3001362, 6-8 (E.D. Cal. 2006); Green v. Baca, 226 F.R.D. 624, 643-44 (C.D. Cal. 2005).

Further, questions of evidentiary privilege that arise in the course of adjudicating federal rights are governed by principles of federal common law. See United States v. Zolin, 491 U.S. 554 (1989). Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394 (1976). Government personnel files are considered official information. See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622, 625 (N.D. Cal. 1983), aff'd, 782 F.2d 1055 (9th Cir. 1985).

To determine whether the information sought should be disclosed, the court must weigh whether confidentiality outweighs the requesting party's need for the information, a "balancing approach that is moderately pre-weighted in favor of disclosure." Kelly v. City of San Jose, 114 F.R.D. 653, 657-58, 661 (N.D. Cal. 1987); Hampton v. City of San Diego, 147 F.R.D. 227, 231 (S.D. Cal. 1993). The party asserting the privilege must properly invoke the privilege by making a "substantial threshold showing." Kelly, 114 F.R.D. at 669. The party must file an objection and submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit. Id. The affidavit must include:

(1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, and (5) a projection of how much harm would be done to the threatened interests if disclosure were made.

Id. at 670; see also Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) (applying the Kelly procedure). If the court concludes that a defendant's submissions are not sufficient to meet the threshold burden, it will order disclosure of the documents. If a defendant meets the threshold requirements, the court will order an in camera review of the material and balance each party's interests. Kelly,114 F.R.D. at 661. The factors used for balancing are:

(1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information.

(2) The impact upon persons who have given information of having their identities disclosed.

(3) The degree to which government self-evaluation and consequent program improvement will be chilled by disclosure.

(4) Whether the information sought is factual data or evaluative summary.

(5) Whether the party seeking the discovery is an actual or potential defendant in any criminalproceeding either pending or reasonably likely to ...


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