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Glenn Harper v. City of San Jose


March 17, 2011


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed March 17, 2011 **


United States District Court For the Northern District of California


[Re: Docket Nos. 28, 31, 33, 38, 40]


Plaintiff Glenn Harper ("Harper"), an African-American police officer with the San Jose Police Department ("SJPD"), filed this action against the City of San Jose (the "City"), the SJPD, 19 and SJPD Chief Robert Davis ("Davis") (collectively, "Defendants") for racial discrimination and 20 retaliation in violation of 28 U.S.C. § 1983. After he was passed over for promotion and complained 21 of racial discrimination to state and federal agencies, Harper was transferred from vice to patrol.

Docket No. 1 ("Complaint") ¶¶ 6-10. He was told that he was being transferred because a 23 subordinate female officer in his unit made a discrimination/harassment complaint against him. Id. ¶

10. Harper claims that Defendants used the complaint - which was ultimately determined by the SJPD Internal Affairs ("IA") Department to be unfounded - as a pretext to demote him in 26 retaliation for his complaints of racial discrimination. Id. ¶ 12.

Harper served the IA Department with a subpoena for "all internal affairs files and complaints" related to him. Defendants objected to the production of any internal affairs file and any related recorded statements, summaries of statements, and any testimony from SJPD officers about 2 the investigation contained in the file. While Harper has been allowed to personally review the file, Court accepted the parties' stipulation to submit the contents of the internal affairs file in camera to 5 the Court and to brief their respective positions. Docket No. 28; Docket No. 33 ("Plaintiff's Brief"); Docket No. 38 ("Defendants' Reply Brief"). No hearing was set or requested, nor is one 8 necessary. Docket No. 28. 9

A. Relevance

As an initial matter, Defendants challenge the relevance of the internal affairs file.

Under the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." FED. R. CIV. P. 26(b)(1).

"Relevant information need not be admissible at the trial if the discovery appears reasonably 15 calculated to lead to the discovery of admissible evidence." Id. A relevant matter is "any matter that 16 bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may 17 be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Moreover, discovery 18 is not limited to only those specific issues raised in the pleadings since it is designed to define and 19 clarify the issues in the case. Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal.1992) (citing Oppenheimer, 437 U.S. at 351). As such, the question of relevancy should be construed "liberally 21 and with common sense" and discovery should be allowed unless the information sought has no 22 conceivable bearing on the case. Id. Harper, who has been permitted to view the internal affairs file, correctly notes that the papers state, in some places, that the "complainant" is the Office of the Chief of Police. This, he 25 says, shows that the investigation "was initiated by the Chief's office in an apparent attempt to 26 retaliate against [him] and manufacture further pretexts not to promote him." Plaintiff's Opening Brief at 5-6. However, upon in camera review, it is clear that the papers - more often than not - 28 identify the subordinate officer as the "complainant." In fact, one page separately lists the Defendants have refused to produce it in response to his discovery request. In January 2011, this Opening Brief"); Docket No. 31 ("Defendants' Opening Brief"); Docket No. 40 ("Plaintiff's Reply "complainant" as both the Office of the Chief of Police and the subordinate officer. While Harper's 2 argument is a tenuous one, the Court believes that the internal affairs file could lead to the discovery 3 of admissible evidence. 4


Defendants also argue that the internal affairs file is protected from disclosure as official information.*fn1 Disclosure, they argue, would chill future internal affairs investigations because, if 7 individuals knew that their statements could be disclosed, it could "inhibit the flow of information."

B. Qualified Privilege for Official Information

Defendants' Opening Brief at 4. Such a result "could potentially discourage exhaustive investigation 9 of incidents and candid analysis of issues in similar cases in the future." Id.

"chilling effect" arguments. Watson v. Albin, No. C-06-07767 RMW (HRL), 2008 WL 1925257 (N.D. Cal. Apr. 30, 2008) ("[Defendant's] arguments that disclosure would discourage exhaustive 13 internal investigations are unpersuasive. Courts in this district have previously rejected such claims, 14 and there is no reason to depart from that reasoning here.") (citing Kelly, 114 F.R.D. at 672; Soto, *2 ("There is no support for an argument that disclosure would lead to a breakdown of the IA 17 investigation system and in the past, courts have struck down such reasoning.") (citing Kelly, 114

C. Privacy

who provided statements during the internal affairs investigation.

The Court is not persuaded. Several courts, including this one, have rejected identical 162 F.R.D. at 613-14); Mai Thi Vu v. Clark, No. C05-02605 RMW (HRL), 2006 WL 3318096, at F.R.D. at 672; Soto, 162 F.R.D. at 613-14). The Court sees no reason to depart from this conclusion.

Defendants also contend that disclosure would violate the privacy rights of the individuals Kelly, 114 F.R.D. at 660-61; Soto, 162 F.R.D. at 616. Such claims are closely scrutinized when the 3 documents at issue are related to the officers' work with the police department. Soto, 162 F.R.D. at 616 (suggesting that internal investigation files are not protected by right of privacy when 5 documents "related simply to the officers' work as police officers") (citing Denver Policemen's 6

Protective Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981)). If an individual's privacy is at 7 stake, courts balance "the need for the information sought against the privacy right asserted." Soto,

This court recognizes a right of privacy respecting confidential law enforcement records.

162 F.R.D. at 616. However, "a carefully drafted protective order could minimize the impact" of 9 disclosure. Id.

enforcement records despite claims of privacy. See, e.g., Stewart v. City of San Diego, No.09cv844- IEG (WMc), 2010 WL 4909630, at *3 (S.D. Cal. Nov. 24, 2010); Watson, 2008 WL 1925257, at 119871, at *4 (N.D. Cal. Jan. 20, 2005); Kelly, 114 F.R.D. at 672. Defendants attempt to distinguish 15 those cases by saying that they involved private citizen plaintiffs who sued police officers and who 16 were not already privy to the contents of the law enforcement records sought. This case is different, 17 they say, because Harper is a police officer and has already been allowed access to the file and 18 knows who provided statements as part of the investigation. Defendants' Reply at 1-3. It is true that 19 these type of cases usually involve a private citizen who has sued an officer for civil rights 20 violations and who then tries to discover that officer's law enforcement records to see if the officer 21 had previously been investigated or disciplined. But the distinction noted by Defendants does not 22 distinguish the reasoning behind those decisions. In fact, it supports disclosure. In this case, the 23 officer whose conduct was subject to investigation and who would normally resist disclosure on 24 privacy grounds - Harper - is the same officer who seeks disclosure. As Harper correctly notes, 25 the privacy interests at stake in this instance are even less than those in the cases where courts 26 nevertheless ordered production. 27

Perhaps more importantly, however, Defendants' privacy argument is undercut by the fact that Harper was already allowed to view the internal affairs file. The interviewee's identities and the Plaintiffs cite several cases in which courts have allowed disclosure of confidential law *2; Vu, 2006 WL 3318096, at *5; Hernandes v. City of Hayward, No. C-03-4757 EMC, 2005 WL conclusions of the IA Department are not unknown to Harper. In such circumstances, the Court does 2 not see the harm in allowing Harper to have a copy of the file, subject to a protective order. 3


Based on the foregoing, the Court ORDERS that the SJPD IA Department produce a copy of the contents of the internal affairs file to Harper within 14 days from the date of this order.

However, because Defendants' concerns are well-taken, the contents of the file shall be produced 7 pursuant to a protective order, which the Court instructs the parties to submit for approval within 7 8 days from the date of this order.


C09-05758 JW (HRL) Notice will be electronically mailed to: Michael J. Dodson Nkia Desiree Richardson 3 Thomas Kevin Bourke

5:09-cv-05758-JW Please see General Order 45 Section IX C.2 and D; Notice has NOT been electronically mailed to:

Rizwan Ramzanali Ramji Law Office Thomas K Bourke One Bunker Hill 601 West Fifth Street Eighth Floor Los Angeles, CA 90071-2094 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

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