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Patrick Howard v. Review County of San Diego

June 3, 2011


The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge


Counsel for Defendants has lodged 488 pages of documents and 4 compact discs with the Court for in camera review. Many documents are relevant to the subject matter of this litigation. However, Defendants claim that various privileges and the right of privacy protect these documents from disclosure. Having reviewed the documents, the Court orders their production, non-production, and redaction as set forth in Appendix A to this Order.


Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any matter that is "not privileged" and "relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b)(1). The scope of discoverable information is broad, as "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.

In civil rights cases brought under federal statutes, questions of privilege are resolved by federal law. Kerr v. U.S. Dist. Ct. for N.D. Cal., 511 F.2d 192, 197 (9th Cir. 1975). "State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases." Kelly v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987).


A. Official Information Privilege*fn1

Defendants first invoke the qualified "official information privilege," which is one of federal common law. Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). "To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages." Sanchez, 936 F.2d at 1033-34. The balancing test "is moderately pre-weighted in favor of disclosure." Kelly, 114 F.R.D. at 661. The privilege "must be formally asserted and delineated in order to be raised properly," and the party opposing disclosure must "state with specificity the rationale of the claimed privilege." Kerr, 511 F.2d at 198.

To properly invoke the governmental privilege, "[t]he claiming official must 'have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced' and state with specificity the rationale of the claimed privilege." Id. The party invoking the privilege must at the outset make a "substantial threshold showing" by way of a declaration of affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit. Soto, 162 F.R.D. at 613. The affidavit must contain the following:

(1) an affirmation that the agency generated or collected the material in issue and has in fact 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 the disclosure were made. Id. at 613; Kelly, 114 F.R.D. at 670.

"'[A] general claim of harm to the 'public interest' is insufficient to overcome the burden placed on the party seeking to shield material from disclosure.'" Soto, 162 F.R.D. at 614 (quoting Kelly, 114 F.R.D. at 672; see also Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992)); Chism v. County of San Bernardino, 159 F.R.D. 531, 534-35 (C.D. Cal. 1994). "The party resisting discovery must specifically describe how disclosure of the requested documents in that particular case . . . would be harmful." Soto, 162 F.R.D. at 614 (citations omitted) (emphasis in original).

After considering the declaration submitted by San Diego Sheriff Lieutenant W. Donahue, the Court concludes that Defendants have not satisfied the second and fourth prongs listed above. Moreover, Lt. Donahue's identification of the threatened governmental or privacy interest, as well as his projection of the resulting harm, lack specificity and are couched in more sweeping, general terms. As a result, Defendants may not withhold any documents on basis of the official information privilege.

B. Required Reports Privilege

Defendants invoke proposed Federal Rule of Evidence 502, the California Penal Code, and three questionable cases in support of their assertion of this privilege. However, none of these authorities are controlling or binding on this Court, and Defendants have cited no controlling authority that has applied this privilege in the context of a civil rights action against a law enforcement agency. Quite to the contrary, based on the very cases ...

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