The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
Previously pending on this court's law and motion calendar for June 23, 2011, was plaintiffs' motion to compel production of documents. Benjamin Nisenbaum appeared for plaintiffs. Brent Jo appeared for defendants. After reviewing the joint statement and hearing oral argument, the court now issues the following order.
According to the second amended complaint, decedent, Dennis Brooks, who was incarcerated at San Joaquin County Jail ("Jail") on November 22, 2008, was found dead in his cell as a result of suicide by hanging. Plaintiffs, who are children of decedent, allege that decedent Brooks had a history of prior suicide attempts at the Jail. (SAC, ¶ 16.) On his processing into the Jail on this occasion, decedent reminded Jail staff of his history of suicide attempts. (Id.) He asked why he was not given the typical red colored inmate clothing provided to inmates posing a danger to themselves or others. (Id., ¶ 17. ) He also requested that he be placed in Administrative Segregation due to his safety concerns. (Id., ¶ 18.) Prior to his suicide, he had been heard yelling that he could not "take it anymore, and wanting to "kill myself." (Id., ¶ 20.) Through discovery, plaintiffs have become aware of a kite note sent by a neighboring inmate, indicating that Brooks stated he was going to kill himself, but that Sheriff's deputies thought it was funny. Plaintiffs allege violations pursuant to 42 U.S.C. §1983 (wrongful death, violation of decedents' rights, Monell liability). The Second Amended Complaint also contains state law causes of action for negligence, violation of Cal Civ. Code §52.1, and negligent hiring, retention, training, supervision, and discipline.
The instant dispute concerns defendants' failure to produce documents responsive to plaintiffs Request for Production Set One, under objections such as relevance, as well as various claims of privilege, including Cal. Evid. Code § 1040 et seq., and Cal. Penal Code §§ 832.7 and 832.8.
I. Applicability of Federal Law to Claims of Privilege
Federal law applies to privilege based discovery disputes involving federal claims, even if allied with by pendent state law claims. See, e.g., 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). 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).*fn1 The other courts in this Circuit seemingly have overlooked binding precedent. The Ninth Circuit continues to hold that "[i]n determining the federal law of privilege in a federal question case, absent a controlling statute, a federal court may consider state privilege law." Lewis v. United States, 517 F.2d 236, 237 (9th Cir. 1975) (citations omitted).
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.*fn2 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 noted, the Ninth Circuit has found that state law may inform the federal privilege question. Second, the Supreme Court explicitly noted in Jaffe that the matter is unsettled.
Moreover, 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. ...