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Donald Dowell v. W.T. Griffin

August 17, 2011


The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge



On November 10, 2009, Donald Dowell ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a civil rights lawsuit under 42 U.S.C. § 1983 asserting that his Fourth and Fourteenth Amendment Constitutional rights were violated during a search of his person and residence. (Doc. No. 1). On April 25, 2011, Plaintiff filed a Motion for Discovery of Police or Custodial Officer Conduct (Pitchess Motion) To Defendants Et. Al...[sic]. (Doc. No. 46). On May 18, 2011, this Court issued an Order requiring Defendants' response to Plaintiff's Motion. (Doc. No. 47). Defendants filed their response on May 31, 2011. (Doc. No. 51). On July 18, 2011, this Court issued an order granting in part and denying in part Plaintiff's Motion for Discovery. (Doc. No. 63). The order required production of a privilege log and a copy of personnel records for in camera review. Id. Further, the order limited discovery to the personnel records of Defendants Griffin, Botkin, Zdunich, and Johnson, and to information relating to alleged Fourth and Fourteenth Amendment violations in the context of unlawful search and seizure. Id. On July 26, 2011, Defendants lodged with chambers a privilege log and the documents at issue. The Court has completed its in camera review.


Assertions of privilege in federal question cases are governed by federal common law. Fed R. Evid. 501.*fn1 In Defendants' privilege log they assert the following two privileges: the official information privilege, and privacy rights granted by the California Constitution.

A. Official Information Privilege

Federal common law recognizes a qualified privilege for official information. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). For the purposes of the privilege, government personnel files are considered official information. Id. In determining when a personnel file falls within the official information privilege, the Ninth Circuit has adopted a balancing test. Id. at 1033-34. "[C]courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery." Id. Some sister courts have stated that the proper operation of the balancing test requires a "balancing approach that is moderately pre-weighted in favor of disclosure." See Kelly v. City of San Jose, 114 F.R.D. 653, 661 (N.D.Cal.1987).*fn2

In order to trigger the Court's balancing of interests, the party opposing disclosure must make a substantial threshold showing. Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). The party opposing disclosure "must submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit." Id. Specifically, the party must submit a declaration from a responsible official with personal knowledge of the police department's internal investigatory system. See id.

Once the party asserting the privilege meets the threshold burden, the court will review the documents in light of the balancing test articulated by the court in Kelly, which includes, but is not limited to: (1) The extent to which disclosure will thwart the governmental process by discouraging citizens from giving the government information; (2) The impact of having their identities disclosed upon persons who have given information; (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 discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) Whether the police investigation has been completed; (7)Whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) Whether the plaintiff's suit is not frivolous and brought in good faith; (9)Whether the information sought is available from discovery or through other sources; and, (10) The importance of the information sought to the plaintiff's case. See Kelly, 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973.))

Here, Defendants have not submitted a declaration or affidavit with their privilege log. Without information identifying the governmental privacy interests at issue, and the risk of harm that would come to such interests were disclosure to be ordered, the Defendants have not met their initial burden and the Court need not conduct the second part of the analysis. See Ramirez v. Los Angeles, 231 F.R.D. 407, 410 (C.D. Cal. 2005.) (in camera review not necessary where defendant failed to make initial showing that official information privilege applies). However, despite Defendants' failure to make this threshold showing, the Court has performed an in camera review of the requested documents. Application of the official information privilege to the disputed documents will be discussed below.

B. Privacy Rights

Federal Courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests. See Breed v. United States Dist. Ct. for Northern District, 542 F.2d 1114, 1116 (9th Cir.1976) (balancing the invasion of minor's privacy rights against the court's need for ward files); Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir.1992), cert. denied 507 U.S. 910 (1993) (denying discovery of names of participants in a medical study due to privacy interests of the individual participants); Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 550-51 (E.D.Cal.1990) (balancing targeted individual's right of privacy against public's need for discovery in employment discrimination case). The party whose privacy is affected may object or seek a protective order. Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C. Cir. 1987). Resolution of a privacy objection or request for protective order requires a balancing of the need for the particular information against the privacy right asserted. See Cook, 132 F.R.D. at 550-51.

Regarding the disclosure of police files, courts have recognized that privacy rights are not inconsequential. Kelly, 114 F.R.D. at 660. However, these privacy rights have to be considered in light of the substantial weight afforded plaintiffs in civil rights cases against police departments. Id. Current case law suggests the privacy interests police officers have in their personnel files do not outweigh plaintiff's interests in civil rights cases. See Soto, 162 F.R.D. at 617; Hampton v. City of San Diego, 147 F.R.D. 227, 230 (S.D.Cal. 1993); Miller v. Pancucci,141 F.R.D. 292, 301 (C.D.Cal. 1992). In addition, Defendants' privacy concerns may be sufficiently protected with the use of a "tightly drawn" protective order which specifies that only the Plaintiff, his counsel, and his experts may have access ...

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