The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously pending on this court's law and motion calendar for August 25, 2011, was plaintiff's motion to quash subpoena duces tecum and/or protective order, filed July 20, 2011, and defendants' motion to compel compliance with subpoena duces tecum, filed August 8, 2011. Also before the court is defendants' motion to strike, filed August 23, 2011. Joseph Rose and Garth Dano*fn1 appeared for plaintiff. Jerry Moberg appeared for defendants. After reviewing the briefing in support of and in opposition to the motions and hearing oral argument, the court now issues the following explanatory memorandum.*fn2
Plaintiff was a peace officer in the City of Quincy ("Quincy"), in the Eastern District of Washington, where the underlying case is venued. He moves to quash a subpoena*fn3 issued by Quincy seeking his confidential employment records from his previous employment as a deputy sheriff from 2000 to 2006 with the County of Sierra, California. Plaintiff indicates that he was initially terminated from that employment, but on appeal he was reinstated and received a one year suspension and one year probation. He claims that Quincy hired him knowing about this information contained in the confidential records. Plaintiff's current action in the Eastern District of Washington concerns his allegations of misconduct and cover up by the Quincy Police Department. Doyle v. Gonzales, No. 10 CV 0030 EFS (E. D. Wash.).
There is an involved procedural history to the documents now sought by the defendants police officers and Quincy. Beginning with the administrative disciplinary proceedings against Doyle by the Sierra County Sheriff's Department, Doyle's employment records were lodged conditionally under seal. Once that case was settled in February, 2008, the settlement agreement provided that after five years from the date the administrative investigation was initiated, the Sheriff would mail to Doyle all originals and copies of his records. The Sheriff complied; however, in March, 2011, the Sierra County Superior Court, on its own motion and in connection with a preliminary injunction, returned these confidential records to the Sheriff.
Plaintiff filed his federal court action in Washington in 2010 for alleged civil rights violations by the Quincy Police Department. In connection with that action, Quincy hired an attorney, In-grid Larson, to inspect sealed files in the Sierra County case. On October 1, 2010, the court clerk there erroneously scanned and transmitted approximately 220 pages of documents, most of which were the confidential records, by email to Quincy City Attorney Allan Galbraith. Mr. Galbraith then gave copies of these records to current counsel for defendants, Jerry Moberg, to use in that action.
On January 13, 2011, plaintiff filed a petition for writ of mandamus in Sierra County Superior Court to enforce the prior sealing order as to the confidential records from the two 2007 cases, and to compel the parties in possession of these documents to return them to the court, and enjoin their use. On March 14, 2011, the Superior Court of Sierra County granted a preliminary injunction directing Quincy, Galbraith and Larson to return all originals and copies of the documents within 20 days. Although Quincy and the Quincy Police Chief filed declarations of compliance and returned the confidential records, Quincy's attorney, Moberg, did not file a declaration of compliance and continued to possess the documents. At the same time, Moberg continued to try to obtain via court process these same confidential documents obtained from Galbraith.
On April 26, 2011, Moberg served an amended subpoena duces tecum on the County Clerk, demanding production of the records that had been returned by the Sierra County Court Clerk pursuant to a minute order dated March 25, 2011. Sierra County Counsel responded to this subpoena, arguing that these documents appeared to be protected by the March 15, 2011 preliminary injunction. The motion to quash and motion to compel surrounding this subpoena were heard in the Eastern District of Washington case. Judge Shea denied the motion to compel and quashed the subpoena on procedural grounds, finding that the court there had no authority over a non-party not located in that district. The subpoena was re-issued in this district and is the subject of the current motions.
Meanwhile, on June 14, 2011, plaintiff filed a motion for order of contempt against Quincy in Sierra County Superior Court, for Quincy's failure to retrieve and return copies of the confidential records it had given to Moberg, and in regard to the April 26, 2011 subpoena issued to the County Clerk, seeking the confidential records. The superior court judge issued an order to show cause why Quincy should not be held in contempt, and has set a hearing for September 8, 2011. In the order to show cause, Judge Garbolino held that his preliminary injunction did not extend to documents obtained through third parties and that the Sierra County Superior Court lacked jurisdiction to ban the federal subpoena.
Plaintiff argues that his former personnel records are protected peace officer personnel records under Cal. Penal Code § 832.7 and under the official information doctrine.
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, ...