The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge
E-filed November 23, 2011
ORDER RE DISCOVERY DISPUTE JOINT REPORT [Re: Docket No. 43]
In March of 2010, plaintiffs Emily Contreras and Jose Lua filed the instant § 1983 action 19 against the City of San Jose and various police officers, alleging civil rights violations resulting in 20 the death of their son. They allege that their son died as a result of excessive force by the defendant 21 officers in violation of policies maintained by the San Jose Police Department. See Docket No. 5 22
("First Amended Complaint" or "FAC"). To prosecute their case, plaintiffs seek to discover 23 documents from the defendant officers' personnel files related to complaints of misconduct and/or 24 internal affairs investigations into misconduct by the defendant officers. Docket No. 41 25 ("Stipulation"). Defendants objected to the disclosure of these documents, citing various privileges, 26 including the official information privilege under California Evidence Code §§ 1040 and 1043. 27 Docket No. 43, Exh. B. The parties filed a joint stipulation requesting the court to conduct an in 28 camera review, which the court declined, and directed the parties to comply with the undersigned's Standing Order re Civil Discovery Disputes. Docket Nos. 41, 42. The parties then filed a Discovery 2
Dispute Joint Report ("DDJR") and submitted the documents at issue to the court for an in camera 3 review. The court suspects that the files submitted constitute the same set of materials the parties 4 sought to submit in the first instance.*fn1 Upon consideration of the DDJR and the documents 5 provided, the court orders defendants to produce any and all documents related to complaints and 6 internal affairs investigations of excessive force and force in general. Documents unrelated to force 7 need not be disclosed. 8
The Federal Rules generally allow for broad discovery regarding "any non-privileged matter 10 that is relevant to any party's claim or defense . . . . For good cause, the court may order discovery on any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1).
Federal common law recognizes a qualified privilege for official information, and officer's 13 personnel files are considered official information. Kerr v. U.S. Dist. Ct. for the Northern Dist., 511 F.2d 192, 198 (9th Cir. 1975). In determining whether such information is privileged, courts conduct 15 a case by case balancing analysis in which the interests of the party seeking discovery are weighed 16 against the interests of the governmental entity asserting the privilege. Kelly v. City of San Jose, 114 17 'is moderately pre-weighted in favor of disclosure.'" Randolph v. City of E. Palo Alto, 2007 U.S. 19 Dist. LEXIS 89249, *3 (N.D. Cal. Nov. 20, 2007) (quoting Kelly, 114 F.R.D. at 661). Before the 20 privilege can even consider whether the official information privilege applies, defendants must 21
(1) an affirmation that the agency generated or collected the material in issue and has in fact 23 maintained its confidentiality . . . , (2) a statement that the official has personally reviewed the 24 material in question, (3) a specific identification of the governmental or privacy interests that would 25 be threatened by disclosure of the material to plaintiff and/or his lawyer, (4) a description of how 26 disclosure subject to a carefully crafted protective order would create a substantial risk of harm to 27 F.R.D. 653, 660 (N.D. Cal. 1987). "At least in civil rights cases such as this one, this balancing test 18 "formally assert" the privilege by filing an affidavit or declaration including all of the following: 22 significant governmental or privacy interests, and (5) a projection of how much harm would be done 2 to the threatened interests if the disclosure were made. Kelly, 114 F.R.D. at 670. 3
Both parties agree that relevant Ninth Circuit authority permits "the
disclosure of the records
of other complaints of misconduct by defendant officers." Docket No.
43, p. 9. Defendants cite three 6 main reasons why the requests
personnel records should not be disclosed. First, they claim that the
7 official information privilege applies. Second, they claim that
plaintiff's request for evidence of 8
"misconduct" is so overbroad and vague as to include documents not relevant to the subject matter 9 of this action. Third, they claim that the defendant officers have a right to ...