The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously before the court was joint briefing filed by the parties and set by the court on its law and motion calendar for February 2, 2012. Richard Hyppa appeared for plaintiff. Marciana Arredondo appeared for defendants. After reviewing the joint statement and hearing oral argument, the court now issues the following order.
According to the complaint filed February 18, 2011, plaintiff alleges that on the night of January 15, 2010, defendant police officers Slate, Pierce, Tiner and Vina, Jr., violated plaintiff's constitutional rights by unlawfully detaining him and beating him, and using a TASER. Claims are for violation of the First, Fourth, Fifth and Fourteenth Amendments, battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiff seeks monetary damages.
The instant dispute concerns plaintiff's request for production numbers 1 through 4, requesting employee files of the four defendant officers, and request number 6, for all documents concerning the internal investigation of the incident at issue by the City of Stockton. Defendants object to request numbers 1 through 4 and 6*fn1 on the basis of relevance, overbreadth, privacy, official information privilege, and claims of privilege under state law, including Cal. Evid. Code § 1043 and 1045, and Cal. Penal Code § 832.7. The parties have stipulated to in camera review of the documents by the court.
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).*fn2
The other district courts in this Circuit and elsewhere 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.*fn3 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. Lewis, supra. 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. ...