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United States of America v. Wqas Khan

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 29, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WQAS KHAN, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is defendant's Wqas Kahn's ("Khan") motion to compel discovery (Dkt. Nos. 145-46), which was taken under submission on February 22, 2012 (Order, Dkt. No. 153). Through this motion, Khan sought an order requiring the government to review and produce for an in camera review the personnel files and related records of Stanislaus County District Attorney Investigator Kirk B. Bunch, pursuant to United States v. Henthorn, 931 F.2d 28 (9th Cir. 1991), and related authority.*fn1 The court previously denied a similar motion. (Order, Dec. 9, 2010, Dkt. No. 55, reconsideration denied by Order, Mar. 28, 2011, Dkt. No. 80.)

On February 17, 2012, in response to defendant's motion and an Order to Show Cause ("OSC") dated February 15, 2012 (OSC, Dkt. No. 148), plaintiff the United States ("plaintiff") produced the "entire personnel file of Stanislaus County District Attorney Investigator Kirk Bunch" for in camera review by the undersigned. (Dkt. No. 150.) The personnel file contains documents bearing Bates Numbers KB 0001 through KB 0263. Plaintiff requested that defendant's motion be denied as moot given the production of the file for in camera review. (Id. at 2.)

After an in camera review of the entire personnel file, the undersigned orders production of the documents at Bates Numbers KB 0002-0008. These pages constitute documents connected to an internal investigation of Mr. Bunch following a citizen complaint by a Ms. Roberta Hilligoss. Defendant has argued that Ms. Hilligoss' complaint is significant: defendant's moving papers discuss the complaint and attach it as an exhibit, as defendant believes the complaint demonstrates "rogue behavior" by Mr. Bunch. (E.g., Dkt. No. 146 at 20, Exh. I to Dkt. No. 146.) By ordering production of these pages, the undersigned in no way intends to suggest that they impeach Mr. Bunch's credibility, confirm inappropriate conduct, or otherwise serve as evidence favorable to the defense. Indeed, the investigatory documents appear to exonerate Mr. Bunch. Nonetheless, in an abundance of caution, the undersigned orders production of the seven pages of investigatory documents. No other documents from the personnel file need be produced.

Finally, given plaintiff's providing Mr. Bunch's personnel file for in camera review, and given plaintiff's apology and explanation for failing to timely file a response to defendant's motion and for failing to request for an extension (Response to OSC, Dkt. No. 151), the undersigned orders that the Order to Show Cause (OSC, Dkt. No. 148) is discharged. However, the undersigned reminds plaintiff that future failures to timely file documents may result in sanctions.

Accordingly, IT IS HEREBY ORDERED that:

1. Given plaintiff's production of Investigator Bunch's personnel file for in camera review, defendant's Motion to Compel Discovery (Dkt. Nos. 145-46) is denied as moot.

2. Following an in camera review of Investigator Bunch's personnel file, the undersigned orders production of the documents at Bates Numbers KB 0002-0008, within seven days of the filing of this order. No other documents from the personnel file need be produced.

3. The Order to Show Cause (OSC, Dkt. No. 148) as against plaintiff is discharged. However, the undersigned reminds plaintiff that future failures to timely file documents may result in sanctions.

IT IS SO ORDERED.


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