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Timothy J. Newell v. County of San Diego

April 8, 2013


The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge


On November 29, 2012, Eugene S. Thompson, counsel for Plaintiff, and David L. Brodie, counsel for Defendants, contacted the Court's chambers regarding a discovery dispute. Counsel informed the court that Defendants objected to certain requests due to the "official information" privilege. After speaking with the Court, Mr. Thompson and Mr. Brodie continued to meet and confer in an attempt to resolve their differences. On January 30, 2013, Mr. Thompson again contacted the Court's chambers to say that the parties were at an impasse.

On February 1, 2013, the Court ordered a special briefing schedule for the discovery dispute and assigned a hearing date noting that unless the Court directed otherwise in advance, the discovery dispute would be resolved without oral argument and no personal appearances were required. ECF No. 13. Pursuant to the Court's orders, the parties filed a Joint Discovery Conference Statement on February 15, 2013. ECF No. 16. Also on February 15, 2013, Defendants lodged a privilege log, a declaration of an agency official, and its responses to Plaintiff's supplemental request for production of documents with chambers. On February 20, 2013, Defendants delivered the disputed documents to the Court's chambers for in camera review.

The Court has reviewed in camera all of the documents submitted by the parties. for the reasons detailed below, Plaintiff's request for documents is GRANTED IN PART AND DENIED IN PART.


On July 9, 2012, Defendants removed the instant matter to this Court from the Superior Court of the State of California. ECF No. 1. Plaintiff's complaint alleges that Defendants violated Plaintiff's civil rights. ECF No. 1-1. Specifically, Plaintiff alleges that he went to the Chula Vista branch of the San Diego Superior Court to see if there were any excess vehicles available for purchase. Id. at 3. When Plaintiff arrived at the court, he properly parked his car in a handicap parking space, exited his vehicle, and approached a chain link fence where he saw several Ford Crown Victoria vehicles that he thought might be for sale. Id. Once at the fence, Plaintiff proceeded to take photographs of the cars. Id. Plaintiff alleges that as he made his way to the garage to obtain additional information about the cars, he was approached by Defendant Palmer who blocked his path and inquired as to why Plaintiff was parked in a handicap space. Id. at 4. When Plaintiff explained what he was doing, Defendant Palmer informed Plaintiff that she did not believe him and asked him to "shut up," "sit his ass on the bumper of his" car, and not to move. Id. Plaintiff alleges that this occurred after he informed Defendant Palmer that he was a retired San Diego Police Officer. Id.

Plaintiff alleges that he complied with Defendant Palmer's orders and that she made a call and additional deputies soon appeared. Id. Plaintiff next alleges that Defendant Palmer opened his car door and grabbed his wallet without his consent, and that Defendant Palmer would not allow Plaintiff to stand up and stretch when he began suffering from back spasms. Id. Plaintiff states that Defendant Palmer search his wallet and questioned him as to who Lisa Khan (Plaintiff's significant other) was and whether or not she was born in the United States. Id. Defendant Palmer next ordered a Deputy Sheriff to conduct a pat down on Plaintiff, which took place in full view of the general public, and proceeded to ask Plaintiff for his social security number and where he was born. Id. Defendant Palmer then allegedly told Plaintiff to stand for a photo as she continued to scroll through the pictures on Plaintiff's cell phone without his consent. Id. at 4-5. Next, Defendant Palmer ordered a Deputy Sheriff to run Plaintiff's license plate number as she searched his car. Id. at 5. Defendant Palmer soon informed Plaintiff that his vehicle registration was expired, he had an outstanding warrant for his arrest, and his license was suspended. Id. Plaintiff alleges that Defendant Palmer then inquired if Plaintiff's license was suspended due to his failure to make child support payments. Id. Defendant Palmer next had a Deputy write Plaintiff up for a moving violation citation for driving with a suspended license. Id. Finally, Plaintiff alleges that Defendant Palmer inquired as to whether or not Plaintiff had any scars or tattoos, ordered Plaintiff to delete any photographs that he had taken of the cars at the courthouse, and confiscated his car keys with a warning that he had twenty minutes to get a ride home before his car would be towed. Id. Plaintiff was then released without being charged with a crime. Id.

During the discovery period, Plaintiff requested that Defendants produce: "1. Any internal departmental investigation by the San Diego Sheriff's Department pertaining to the November 29, 2011 detention of NEWELL including but not limited to any and all statements made by witnesses who participated or saw the detention; 2. Any and all citizens complaints made against PALMER from November 1, 2007 to the present including but not limited to any allegations of illegal detention; 3. Any and all documents relating to or referring to any departmental discipline or reprimands of PALMER from November 1, 2007 to the present; 4. Any and all complaints made by NEWELL to the San Diego Sheriff's Department regarding his detention on November 29, 2011 at the Chula Vista courthouse; and 5. Any and all performance evaluations of PALMER from January 1, 2007 to the present." ECF No. 16 at 2.

Defendants agreed to produce documents responsive to requests one and four [id. at 7]*fn1 and Plaintiff did not object so those requests are not addressed in this Order. With regard to the remaining requests, Defendants identified seven responsive Internal Affairs case files but refused to produce them, asserting various objections and privileges including privacy and the "Official information privilege." See Defendant's privilege log and Defendant's Responses to Supplemental Request for Production of Documents. Defendants submitted the identified case files to the Court for an in camera review. The Court has reviewed all of the submitted documents.


The federal rules generally allow for broad discovery authorizing parties to obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, and "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). To the extent that the discovery sought is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive," the court is directed to limit the scope of the request. Fed. R. Civ. P. 26(b)(2). Limits should also be imposed where the burden or expense outweighs the likely benefits. Id. How and when to so limit discovery, however, remains in the court's discretion.

Federal common law recognizes a "qualified privilege for official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr v. U.S. Dist. Ct., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976)). The party asserting the privilege has the burden of proving the privilege. Kelly v. City of San Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987); see also Hampton v. City of San Diego, 147 F.R.D. 227, 231 (S.D. Cal. 1993) ("Through this opinion, this court is hereby joining the Northern District's and Central District's procedures outlined in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987) and Miller v. Pancucci, 141 F.R.D. 292 (C.D. Cal. 1992) for invoking the official information privilege"); Stewart v. City of San Diego, 2010 WL 4909630, at *1 (S.D. Cal. 2010) (applying Kelly). To determine whether the privilege applies in a particular case, "courts must weigh the potential benefits of disclosure against the potential disadvantages." Sanchez, 936 F.2d at 1034. The Kelly court provided a non-exhaustive list of factors (taken from Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)) that may be considered when engaging in this weighing process: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information;

(2) the impact upon persons who have given information of having their identities disclosed; (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 the 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 intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. Kelly, 114 F.R.D. at 663.

In making this determination, courts must conduct "a situation specific analysis of the factors made relevant by the request in issue and the objection to it." Kelly, 114 F.R.D. at 663. In civil rights cases against police departments, the balancing test should be "moderately pre-weighted in favor of disclosure." Soto v. City ...

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