United States District Court, S.D. California
ORDER FOLLOWING IN CAMERA REVIEW GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR DETERMINATION OF DISCOVERY DISPUTE [ECF No. 17.]
BERNARD G. SKOMAL, Magistrate Judge.
On March 4, 2014, Plaintiff Torazzi Hayslett filed a motion for determination of discovery dispute regarding her request for production of peace officer personnel records and internal affairs records. (ECF. No. 17.) On March 14, 2014, Defendants filed an opposition to Plaintiff's motion in which they object to the production of this material on the grounds it is overbroad, irrelevant and privileged under federal law. (ECF No. 18.)
II. DISPUTE BACKGROUND
Plaintiff brought this civil rights action against Defendants alleging causes of action for excessive force, battery, negligence, failure to train ( Monell liability), false arrest and intentional infliction of emotional distress. (ECF No. 1 at 2-12.) Specifically, Plaintiff contends she was subjected to excessive force at the hands of Officer Daniel McLaughlin and falsely arrested for approaching firefighters who were working to put out a fire which had engulfed her house. ( Id. at 4-5.) Plaintiff's motion for determination of discovery dispute concerns various requests for the production of documents that fall into two categories: (1) Complaints/Investigations regarding Officer Daniel McLaughlin (RFP Nos. 2, 9-13); and (2) Personnel Records (Performance Evaluations/Training Documents) regarding Officer Daniel McLaughlin (RFP Nos. 3-8). ( See ECF No. 17 at 3.)
In response to these requests, Defendants assert: a.) the records sought are irrelevant and cannot lead to admissible evidence; b.) the requests are overbroad and impermissible in scope; and c.) the material is subject to the official information/executive privilege. (ECF. No. 18 at 3-6.) Defendants have submitted a declarations from an agency official asserting the executive and official information privilege as required by Hampton v. City of San Diego, 147 F.R.D. 227 (S.D. Cal. 1993) as well as a privilege log. (Doc. No. 18-4.) Defendants have also lodged the disputed documents at issue for in camera review.
III. STANDARD OF REVIEW
Defendants have objected to Plaintiff's requests for Internal Affairs (IA) files; Performance Reports and Transfers/Promotions on the grounds that the requests seek irrelevant information and are overbroad. Under the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." See Fed.R.Civ.P. 26(b)(1). Furthermore, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. A relevant matter is "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
B. Official Information/Executive Privilege
Defendants also assert the disputed documents are privileged under the "official information" privilege. Federal common law recognizes a qualified privilege for official information. Kerr v. U.S. Dist. Ct. for the Northern Dist., 511 F.2d 192, 198 (9th Cir.1975). The official information privilege is also variously known as "the Government Privilege, " "law enforcement privilege, " and "executive privilege. See Deocampo v. City of Vallejo, 2007 WL 1589541 (E.D. Cal. 2007) at *4 (citing references for each variant). In determining what level of protection should be afforded by this privilege, courts conduct a case-by-case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege. Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal. 1987); Miller, 141 F.R.D. 292, 300 (C.D. Cal. 1992); Hampton, 147 F.R.D. at 230-31. In the context of civil rights suits against police departments, this balancing approach should be "moderately pre-weighted in favor of disclosure." Kelly, 114 F.R.D. at 661.
However, the party invoking the privilege must at the outset make a "substantial threshold showing" by way of a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit. Soto, 162 F.R.D. at 613 ( citing Kelly, 114 F.R.D. at 669); see also Hampton, 147 F.R.D. at 230.
The affidavit or declaration from the agency official must include: (1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality..., (2) a statement that the official has personally reviewed the material in question, (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer, (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to ...