Macias v. City of Clovis et al, No. 1:2013cv01819 - Document 67 (E.D. Cal. 2015)
Court Description: ORDER GRANTING Defendants' Motion for a Protective Order (Doc. 60). (1) Defendants are ORDERED to produce the documents listed in Plaintiffs Second Amended Notice of Motion and Motion for Production of Documents (Doc. 59) and detailed in this d ispute; (2) Based on this Courts ruling, the Motion to Compel set for December 11, 2015, is MOOT and the hearing on the Motion is VACATED. (Doc. 56); (3) The parties SHALL meet-and-confer to discuss the scope of the protective order and related red action of sensitive information and submit a stipulated protective order to govern discovery in this case; (4) Discovery SHALL be produced within fourteen days of the Courts execution of the protective order. signed by Magistrate Judge Barbara A. McAuliffe on 11/18/2015. (Herman, H)
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GEORGE MICHAEL MACIAS, JR., 10 13 14 15 16 17 ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER Plaintiff, 11 12 CASE NO. 1:13-CV-01819-BAM v. CITY OF CLOVIS and the following employees of said City’s Police Department: SERGEANT J. GOMEZ (ID #5048), CORPORAL C. ARANAS (ID #5196), Officer CESAR GONZALEZ (ID #5422), Officer E. TAIFANE (ID # 5057), Officer A. VELASQUEZ (ID #5445), Officer C. PETERS (ID #5515), STEVE CLEAVER (ID #5469), JAMES KOCH (ID #5136) and DOES 1-25, inclusive, (Doc. 60) Defendants. 18 19 20 INTRODUCTION 21 On October 16, 2015, Defendants filed a Motion for a Protective Order stemming from a 22 discovery dispute over the production of peace officer personnel files, policies, and training 23 materials. (Doc. 60). On October 30, 2015, Plaintiff filed an opposition to which Defendants 24 replied on November 6, 2015. (Docs. 63, 64). The Court conducted a hearing on November 13, 25 2015. 26 telephone on behalf of Plaintiff. Counsel James Weakley and Brande Gustafson appeared in 27 person on behalf of Defendants. Having considered the moving, opposition, reply papers, and the 28 entire file, Defendants’ Motion is GRANTED. Counsel Panos Lagos appeared in person and Counsel Charles Piccuta appeared by 1 FACTS AND PROCEDURAL BACKGROUND 2 A. 3 Plaintiff is proceeding in this civil rights action against the City of Clovis (“the City”) and 4 Officers Cleaver, Gonzalez, Taifane, and Velasquez on claims for alleged unlawful arrest, 5 excessive force, and state law claims. First Amended Complaint (“FAC”), Doc. 31. According to 6 the FAC, Plaintiff’s claims arise out of a traffic stop, which ultimately led to Plaintiff’s arrest for a 7 violation of California Penal Code § 148(a)(1)–resisting, delaying or obstructing a police officer– 8 and the impound of his motorcycle on September 30, 2012. During Plaintiff’s arrest, he alleges 9 that he was aggressively thrown into the back seat of the patrol vehicle which left him in an 10 uncomfortable position. FAC at ¶ 24. While in the backseat, Plaintiff, who was handcuffed behind 11 his back, re-positioned himself and maneuvered his hands over his feet and into his lap. FAC at ¶ 12 26. Factual History 13 After Plaintiff successfully moved his cuffed hands from behind his back, Officer Cleaver 14 stopped the patrol vehicle and called for back-up. FAC at ¶¶ 25-29. Additional patrol units and 15 officers responded to Officer Cleaver’s request and Plaintiff alleges that he was then punched, 16 placed in a “choke-hold,” and tasered. FAC at ¶ 34. Plaintiff was later treated by paramedics, 17 transported to Fresno Community Hospital, and booked at Fresno County Jail. FAC at ¶ 41. 18 B. 19 Prior to filing the instant motion, both parties participated in significant meet and confer 20 efforts that narrowed the disputed discovery to three categories of documents including: (1) 21 personnel records and internal or external investigations for each of the named defendants, (2) 22 policies and procedures adopted at the time of Plaintiff’s arrest on September 30, 2012, and (3) 23 training materials in use at the time of Plaintiff’s arrest on September 30, 2012. See Declaration of 24 Brande Gustafson (“Gustafson Decl.”) ¶ 29-31, Doc. 61. Dispute Background 25 After narrowing the discovery, Defendants agreed to produce all of these requested 26 documents so long as Plaintiff would stipulate to a protective order designating these documents 27 as exclusively for the purpose of this litigation. See Doc. 59; Gustafson Decl., ¶ 25. Plaintiff, 28 however, refused to stipulate to a protective order. In challenging the need for a protective order, 2 1 Plaintiff argued that “the actions of public employees by a public entity paid for by public tax 2 money” should be transparent for a public purpose. Based on Plaintiff’s refusal to enter into a 3 protective order, Defendants now seek an order from the Court requiring that any production of 4 official information be done subject to protective order and only for the purposes of this litigation. 5 LEGAL STANDARD 6 The scope of discovery under Federal Rule of Civil Procedure 26(b) is broad: “Parties may 7 obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or 8 defense.” “The key phrase in this definition—‘relevant to the subject matter involved in the 9 pending action’—has been construed broadly to encompass any matter that bears on, or that 10 reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” 11 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 12 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947)). “Relevant information need not be admissible at 13 trial if the discovery appears reasonably calculated to lead to the discovery of admissible 14 evidence.” Fed. R. Civ. P. 26(b)(1). 15 Nevertheless, Federal Rule of Civil Procedure 26(c) provides that a court may limit 16 discovery to protect from annoyance, embarrassment, oppression, or undue burden or expense. 17 Federal common law recognizes a qualified privilege for official information. Kerr v. United 18 States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S. Ct. 19 2119, 48 L. Ed.2d 725 (1976). Government personnel files are considered official information. 20 See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622, 625 (N.D. Cal.1983), aff’d, 782 F.2d 21 1055 (9th Cir.1985). In determining what level of protection to afford the official information 22 privilege, courts balance the interests of the party seeking discovery against the interests of the 23 governmental entity asserting the privilege. See Kelly v. City of San Jose, 114 F.R.D. 653, 660 24 (N.D. Cal. 1987). 25 To prevail on a motion for protective order, the party seeking the protection has the burden 26 to demonstrate “particular and specific demonstration[s] of fact, as distinguished from conclusory 27 statements . . . .” See White v. Smyers, 2015 U.S. Dist. LEXIS 50479, *9 (E.D. Cal. Apr. 15, 28 2015) (citing Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 3 1 1989). “The rule requires that good cause be shown for a protective order. This puts the burden on 2 the party seeking relief to show some plainly adequate reason therefore. . . . This recognizes that 3 the existence of good cause for a protective order ‘is a factual matter to be determined from the 4 nature and character of the information sought by deposition or interrogatory weighed in the 5 balance of the factual issues involved in each action.’” White, 2015 U.S. Dist. LEXIS 50479 at * 9 6 (quoting Wright et al., 8A Fed. Prac. & Proc. Civ. § 2035 (3d ed. 2014)). 7 8 DISCUSSION A. Public Dissemination of Private Police Information 9 At the heart of this discovery dispute is whether Defendants must produce the agreed upon 10 discovery without a protective order. Relying on the official information privilege, Defendants 11 object to the production, absent a protective order, of three categories of documents: (1) personnel 12 and investigation records; (2) Clovis Police Department policies and procedures; and (3) 13 departmental training records as explained further below. 14 Amended Notice of Motion and Motion for Production of Documents). While Plaintiff agrees that 15 sensitive personal identifying information should be redacted from publicly available documents, 16 Plaintiff objects to the production of documents under a protective order. See Doc. 59, (Plaintiff’s Second 17 1. 18 In the first category of documents, Plaintiff requests the personnel files of each of the 19 defendant officers including documents containing social security numbers, dates of birth, drivers’ 20 license numbers, home addresses, financial and credit histories, resumes, medical and 21 psychological information. In addition to the personal identifying information, the personnel files 22 include employment applications, background investigations, reassignment requests, personal 23 history statements, oaths of office, polygraph questionnaires, performance evaluations, resignation 24 letters, and affidavits of psychological screenings all generated as part of the hire process at the 25 Clovis Police Department. Plaintiff also seeks internal affairs investigations, accident review 26 board records, and various citizen complaints. Personnel and Internal Investigation Records 27 Defendants argue that production of this information without a protective order would 28 seriously impact the Clovis Police Department’s ability to recruit future officers and employees as 4 1 it would chill open and honest communication during the internal affairs and recruitment 2 processes. See Declaration of Katy Benham (“Lt. Benham Decl.”) ¶ 5-6, Doc. 60-2. 3 2. 4 In the second category of production, Plaintiff requests fifteen policies in effect at the 5 Clovis Police Department during the time of Plaintiff’s arrest. 1 Defendants are, however, only 6 seeking a protective order for: Policy Nos. 102 (chief executive officer), 106 (policy manual), 200 7 (organizational structure), 208 (training policy), 302 (deadly force review), 306 (restraint devices), 8 308 (control devices and techniques), 340 (disciplinary policy), and 344 (report preparation). Policies and Procedures 9 Apart from arguments that many of these policies have little relevancy to Plaintiff’s claims 10 or defenses in this case, Defendants agree to produce the requested documents under a protective 11 order, but argue that public disclosure of this information would compromise the safety of officers 12 and the public. See Declaration of Brett Hershberger (“Hershberger Decl.”) ¶ 5-10, Doc. 60-3. 13 3. 14 In the final category of documents, Plaintiff requests training materials including lesson 15 plans relating to use of force—arrest and control; Building Searches/Simunitions, Pistol- 16 Fundamentals, Rifle-Perishable Skills; Department Range Training; Department Range Training- 17 Shotgun Course; and Duty Pistol, Rifle Course materials. (Doc. 61). Training Materials 18 Defendants argue that these materials are directly related to officer safety. Therefore, 19 production of this information, without a carefully crafted protective order, would create a 20 substantial risk of physical harm to the Clovis Police officers themselves. See Declaration of Curt 21 Fleming (“Lt. Fleming Decl.”) ¶ 6, Doc. 60-4. 22 4. 23 As a preliminary matter, in addition to the arguments outlined above, Plaintiff contends 24 that Defendants waived their right to assert objections based on the official information privilege 25 because Defendants failed to timely raise the objection in their initial discovery responses and/or 26 Defendants produced an untimely privilege log. 27 28 Waiver of Privilege Objections On February 3, 2015, Plaintiff served his Requests for Production of Documents Set One 1 Defendants agree to produce Policy Nos. 100. 104, 316, 400 and 402 without a protective order. 5 1 on Defendant City of Clovis. Request No. 9 asked for any Clovis Police Department policies, 2 rules, etc., from 2010 to present and Request No. 10 asked for any departmental training materials, 3 handbooks or manuals from 2010. See Declaration of Charles Piccuta (“Piccuta Decl.”) ¶ 3, Doc. 4 63-3. Defendants served their initial responses on March 6, 2015, but omitted responses to 5 Requests Nos. 9 and 10. Plaintiff later submitted an amended response to Requests Nos. 9 and 10 6 on March 25, 2015. No extensions were requested by Defendants. Plaintiff argues that this 7 twenty-day delay in responding to Requests Nos. 9 and 10 renders Defendants’ objections waived. 8 Piccuta Decl. ¶ 4. Defendants also delayed serving their privilege log until May 7, 2015—sixty 9 three days after the March 5, 2015 due date. According to Plaintiff, because Defendants waived 10 their objections, Defendants are not entitled to a protective order for the requested documents. 11 Federal Rule of Civil Procedure 34 provides that discovery requests must be responded to 12 within 30 days. However, courts are not unanimous on whether the failure to timely respond 13 waives privilege objections. Enns Pontiac, Buick & GMC Truck v. Flores, 2011 U.S. Dist. LEXIS 14 77131 (E.D. Cal. July 12, 2011). When a waiver of objections has been found, it usually has been 15 because the party required to serve the response failed to make any response whatsoever within 16 the time allowed. See e.g., Davis v. Fendler, 650 F. 2d 1154, 1160 (9th Cir. 1981) (holding that 17 untimely service of response to interrogatories waives the objections when objection raised fifteen 18 months after the interrogatories had been propounded); See also, Richmark Corporation v. Timber 19 Falling Consultants, 959 F. 2d 1468, 1473 (9th Cir. 1992) (stating that failure to object to 20 document requests within the time required constitutes a waiver of any objection when no 21 response was made and objections were not raised in a motion to compel). However, in this case, 22 Plaintiff asserted some objections initially, and then subsequently asserted additional objections in 23 an amended response. 24 Further, after producing the amended discovery responses, Defendants submitted an 25 approximate 400 page privilege log. At Plaintiff’s request, Defendants then agreed to participate 26 in an in-person meet and confer, conducted over a three hour period, in an effort to narrow the 27 scope of documents requested and review the documents detailed in the privilege log. Instead of 28 relying solely on their initial relevancy objections and forcing the Court to resolve the issue, 6 1 Defendants produced a detailed privilege log and attempted to work towards a resolution of the 2 discovery issues without judicial intervention. Counsel’s delay with respect to the privilege log, 3 therefore, was in part, due to efforts to try and resolve the objections to discovery without 4 overburdening the Court. These efforts are well-taken and the Court will not penalize Defendants 5 for the nominal delay in production of the privilege log. 6 Given the facts of this case, the privacy rights and officer safety factors are important 7 considerations to determine on the merits. Therefore, this Court will consider Defendants’ 8 objections based on the official information privilege even though the objections were raised 9 subsequent to the initial responses to the discovery requests. Hickman v. Taylor, 329 U.S. 495, 507 10 (1947) (noting that discovery rules are to be accorded a broad and liberal treatment); accord 11 Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961); see also Aguilar v. County of 12 Fresno, 2009 U.S. Dist. LEXIS 107946, 11-13 (E.D. Cal. Oct. 29, 2009) (refusing to find waiver 13 of the privacy privilege where Plaintiff failed to raise a timely objection in their initial discovery 14 response). 15 5. 16 In arguing that disclosure should not occur without a protective order, Defendants invoke 17 the official information privilege. In determining what level of protection should be afforded by 18 this privilege, courts conduct a case-by-case balancing analysis, in which the interests of the party 19 seeking discovery are weighed against the interests of the governmental entity asserting the 20 privilege.2 Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal. 1987); Hampton v. City of 21 San Diego, 147 F.R.D. 227, 231 (S.D. Cal. 1993). In the context of civil rights suits against police 22 departments, this balancing approach should be “moderately pre-weighted in favor of disclosure.” 23 Kelly, 114 F.R.D. at 661. Official Information Privilege 24 The party invoking the privilege, however, must at the outset make a “substantial threshold 25 showing” by way of a declaration or affidavit from a responsible official with personal knowledge 26 of the matters to be attested to in the affidavit. Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. 27 2 28 In a typical case, the analysis focuses on whether any disclosure to Plaintiff should be made. The balancing needed by this Court, however, because Defendants have agreed to disclose the documents to Plaintiff, is whether the governmental interest outweighs disclosure to the general public. 7 1 2 3 4 5 6 Cal. 1995) (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 significant governmental or privacy interests, (5) and a projection of how much harm would be done to the threatened interests if the disclosure were made. 7 Id. at 230-31 (citing Kelly, 114 F.R.D. at 670). 8 If the party invoking the privilege fails to satisfy this threshold burden the documents in 9 issue should be disclosed. Soto, 162 F.R.D. at 613. If the threshold showing requirements are met, 10 the court must weigh whether confidentiality outweighs the requesting party’s need for the 11 information. Hampton v. City of San Diego, 147 F.R.D. 227, 231 (S.D. Cal. 1993); see also Kelly, 12 114 F.R.D. at 657-58. 13 In support of their motion for a protective order, Defendants submitted several declarations 14 from Clovis Police Department agency officials including the declarations of Lieutenants Dan 15 Sullivan (Doc. 61-9), Katy Benham (Doc. 60-2), Brett Hershberger (Doc. 60-3), and Curt Fleming 16 (Doc. 60-4). (Docs. 60-2, 60-3, 60-4, 61-9). Collectively, Defendants’ declarations explain that 17 the agency officials personally reviewed the confidential information in question. The officials 18 further identified that Clovis Police Department and its officers, as well as the public at large, have 19 an overriding interest in maintaining the confidentiality of the personal information of peace 20 officers, department internal investigations, policies, and training materials. That interest stems 21 from the need to protect sensitive material that has the potential to compromise the privacy and 22 safety of officers, witnesses, arrestees, complainants, and their family members. (Docs. 60-2, 60-3. 23 60-4). 24 The Court finds, in reviewing the agency official’s declarations, that Defendants have met 25 the threshold requirements. Therefore, the Court will weigh Plaintiff’s need for the information 26 against Defendants’ interest in confidentiality of the requested relevant information. 27 6. 28 Significantly, the issue before the Court is not whether the confidential nature of the Balancing Public and Privacy Interests 8 1 requested documents precludes disclosure to Plaintiff. Defendants agree that the information 2 should be disclosed to Plaintiff, and Plaintiff agrees that disclosure is proper. Thus, Plaintiff will 3 receive the requested documents. 4 “confidential information to the world.” 5 discovery requests without a protective order would violate significant privacy interests of 6 defendant officers and unrelated third parties such as witnesses, victims, and arrestees. Further, 7 dissemination of this information to the greater public would seriously impact the Clovis Police 8 Department’s law enforcement efforts, safety, and the ability to recruit future officers and 9 employees. The sole issue is whether Plaintiff may disclose the According to Defendants, disclosure of Plaintiff’s 10 Plaintiff responds that there is no reason to enter into a blanket protective order because 11 Defendants have not demonstrated that releasing this discovery to the public will compromise 12 officer safety. According to Plaintiff, there is no credible claim by the City that there will be a 13 weakening of law enforcement programs by disclosure of the requested documents. There is 14 additionally no claim that there is an ongoing investigation or a future investigation that will be 15 jeopardized, compromised, or harmed by the requested information. Plaintiff further has agreed to 16 redact the officers’ private information, and therefore there is no need to prevent the public 17 dissemination of this discovery.3 18 Generally, the public has a common law presumptive right of access to “judicial 19 documents,” which are items filed with the court that are relevant to the performance of the 20 judicial function and useful in the judicial process. Father M. v. Various Tort Claimants (In re 21 Roman Catholic Archbishop), 661 F.3d 417, 421 (9th Cir. 2011). However, dissemination of 22 confidential discovery documents for non-judicial purposes is unusual and rightly so. The 23 discovery rules are “a matter of legislative grace.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 24 (1984). They compel parties, including third parties, to divulge information “for the sole purpose 25 of assisting in the preparation and trial, or the settlement, of litigated disputes.” Id. at 34. The 26 liberality of this process creates “a significant potential for abuse” such as delay, expense, misuse 27 28 3 Before making documents available to the public, Plaintiff agrees that any sensitive personal identifying information should be redacted from public versions of the documents. (Doc. 63 at 9). 9 1 of court process and damage to the reputation and privacy of litigants and third parties. Id. at 34- 2 35. Courts therefore must be mindful that the purpose of discovery is “to facilitate orderly 3 preparation for trial, not to educate or titillate the public.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 4 1982). 5 When ordering disclosure of personal and private officer information, federal courts 6 recognize a right of privacy respecting confidential law enforcement records. Kelly v. City of San 7 Jose, 114 F.R.D. 653, 660 (N.D. Cal. 1987). If an individual’s privacy is at stake, courts balance 8 “the need for the information sought against the privacy right asserted.” Soto, 162 F.R.D. at 616. 9 Moreover, “[i]n the context of the disclosure of police files, courts have recognized that privacy 10 rights are not inconsequential. . . . However, these privacy interests must be balanced against the 11 great weight afforded to federal law in civil rights cases against police departments.” Id. Further, 12 “a carefully drafted protective order minimizes the impact” of disclosure. Id. 13 Indeed, to handle much of the sensitive information at issue here, courts have routinely 14 endorsed the use of protective orders to prevent disclosure to the general public rather than 15 condone nondisclosure. For example, in Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal. 16 1987), Plaintiff brought an action under 42 U.S.C.S. § 1983, which alleged that defendants, city 17 and police officers, violated his constitutional rights when they used excessive force to arrest him. 18 Id. at 655. In discovery, plaintiff sought files concerning his arrest, other incidents of police 19 misconduct, and manuals and policy statements discussing arrest techniques and the use of force. 20 Id. Defendants produced plaintiff’s crime report but refused to produce the other documents 21 pursuant to the government privilege. Id. The court articulated a test for the qualified “official 22 information” privilege that balances competing societal interests: the interests of law enforcement, 23 the privacy interests of police officers or citizens who provide information to or file complaints 24 against police officers, the interests of civil rights plaintiffs, the policies that inform the national 25 civil rights laws, and the needs of the judicial process. Id. at 662. Using this balancing test, the 26 Court ordered the production of materials relating to the use of a baton and bodily force in making 27 an arrest, citizen complaints against defendant police officers, and the internal affairs investigative 28 files generated by those complaints. All documents produced were subject to a protective order. 10 1 Id. at 663. 2 In Williams v. Cnty. of Alameda, 2013 U.S. Dist. LEXIS 122866, 2013 WL 4608473, at 3 *2 (N.D. Cal. 2013), the Court ordered the Alameda County Sheriff’s Office to produce internal 4 affairs documents of the named defendant officers, subject to a protective order. 2013 U.S. Dist. 5 LEXIS 122866, 2013 WL 4608473, at *2-3. Similarly, in Doe v. Gill, the Court ordered San 6 Leandro to produce internal affairs documents of the named defendant officers, subject to a 7 protective order. Doe v. Gill, No. 11-cv-04759 CW (LB), 2012 U.S. Dist. LEXIS 42159, 2012 WL 8 1038655, at *4 (N.D. Cal. 2012). Finally, in Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. 9 Cal. 1995), the Court found that Concord did not meet its “substantial threshold burden” in 10 support of the privilege to preclude discovery to Plaintiff. However, the Court ordered production 11 of internal affairs files, subject to a protective order. 12 Applying the balancing test of Kelly in this case, the Court credits the need for officers and 13 police departments to maintain some degree of confidentiality as expressed in Defendants’ 14 supporting declarations. (Docs. 60-2, 60-3. 60-4, 61-9). The reliability of the findings of Clovis 15 Police Department internal investigations is largely dependent upon officers’ candor and 16 truthfulness. 17 exploited for harmful purposes if disclosed, and officers could be at risk for an increased level of 18 harm. While these privacy concerns are not significant enough to preclude disclosure to Plaintiff, 19 the documents requested should be produced under a protective order to protect the privacy 20 interests of officers, while respecting Plaintiff’s right to broad discovery under the Federal Rules. Further, training materials and policies can reveal information that could be 21 Additionally, the Court has reviewed the authority cited by Plaintiff. Relying on Kelly, 22 Plaintiff argues that “Kelly has stressed the strong public interest in uncovering civil rights 23 violations of the type at issue in this case.” (Doc. 63 at 19). Indeed, Kelly holds that 24 25 26 27 28 As a general proposition, the public interests in the categories favoring disclosure (the policies underlying the civil rights laws, public confidence in the court system, and doing justice in individual cases) clearly outweigh the public interests in favor of secrecy (e.g., not compromising procedures for self-discipline within police forces or the privacy rights of officers or citizen complainants). There is substantial exaggeration of the size of the harm that limited disclosure might do to concededly legitimate law enforcement interests. 11 1 However, even the Court in Kelly—a seminal case on disclosing police materials in civil rights 2 actions—imposed a protective order “under which only lawyers and their consultants and staffs 3 [could] view” the produced material. Kelly, 114 F.R.D. at 671. Again in King v. Conde, cited by 4 Plaintiff, the Second Circuit compelled the liberal production of police personnel files but 5 concluded that parties “are expected to stipulate with respect to appropriate protective orders 6 limiting revelation to counsel or counsel and client.” King v. Conde, 121 F.R.D. 180, 198 7 (E.D.N.Y. 1988). Finally, while Plaintiff also relies on Worcester Telegram & Gazette Corp. v. 8 Chief of Police of Worcester, 58 Mass. App. Ct. 1 (Mass. App. Ct. 2003), the facts of that case are 9 materially different. The documents disclosed in Worcester were purely administrative with no 10 relation to the safety of officers or other individuals, nor did Worcester rely on the official 11 information privilege. Thus, the Court is not persuaded by Worcester and King to compel a 12 conclusion different than that reached in Kelly, Soto, Williams and Doe. 13 Here, the weight of precedent demonstrates that police officer files and related documents 14 in civil rights cases are disclosed to Plaintiffs pursuant to a protective order, and there is no reason 15 to depart from that reasoning here. Having balanced the public and private interests to determine 16 whether entering a protective order is necessary, the Court finds that, as currently presented, the 17 balance tips in favor of ordering disclosure subject to a protective order. The documents will be 18 produced to Plaintiff pursuant to protective order and will not be available for public 19 dissemination. 20 articulated by Defendants and the risks that the indiscriminate public disclosure poses to police 21 department operations and officer safety. Accordingly, the Court will order Defendants to produce 22 documents responsive to Plaintiff’s second amended notice of motion and motion for production 23 of documents (Doc. 59), within fourteen days of the issuing of a protective order in this matter. 24 B. That conclusion is reached primarily in light of the institutional concerns Relevancy 25 Finally, Defendants object to Plaintiff’s requests for certain departmental documents on the 26 grounds that Plaintiff has not alleged a municipal liability claim against the City of Clovis, nor has 27 he alleged a supervisory liability claim or claim that the City or its supervisors provided deficient 28 training to Officers Cleaver, Gonzalez, Taifane, or Velasquez. 12 1 1. 2 As summarized by Defendants, and consistent with the Court’s review, the challenged 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Documents at Issue discovery at issue is as follows (Doc. 60 at 8-9): 1. Personnel File Audit Trail (Officer Cleaver) 2. Letter Accepting Employment (Officer Cleaver) 3. Job Offer Letter (Officer Cleaver) 4. Bio for Swearing In (Officer Cleaver) 5. Illegal Drug Use Disclosure (Officer Cleaver) 6. Local Criminal Records Check (Officer Cleaver) 7. ECN Polygraph and Investigations Letter (Officer Cleaver) 8. Affidavit of Psychological Screening of Applicants (Officer Cleaver) 9. Copy of Memorandum of Direction of Officer Steve Cleaver (Officer Cleaver) 10. Memorandum of Direction (Officer Cleaver) 11. Motorcycle Enforcement and Safety Certificate of Completion (Officer Cleaver) 12. Reassignment Requests for each officer 13. Citizen Complaint # 13-03 (Officers Gonzalez & Taifane) 14. Policy No. 102 - Chief Executive Officer 15. Policy No. 106 - Policy Manual 16. Policy No. 200 - Organizational Structure and Responsibility 17. Policy No. 208 - Training Policy 18. Policy No. 302 - Deadly Force Review 19. Policy No. 306 - Restraint Devices 20. Policy No. 308 - Control Devices and Techniques 21. Policy No. 340 - Disciplinary Policy 22. Policy No. 344 - Report Preparation, - Building Searches/Simunitions (9/01/2011) 23. In-Service Training Lesson Plan 24. Pistol – Fundamentals Rifle - Perishable Skills (2-11-2010) 25. In-Service Training Lesson Plan 26. Department Range Training (6-21-2012) Lesson Plan 27. Department Range Training - Shotgun Course (6-21-2012) Lesson Plan, and 28. Duty Pistol, Rifle Course (9-26-2012) In-Service Training Lesson Plan 20 2. 21 The scope of discovery under the Federal Rules of Civil Procedure is broad. Kelly, 114 22 23 24 25 26 27 Scope of Discovery F.R.D. at 668. Federal Rule of Civil Procedure 26 states: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). 28 13 1 Here, there appears to be no real dispute over whether Plaintiff’s requests are reasonably 2 calculated to lead to the discovery of admissible evidence. Defendants participated in an earlier 3 meet-and-confer wherein Defendants agreed to produce the documents listed above. 4 Defendants already conceded that Plaintiff’s requests are at least marginally relevant to the subject 5 litigation. As a result, the Court does not accept that Defendants are entitled to the relevancy 6 objection in light of the exhaustive meet-and-confer efforts which resulted in a prior agreement 7 that the documents would be produced. Rather, the Court will take Defendants at their word that 8 the documents have tangible relevance to Plaintiff’s case. Additionally, it would be a significant 9 waste of judicial resources to disrupt a discovery agreement extensively negotiated during 10 Thus, counsel’s exhaustive meet-and-confer. 11 Finally, given the broad definition of relevancy “in the context of civil rights excessive 12 force cases against police departments,” the Court finds that Plaintiff’s requests for the above 13 listed documents are relevant to the issues and defenses presented in this action. Soto, 162 F.R.D. 14 at 610 (“[I]n the context of civil rights excessive force cases against police departments, plaintiffs 15 may suffer great difficulties if courts impose demanding relevancy standards on them.”) 16 Documents specific to officers Gonzalez, Cleaver and Taifane such as citizen complaints 17 against the officers and completion of motorcycle safety and enforcement procedures are certainly 18 relevant on their face to Plaintiff’s claims. In addition, although Plaintiff is no longer pursing a 19 municipal liability claim against the City, the policy and training information listed above could 20 contain useful information that may be admissible at trial regarding the officers’ mandated duties, 21 and whether training protocols were followed. Further, because force and restraint devices were 22 used in the course of Plaintiff’s arrest, policies and training materials related to control devices and 23 techniques that the officers’ may have used (or should have used) on Plaintiff is discoverable 24 information. Accordingly, Defendants’ relevancy objection to discovery is overruled and the 25 documents shall be produced subject to a protective order. 26 CONCLUSION 27 28 Accordingly, for the foregoing reasons, the Court GRANTS Defendants’ Motion for a Protective Order. IT IS HEREBY ORDERED as follows: 14 1 1. Defendants are ORDERED to produce the documents listed in Plaintiff’s Second 2 Amended Notice of Motion and Motion for Production of Documents (Doc. 59) 3 and detailed in this dispute; 4 2. 5 6 Based on this Court’s ruling, the Motion to Compel set for December 11, 2015, is MOOT and the hearing on the Motion is VACATED. (Doc. 56); 3. The parties SHALL meet-and-confer to discuss the scope of the protective order 7 and related redaction of sensitive information and submit a stipulated protective 8 order to govern discovery in this case; 9 4. 10 Discovery SHALL be produced within fourteen days of the Court’s execution of the protective order. 11 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara November 18, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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