Smalley v. Contino et al

Filing 64

ORDER re 59 Memorandum filed by Blake Smalley, 60 Memorandum filed by Maricopa, County of, Joseph M Arpaio, Christopher M Contino, Herbert Rowe. Defendants shall produce Christopher Contino's Investigative Affairs Report in connection with the 9/22/2012 incident on or before 10/25/2013. Signed by Judge David G Campbell on 10/18/2013. (DGC, nvo)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Blake Smalley,

No. CV-12-02524-PHX-DGC
Plaintiff,

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v.

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ORDER

C. Contino, et al.,

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Defendants.

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Plaintiff sues Defendants under 42 U.S.C. § 1983 for violation of his constitutional

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rights in connection with a police stop and arrest on September 22, 2012. Before the

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Court is Plaintiff’s memorandum in support of discovery of internal affairs records

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(Doc. 59) and a response by Defendants (Doc. 60). Plaintiff seeks production of the

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internal Investigative Affairs Report addressing Defendant Contino’s actions in

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connection with the stop and arrest. Doc. 59 at 1. Defendants contend that Arizona law

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creates a qualified privilege by prohibiting disclosure of the report until the investigation

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is complete, including the appeals process. Doc. 60 at 2; Ariz. Rev. Stat. (“A.R.S.”) §

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38-1101(L).

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Issues of privilege in federal question cases are determined by federal law. Lewis

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v. United States, 517 F.2d 236, 237 (9th Cir. 1975). “In determining the federal law of

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privilege in a federal question case, absent a controlling statute, a federal court may

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consider state privilege law. But the rule ultimately adopted, whatever its substance, is

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not state law but federal common law.” Id.

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The parties assume, without citing any authority, that A.R.S. § 38-1101(L) creates

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a qualified privilege in litigation, but the statute says nothing about privileges or civil

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litigation. It instead creates an exception to the type of information that must be publicly

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available in a law enforcement officer’s personnel file. When the Arizona legislature has

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created civil litigation privileges, it has done so expressly. For example, the legislature

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has provided that communications between husbands and wives, priests and penitents,

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attorneys and clients, and doctors and patients cannot be inquired into in civil litigation.

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See A.R.S. §§ 12-2232, 12-2233, 12-2234, 12-2235. The provision cited by Defendants

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provides no similar express protection, but instead limits information available through

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the public portions of Defendant Contino’s personnel file. The Court cannot conclude

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from this language that the Arizona legislature intended to create a civil litigation

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privilege like those mentioned above, and has found no Arizona case holding that A.R.S.

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§ 38-1101(L) creates a state privilege. As a result, the Court need not decide whether to

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incorporate such a privilege into federal common law for purposes of this case.

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IT IS ORDERED that Defendants, within one week of the entry of this order,

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shall produce Christopher Contino’s Investigative Affairs Report in connection with the

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September 22, 2012 incident.

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Dated this 18th day of October, 2013.

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