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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Blake Smalley, No. CV-12-02524-PHX-DGC Plaintiff, 10 11 v. 12 ORDER C. Contino, et al., 13 Defendants. 14 15 Plaintiff sues Defendants under 42 U.S.C. § 1983 for violation of his constitutional 16 rights in connection with a police stop and arrest on September 22, 2012. Before the 17 Court is Plaintiff’s memorandum in support of discovery of internal affairs records 18 (Doc. 59) and a response by Defendants (Doc. 60). Plaintiff seeks production of the 19 internal Investigative Affairs Report addressing Defendant Contino’s actions in 20 connection with the stop and arrest. Doc. 59 at 1. Defendants contend that Arizona law 21 creates a qualified privilege by prohibiting disclosure of the report until the investigation 22 is complete, including the appeals process. Doc. 60 at 2; Ariz. Rev. Stat. (“A.R.S.”) § 23 38-1101(L). 24 Issues of privilege in federal question cases are determined by federal law. Lewis 25 v. United States, 517 F.2d 236, 237 (9th Cir. 1975). “In determining the federal law of 26 privilege in a federal question case, absent a controlling statute, a federal court may 27 consider state privilege law. But the rule ultimately adopted, whatever its substance, is 28 not state law but federal common law.” Id. 1 The parties assume, without citing any authority, that A.R.S. § 38-1101(L) creates 2 a qualified privilege in litigation, but the statute says nothing about privileges or civil 3 litigation. It instead creates an exception to the type of information that must be publicly 4 available in a law enforcement officer’s personnel file. When the Arizona legislature has 5 created civil litigation privileges, it has done so expressly. For example, the legislature 6 has provided that communications between husbands and wives, priests and penitents, 7 attorneys and clients, and doctors and patients cannot be inquired into in civil litigation. 8 See A.R.S. §§ 12-2232, 12-2233, 12-2234, 12-2235. The provision cited by Defendants 9 provides no similar express protection, but instead limits information available through 10 the public portions of Defendant Contino’s personnel file. The Court cannot conclude 11 from this language that the Arizona legislature intended to create a civil litigation 12 privilege like those mentioned above, and has found no Arizona case holding that A.R.S. 13 § 38-1101(L) creates a state privilege. As a result, the Court need not decide whether to 14 incorporate such a privilege into federal common law for purposes of this case. 15 IT IS ORDERED that Defendants, within one week of the entry of this order, 16 shall produce Christopher Contino’s Investigative Affairs Report in connection with the 17 September 22, 2012 incident. 18 Dated this 18th day of October, 2013. 19 20 21 22 23 24 25 26 27 28 -2-

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