Juarez v. City of Coalinga, et al.

Filing 23

ORDER Following In Camera Review of Plaintiff's Personnel File From Pleasant Valley State Prison; ORDER Directing Clerk to Copy Stipulation and Attach Hereto, signed by Magistrate Judge Sandra M. Snyder on 8/26/2011. Further Order For In Camera Review: Date 9/27/11, Time 10:00 a.m., Ctrm 8 ~ 6th Floor. (Attachments: # 1 Stipulation doc. 15 ) (Marrujo, C)

Case 1:11-cv-00733-LJO -SMS Document 15
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Filed 07/08/11 Page 1 of 12

Eugene P. Ramirez, Esq. (SBN 134865
Tony M. Sain, Esq. (SBN 251626)
MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
801 South Figueroa Street
15th Floor at 801 Tower
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
[e-mail] and [e-mail]

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Attorneys for Defendants, CITY OF COALINGA
AND CHIEF CAL MINOR

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO JUAREZ,

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Plaintiffs,
vs.

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CITY OF COALINGA, CHIEF CAL
MINOR, CALIFORNIA HIGHWAY
PATROL, CAPTAIN DANIEL
MINOR, and DOES 1 through 10,
Inclusive,
Defendants.

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Case No.:
1:11-CV-00733-LJO-SMS
[Hon. Lawrence J. O’Neill, District
Judge; Hon. Sandra M. Snyder,
Magistrate Judge]
[DISCOVERY MATTER]
STIPULATION OF THE PARTIES
FOR ORDER FOR PRODUCTION
OF PLAINTIFF’S PEACE
OFFICER PERSONNEL FILE
RECORDS TO COURT FOR IN
CAMERA REVIEW AND
DISCLOSURE TO DEFENDANTS
OF RELEVANT DOCUMENTS;
[PROPOSED] ORDER
Complaint Filed: 02/10/2011
Trial Date: 10/01/2012

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TO THE HONORABLE COURT AND TO ALL PARTIES AND COUNSEL:

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IT IS HEREBY STIPULATED by and between the parties to this action,

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plaintiff ROBERTO JUAREZ (“Plaintiff”), defendants CITY OF COALINGA

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(“City”) and CHIEF CAL MINOR (hereafter collectively as “City Defendants”), and

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defendants CALIFORNIA HIGHWAY PATROL (“CHP”) and CAPTAIN DANIEL

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MINOR (hereafter collectively as “State Defendants”), by and through their
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respective counsel of record, and pursuant to the extent applicable to Federal Rules

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of Civil Procedure 5.2 and 26 and United States District Court, Eastern District of

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California Local Rules 141.1, 143, and 251, as follows:
GOOD CAUSE STATEMENT.

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1.

The parties are informed and believe that as of May 29, 2010 – the date

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of the incident at issue in plaintiff’s complaint – plaintiff ROBERTO JUAREZ was a

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peace officer certified by the California Commission on Peace Officer Standards and

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Training (“POST”). Notwithstanding the foregoing, nothing in this paragraph shall

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be construed as a stipulated fact for purposes of any dispositive motions or at the

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time of trial of this matter.

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2.

The parties are further informed and believe that as of the date of this

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Stipulation plaintiff ROBERTO JUAREZ is employed as a correctional officer at

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Pleasant Valley State Prison (“PVSP”), a correctional facility under the California

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Department of Corrections and Rehabilitation (“CDCR”) and was so employed on

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the date of the incident. Notwithstanding the foregoing, nothing in this paragraph

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shall be construed as a stipulated fact for purposes of any dispositive motions or at

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the time of trial of this matter.

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3.

The parties acknowledge that there are certain types of documents and

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records that are potentially discoverable in this action but whose discovery may be

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complicated or prohibited by issues of confidentiality, intellectual property, work

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product protections, or various privileges: such documents potentially include but are

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not limited to police/peace officer personnel files, including Internal Affairs (“IA”)

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investigation file documents, and comparable official government information;

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medical records for any natural person who is a party to this action; tax and/or

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financial records; and comparable records that a person typically treats as

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confidential in the normal course of business or affairs.

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4.

The parties further contend that individual peace officers have an

interest in protecting their own privacy rights relating to investigations and other
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information in their peace officer personnel files. The parties further contend that

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investigations and information in peace officer personnel files affect peace officers’

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ability to remain employed, to transfer to other law enforcement agencies, or to

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become employed as law enforcement/peace officers again in the future.

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5.

The parties further contend that police/peace officer personnel files and

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internal affairs investigation files include information which is both personal in

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nature and which could potentially impact the liberty interests of the involved

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police/peace officers named within those files.

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6.

The parties further contend that: (1) absent a Pitchess motion and court

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order thereon (or comparable discovery order), police/peace officer personnel

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records – including internal affairs investigation files and related complaints,

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statements, and records – are deemed confidential and preserved from disclosure

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under California state law (e.g., California Penal Code §§ 832.7 and 832.8;

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California Evidence Code §§ 1040, 1043, and 1045); and (2) police/peace officer

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personnel records are also deemed confidential by federal decisional law (e.g.,

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Sanchez v. Santa Ana Police Department, 936 F.2d 1027, 1033-1034 (9th Cir.

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1990)).

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7.

The parties further contend that peace officer personnel file records,

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including the records of plaintiff, may potentially be protected from disclosure under

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certain circumstances pursuant to the California Government Code; California

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Evidence Code; California Penal Code; the Official Records Privilege; the federal

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Official Information Privilege; the federal Executive Deliberative Process Privilege;

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the attorney-client privilege; the physician-patient privilege; the therapist-patient

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privilege; the attorney work product protection; the taxpayer privilege; the right to

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Privacy under the United States Constitution or the California Constitution; or any

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other applicable state or federal authority or other privilege against disclosure or

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production available under any provision of federal or California law. However,

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nothing in this paragraph shall be construed as a stipulation that any party to this
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Stipulation has standing to assert such privilege(s), and nothing in this paragraph

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shall be construed as a stipulated fact for purposes of any dispositive motions or at

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the time of trial of this matter.

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The parties are further informed and believe that, pursuant to the some

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or all of the aforementioned potential protections from disclosure, the CDCR will not

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produce any peace officer personnel file records to any party absent a Court Order

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mandating such production, including the peace officer personnel file records of

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plaintiff that are reported to be in the CDCR’s possession, custody, or control.

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9.

The parties further contend that, under federal law, in many

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circumstances where a document or record is purported to be protected from

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disclosure on grounds of privilege, the court is authorized to review the records in

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camera in order to determine: (a) if the privilege(s) claimed apply/applies to the

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record(s) in question so as to bar their disclosure to the other party, and/or (b) if the

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record(s) in question are discoverable in that they contain relevant information

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and/or information reasonably calculated to lead to the discovery of admissible

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evidence in the case at issue. See, e.g., United States v. Amlani, 169 F.3d 1189, 1196

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(9th Cir. 1999) (concluding that in camera review is the appropriate method to

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determine if records are protected from disclosure under the attorney-client

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privilege); Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 576-577 (9th

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Cir. 1992); Lexington Ins. Co. v. Swanson, 240 F.R.D. 662, 669 (W.D. Wash.

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2007)(in camera review may be appropriate to determine whether documents contain

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attorney mental impressions absolutely preserved from disclosure under the attorney

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work product protection); Maricopa Audubon Soc’y v. United States Forest Serv.,

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108 F.3d 1089, 1093-1095 (9th Cir. 1997) (where a party seeking production of

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records for which the Executive Deliberative Process Privilege is asserted has met

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its threshold burden to show a specific need for the records sufficient to overcome

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the privilege, the court may review the records in camera to balance the interests

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against disclosure with the interests favoring disclosure and to identify which
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specific documents are discoverable and must be disclosed to the party challenging

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the application of privilege and seeking disclosure); Sanchez v. City of Santa Ana,

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936 F.2d 1027, 1033-1034 (9th Cir. 1990) (discussing comparable in camera review

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procedure for assertions of the Official Information Privilege); In re U.S. Dept. of

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Homeland Sec., 459 F.3d 565, 569-570, 569 n.1 (5th Cir. 2006) (ordering an in

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camera review of the documents at issue to determine the extent of the applicability

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of the law enforcement privilege to such records); see also Soto v. City of Concord,

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162 F.R.D. 603, 613, 613 n. 4 (N.D. Cal. 1995) (regarding the criteria for disclosure

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where the Executive Deliberative Process Privilege or Official Information Privilege

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is asserted); accord Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D. Cal.

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1987); cf. Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040, 1043, 1045;

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People v. Mooc, 26 Cal. 4th 1216, 1229 (2001); Haggerty v. Superior Court, 117

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Cal. App. 4th 1079, 1086 (2004) (detailing the comparable in camera review process

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under California’s Pitchess protections for peace officer personnel file discovery).

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However, nothing in this paragraph shall be construed as a stipulation that any party

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to this Stipulation has standing to assert any such privilege(s), and nothing in this

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paragraph shall be construed as a stipulated fact for purposes of any motions or at the

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time of trial of this matter.

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10.

The parties further acknowledge that only records, documents, and

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information which contain discoverable information – namely information that is

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reasonably calculated to lead to the discovery of admissible evidence – are

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themselves discoverable. See, e.g., Fed. R. Civ. P. 26(b)(1).

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11.

The parties further acknowledge that regarding testimony and tangible

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items, including records and documents, under the Federal Rules of Evidence,

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“‘Relevant evidence’ means evidence having any tendency to make the existence of

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any fact that is of consequence to the determination of the action more probable or

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less probable than it would be without the evidence.” Fed. R. Evid. 401. However,

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“[e]vidence which is not relevant is not admissible.” Fed. R. Evid. 402.
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12.

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The parties further acknowledge that, at present, among the central

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disputed factual issues of the instant action is whether, on May 29, 2010 – the date of

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the incident at issue – in the moments prior to any use of force upon plaintiff by any

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law enforcement officer(s) employed by the City Defendants or by the State

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Defendants, plaintiff was complying with police officer instructions and/or departing

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the incident scene as directed, or whether plaintiff was failing to comply with police

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officer instructions and/or moved in an aggressive or hostile fashion toward any of

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defendants’ peace officers in such a way as to render the use of force upon plaintiff

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reasonable under the totality of the circumstances. See generally Graham v. Connor,

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490 U.S. 386, 396 (1989); Cal. Penal Code § 835a; Edson v. City of Anaheim, 63

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Cal.App.4th 1269, 1272-1273 (1998) (California torts of assault and battery apply

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the same Graham standard as in a federal excessive force claim when alleged against

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a peace officer); accord Alejandro v. Williamson, 2008 U.S. Dist. LEXIS 35417,

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*32-33 (E.D. Cal. 2008). In light of the current state of the evidence discovered to

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date, plaintiff contends that any use of force upon him during the incident was

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unreasonable under the totality of the circumstances; defendants dispute this

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contention.

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13.

The parties further acknowledge that a central disputed factual issue in

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any action is whether the percipient plaintiff is credible and/or has a character for

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truthfulness or its opposite. See, e.g., Fed. R. Evid. 405, 608(b); United States v.

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Wales, 977 F.2d 1323, 1326 (9th Cir. 1992).

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14.

The parties further acknowledge that records or information in any of

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plaintiff’s peace officer personnel files might be relevant to some of the central

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disputed factual issues in this case, and thus are potentially discoverable, where such

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records or information demonstrate or have any tendency in reason to indicate that

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plaintiff has a habit, custom, tendency, or history of violence, aggression,

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disobedience-insubordination, failure to follow instructions, and/or dishonesty or

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lack of credibility – or, alternatively, a habit, custom, tendency, or history of
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peacefulness, collegiality, obedience, compliance with instructions, and/or honesty or

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credibility. See id. Plaintiff contends that, to the extent such information may be

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relevant or admissible, plaintiff does not have a habit, custom, tendency, or history of

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violence, aggression, disobedience-insubordination, failure to follow instructions,

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and/or dishonesty or lack of credibility. Nothing in this Stipulation shall be

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construed as a waiver by any party to object to the admissibility of such evidence at

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the time or trial or in other proceedings before the Court.

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15.

Nothing in this Stipulation shall be construed as a stipulation that the

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any of the foregoing issues are the only disputed factual issues in this action, or that

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the aforementioned issues are the most important factual issues in this action. Other

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factual issues, such as plaintiff’s damages, are also disputed between the parties

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pending further discovery.

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16.

The parties further acknowledge that only discoverable records from

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plaintiff’s peace officer personnel files should be produced to all parties (including

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defendants) in this action pursuant to this Stipulation; specifically, the parties agree

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that only records from plaintiff’s peace officer personnel file(s) which contain

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information reasonably calculated to lead to the discovery of information that is

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relevant to the aforementioned central disputed factual issues of this action should be

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discoverable under this Stipulation.

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17.

The parties are also informed and believe that the Court is likely to be

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better suited than any non-party entity to determine which records in plaintiff’s peace

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officer personnel files are discoverable or relevant to this action and/or the central

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disputed factual issues therein.

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18.

Therefore, in light of the foregoing, the parties hereby stipulate that

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good cause exists for the Court to Order that plaintiff’s entire peace officer

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personnel file(s) be produced to the Court by the records’ custodian(s) of records and

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that, after in camera review by the Court to determine which specific records are

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discoverable in this action in light of the aforementioned central factual issues, those
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of plaintiff’s peace officer personnel file records which the Court deems to be

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discoverable shall be produced to defendants and to all parties herein under the

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provisions of this Stipulation and its associated Order.

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STIPULATION AND ORDER FOR PRODUCTION AND REVIEW.

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19.

Accordingly, in light of the foregoing, plaintiff, the City Defendants,

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and the State Defendants hereby stipulate to and respectfully request the Court to

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issue an Order as follows:

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20.

Pleasant Valley State Prison (“PVSP”) shall produce the entire peace

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officer personnel file and associated records (see ¶¶ 21-22, infra) in its possession,

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custody, or control regarding plaintiff ROBERTO JUAREZ to the Court for in

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camera review hearing by a date to be determined by the Court as stated in the Order

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infra. The custodian of records for the PVSP shall bear such personnel file and

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associated records to the aforementioned in camera review hearing on the date and at

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the time stated in such Order. Additionally, the term “peace officer personnel file

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and associated records” – and comparable terms in this Stipulation and any

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associated Order – is/are to be liberally construed so as to advance the purposes of

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discovery in this action.

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21.

The Court shall then review the peace officer personnel file records for

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plaintiff ROBERTO JUAREZ in camera to determine and identify which specific

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records and documents are discoverable in light of the disputed factual issues in this

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action.

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22.

Regarding those records and documents from plaintiff ROBERTO

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JUAREZ’s personnel file, and associated records, which the Court reviews in

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camera, the Court shall Order the following types of records to be produced to all

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parties in this action: all records which have any tendency in reason to indicate that

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plaintiff has a habit, custom, tendency, or history of (a) inappropriate violence,

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inappropriate aggression, or use of excessive force; (b) disobedience-

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insubordination; (c) failure to follow instructions; and/or (d) dishonesty or lack of
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credibility; or, alternatively, a habit, custom, tendency, or history of (e) peacefulness;

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(f) collegiality, obedience, or compliance with instructions; and/or (g) honesty or

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credibility. The foregoing records shall include but shall not be limited to any

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reports, interviews, or related records regarding: (1) complaints or allegations or

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incidents of any use of force involving plaintiff, including but not limited to

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complaints or allegations or incidents of excessive force or inappropriately

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aggressive conduct involving plaintiff; (2) complaints or allegations or incidents of

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misrepresentation and/or false reporting involving plaintiff, particularly in reporting

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or during interviews or testimony by plaintiff; (3) complaints or allegations or

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incidents of insubordination or negligent or intentional failure to follow directives,

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policies, or instructions involving plaintiff; (4) commendations and/or favorable

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reports or records regarding restraint and/or avoidance of the use of force and/or

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peaceful resolution of potentially violent or dangerous situations involving plaintiff;

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(5) commendations and/or favorable reports or records regarding honesty,

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truthfulness, and/or candor of plaintiff, particularly in reporting or during interviews

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or testimony; (6) commendations and/or favorable reports or records regarding

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plaintiff’s obedience or compliance with directives, policies, or instructions,

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particularly such records regarding plaintiff’s positive contribution to a team

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environment; (7) discipline or promotion of plaintiff by the CDCR or PVSP for any

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reasons; (8) medical records of plaintiff related to any problems of substance abuse,

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psychological issues, or other medical conditions that may be related to any of the

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disputed factual issues in this case, including but not limited to any habit, custom,

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tendency, or history of violence, aggression, disobedience-insubordination, failure to

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follow instructions, and/or dishonesty or lack of credibility, or their opposites; and

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(9) comparable records that are reasonably calculated to lead to the discovery of

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admissible evidence in this action.

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23.

Regarding those specific records from plaintiff’s personnel file which

the Court orders to be discoverable and produced in this action, PVSP shall produce
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legible copies of the documents so identified by the Court to all parties’ counsel no

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later than 20 days after the in camera review by the Court. Where the original

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documents are in color, the PVSP shall produce color copies if at all feasible.

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24.

All of the aforementioned documents and records so produced pursuant

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to the Court’s in camera review and Order for production-disclosure shall be subject

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to the terms of the operative Protective Order for Confidential Documents and

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associated stipulation [see, e.g., Dkt. Doc. 11] as though plaintiff was the producing-

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disclosing party designating such records as “Confidential Documents” and as

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though defendants were the recipient party of such records.

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25.

It is further agreed that this Stipulation may be signed in counterpart and

that a facsimile or electronic signature will be as valid as an original signature.
IT IS SO STIPULATED.
Dated: July 6, 2011

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MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
/s/ Tony M. Sain
By: ___________________________
Eugene P. Ramirez, Esq.
Tony M. Sain, Esq.
Attorneys for Defendants,
CITY OF COALINGA AND CHIEF
CAL MINOR

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Dated: July 6, 2011

LAW OFFICES OF DOUGLAS L. HURT
/s/ Douglas L. Hurt
By: ___________________________
Douglas L. Hurt, Esq.
Attorneys for Plaintiff,
ROBERTO JUAREZ

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Dated: July 6, 2011

OFFICE OF THE ATTORNEY GENERAL
FOR THE STATE OF CALIFORNIA
/s/ Jilly Scally
By: ___________________________
Jilly Scally, Deputy Attorney General
Attorneys for Defendants,
CALIFORNIA HIGHWAY PATROL AND
CAPTAIN DAVID MINOR
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ORDER

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PURSUANT TO THE STIPULATION OF THE PARTIES, and pursuant to

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the Court’s inherent and statutory authority, including but not limited to the Court’s

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authority under the applicable Federal Rules of Civil Procedure and the United States

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District Court, Eastern District of California Local Rules; after due consideration of

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all of the relevant pleadings, papers, records, and evidence in this action; Good

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Cause appearing therefor, and in furtherance of the interests of justice,

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IT IS HEREBY ORDERED that:

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1.

All of the terms and conditions of the parties’ Stipulation of the Parties

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for Order for Production of Plaintiff’s Peace Officer Personnel File Records to Court

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for In Camera Review and Disclosure to Defendants of Relevant Documents

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(“Stipulation”) as delineated and stated herein above (e.g., section titled “Stipulation

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and Order for Production and Review”) shall be incorporated by reference here and

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shall be deemed binding pursuant to the terms of such Stipulation and by the Order

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of this Court.
2.

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The custodian of records for the Pleasant Valley State Prison (“PVSP”)

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of the California Department of Corrections and Rehabilitation (“CDCR”) shall

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appear before this Court for an in camera review hearing on ______________, 2011

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at ________ _.m. at the following location:

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__________________________________________________________________.
3.

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At such hearing, the PVSP custodian of records shall bear the entire

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peace officer personnel file and associated records for ROBERTO JUAREZ.

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///

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///

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///

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4.

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The Court shall then review such records in camera and identify those

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specific documents and records from plaintiff’s peace officer personnel file that are

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potentially relevant to this action, pursuant to the parties’ Stipulation, which shall

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then be produced by the PVSP custodian of records to all parties’ counsel within 20

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days of such in camera review hearing.

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IT IS SO ORDERED.

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Dated: ________________

_____________________________________
UNITED STATES MAGISTRATE JUDGE

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