E.S., et al. v. County of Tulare, et al.

Filing 60

ORDER After IN CAMERA Inspection of the Personnel File of Defendant Tim Haener and Consideration of Defendants' Supplemental Brief. ORDER Requiring Production of Certain Documents from the Personnel File. Parties are to work out languag e of a protective order and submit to the Court within ten (10) days. Defendant City shall, within fifteen (15) days of entry of protective order, provide the responsive documents to Plaintiffs. Defendants shall contact chambers to make arrangements to retrieve their copy of the personnel file submitted for the in camera review. signed by Magistrate Judge Barbara A. McAuliffe on 3/11/2015. (Herman, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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E.S., a minor, by and through her guardian
Ad Litem, VALINE GONZALEZ; J.F., a
minor, by and through his guardian ad
Litem, Bridget Flores; and MARIA
MORENO, in each case individually and as
successor in interest to Armando Santibanez,
deceased,

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ORDER AFTER IN CAMERA INSPECTION
OF THE PERSONNEL FILE OF
DEFENDANT TIM HAENER AND
CONSIDERATION OF DEFENDANTS’
SUPPLEMENTAL BRIEF

Plaintiffs,

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Case No. 1: 13-cv-1697-LJO-BAM

v.

ORDER REQUIRING PRODUCTION OF
CERTAIN DOCUMENTS FROM THE
PERSONNEL FILE

CITY OF VISALIA, TIM HAENER,
Defendants.

In this 42 U.S.C. §1983 excessive force case, the parties stipulated to submit the personnel file
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of defendant police officer Tim Haener to the Court for an in camera review. (Doc. 52.) The
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personnel file was submitted, ex parte, and the Court conducted a preliminary review of the personnel
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file. The parties stipulated that the Court’s in camera review would comprise the following:

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5. As part of the in camera inspection, the Court shall review the following
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information:
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a. Internal Affairs investigation conducted by the Visalia Police
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Department into the February 8, 2013 shooting incident.
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b. Any documents memorializing the conclusion that Defendant TIM
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HAENER’s use of deadly force on February 8, 2013 was justified.
c. Any documents evidencing ratification of Defendant TIM HAENER’s

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use of deadly force on February 8, 2013.

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d. Citizen’s complaints made against Defendant TIM HAENER

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pertaining to his use of excessive, unreasonable or deadly force;
(Doc. 52.)

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Pursuant to a further stipulation between the parties on January 15, 2015 (Doc. 54), Defense
counsel, Leonard C. Herr, appeared for a further in camera review on January 20, 2015 to answer
questions of an administrative nature that the Court had regarding Defendant Tim Haener’s personnel
file.

After reviewing the personnel file and the responses to the Court’s questions, the Court

determined that further briefing by defendants was necessary to evaluate the confidential nature of the
documents and weigh and balance the interests at stake. Defendants submitted supplemental briefing
on February 13, 2015.

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The personnel file submitted to the Court consisted of three “packets” of information. Packet 1

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consists of documents comprising Officer Haener’s ordinary personnel information such as

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background, routine employment documents, and employment history. Packet 2 consisted of a report
of Lt. Steven Phillips of the underlying incident. Packet 3 consists of an internal investigation file of
an unrelated citizen’s complaint. Having reviewed the personnel file and the supplemental briefing,
the Court orders as follows.
Overview of the Official Information Privilege
Federal common law recognizes a qualified privilege for official information. Sanchez v. City
of Santa Ana, 936 F.2d 1027, 1033 (9th Cir.1990). The official information privilege “is broad enough
to cover all the disparate kinds of data and communications that can be involved in these types of
[civil rights] cases [against the government].” Kelly v. City of San Jose, 114 F.R.D. 653, 660
(N.D.Cal.1987). In cases involving section 1983 claims, courts have repeatedly held that police
personnel files and documents are relevant and discoverable. See, e.g., Green v. Baca 226 F.R.D. 624,
644 (C.D.Cal. 2005); Turjillo v. Jacquezi, 2014 WL 4072062 (N.D.Cal. 2014). In determining what
level of protection should be afforded by this privilege, courts conduct a case by case balancing

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analysis, in which the interests of the party seeking discovery are weighed against the interests of the
governmental entity asserting the privilege. Kelly, 114 F.R.D. at 660.

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Before the Court will engage in this balancing of interests, the party asserting the privilege (the

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defendant police department) must properly invoke the privilege by making a “substantial threshold

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showing.” Id. at 669. To fulfill the threshold requirement, “the party asserting the privilege must

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submit a declaration or affidavit from a responsible official with personal knowledge of the matters to

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be attested to in the affidavit.” Kelly, 114 F.R.D. at 669.1 The discoverability of official documents

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should be determined under the “balancing approach that is moderately pre-weighted in favor of

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disclosure.” Kelly, 114 F.R.D. at 661.

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The City has made a threshold showing that the requested documents are subject to the official
information privilege. It invoked the official information privilege. The Court directed defendants to
file a brief outlining their position. The brief was submitted by counsel of record, who is also the City
Attorney. Accordingly, the Court will find that the City satisfied Kelly by asserting the privilege from
a responsible official making detailed statements concerning the confidentiality of the withheld
information. Kelly, 114 F.R.D. at 669–70.

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Once the party asserting the privilege meets the threshold burden, the Court will review the
documents in light of the balancing test articulated in Kelly. Courts consider the following factors
when balancing the interests of the parties in the context of an official information privilege claim:

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(1) The extent to which disclosure will thwart governmental processes by discouraging citizens
from giving the government information.

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(2) The impact upon persons who have given information of having their identities disclosed.

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(3) The degree to which government self-evaluation and consequent program improvement
will be chilled by disclosure.

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The affidavit must include: (1) an affirmation that the agency generated or collected the material in issue and has
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, and (5) a projection of how much harm would be
done to the threatened interests if disclosure were made. Kelly, 114 F.R.D. at 670.

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(4) Whether the information sought is factual data or evaluative summary.
(5) Whether the party seeking the discovery is an actual or potential defendant in any criminal
proceeding either pending or reasonably likely to follow from the incident in question.
(6) Whether the police investigation has been completed.
(7) Whether any interdepartmental disciplinary proceedings have arisen or may arise from the
investigation.
(8) Whether the plaintiff's suit is non-frivolous and brought in good faith.
(9) Whether the information sought is available through other discovery or from other sources.
(10) The importance of the information sought to the plaintiff's case.
Kelly, 114 F.R.D. at 663. The ten factors identified in Kelly are often used to determine whether a
claim of privilege for official information bars discovery. See Kelly, 114 F.R.D. at 663.
The Court has considered the Kelly factors and finds that certain documents should be
produced to Plaintiffs and should be produced pursuant to a yet-to-be-submitted protective order.
While all factors were considered, the Court discusses only the most pertinent factors herein.
Ordinary Personnel File Information
1. Irrelevant Personal Information
To the extent that the personnel files contain irrelevant personal information such as, insurance
information, personal documents and tax documents, these documents need not be produced.
2. Performance Evaluations
Periodic performance evaluations by superiors are relevant. Ortega v. San Diego Police Dept.,
2013 WL 5724032 (S.D.Cal.2013). There is a strong public interest in uncovering civil rights
violations of the type at issue in this case. Soto v. City of Concord, 162 F.R.D. 603, 617 (N.D. Cal.
1995). Performance evaluations are relevant and typically ordered disclosed in civil rights cases
alleging excessive force, especially where plaintiffs also bring a Monell claim. Medina v. County of
San Diego, 2014 WL 4793026 (S.D.Cal.2014) (requiring production of officer performance
evaluations and training records).

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Plaintiffs’ need for the information sought is great. This information is unlikely to be available
from any source other than the Defendants' records. The incident occurred on February 8, 2013. The
Court finds that performance evaluations for July 2010-June/July 2011; July 2011-June 2012; and July
2012-June 2013 are important to Plaintiffs’ evaluation of training and policies and procedures.2 In
addition, any documents memorializing external training courses during this same time period should
also be produced. Any personal information, such as social security number or address, should be
redacted.
Documents Related to the Underlying Incident

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The records created in the course of the investigation into the shooting death are relevant to
this civil rights action. See Kelly, 114 F.R.D. at 665–66.

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The Defendant's claim that disclosure would frustrate internal investigations lacks support and
has been rejected by other courts. See Soto, 162 F.R.D. at 612 (noting that Kelly “debunks the theory
that officers will be less truthful or forthright in expressing their opinions if there is a risk of future

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disclosure[ ]” and concurring with Kelly's reasoning) (quoting Kelly, 114 F.R.D. at 665–66); see also

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Watson v. Albin, 2008 WL 1925257, at *2 (N.D.Cal. Apr.30, 2008) (“[Defendant's] arguments that

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disclosure would discourage exhaustive internal investigations are unpersuasive. Courts in this district
have previously rejected such claims, and there is no reason to depart from that reasoning here.”)
(citing Kelly, 114 F.R.D. at 672); See Medina, 2014 WL 4793026 *11 (requiring production of
documents related to the underlying incident and overruling objections based on deliberative process,
self-critical analysis, and required reports privileges.)

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The personnel file contains a report created by Lt. Steven Phillips.3 The information was
generated by the Visalia Police Department, and it is not otherwise available to Plaintiff.

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The Court did not locate a performance evaluation for July 2013-June 2014. To the extent such an evaluation exists, it
should be produced as well.
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This is the only document contained in the personnel file related to the underlying incident. Defendants have represented
to the Court that numerous other documents regarding the underlying incident have already been produced to Plaintiffs.

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The report consists of a letter dated February 27, 2014; a “findings and conclusions” page with
signatures; witness summaries by Lt. Phillips of recorded witness interviews (which defendants term
“evaluative summaries”); and an interoffice confidential memo to defendant Haener.
Based upon balancing the Kelly factors, the Court finds the following documents from this
report shall be produced: Letter dated February 27, 2014 from the Office of the District
Attorney/County of Tulare; “Findings and Conclusions” of the Deadly Force Review Board; and
Confidential interoffice memorandum dated September 3, 2013.
The Court finds that the “evaluative summaries” should not be produced. These summaries
appear to be Lt. Steven Phillips excerpts of recorded witness interviews. The defendants indicate that
the recorded witness interviews have been produced to Plaintiffs during discovery, along with other
evidence such as audio, photos, evidentiary logs, and other law enforcement reports. The Court finds
that the “evaluative summaries” fall within the official information privilege as it is subjective
evaluative information Lt. Phillips elected to excerpt from the recorded witness statements for
inclusion in his report.
The Court acknowledges that there are important public policies in favor of disclosure in civil
rights actions. The Court also acknowledges that there important public policies supporting the
information privilege and an officer’s right of privacy. In balancing these competing interests, the
Court finds that the factual information underlying the incident or a citizen’s complaint should be

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disclosed so that Plaintiffs may assess the facts. However, the evaluative or “official” information

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should be protected. This position is not inconsistent with Plaintiff’s needs for information. The

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factual information provides the foundation for Plaintiff s’ investigation, yet the evaluative functions

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and information are protected by the official information privilege.
Internal Affairs Reports and Investigations of Any other Incidents or Complaints
Internal affairs investigations into citizen complaints against defendants are “presumptively
discoverable” where relevant. Kelly, 11 F.R.D. at 665–66. Records of citizen complaints against law
enforcement involving excessive force are relevant in civil rights cases. Soto, 162 F.R.D. at 620.
These records may be “crucial to proving [a][d]efendant's history or pattern of such behavior.” Id.

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There is a prior incident which is remote in time and factually dissimilar to the underlying
complaint here. However, the incident may be relevant to the claim against the County for
maintaining an unlawful policy of deliberate indifference to the lives and liberty of the public.
Plaintiffs allege, among other things, that Defendants have an “unconstitutional policy, custom, and
practice of detaining and arresting individuals without probable cause or reasonable suspicion, and

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using excessive force, including deadly force.” (FAC para. 70.) Information of this type may also be

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relevant on issues of “credibility, notice to the employer, ratification by the employer and motive of

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the officers.” Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D.Cal.1993).

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Therefore, the Court will order that the following documents related to the citizen complaint
filed against Officer Haener be produced. Defendants shall produce: (1) the citizen’s complaint,
which consists of 4 handwritten pages, and the handwritten witness statement, which consists of 6
pages; (2) letters dated September 16, 2008 to the complainants and the copies of the returned
envelopes, (consisting of 5 pages); (3) documents in the subheading “DA Amended Complaint”
consisting of a letter dated February 1, 2008, the amended complaint, and (4) a January 31, 2008 file
memorandum (consisting of 6 pages). The Court finds that the remainder of the documents regarding
this complaint is subject to the official information privilege for the same reasons as evaluative
summaries in Lt. Steven Phillips’ report.
Protective Order
The privacy rights of the officers and official information may be sufficiently protected with
the use of a tightly drawn protective order, specifying, for instance, that only counsel for Plaintiffs and
their experts may have access to the material and that copies of such material will be returned to
Defendants at the conclusion of the case. Disclosure of the relevant documents to Plaintiffs and their
attorneys pursuant to a protective order would not harm a significant government or privacy interest.

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CONCLUSION AND ORDER
For the foregoing reasons, and pursuant to the Court's in camera review, the Court orders as
follows:

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1. The documents identified in this order, appropriately redacted, shall be produced to

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Plaintiffs pursuant to a protective order;

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2. The parties are ORDERED to meet and confer and to jointly draft a proposed

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protective order to protect the documents from the personnel records of the

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defendant officer that will be disclosed pursuant to this order and to limit use of

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these documents to the current litigation and provide appropriate limits on the

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disclosure of the information. The order should address how the documents should

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be destroyed or returned upon the termination of this litigation.

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3. The parties are ordered to work out the language of a protective order to submit to

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the Court for approval within ten (10) days of the date of this Order. Defendant City

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shall, within fifteen calendar (15) days of entry of the protective order, provide the

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responsive documents to Plaintiffs.

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4. Defendants shall contact chambers to make arrangements to retrieve their copy of

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the personnel file submitted for the in camera review.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 11, 2015

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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