Beckway v. DeShong et al

Filing 209

ORDER FOLLOWING IN CAMERA REVIEW. Signed by Judge Laporte on 9/19/11. (edllc1, COURT STAFF) (Filed on 9/19/2011)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BRENT BECKWAY,

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Plaintiff,

No. C07-05072-TEH (EDL)

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v.

ORDER FOLLOWING IN CAMERA REVIEW

DEPUTY PAUL DESHONG,
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For the Northern District of California

United States District Court

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Defendant.
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Introduction

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In this case brought by Plaintiff Brent Beckway against the County of Lake and its Sheriff’s

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Department, Sheriff Rodney Mitchell and Deputies Richard Ward and Paul DeShong based on an

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alleged use of excessive force in connection with his arrest, Plaintiff filed a motion to compel

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various discovery responses from the County and Sheriff Mitchell. Following a hearing on August

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23, 2011, the Court granted in part and denied in part Plaintiff’s motion to compel and agreed to

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review the following categories of documents in camera to determine whether they should be

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produced under the protective order entered by this Court on September 1:

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Records relating to the hiring, discipline, training, and termination of DeShong;

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Records of DeShong regarding Field Training Officer Program, limited to those document(s)

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reflecting completion of the program;
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Any citizen complaints made against Ward and any citizen complaints made against

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DeShong commencing five years prior to the subject incident that occurred on October 27,

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2006;

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•

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Records of discipline imposed on Ward as a result of the citizen complaints referenced above
and/or the incident involving Beckway; and

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Records regarding the termination of DeShong by the Lake County Sheriff’s Department.

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Having reviewed the documents in camera, the Court hereby Orders that some of the

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documents, as specified below, be produced, subject to the stipulated protective order and after

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redacting all personal information such as home addresses and telephone numbers, social security

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numbers, and other information relating to individuals unrelated to this lawsuit. However, the Court

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finds the remaining documents, as specified below, to be irrelevant to the issues raised by Plaintiff’s

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lawsuit, or privileged or otherwise protected, and therefore need not be produced.

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Background

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This excessive force lawsuit arises from the October 27, 2006 arrest of Plaintiff Brent
Beckway by defendants Ward and DeShong, deputies of the County of Lake Sheriff’s Department.
Ward and DeShong went to Beckway’s home to investigate a report of an altercation between

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For the Northern District of California

United States District Court

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Beckway and his neighbor. The parties dispute the events of that evening. Beckway contends that

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when he asked why he was being arrested, he was thrown down and received a heavy blow to the

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back of his left leg that later required surgery. Defendants contend that Plaintiff resist them when

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they attempted to arrest him for assault, and in a struggle with DeShong, both men lost their balance

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and fell to the ground. DeShong denies using any force. He was subsequently terminated from the

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Sheriff’s Department at a later date for behavior unbecoming an officer, insubordination and being

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under the influence on duty. He denies that his termination was related to the incident involving

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Plaintiff. Whitefleet Decl. Ex. A (Deshong Depo.) at 134-35.

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Beckway brought this lawsuit on October 2, 2007, alleging excessive use of force and false

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arrest under 42 U.S.C. section 1983 (including Monell allegations against the County), as well as

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state law claims for battery, negligence, negligent infliction of emotional distress, and intentional

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infliction of emotional distress. The case was stayed during Beckway’s criminal proceedings, where

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he ultimately pled no contest to a charge of resisting an officer’s lawful conduct. The false arrest

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claim has been dismissed from this case.

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Discovery Background

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On February 25, 2008, Plaintiff served requests for production on the County seeking, among

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other things, “The complete personnel record for Deputy Deshong, with the exception of pension

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and compensation history, unless such history reflects an adverse employment decision. (Plaintiff
will agree to a reasonable protective order related to this request).” Drexel Decl. Ex. 1 at RFP #14.

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Discovery was then stayed until approximately early 2010, at which time the County began taking

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discovery. Plaintiff responded in April 2011. Jones Decl. ¶ 7, Ex. F. Plaintiff took DeShong and

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Ward’s depositions in late 2010 and did not request documents at that time. Jones Decl. ¶ 8.

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On February 15, 2011 Plaintiff noticed Sheriff Mitchell’s deposition and identified 17

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categories of documents for production at the deposition, including Deshong’s hiring, training,

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supervision, discipline and termination records and citizen’s complaints against Deshong and Ward.

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Jones Decl. ¶ 9, Ex. G. The County objected to the document requests because the documents were

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not in Mitchell’s possession, custody or control because he was no longer Sheriff. Jones Decl. ¶ 9,

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Ex. H. Plaintiff did not respond substantively to the objections, but re-noticed the deposition and the

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For the Northern District of California

United States District Court

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County responded with the same objections regarding documents. Drexel Decl. Ex. 6, 8.
Thereafter, Plaintiff propounded requests for production on the County and the County

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responded with objections and documents. Jones Decl. ¶ 14-16, Exhs. Q-T. Plaintiff then noticed a

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deposition of the person most knowledgeable of the County, including 12 categories of information

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and 24 categories of documents. Drexel Decl. Ex. 7. The County provided documents and

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objections based on, among other things, privacy and the official information privilege prior to the

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deposition. However, the Court excluded those relating to DeShong’s personnel file and complaints

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against Ward and DeShong. Jones Decl. ¶ 9-10, 16, Ex. G-J; Drexel Decl. Ex. 9.

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Following the hearing on this motion to compel, the parties have entered into a stipulated

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protective order.

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Standard of Review

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Generally, in addition to the issue of relevancy of the requested records, the privacy interest

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in police records such as those in question must be balanced against the interests of the party seeking

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discovery to determine if a right to privacy exists. Soto v. City of Concord, 162 F.R.D. 603, 613

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(N.D. Cal. 1995), articulates the following standard:

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Federal common law recognizes a qualified privilege for official information.
Kerr v. U.S. Dist. Ct. for the Northern Dist., 511 F.2d 192, 198 (9th Cir. 1975). In
determining what level of protection should be afforded by this privilege, courts
conduct a case by case balancing analysis, in which the interests of the party
seeking discovery are weighed against the interests of the governmental entity
asserting the privilege. Kelly v. City of San Jose, 114 F.R.D. at 660; Miller v.
Pancucci, 141 F.R.D. at 300; Hampton v. City of San Diego, 147 F.R.D. at 23031; Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir.1990), cert
den., 502 U.S. 957, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991). In the context of civil

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rights suits against police departments, this balancing approach should be
“moderately pre-weighted in favor of disclosure.” Kelly, 114 F.R.D. at 661.

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However, before the Court will engage in this balancing of interests, the party
asserting the privilege (the defendant police department) must properly invoke the
privilege by making a “substantial threshold showing.” Id. at 669. In order to
fulfill the threshold requirement, the party asserting the privilege must submit a
declaration or affidavit from a responsible official with personal knowledge of the
matters to be attested to in the affidavit. Id. 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.” Id. at
670. See also Chism v. County of San Bernardino, 159 F.R.D. 531, 533
(C.D.Cal.1994); Hampton v. City of San Diego, 147 F.R.D. at 230-31; Miller v.
Pancucci, 141 F.R.D. at 301. A strong affidavit would also describe how the
plaintiff could acquire information of equivalent value from other sources without
undue economic burden. Kelly, 114 F.R.D. at 670.

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For the Northern District of California

United States District Court

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If the court concludes that a defendant's submissions are not sufficient to meet the
threshold burden, it will order disclosure of the documents in issue. If a defendant
meets the threshold requirements, the court will order an in camera review of the
material and balance each party's interests. Id. at 671; Chism, 159 F.R.D. at 53334; Hampton, 147 F.R.D. at 231; Miller, 141 F.R.D. at 301.

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If the party asserting the privilege meets the threshold requirement, the court will
conduct a balancing analysis that considers, but is not limited to, the following
factors: (1) The extent to which disclosure will thwart governmental processes by
discouraging citizens from giving the government information; (2) the impact
upon persons who have given information of having their identities disclosed; (3)
the degree to which government self-evaluation and consequent program
improvement will by chilled by disclosure; (4) whether the information sought is
factual data or evaluative summary; (5) whether the party seeking 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 intradepartmental 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 v. City
of San Jose, 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339,
344 (E.D.Pa.1973)).

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Id. at 613, n.4.

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Analysis

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The County has provided the following categories of documents for in camera review, and
certain of them shall be produced as follows:

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A. Records relating to the hiring, discipline, training, and termination of DeShong

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This category of documents contains forms and other documents relating to DeShong’s

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application for employment with the Lake County Sheriff’s department, including an investigation

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into his background and prior work experience, including with the Monterey County Sheriff’s

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Department. Certain of these documents are administrative forms that were completed over five

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years prior to the incident in question and have little or no relevance to the issues in this case.

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Plaintiff’s limited interest in this largely irrelevant information is outweighed by DeSong’s privacy

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interest in the documents. Documents in this category that need not be produced include Lake 1090-

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1116 (Personal History Statement Form), Lake 1117-1121 and 1122-32 (portions of Background
Investigation Questionnaire), 1134, 1137-1144, 1173-75 (other general employment forms,

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For the Northern District of California

United States District Court

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identification and high school education records).

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However, the County is required to produce certain documents from DeShong’s hiring file

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relating to prior complaints or discipline in connection with police work (Lake 1133), information

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related to prior police training (Lake 1135-36), and previous records relating to police performance

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(Lake 1153-1172). The records contained in DeShong’s Lake County training file as well as one

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document relating to a citizen’s complaint (Lake 1017-1028, 1194-1228) shall also be produced.

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These documents shed some light on DeShong’s on the job performance and training, which help to

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give relevant context to the claims brought against him. Courts will permit the discovery of police

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personnel files in civil rights cases because the “information may lead to evidence of a continuing

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course of conduct reflecting malicious intent,” or “reveal the defendant officers’ patterns of

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behavior, as well as [their agency’s] response to such behavior.” Soto v. City of Concord, 162

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F.R.D. 603, 616 (N.D. Cal. 1995). To the extent that the privacy interests of third parties are

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implicated by any of these documents (in particular Lake 1017-1028, 1158 and 1169), the County

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shall take care to redact all identifying information of third parties from the documents and the

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documents will be governed by a protective order.

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B. Records of DeShong regarding Field Training Officer Program, limited to those
document(s) reflecting completion of the program

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DeShong’s Training Block evaluation report and related memoranda reflecting completion of
his initial training with the Lake County Sheriff’s Department (Lake 998-1001 and 1013-1016) shall

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For the Northern District of California

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be produced for the same reasons discussed above.
C. Any citizen complaints made against Ward and any citizen complaints made against
DeShong commencing five years prior to the subject incident that occurred on
October 27, 2006
The documents provided by the County in this category, including (1) the Internal Affairs
Investigation case assignment sheets (Lake 1031-1035) reflecting the investigation of complaints
against Ward and DeShong shall be produced after redaction of all information relating to the
investigation of other employees; and (2) documents relating to a personnel complaint against
DeShong alleging unprofessional conduct shall be produced after appropriate redaction (Lake 12291241). To the extent that the privacy interests of third parties are implicated by any of these
documents, the County shall take care to redact all identifying information of third parties from the
documents and the documents will be governed by a protective order.

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D. Records of discipline imposed on Ward as a result of the citizen complaints
referenced above and/or the incident involving Beckway

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The County asserts that there are no responsive documents in this category and has not

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provided any for in camera review. Therefore no documents from this category are ordered

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produced.

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E. Records regarding the termination of DeShong by the Lake County Sheriff’s
Department

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These termination documents demonstrate unequivocally that DeShong’s termination had no

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direct relationship to Plaintiff or the allegations in his complaint and was based on an incident

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unrelated to DeShong’s treatment of a member of the public or any use of force approximately six

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months after the alleged incident involving Plaintiff. DeShong’s privacy interest in his termination

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documents outweighs any limited interest Plaintiff might have in the termination documents. The

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termination file (Lake 1055-1089) need not be produced.

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Dated: September 19, 2011

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_______________________________

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ELIZABETH D. LAPORTE
United States Magistrate Judge