Doe v. San Diego, City of et al

Filing 81

ORDER Resolving 69 Joint Motion for Determination of Discovery Dispute Regarding Terms of Protective Order. The Court's protective order will be issued in a separate order. Signed by Magistrate Judge David H. Bartick on 3/8/2013.(rlu) per chambers, terminated ECF No. 69 on 3/8/2013 (rlu).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JANE DOE,

Civil No.

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Plaintiff,
v.

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THE CITY OF SAN DIEGO, et al.,
Defendants.

12-cv-0689-MMA (DHB)

ORDER RESOLVING JOINT
MOTION FOR
DETERMINATION OF
DISCOVERY DISPUTE
REGARDING TERMS OF
PROTECTIVE ORDER
[ECF No. 69]

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On February 13, 2013, the parties filed a joint motion for determination of

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discovery dispute regarding the terms of a proposed protective order. (ECF No. 69.) The

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parties have negotiated the terms of a proposed protective order and have been “able to

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agree on all terms with the exception of one. The parties remain unable to agree to the

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scope of the proposed Protective Order as it relates to peace officer information.” (Id. at

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2:10-12.) Specifically, the parties dispute whether the protective order’s definition of

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“confidential” should include “any information contained within a peace officer

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personnel file,” as proposed by Defendants. (Id. at 2:17-19.)

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Plaintiff contends that “Defendants are demanding, as a condition of executing any

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protective order, that Plaintiff concede that all of the information contained in a peace

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officer’s personnel file is, by definition, ‘Confidential’ and therefore entitled to protected

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status. Such concession is not in accord with the principles established by the Federal
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case law promulgated in this Circuit.” (Id. at 3:16-20.) However, the case law that

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Plaintiff cites to addresses whether peace officers’ personnel files should be produced,

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not whether they should be defined as “confidential” under a court’s protective order.

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The Court disagrees with Plaintiff that the cases relied upon by Plaintiff “are instructive

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insofar as they establish that police personnel files do not garner any more protection than

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what would be accorded any other documents which are subject to the terms of a

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discovery order.” (Id. at 5:28-6:3.)

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Police officers have a recognized privacy interest in their personnel files. See

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Dowell v. Griffin, 275 F.R.D. 613, 617 (S.D. Cal. 2011). In addition, California Penal

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Code § 832.7 provides that “[p]eace officer . . . personnel records . . . or information

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obtained from these records, are confidential.” CAL. PENAL CODE § 832.7(a) (emphasis

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added). Thus, the Court concludes that peace officers’ personnel files should be afforded

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some measure of protection.

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The Court recognizes that peace officers’ “privacy rights have to be considered in

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light of the substantial weight afforded plaintiffs in civil rights cases against police

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departments.” Dowell, 275 F.R.D. at 617. Indeed, the Court will address this issue when

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ruling on the parties’ pending joint motion for determination of discovery dispute

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concerning Defendant City of San Diego’s refusal to produce documents requested by

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Plaintiff. (ECF No. 56.) Defendants’ proposed language would not prevent Plaintiff

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from obtaining those documents that the Court determines should be produced or from

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using those documents for purposes of this litigation.

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“Defendants’ privacy concerns may be sufficiently protected with the use of a ‘tightly

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drawn’ protective order. Dowell, 275 F.R.D. at 617.

If disclosure is ordered,

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The Court is not persuaded by Plaintiff’s claim that the Court’s conclusion herein

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“would unreasonably bind Plaintiff’s hands when she disputes the privileged status of any

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information contained therein, as well as force virtually every deposition and every court

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filing in this case to be done under seal.” (ECF No. 69 at 6:24-26.) First, in light of the

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fact that police personnel records are confidential under California law, as noted above,
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the Court does not anticipate that Plaintiff will need to dispute Defendants’ confidential

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designation of such records. Second, it is not uncommon in cases involving sensitive

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information (such as corporate financial information or trade secrets or, as here, internal

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police personnel records) for the parties to be required to often seek leave to file

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documents under seal. Although this requirement imposes some burden on the parties,

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it is appropriate in light of the sensitive nature of those cases. This requirement is

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likewise appropriate here.

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Accordingly, the Court finds it appropriate that the definition of “confidential” in

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the protective order entered in this case include “any information contained within a

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peace officer personnel file.”1 The Court’s protective order will be issued in a separate

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order.

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IT IS SO ORDERED.
DATED: March 8, 2013

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DAVID H. BARTICK
United States Magistrate Judge

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The Court will include the language proposed by Defendants even though it
appears to be redundant. Indeed, the parties’ proposed language would extend
“confidential” status to “any other information deemed privileged or confidential
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police personnel files would already be deemed confidential based on California Penal
28 Code § 832.7. The Court will nevertheless include Defendants’ proposed language to
provide further clarification of the scope of the protective order.
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12cv689-MMA (DHB)