Ortega et al v. San Diego Police Department et al

Filing 30

ORDER On 26 Joint Motion Regarding Ortega's "Pitchess" Request to Obtain Defendant Jonathan McCarthy's San Diego Police Department Personnel File. The Court orders Defendants to produce all documents required to be produced in this Order pursuant to the Protective Order entered by the Court on July 24, 2013. All documents shall be produced to Plaintiffs within one week of the date of this Order. Signed by Magistrate Judge Jan M. Adler on 10/21/13. (kaj)(jrd)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

SHAKINA ORTEGA, etc., et al.,
Plaintiffs,

12
13

v.

14

SAN DIEGO POLICE
DEPARTMENT, etc., et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 13-CV-87-LAB (JMA)
ORDER ON JOINT MOTION
REGARDING ORTEGA’S
“PITCHESS” REQUEST TO
OBTAIN DEFENDANT
JONATHAN MCCARTHY’S SAN
DIEGO POLICE DEPARTMENT
PERSONNEL FILE
[DOC. NO. 26]

17

The parties have filed a Joint Motion for Determination of Discovery

18
19

Dispute regarding the production of internal law enforcement documents by

20

Defendant Jonathan McCarthy (“Defendant”) to Plaintiff Shakina Ortega.

21

Doc. No. 26. Pursuant to the Court’s Procedures for Obtaining Internal

22

Law Enforcement Documents, Defendant submitted a binder of all

23

documents listed on its “Privilege Log - Request for Production, Set One” to

24

the Court for in camera review. The Court has now reviewed the joint

25

motion and subject documents. Based upon the in camera review and the

26

Court’s evaluation of the parties’ arguments, the Court issues the following

27

order.

28

//
13cv87

1

I.

BACKGROUND
This action is brought under 42 U.S.C. § 1983 against the San Diego

2
3

Police Department, Jonathan McCarthy, and the City of San Diego by

4

Plaintiffs Shakina Ortega, Tamia Ortega, and Jacob Ortega, the surviving

5

spouse and children of decedent Victor Ortega. Plaintiffs allege that on

6

June 4, 2012, Defendant McCarthy, who responded to a 911 call made by

7

Shakina Ortega reporting domestic violence, shot and killed Victor Ortega

8

following a foot pursuit. Plaintiffs, who allege that Defendant McCarthy had

9

no probable cause to justify the use of deadly force, assert claims for

10

violation of civil rights, discrimination, assault and battery, wrongful death,

11

and negligence.
Plaintiff Shakina Ortega (“Plaintiff”) presently moves the Court for an

12
13

in camera review of Defendant McCarthy’s police personnel file, and for an

14

order to produce documents pursuant to the stipulated protective order in

15

this action (see Doc. No. 22). Joint Mot. at 2.

16
17

II.

DISCUSSION

18

A.

Disputed Discovery Requests

19

Plaintiff Shakina Ortega requests that the Court conduct an in camera

20

review of Defendant McCarthy’s personnel records to determine which

21

documents are relevant to Plaintiffs’ claim for damages, and specifically

22

seeks the following documents:

23

1.

All complaints regarding Officer McCarthy prior to June 4, 2012;

24

2.

All reports or files that concern allegations of use of excessive
force by Officer McCarthy;

3.

All records of Officer McCarthy’s training in the use of lethal and
non-lethal force, pursuits, responding to domestic violence calls
and handcuffing procedures;

4.

All records of Jonathan McCarthy’s training and education
concerning foot pursuits and all reports of foot pursuits
conducted by Officer McCarthy;

25
26
27
28

2

13cv87

5.

All reports or files concerning Officer McCarthy’s use of
firearms (primary and secondary);

6.

All records regarding training and/or approval of Officer
McCarthy’s secondary weapon and holster;

7.

All documents regarding Officer McCarthy’s history of discipline
or disciplinary actions;

8.

All documents identified in Defendants’ privilege log, attached
as Exhibit “1";

7

9.

All documents prepared by Internal Affairs; and

8

10.

All documents and things in the Internal Affairs file.

1
2
3
4
5
6

9

(Joint Mot. at 5.)
Defendants object to the release of any information in Defendant

10
11

McCarthy’s personnel file on the bases that the information is confidential,

12

and is protected from production under California Penal Code section

13

832.7, and federal and California state privacy laws. Further, Defendants

14

assert the official information privilege as a basis for withholding the

15

documents. (Id. at 5-6.) Defendants request that any information ordered

16

to be produced by the Court be produced pursuant to the parties’ stipulated

17

protective order. (Id. at 6.)

18

B.

Legal Standards

19

Federal Rule of Civil Procedure 26 states:

20

Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense–including
the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the
identity and location of persons who know of any discoverable
matter. For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)(C).

21
22
23
24
25
26

Fed. R. Civ. P. 26(b)(1). The scope of discovery under the Federal Rules

27

is extremely broad. See, e.g., Kelly v. City of San Jose, 114 F.R.D. 653,

28

668 (N.D. Cal. 1987). “The party who resists discovery has the burden to
3

13cv87

1

show that discovery should not be allowed, and has the burden of

2

clarifying, explaining, and supporting its objections.” Oakes v. Halvorsen

3

Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998).

4

“[I]n federal question cases where pendent state claims are raised

5

the federal common law of privileges should govern all claims of privilege

6

raised in the litigation.” Perrignon v. Bergen Brunswig Corp., 77 F.R.D.

7

455, 459 (N.D. Cal. 1978). “State privilege doctrine, whether derived from

8

statutes or court decisions, is not binding on federal courts in these kinds of

9

cases.” Kelly, 114 F.R.D. at 655.

10

With respect to a party’s assertion of privacy rights as a means to

11

protect documents from discovery, federal courts ordinarily recognize that a

12

constitutionally-based right of privacy can be raised in response to

13

discovery requests. Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D.

14

Cal. 1995). The resolution of a privacy objection involves a balancing of

15

the need for the information sought against the privacy right asserted. Id.

16

(citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir.

17

1984)). “In the context of the disclosure of police files, courts have

18

recognized that privacy rights are not inconsequential.” Soto, 162 F.R.D. at

19

616. “Federal courts should generally give some weight to privacy rights

20

that are protected by state constitutions or state statutes.” Kelly, 114

21

F.R.D. 653, 656 (N.D. Cal. 1987). “However, these privacy interests must

22

be balanced against the great weight afforded to federal law in civil rights

23

cases against police departments.” Soto, 162 F.R.D. at 616.

24

The privilege set forth in California Penal Code section 832.7, upon

25

which Defendants rely in part to protect the subject documents from

26

discovery, provides as follows:

27
28

Peace officer or custodial officer personnel records and records
maintained by any state or local agency pursuant to Section
832.5, or information obtained from these records, are
confidential and shall not be disclosed in any criminal or civil
4

13cv87

1

proceeding except by discovery pursuant to Sections 1043 and
1046 of the Evidence Code.

2
3

Cal. Penal Code § 832.7(a). Federal courts, however, have found that

4

section 832.7 is not applicable in evaluating discovery disputes in 42

5

U.S.C. § 1983 claims. See, e.g., Green v. Baca, 226 F.R.D. 624, 643-44

6

(C.D. Cal. 2005); see also Miller v. Pancucci, 141 F.R.D. 292, 298-99 (C.D.

7

Cal. 1992) (finding California rules for discovery and privileges, including

8

California Evidence Code section 1043, referenced in sections of California

9

Penal Code, to be “fundamentally inconsistent” with federal law and the

10

liberal federal policy on discovery). The Court therefore will not apply

11

California Penal Code section 832.7 to its analysis of this matter. See

12

Soto, 162 F.R.D. at 609 (refusing to apply California privilege law to similar

13

discovery dispute involving police files).

14

Federal common law recognizes a qualified privilege for official

15

information. Kerr v. United States Dist. Ct. for the Northern Dist. of Cal.,

16

511 F.2d 192, 198 (9th Cir. 1975). The discoverability of official documents

17

is determined under the “balancing approach that is moderately pre-

18

weighted in favor of disclosure.” Kelly, 114 F.R.D. at 661. The party

19

asserting the privilege must properly invoke the privilege by making a

20

“substantial threshold showing.” Id. at 669. The party must file an

21

objection and submit a declaration or affidavit from a responsible official

22

with personal knowledge of the matters attested to in the affidavit. Id. The

23

affidavit must include: (1) an affirmation that the agency has generated or

24

collected all of the subject material and that it has maintained its

25

confidentiality; (2) a statement that the official has personally reviewed the

26

material in question; (3) a specific identification of the governmental or

27

privacy interests that would be threatened by disclosure of the material to

28

the plaintiff and/or his or her attorney; (4) a description of how disclosure
5

13cv87

1

subject to a carefully crafted protective order would create a substantial risk

2

of harm to significant governmental or privacy interests; and (5) a

3

projection of how much harm would be done to the threatened interest or

4

interests if disclosure were made. Id. at 670.

5

C.

6

Relevance
1.

Prior Complaints and Allegations of Excessive Force
Against Defendant McCarthy (Category Nos. 1 & 2)

7
8

Plaintiff seeks to obtain documents pertaining to prior complaints and

9

allegations of excessive force against Defendant McCarthy. Records of

10

citizen complaints against defendant law enforcement officers have been

11

found relevant to a plaintiff’s civil rights claim. Soto, 162 F.R.D. at 620.

12

Such information “may be crucial to proving [a] [d]efendant’s history or

13

pattern of such behavior.” Id. Information of this type may also be relevant

14

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

15

and motive of the officers.” Hampton v. City of San Diego, 147 F.R.D. 227,

16

229 (S.D. Cal. 1993). Furthermore, such information may be relevant to

17

the issue of punitive damages, as the “information may lead to evidence of

18

a continuing course of conduct reflecting malicious intent.” Id. Accordingly,

19

the Court finds that documents reflecting prior citizen complaints and

20

allegations of excessive force against Defendant McCarthy are relevant.

21

While such documents are relevant to Plaintiffs’ claims, the Court

22

notes that documents responsive to Category Nos. 1 and 2 were not

23

included in the binder provided to the Court by Defendants for in camera

24

review. Accordingly, the Court presumes there are no such responsive

25

documents. If this is the case, and if they have not done so already,

26

Defendants shall serve an appropriate discovery response reflecting this

27

fact. If this is not the case, Defendants shall immediately inform Plaintiff’s

28

counsel and the Court of the same, shall explain why said documents were
6

13cv87

1

not previously provided to the Court, and shall make arrangements with the

2

Court for the submission of additional documents for in camera review.

3

2.

Personnel Documents (Category Nos. 3-7)

4

Plaintiff also seeks documents relating to the training, use and

5

approval of weapons, and history of discipline of Defendant McCarthy. In

6

cases involving section 1983 claims, courts have repeatedly held that

7

police personnel files are relevant and discoverable. See Green, 226

8

F.R.D. at 644; Soto,162 F.R.D. at 614-15. This includes any periodic

9

performance evaluations by superiors. See Unger v. Cohen, 125 F.R.D.

10

67, 70 (S.D.N.Y. 1989) (finding such information to be “clearly relevant” in a

11

section 1983 action arising out of alleged on-duty conduct). Such

12

information is relevant for the same reasons set forth above with respect to

13

the relevance of citizen complaint records. See, e.g., Hampton, 147 F.R.D.

14

at 229; Soto, 162 F.R.D. at 614-15. Additionally, employee performance

15

appraisals may contain information on an officer defendant’s “ethics,

16

interpersonal relationships, decision making abilities, work and safety

17

habits, and crime scene management techniques.” Soto, 162 F.R.D. at

18

615. In accordance with these authorities, the Court finds that the following

19

documents are relevant and responsive to Plaintiff’s discovery requests:

20

Pages 0004, 0017, 0018, 0046-0047 (performance evaluation referencing

21

the subject incident), 0048-0050 (performance evaluation referencing a foot

22

pursuit involving Officer McCarthy), 0066, and 0069.

23

3.

Internal Affairs Records of Subject Incident (Category Nos.
9 & 10)

24
25

This information is relevant. See Kelly, 114 F.R.D. at 665-66 (stating

26

that internal affairs investigations, including the statements that go into

27

such reports and the opinions and recommendations that conclude them,

28

are “presumptively discoverable”). Accordingly, the following documents,
7

13cv87

1

consisting of the Internal Affairs file of the subject incident, are relevant:

2

Pages 0090-0611.1

3

D.

Privacy Objection

4

As set forth above, resolution of a privacy objection requires a

5

balancing of the need for the information sought against the privacy right

6

asserted. Here, the Court finds Plaintiff’s need for the information sought is

7

great. This information is unlikely to be available from any source other the

8

Defendants’ records. As the court in Kelly stressed, there is a strong public

9

interest in uncovering civil rights violations of the type at issue in this case.

10

Soto, 162 F.R.D. at 617; Kelly, 114 F.R.D. at 667. After considering “the

11

great weight that is afforded to federal civil rights laws” (see Soto, 162

12

F.R.D. at 617) and the case law, discussed above, the Court finds the

13

privacy interests asserted by Defendants with respect to these documents

14

on the whole are outweighed by Plaintiff’s need for the information.

15

Moreover, a stipulated protective order was entered in this case on July 24,

16

2013, which limits the dissemination of any documents ordered disclosed.

17

See Doc. No. 22. The protective order and, as discussed below, the

18

redaction of any highly personal information for which Plaintiff has not

19

shown a need, will amply protect Defendants’ privacy interests. See, e.g.,

20

Soto, 162 F.R.D. at 616 (stating that “[a] carefully drafted protective order

21

could minimize the impact of . . . disclosure”).

22

E.

Official Information Privilege

23

Defendants fail to demonstrate any of the requirements that are

24

necessary to establish the official information privilege applies to any of the

25

documents at issue. Kelly,114 F.R.D. at 669. Furthermore, as previously

26

The Court notes that Pages 0334-0336 appear to be misplaced in the
subject Internal Affairs file as they related to a different incident. Additionally,
although Defendants’ privilege log indicates that the Internal Affairs file is
28 comprised of pages 0090 to 0611, the last page in the binder provided to the
Court is numbered 0582.
1

27

8

13cv87

1

mentioned, a protective order has been entered that mitigates against a

2

risk of harm to Defendants’ interests. The Court, thus, concludes the

3

official information privilege does not bar discovery of the information

4

sought.

5

F.

Redactions
To the extent personal information of Defendant McCarthy – i.e.,

6
7

home address, telephone number, family members, etc. – or the name or

8

personal information of other law enforcement officers exists within the

9

documents to be produced – such information may be redacted prior to

10

production, as Plaintiff has not shown a need for such information.

11

G.

12
13

Documents Required to be Produced
The following documents shall be produced to Plaintiff subject to the

protection of the Protective Order previously entered in this case:

14

0004

15

0017

16

0018

17

0046-0047

18

0048-0050

19

0066

20

0069

21

0090-0611 (Pages 0334-0336 may be withdrawn per footnote 1,
supra. If the Internal Affairs file goes only to page 0582, and not
0611, Defendants shall serve an amended privilege log reflecting
this.)2

22
23
24

All other documents provided to the Court for in camera review are

25

not responsive to Plaintiff’s discovery requests and are not relevant to the

26

claims made in this case, and thus need not be produced.

27

Any electronically stored information (e.g., photographs, sound recordings)
contained within this file (or any document ordered to be produced) shall be
produced in accordance with Fed. R. Civ. P. 34(a)(1)(A).
2

28

9

13cv87

1

III.

CONCLUSION

2

Based on the foregoing, and pursuant to the Court’s in camera

3

review, the Court ORDERS Defendants to produce all documents required

4

to be produced in this Order pursuant to the Protective Order entered by

5

the Court on July 24, 2013. All documents shall be produced to Plaintiffs

6

within one week of the date of this Order.

7
8

Defendants shall contact the undersigned’s chambers at (619) 5575585 to make arrangements to retrieve their documents.

9

IT IS SO ORDERED.

10

DATED: October 21, 2013

11

Jan M. Adler
U.S. Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

13cv87