Walker et al v. North Las Vegas Police Department et al

Filing 46

ORDER granting in part and denying in part 31 Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 12/8/15. (Copies have been distributed pursuant to the NEF - TR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
THOMAS WALKER, et al.,
11
Plaintiff(s),
12
vs.
13
14

NORTH LAS VEGAS POLICE
DEPARTMENT, et al.,
Defendant(s).

15

)
)
)
)
)
)
)
)
)
)
)

Case No. 2:14-cv-01475-JAD-NJK
ORDER

16
Pending before the Court is Plaintiffs’ motion to compel and for associated relief under Federal
17
Rule of Civil Procedure 37. Docket No. 31. Defendants filed a response, and Plaintiffs submitted a
18
reply. Docket Nos. 33, 34. Subsequently, the Court ordered Defendant North Las Vegas Police
19
Department (“NLVPD”) to submit responsive documents for an in camera review, and Defendant
20
NLVPD complied. The Court finds that this motion is appropriately resolved without oral argument.
21
See Local Rule 78-2. For the reasons that follow, Plaintiffs’ motion to compel is GRANTED in part
22
and DENIED in part. Consequently, Plaintiffs’ request for reasonable attorneys’ fees and costs is
23
DENIED.
24
BACKGROUND
25
Plaintiffs allege that on September 14, 2012, Defendants executed a narcotics search warrant on
26
Plaintiffs’ home. Docket No. 3 at 5-6. In the process, Defendants Snyder and Maalouf allegedly shot
27
and killed Plaintiffs’ two dogs. Id., at 6.
28

1

Plaintiffs’ Complaint alleges that the killing constituted an unreasonable seizure under the Fourth

2

Amendment to the United States Constitution, and asserts a claim against Defendants Snyder and

3

Maalouf under 42 U.S.C. § 1983. They further allege a § 1983 policy-or-practice claim against

4

Defendant NLVPD under Monell v. Department of Social Services of the City of New York, 436 U.S.

5

658 (1978), contending that Defendant NLVPD has a practice of using unreasonable force on dogs

6

during the execution of search warrants. Id., at 10. In addition to the federal civil rights claims,

7

Plaintiffs allege state law claims of intentional infliction of emotional distress and negligent infliction

8

of emotional distress. Id., at 12-13.

9

The pending matter before the Court relates to four requests for production that Plaintiffs served

10

on Defendant NLVPD. These requests sought two categories of documents: (1) Defendant NLVPD’s

11

internal affairs documents regarding prior incidents involving the use of force against dogs (“First Set

12

of Requests”); and (2) Officers Snyder and Maalouf’s personnel records (“Second Set of Requests”).

13

See Docket Nos. 31 at 5-7; 34 at 13. Defendants objected to the First Set of Requests on the grounds

14

that the information sought was irrelevant and privileged. Docket No. 31 at 6. Defendants objected to

15

the Second Set of Requests on the grounds that the information sought was irrelevant and would violate

16

the officers’ right to privacy. Docket No. 31 at 6-7. As a result, Plaintiffs filed the motion to compel

17

that is presently before the Court. Docket No. 31. After the matter was fully briefed, the Court ordered

18

Defendants to submit the requested documents for an in camera review. Docket No. 37.1

19
20

ANALYSIS
I.

First Set of Requests

21

The Court has broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681,

22

685 (9th Cir. 1988). Rule 262 provides for the discovery of relevant, nonprivileged information that

23

“appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.

24
25
26
27
28

1

Defendants noted that no Internal Affairs documents existed that are responsive to Plaintiffs’
request. Instead, in an effort to comply with the Court’s order, Defendants produced Early Intervention
System Firearm Discharge Reports, which are monitored by the Internal Affairs Bureau but not produced
by it.
2

Unless otherwise specified, references to “Rules” refer to the Federal Rules of Civil Procedure.
2

1

26(b)(1). Relevance under Rule 26(b)(1) is liberally construed and is considerably broader than

2

relevance for trial purposes. Oppenheimer Fund v. Sanders, 437 U.S. 340, 351,(1978) (citation

3

omitted). For discovery purposes, “relevance includes matters that bear on, or that reasonably could

4

lead to other matters that bear on, any issue that is or may be in the case.” Id.

5

Defendants dispute that Plaintiffs’ First Set of Requests seeks relevant information. Docket No.

6

33 at 3. They argue that because there is “no evidence in the record at this point tending to show that

7

[Defendant] NLVPD may have a custom or practice regarding the mishandling of animals[,]” Plaintiffs

8

have failed to show they have a Monell claim at all and that the information they seek is relevant. Id.

9

Lack of evidence is not a valid basis to resist discovery. See Nat'l Union Fire Ins. Co. of

10

Pittsburgh, PA v. Coinstar, Inc., 2014 WL 3396124, at *2 (W.D. Wash. July 10, 2014). Discovery itself

11

is the process which serves as the vehicle for Plaintiffs to obtain the very evidence Defendants contend

12

is lacking. Id. To permit a party to avoid discovery on this basis would lead to the tautology of denying

13

a claim due to lack of evidence because discovery requests – the means of getting that evidence – were

14

denied due to a lack of evidence. Further, to the extent Defendants attack the sufficiency of Plaintiffs’

15

Monell claim, the Court finds it inappropriate to rule on the merits of the claim in the context of a

16

discovery dispute. See id.

17

The Court finds that the First Set of Requests seeks relevant information. Monell liability “may

18

attach when an employee is acting pursuant to an expressly adopted official policy, long standing

19

practice or custom, or as a final policymaker.” Thomas v. Cty. of Riverside, 763 F.3d 1167, 1170 (9th

20

Cir. 2014) (citing Monell, 436 U.S. at 694). The documents sought – records of prior incidents

21

involving the use of force against dogs and Defendants’ responses to them – are reasonably calculated

22

to lead to discovery of admissible evidence. They are relevant to determining the presence – or lack

23

thereof – of a long-standing practice or custom involving the use of force against dogs, and, thus, are

24

central to Plaintiffs’ Monell claims. Accordingly, the Court overrules Defendants’ relevance objections.

25

The Court next turns to Defendants’ privilege contentions. Privileged information is not

26

discoverable. Rule 26(b)(1). In a civil rights case brought under § 1983, questions of privilege are

27

resolved by federal law. Cross v. Jaeger, 2015 WL 1412845, at *4 (D. Nev. Mar. 27, 2015). As a

28

result, state law does not control the applicability of privilege here. Hooks v. Bannister, 2014 WL
3

1

6772989, at *6 (D. Nev. Dec. 2, 2014). Strong policy considerations underlie this choice of law, as

2

other courts have explained:

3
4
5

It . . . would make no sense to permit state law to determine what evidence is
discoverable in cases brought pursuant to federal statutes whose central purpose is to
protect citizens from abuses of power by state and local authorities. If state law
controlled, state authorities could effectively insulate themselves from constitutional
norms simply by developing privilege doctrines that made it virtually impossible for
plaintiffs to develop the kind of information they need to prosecute their federal claims.

6
Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D. Cal. 1987). In contrast to many state law
7
privileges, “[f]ederal law governing privilege has not been codified.” Hooks, 2014 WL 6772989, at *6.
8
Rather, privileges have developed at common law. Id. (citing Fed. R. Evid. 501).
9
Federal courts recognize a qualified privilege for official information, into which courts
10
incorporate the confidentiality interests embodied in some state law privileges. Id. (integrating
11
confidentiality interests reflected in state administrative regulations into official information privilege
12
analysis). For example, “[p]ersonnel files and complaints made against government employees have
13
been considered official information.” Pinder v. Baker, 2015 WL 540431, at *2 (D. Nev. Feb. 10, 2015)
14
(citing Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir.1990)).
15
While Defendants’ response does not actually use the words “official information privilege,”
16
they are essentially asserting this privilege in their invocation of the Frankenhauser v. Rizzo, 59 F.R.D.
17
339 (E.D. Pa. 1973) factors and their contention that “the Court should balance the government’s
18
interest in ensuring the secrecy of the documents in question against [Plaintiffs’ need] to obtain the
19
discovery.” Compare Docket No. 33 at 4-6 with Kelly, 114 F.R.D. at 661 (weighing the same using the
20
Frankenhauser factors). Further, the affiant in support of Defendants’ response evokes the official
21
information privilege by name and cites Kelly. See Docket No. 33 at 13.
22
“[C]ourts in the District of Nevada have adopted a protocol outlined in Kelly . . . that parties
23
must comply with when asserting the official information privilege.” Cross v. Jaeger, 2015 WL
24
1412845, at *5 (D. Nev. Mar. 27, 2015) (collecting cases). First, “[i]n order for the court to weigh the
25
potential benefits and disadvantages of disclosure, the party asserting the privilege is required to submit
26
a declaration or affidavit under oath and penalty of perjury from the head of the department that has
27
control over the information.” Carrillo v. Las Vegas Metro. Police Dep’t, 2013 WL 592893, at *3 (D.
28
4

1

Nev. Feb. 14, 2013) (collecting cases).

2

Such a declaration must include:

3

8

(1) an affirmation that the agency generated or collected the material in issue and has in
fact maintained its confidentiality (if the agency has shared some or all of the material
with other governmental agencies it must disclose their identity and describe the
circumstances surrounding the disclosure, including steps taken to assure preservation
of the confidentiality of the material), (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
interest, and (5) a projection of how much harm would be done to the threatened
interests if the disclosure were made.

9

Id. Here, Defendant NLVPD submitted a declaration, but it fails to comply with the Kelly requirements.

10

There is no indication that the affiant, Stephanie Easton, is the head of the department that has control

11

over the information. See Docket No. 33 at 2, 13-15. Although any assertion of this privilege is

12

procedurally defective on this basis alone, the Court further finds that substantive considerations do not

13

warrant its application to these requests. Carrillo, 2013 WL 592893, at *3.

4
5
6
7

14

In determining whether the official information privilege applies, courts apply a balancing test

15

that weighs the government’s interest in secrecy against Plaintiffs’ need to obtain discovery. Id. at *3-4.

16

Courts in the District of Nevada consider the Frankenhauser factors in weighing these competing

17

interests:

18
19
20
21
22
23

(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
governmental self-evaluation and consequent program improvement will be chilled by
disclosure; (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
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; and (10) the importance of the information sought to the plaintiff’s case.

24
Id. (citing Kelly, 114 at 663). The balance is “moderately pre-weighted in favor of disclosure.” Id. at *3.
25
In this case, Plaintiffs assert a Monell claim against Defendant NLVPD based on its alleged
26
custom, policy, or practice of permitting its officers to use unreasonable force on dogs during the
27
execution of warrants. Defendants’ findings, comments, and recommendations regarding these incidents
28
5

1

are central to Plaintiffs’ claim. Next, although the parties sharply dispute the merits of Plaintiffs’

2

Monell claim, neither party contends Plaintiffs’ suit is frivolous or filed in bad faith. As to the

3

proceeding two factors, Defendants assert that there “may” be continuing investigations or

4

intradepartmental disciplinary proceedings. Docket No. 33 at 2. However, neither their affiant’s

5

declaration nor an in camera review of the documents provides support for this speculation. Further,

6

Defendants do not address the implications of whether the information is factual or evaluative. Finally,

7

contrary to Defendants’ contention that disclosure would result in an “obvious chilling effect,” “Kelly

8

states that it is equally valid to assert that the investigating and responding officers’ knowledge that their

9

statements and opinions may be disclosed and scrutinized in a subsequent judicial proceeding will

10

encourage them to conduct thorough and honest investigations.” Docket No. 33 at 5; Carrillo, 2013 WL

11

592893, at *5. It is unclear to what obvious chilling effect Defendants refer. On balance, the Court

12

finds that the relevant Frankenhauser factors favor disclosure.

13

Next, citing Ostoin v. Waterford Township Police Department, 471 N.W. 2d 666 (Mich. App.

14

1991), Defendants argue that the deliberative process privilege categorically protects the requested

15

Internal Affairs records. Docket No. 33 at 5. However, Defendants’ contentions regarding the

16

deliberative process privilege are misguided.

17

Application of that privilege here would stretch its policy rationale beyond recognition. The

18

deliberative process privilege was designed “to help preserve the vigor and creativity of the process by

19

which government agencies formulate important public policies.” Kelly, 114 F.R.D. at 658. Because

20

its rationale should limit its reach, courts apply the deliberative process privilege only to

21

“communications designed to directly contribute to the formation of important public policy” and hold

22

that it “cannot operate at all when a plaintiff is pressing a non-frivolous challenge to the deliberative

23

process itself.” Id. at 659. “So limited, this privilege would offer no protection at all to most of the

24

kinds of information police departments routinely generate.” Id.

25

Defendants’ privilege contentions sweep so broadly that nearly all Internal Affairs data produced

26

by police departments would be presumptively shielded from disclosure. Such an argument illustrates

27

“the dangers of importing into this arena doctrines that were developed in quite different settings to

28

protect government interests or promote policies that have little or no bearing on most of the kinds of
6

1

information generated by police departments.” Id. Here, the requests seek documents relating to

2

incidents involving the use of force on dogs and Defendant NLVPD’s response to those incidents. The

3

communications contained therein are not designed to directly contribute to the formation of important

4

public policy. Rather, Plaintiffs seek the documents to evidence the existence of Defendant NLVPD’s

5

purported de facto policy itself. The underlying rationale behind the deliberative process privilege and

6

the privilege itself are inapplicable.

7

II.

Second Set of Requests

8

Plaintiffs’ Second Set of Requests seeks the personnel files of Defendants Snyder and Maalouf

9

in their entirety. Docket No. 31 at 6-7. As in Segura v. Reno, 116 F.R.D. 42 (D. Nev. 1987), the Court

10

has performed an in camera review of these Defendants’ personnel files. Following that review, the

11

Court finds that the documents include social security numbers, employment contracts, bank account

12

information, payroll documents, irrelevant employment evaluations, personal addresses, driver’s license

13

numbers, family contact information, and tax records. As in Segura, the Court concludes that Plaintiffs

14

have failed to make a showing that these Defendants’ social security numbers, tax information, or family

15

contact information are at all reasonably calculated to lead to admissible evidence.3 Id. at 44. However,

16

unlike in Segura, some of the employment files do contain relevant documents – incidents involving

17

the use of force against dogs, which Defendant NLVPD found were justified. Contra id. (holding

18

documents were irrelevant because officers were disciplined). The Court therefore finds the Second Set

19

of Requests seeks some relevant information.

20

Next, Defendants contend that “federal law clearly supports their privacy objections on this

21

issue.” Docket No. 33 at 7. However, their response provides no authority that supports this contention

22

and, instead, misquotes Breed v. United States District Court for the Northern District of California,

23

542 F.2d 1114 (9th Cir. 1976)4 and cites Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal.

24
25
26
27
28

3

Although Plaintiffs initially requested these documents in their entirety, they now concede for the
first time in reply that redactions would mitigate Defendants’ concerns. See Docket No. 34 at 11.
4

Defendants’ response erroneously indicates that Breed states that courts “ordinarily recognize a
constitutionally-based right of privacy that can be raised in response to discovery requests.” Docket No.
33 at 7.
7

1

1987), which ultimately permitted discovery despite the defendants’ privacy interests. Docket No. 33

2

at 7.

3

Despite Defendants’ misattribution, it is true that “[f]ederal courts ordinarily recognize a

4

constitutionally-based right of privacy that can be raised in response to discovery requests.” Keith H.

5

v. Long Beach Unified School Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005); see Stallworth v. Brollini,

6

288 F.R.D. 439, 444 (N.D. Cal. 2012) (noting that “the United States Supreme Court has recognized a

7

constitutional right to privacy, more specifically, a constitutional right to nondisclosure of one’s

8

personal information”). However, this right is not absolute and is subject to balancing. Keith H. v. Long

9

Beach Unified School Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005) (“Resolution of a privacy objection

10

. . . requires a balancing of the need for the information sought against the privacy right asserted”);

11

Breed, 542 F.2d at 1116 (balancing the invasion of minor’s privacy rights against party’s need for

12

children’s California Youth Authority files).

13

With respect to the disclosure of police files, courts have recognized that “rights of privacy are

14

not inconsequential.” Kelly, 114 F.R.D. at 660. However, these privacy interests must be balanced

15

against the great weight afforded to federal law in civil rights cases against police departments. Id.

16

(noting that “through national legislation the people have made it clear that the policies that inform

17

federal civil rights laws are profoundly important”). Therefore, in cases involving police personnel

18

files, “district courts in the Ninth Circuit have found that the privacy interests police officers have in

19

their personnel files do not outweigh the civil rights [plaintiffs’] need for the documents.” Soto v. City

20

of Concord, 162 F.R.D. 603, 617 (N.D. Cal. 1995) (collecting cases and concluding that “the existing

21

case law suggests that the privacy interests of police officers have not outweighed the civil rights

22

[plaintiffs’] need to discover the officer-defendants’ personnel files”).

23

Here, in applying this balancing test to the few relevant pages in Plaintiffs’ requests, it is clear

24

that Plaintiffs’ need for the documents outweighs any invasion of Defendants’ privacy rights,

25

particularly under the limitations of the stipulated protective order. As in Soto, Plaintiffs’ “need for the

26

requested personnel files is great” because “the information contained [therein] . . . is unlikely to be

27

available from any other source[.]” Id. In support of their privacy argument, Defendants deploy

28

citations to NRS 289.025 and NRS 289.030, even though “[t]he scope of an evidentiary privilege in a
8

1

42 U.S.C. § 1983 civil rights action is a question of federal law[.]” Breed, 542 F.2d at 1115. NRS

2

289.025 and NRS 289.030 are inapposite, even assuming they applied, because the Court has found that

3

the Officer Defendants’ home addresses and financial information are irrelevant. See NRS 289.025

4

(generally prohibiting disclosure of officers’ home addresses); NRS 289.030 (generally prohibiting

5

disclosure of officers’ financial information).

6

Further, in this case, the “carefully drafted protective order . . . minimize[s] the impact of this

7

disclosure.” Soto, 162 F.R.D. at 617 (citing Kelly, 114 F.R.D. at 666). Defendants contend the

8

stipulated protective order (Docket No. 21) is inadequate to protect the requested employment records

9

because Plaintiffs are “unlikely to adhere” to it. Docket No. 33 at 9. In furtherance of this assertion,

10

Defendants catalogue instances in which Plaintiffs “shared their opinions on social and public media”

11

before the Court entered the protective order. Id. These contentions are inadequate to support an

12

inference that Plaintiffs will violate this Court’s protective order.

13

Consistent with other courts in the Ninth Circuit, the Court therefore finds that these

14

Defendants’ privacy interests in the limited relevant pages “have not outweighed the civil rights

15

[Plaintiffs’] need to discover the [Defendants’] personnel files.” Soto, 162 F.R.D. at 617.

16

CONCLUSION

17

For the reasons discussed above, Plaintiffs’ motion to compel is hereby GRANTED in part and

18

DENIED in part. Accordingly, the Court finds that Defendants’ position was substantially justified and

19

DENIES Plaintiffs’ request for reasonable attorneys’ fees and costs. Therefore,

20

1.

IT IS ORDERED that, no later than December 17, 2015, Defendants shall produce

21

Defendants’ Production of Documents for In Camera Review Set Two to Plaintiffs,

22

except for the Armorer’s Inspection Check Lists – Bates 3,4, 19, 32, 33, 36, 37, 50, 51,

23

52, 53, 59, 60, 108, 109, 110, 112, 113 114, 115, 128, 132, 133 – which are irrelevant

24

here as there is no allegation that any weapon malfunctioned. Further, Defendants shall

25

redact, prior to production, any personal information of any civilian person not a party

26

to the instant case.

27
28

2.

IT IS FURTHER ORDERED that, no later than December 17, 2015, Defendants shall
produce all pages of documents detailing the use of force against dogs in Defendants’
9

1

Production of Documents for In Camera Review Set One to Plaintiffs; namely:

2

A.

3

Page 1 of Officer Paul Maalouf’s Employment Evaluation Report for the
Period of 2012–2013;

4

B.

5

Page 1 of Officer Travis Snyder’s Employment Evaluation Report for the
Period of 2010–2011;

6

C.

7

Page 1 of Officer Travis Snyder’s Employment Evaluation Report for the
Period of 2009–2010.

8

3.

IT IS FURTHER ORDERED that Plaintiffs’ additional requests are DENIED.

9

DATED: December 8, 2015

10
11
12

NANCY J. KOPPE
United States Magistrate Judge

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