883 N.W.2d 711
S.D.2016Background
- Emily Lou Smith was arrested by Minnehaha County Deputy Adam Zishka and indicted on multiple charges including three counts of simple assault on a law enforcement officer.
- Smith served a subpoena duces tecum on Sheriff Mike Milstead seeking “all disciplinary records/reprimands/complaints” in Deputy Zishka’s personnel file.
- Sheriff Milstead moved to quash the subpoena as overbroad and oppressive; the circuit court denied the motion in part and ordered production of records from the past five years for in camera review.
- The State joined Sheriff Milstead in seeking review; Milstead appealed the order permitting in camera inspection.
- The Supreme Court of South Dakota granted intermediate appeal and reviewed whether personnel files are discoverable under SDCL 23A-14-5 (Rule 17(c)) and whether the court erred in ordering a five-year, in camera review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law enforcement personnel files are discoverable under SDCL 23A-14-5 (Rule 17(c)) | Smith: records are relevant to whether Zishka or Smith was the aggressor and necessary for effective cross-examination | Milstead: subpoena is overbroad, a fishing expedition, and statutory confidentiality bars production absent proper showing | Court: personnel files are not categorically shielded, but Rule 17(c) requests must meet Nixon test (relevance, admissibility, specificity); Smith failed to meet the test, so discovery denied |
| Whether the court erred by ordering an in camera review of Zishka’s personnel file for the last five years | Smith: in camera review warranted because files could contain impeachment or exculpatory material | Milstead: in camera review and broad production are burdensome and risk improper disclosure of confidential information | Court: ordering in camera review was error because Smith did not satisfy Nixon; in camera review is appropriate only after a proper Nixon showing and must be narrowly tailored |
Key Cases Cited
- Bowman Dairy Co. v. United States, 341 U.S. 214 (distinguishing Rule 16 from Rule 17(c) and warning against using Rule 17 as broad discovery)
- United States v. Nixon, 418 U.S. 683 (establishing three-part test for subpoenas under Rule 17(c): relevancy, admissibility, specificity)
- Pennsylvania v. Ritchie, 480 U.S. 39 (Confrontation Clause rights do not create a constitutional rule of pretrial discovery; in camera review required when material)
- Davis v. Alaska, 415 U.S. 308 (effective cross-examination can require disclosure of confidential records when material to bias)
- State v. Karlen, 1999 S.D. 12 (South Dakota required case-specific showing and ordered in camera review for privileged records when necessary to protect due process)
- People v. Gissendanner, 399 N.E.2d 924 (N.Y. Ct. App.) (defendant must present a good-faith factual predicate showing personnel file likely contains material evidence)