ORDER RE: PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS
Bеfore the Court is Plaintiffs motion to compel production of documents and motion for sanctions. After careful consideration of the papers, arguments of counsel, and good cause appearing therefor, Plaintiffs motion to compel is GRANTED, subject to an in camera review of certain requested documents. Plaintiffs motion for sanctions is DENIED, for the reasons set forth below.
I. BACKGROUND
This is a civil rights action brought under 42 U.S.C. § 1983 against the City of Concord Police Department and certain of its police officers for an alleged violation of Plaintiffs rights under the United States Constitution.
This case is now in the discovery stage and Plaintiff seeks an order from this Court compelling Defendants to produce certain documents. The documents sought by Plaintiff in the instant motion include police department internal affairs records, the officer-defendants’ personnel files, psychological and physical health records of the officer-defendants,’ citizen complaints, and police guidelines, directives, and policy statements.
Plaintiff propounded his first Request for Production of Documents and Things pursuant to Federal Rules of Civil Procedure 34 on or about January 4, 1995. On January 31, 1995, Defendants served a Response to Plaintiffs request in which they objected to each request generally. Plaintiff sent a subsequent request on March 2, 1995. On March 31, 1995 the defendants again refused to produce any of the requested items, asserting a number of privileges and objections based on state law. Plaintiff then filed this motion to compel document production on April 12, 1995.
At the May 16, 1995 hearing to consider Plaintiffs motion to compel production of documents, this Court issued an order finding that as a threshold matter, California statutory privileges would not apply in this case and that privileges would be determined under federal common law.
II. DISCUSSION
A. Motion to Compel Introduction
The instant motion arises under Federal Rule of Civil Procedure 37(a), which authorizes a party to apply for an order to compel disclosure or discovery. “If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.” Fed. R.Civ.P. 37(a)(2)(A). When a party withholds information that is otherwise discoverable under the Federal Rules by claiming a privilege, as Defendants have done in this case, “the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Fed.R.Civ.P. 26(b)(5). Pursuant to Northern District of California Local Rule 230-5, “[w]henever a claim of privilege is made with respect to a communication or
Each of Plaintiffs requests, along with Defendants’ corresponding objections and claims of privilege, are analyzed below according to the type of document requested, which include: (1) internal affairs documents; (2) personnel files; (3) psychological and physical health records; (4) citizen complaints; and (5) police guidelines, directives, and policy statements.
1. Internal Affairs Documents (Request 1)
In his motion to compel production of documents, Plaintiff requests the Court to compel production of any and all documents that concern or are relevant to the incident described in the Complaint, including those documents that concern the entry and search of Plaintiffs residence; police internal affairs investigations relating to the incident; statements or interviews of witnesses, informants, Plaintiff, and any police officers who had any role or contact with the case; incident reports; and tapes and transcripts of radio messages made concerning the incident and all reports of such radio messages.
Defendants have agreed to produce the documents concerning the entry and search of Plaintiffs residence, all incident reports, and all tapes and transcripts of radio messages made concerning the incident. Defendants object to both the request for internal affairs investigations and request for statements of witnesses and police officers on the following grounds:
Relevancy and Overbreadth
Defendants assert that the request is not relevant to any issues in this litigation, nor reasonably calculated to lead to the discovery of admissible evidence. Defendants further assert that the request is overbroad as to time, subject matter and officers, in that the request includes investigations which do not involve complaints against the officers named in this action and does not seek complaints regarding investigations with respect to use of excessive force in arrests by the named officers.
Under the Federal Rules of Civil Procedure, the parties may obtain discovery regarding any matter that is (1) “not privileged” and (2) “relevant to the subject matter involved in the pending action.” Fed. R.Civ.P. 26(b)(1). Furthermore, “[t]he information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The scope of discovery under the Federal Rules is extremely broad. A relevant matter is “any matter that bears on, or that reasonably could lead to other matters that could bеar on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders,
Although in general the party seeking to compel discovery bears the burden of showing that his request satisfies the relevance requirement of Rule 26, the court in Kelly v. City of San Jose,
*611 It does not seem fair ... to demand that a plaintiff identify with particularity the information that is in confidential police files and demonstrate specifically how that information is relevant to his claims. [A] judge should resolve doubts about relevance in favor of disclosure, in part because she is not likely to understand the case as well as plaintiffs counsel, and thus is not likely to be able to foresee all the ways he might be able to use the information, and in part because the standard set forth in Rule 26 is so broad.
Id. at 668.
This Court finds the Kelly court’s reasoning to be persuasive and will follow its reasoning when determining the relevancy of Plaintiffs discovery requests. Plaintiffs request for the internal affairs documents concerning the investigation of the specific incident described in the complaint is relevant and is not overbroad. Information contained in these documents include complaints of excessive force, the names of officers involved, witnesses identified, as well as findings and conclusions. Such evidence is relevant and would likely lead to the discovery of admissible evidence in this case. The request for internal investigation documents is not over-broad as to subject matter or time, because Plaintiff is requesting only those documents that concern the specific incident in the complaint.
Similarly, stаtements and interviews of persons having a role in or contact with this case are relevant. Plaintiff need not identify with particularity each officer whose statements might be used. Furthermore, the internal affairs histories and statements of any police officers on the scene are relevant, regardless of whether or not those officers are named parties to the action. Hampton v. City of San Diego,
Self-critical analysis/deliberative process privilege
Defendants claim that the requested documents are privileged under the self-critical analysis privilege. The self-critical analysis privilege has been used in some federal courts to shield from discovery internal safety reviews in which companies evaluate the causes of accidents in which they are involved. Bradley v. Melroe Co.,
Some district courts that have recognized this privilege have held that the self-critical analysis privilege should not be applied to police personnel files and records of internal affairs investigations in civil rights suits against police officers. Kelly v. City of San Jose,
Defendants rely heavily on Skibo v. City of New York,
In Skibo, the court applied the self-critical analysis privilege to the plaintiffs request for certain internal police evaluations and other documents relating to incidents of excessive force by a police department.
The court in Kott recognized an absolute privilege for police records based on “policy concerns for denying public access.”
Kelly v. City of San Jose,
[S]ince there is no empirical support for the contention that the possibility of disclosure would reduce the candor of officers who contribute to internal affairs investí-1 gations, and since there are solid reasons to believe that that possibility might have the opposite effect (improving accuracy and honesty), there are no justifications for offering near absolute protection to the statements that go into such reports or the opinions and recommendations that conclude them. In fact ... such material should be presumptively discoverable when a plaintiff makes a proper showing of relevance.
Id. at 665-66. This Court concurs with Kelly’s reasoning in this matter. Furthermore, the notion that police departments should be able to completely shield their internal affairs investigatory process from the public offends basic notions of openness and public confidence in our system of justice. Accordingly, the use of the self-critical analysis privilege is inappropriately invoked by Defendants to shield internal affairs investigatory documents and witness statements from discovery.
The “deliberative process” privilege, closely related to the self-critical analysis privilege, is also inappropriate for use in civil rights cases against police departments. The deliberative process privilege should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy. Id. at 659 (citing Burka v. New York City Transit Auth.
Official information privilege
Defendants assert that the requested documents are privileged under the “official information” privilege. Federal common law recognizes a qualified privilege for official information. Kerr v. U.S. Dist. Ct. for the Northern Dist.,
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 dеclaration 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,
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 meеts the threshold requirements, the court will order an in camera review of the material and balance each party’s interests. Id. at 671; Chism,
In the instant case, Defendants have failed to meet the threshold burden
Defendants also have not met the fourth requirement of the threshold test because they have failed to address how disclosure, under a carefully crafted protective order, would create a substantial risk of harm to significant government interests. The use of a carefully drafted protective order, under which only Plaintiff and his lawyer have access to the material, substantially reduces the confidentiality interests asserted by Defendants. Kelly,
Finally, Defendants have failed to give a projection of how much harm would be done to those interests if disclosure occurred, the fifth element of the threshold test. As such, Defendants have not met their burden for invoking the official information privilege with regard to Request No. 1. Accordingly, this Court grants Plaintiffs request to compel discovery of the documents contained in Request 1, subject to the protective order which is attached to this opinion.
2. Personnel Files (Requests 3, 4, 5)
Plaintiff requests the Court to compel the production of documents that comprise or are part of the personnel files of the Defendants Officer Leftwich, Corporal Mort, and Sergeant Norvell, including the disciplinary record, and any other documents in the possession of a defendant that concern his training, duties, performance, assignments, and mental and physical condition.
Defendants object to Plaintiffs Request on the following grounds:
Overbreadth/Relevancy
Defendants object to producing the officers’ personnel files on the basis that the request is not relevant and is overbroad. Under the relevance standard set forth above, the Court finds that many documents contained in the personnel files of Defendants Leftwich, Mort, and Norvell are relevant to the issues presented in this case and are reasonably calculated to lead to the discovery of admissible evidence. Personnel files, including records of training, conduct, performance, and evaluation of officer-defendаnts in excessive force cases have been held to be relevant. Hampton,
The personnel files of the defendant-officers in the instant ease are relevant to Plaintiffs excessive force claim. The personnel files contain employee performance appraisals which contain information on each officer’s ethics, interpersonal relationships, decision making abilities, work and safety habits, and crime scene management techniques. They also contain information on promotions, training records, letters of commendation, interviews, employee orientation, and employment applications. Each of these types of documents may be quite relevant to issues involved in Plaintiffs excessive force claim, because such documents may reveal the defendant officers’ patterns of behavior, as well as the City’s response to such behavior.
This Court has specifically considered the personnel files of each Defendant and finds the following: As to the personnel file of Officer Leftwich, the following categories of information (found in Defendants’ privilege logs) are relevant to the claims at issue in this case: employee performance appraisals (category 1), field operations division memorandum (category 3), time cards for the date(s) relating to the incident alleged in the complaint (category 4), training records (category 9), the employment application (category 13), and letters of commendation (category 14). As to the personnel file of Corporal Mort, the following categories of information are relevant to the claims at issue in this case: employee performance appraisals (category 1), certificates of promotion (category 3), memo regarding interviews (category 4), service recognition (category 9), training records (category 10), employee orientation (category 12), employment application (category 15) , and letters of commendation (category 16) . As to the personnel file of Sergeant Norvell, the following categories of information are relevant to the claims at issue in this case: employee performance appraisals (category 1), records of promotion (category 3), memo regarding change in assignment (category 4), employee supplemental information sheet (category 9), training records (category 10), employee orientation (category 12), employment application (category 16), letters of commendation (category 17), and written reprimands (category 18).
Official information privilege
Defendants claim that the personnel files sought by Plaintiff are protected by the official information privilege. As stated above, the qualified official information privilege may be asserted by police departments to shield internal affairs documents from discovery. Kelly v. City of San Jose,
Defendants cite to Sanchez v. City of Santa Ana,
Privacy Bights
Defendants also contend that disclosure of the requested documents would constitute an invasion of privacy. Federal Courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests. See Breed v. United States Dist. Ct. for Northern District,
In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential. Kelly,
In cases with similar factual situations as the ease at bar, district courts in the Ninth Circuit have found that the privacy interests police officers have in their personnel files do not outweigh the civil rights plaintiffs need for the documents. The court in Martinez v. City of Stockton,
In applying the balancing analysis to the personnel files sought by Plaintiff in the case at bar, it is clear that Plaintiffs need for the documents will outweigh any invasion of Defendants’ privacy rights, particularly under the limitations of a carefully crafted protective order. Defendants’ privacy interests may be sufficiently protected with the use of a “tightly drawn” protective order, specifying that only Plaintiff, his counsel, and his experts may have access to the material, and that copies of such material will be returned to Defendants at thе conclusion of the case. See Kelly,
Considering the great weight that is afforded to federal civil rights laws, as articulated in Kelly, and the case law which supports discovery of police personnel files, this Court finds that Defendants’ privacy interests in the personnel files are outweighed by Plaintiffs need for the documents. Accordingly, this Court grants Plaintiffs Requests No. 3, 4, and 5 to compel discovery of all relevant documents (discussed above) contained in Defendants’ personnel files, subject to the protective order which is attached to this opinion.
3. Psychological and physical health records (Requests 6, 7, 8)
Plaintiff requests the Court to compel production of documents that concern or are at all relevant to, to any extent or degree, the mental, psychological or physical conditions of Defendants Leftwich, Mort, and Norvell at any and all times up to and including the present time.
Overbreadth and Relevancy
Defendants contend that the requests are not relevant and are overbroad as to time and subject matter. The Miller court found psychological evaluations relevant to plaintiffs Monell claims against a city police department.
The records of Defendants’ physical health conditions do not seem immediately relevant to the Court at this time. However, such issues of relevancy will be considered by the Court in camera to the extent that such records exist. See infra discussion.
Patient-physician privilege
The patient-physician privilege does not exist at federal common law and the Ninth Circuit has not recognized a physician-patient privilege, nor a рsychotherapist-patient privilege under federal law.
Privacy Rights
The Supreme Court has recognized a limited privacy interest in the confidentiality of one’s medical records, derived implicitly from the United States Constitution. Whalen v. Roe,
However, this privacy interest in medical records is not absolute. Pagano v. Oroville Hosp.,
In the context of the discovery of police personnel files, federal courts should give “some weight” to privacy rights that are protected by state constitutions or statutes. Kelly,
The court in Pagano invoked a five-part test to determine the scope of the privacy interests asserted in response to a discovery request for medical records. The court engaged in a “conscious balancing of the many interests at stake” and considered the following factors: “(1) the probable encroachment of the individual’s privacy right ... and the magnitude of the encroachment; (2) whether the encroachment of the privacy right would impact an area that has traditionally been off limits for most regulation; (3) whether the desired information is available from other sources with less encroachment of the privacy right; (4) the extent to which the exercise of the individual’s privacy rights impinge on the rights of others; and (5) whether the interests of society at large encourage a need for the proposed encroachment.” Id. at 698-99.
Although Defendants in this case do not specify the source of the privacy interests which they assert, this Court will invoke the balancing test used in Pagano when determining the discoverability of Defendants’ medical records. Due to the highly sensitive nature of such documents, this Court will conduct an in camera review of the medical records requested in Requests 6, 7, and 8.
Lack of Possession, Custody, or Control
Under Federal Rule of Civil Procedure 34, documents sought in discovery motions must be within the “possession, custody or control” of the party upon whom the request is served. Defendants claim that they lack possession, custody, or control of certain psychological evaluations of the individual officer-defendants that were conducted by a non-employee physician prior to the officers’ hiring at the police department’s request. Defendants claim that the results of such evaluations were returned to the non-party physician and that such evaluations are thus not in the possession, custody, or control of the City of Concord.
Defendants’ argument is unpersuasive, and this Court finds that Defendants are in control of these psychiatric evaluations. “The phrase ‘possession, custody or control’ is in the disjunctive and only one of the numerated requirements need be met.” Cumis Ins. Society, Inc. v. Southr-Coast Bank,
The term “control” includes the “legal right of the producing party to obtain documents from other sources upon demand.” Biben v. Card,
It is clear that the psychiatric evaluations conducted by the non-party physician were performed at the request of Defendant City of Concord in the course of the City of Concord’s hiring process. It seems inconceivable that the City lacks the ability to obtain such evaluations upon demand. Moreover, the individual officer-defendants have the legal right to obtain such documents. See Bowman v. Consol. Rail Corp.,
4. Citizen Complaints (Requests 9, 10, 11)
Plaintiff requests the Court to compel production of any and all documents that concern or are at all relevant to any formal or informal complaint made against or about Defendants Leftwich, Mort, Norvell from any source and concerning any subject matter. This request includes documents сoncerning all complaints and other disciplinary or internal police review of activities listed for defendants in the file maintained by the Internal Affairs Bureau; documents concerning each incident listed on the disciplinary record for defendant; documents concerning all complaints and other disciplinary or internal police review of activities of the defendants which were investigated under the supervision of their commanding officers during their various assignments with the Concord Police Department; and all information contained in the computers maintained by the Internal Affairs Bureau of the Concord Police Department or any other division of the Concord Police Department concerning the complaints made against the defendants.
Defendants object to this request on the following grounds:
Overbreadth and Relevancy
Defendants assert that this request is overbroad as to time, subject matter, and officers, and is not relevant. Records of complaints against defendant officers relating to their use of excessive force has been found to be relevant to a plaintiffs civil rights claim. Hampton,
Self-critical analysis privilege
Defendants claim that records of complaints are privileged under the self-critical analysis privilege. As stated above, neither the Ninth Circuit nor the Supreme Court has recognized the self-critical analysis privilege. Dowling v. American Hawaii Cruises, Inc.,
Official information privilege
Defendants assert that the requested complaints are shielded from discovery under the official information privilege. Pursuant to the above-mentioned Kelly threshold test for invoking the official information privilege, Defendants have failed to show how
Defendants also assert that disclosure of citizen complaints would adversely impact the public’s interest in having the рolice department critically evaluate the quality of its services. Such a general assertion of harm to the public interest has been deemed insufficient to meet the threshold test for invoking the official information privilege. Id. at 672. In the context of civil rights claims against police departments “a general assertion that a police department’s internal investigatory system would be harmed by disclosure of the documents is insufficient.” Chism,
Privacy Rights
Defendants make a general assertion of the privacy interests of the police officers and witnesses who lodged the complaints. The court in Kelly rejects Defendants’ reasoning, because a citizen who makes a complaint is not analogous to a confidential informant whose safety may be at risk if anonymity is lost.
Defendants, however, claim that the citizen complaints sought by Plaintiff should not be subject to discovery because they were “unfounded, meaning that the acts complained of did not occur.” The court in Martinez followed Defendants’ reasoning and did not allow discovery of excessive force complaints against defendants because the complaints were “not sustained” and the defendants were “exonerated.”
5. Guidelines, directives, policy statements (Request 13)
Plaintiff requests the Court to compel production of, for the period 1985 to the current date, all police guidelines, directives, policy statements, procedures, and training materials, in any form and of any type, concerning, to any extent or degree, police policy, custom or practice regarding the discipline of officers generally, and specifically, discipline for the violation of constitutional rights.
Defendant objects on the grounds that the request is not relevant to any issue in this matter nor reasonably calculated to lead to discovery of admissible evidence. The existence or non-existence of adequate guidelines for disсiplining officers is relevant to Plaintiffs claims against the city under the Monell analysis, because such evidence may show a pattern or practice of such civil rights violations alleged in the complaint.
B. Motion for Sanctions
1. Legal Standards
Under Federal Rule of Civil Procedure 37(a)(4), if a motion to compel is granted, or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Under the Northern District of California Local Rule 230-4(a),
[t]he court will entertain no motion pursuant to Rules 26 through 37, Federal Rules of Civil Procedure, unless counsel shall have previously conferred concerning all disputed issues. If counsel for the moving party seeks to arrange such a conference and counsel for the party against whom the motion will be made willfully refuses or fails to confer, the judge ... may order the payment of reasonable expenses, including attorney’s fees, pursuant to Rule 37(a)(4), Federal Rules of Civil Procedure and Local Rule 100-3.
A certificate of compliance with the above cited rule is required to be filed by counsel for the moving party. See Local Rule 230-4(b).
2. Legal Analysis
Before this motion to compel documents was filed, Plaintiffs counsel sent two sets of Requests for Document Production to Defendants’ counsel, one on January 4, 1995 and the other on March 2, 1995. In response to both requests, Defendants objected and raised a number of privileges. Plaintiffs counsel then sent a letter to Defendants’ counsel on April 5, 1995, outlining why he thought Defendants’ objections were unfounded. The letter urged Defendants’ com
Sending a letter to the opposing party demanding compliance with a discovery request is not what this Court regards as an earnest attempt to “meet and confer” on the issues. Rather, a live exchange of ideas and opinions is required. Accordingly, this Court will not impose sanctions on Defendants because it appears that Plaintiffs did not make an adequate attempt to meet and confer within the meaning of Local Rule 230-4(a) before filing this motion to compel production of documents.
III. ORDER
For the foregoing reasons, the Court hereby ORDERS the following:
1. Subject to the attached Protective Order, Plaintiffs motion for production of documents is GRANTED, as outlined above, with respect to Requests Numbered: 1 (internal affairs documents); 3, 4, and 5 (personnel files); 9, 10 and 11 (citizen complaints); and 13 (guidelines and policy statements).
2. Documents constituting Requests Numbered 6, 7, and 8 (psychological and physical health records) shall be submitted to this Court for in camera review, as specified below.
3. Defendants are hereby ORDERED to obtain and submit to this Court for in camera review those psychiatric evaluations maintained by non-party entities, no later than 10 days from the date of this Order. If for any reason Defendants are denied access to such documents, Defendants’ counsel shall notify this Court promptly.
4. Defendants are hereby ORDERED to provide clear and proper verification that the documents, or parts thereof, previously supplied to Plaintiff in response to Requests 1(a) and 2, 3, 4, and 5 are all such documents of that kind obtainable by the defense. (See Plaintiffs reply brief in this matter, which requests such verificаtion).
5. Defendants are hereby ORDERED to provide verification to Plaintiff that all documents sought in Requests 1(e), 6, 7, 8, and 14, to which Defendants responded that they were not in “possession, custody, or control,” are either unattainable by Defendants after making a reasonable effort to secure such documents, or that such documents do not exist. (See Plaintiffs reply brief in this matter, which requests such verification). This in no way alters Defendants’ obligation to provide to this Court, for in camera review, those psychiatric evaluations currently held by a non-party physician, as described in item 3 of this Order.
6. Defendants are hereby ORDERED to provide verification to Plaintiff that all documents supplied to Plaintiff pursuant to General Order 34 are all such documents of that kind obtainable by the defense.
7. Defendants are hereby ORDERED to produce the documents and verifications specified above within 10 days of the date of this Order, subject to the attached Protective Order.
8. Plaintiffs motion for sanctions under Federal Rule of Civil Procedure 37(a)(4) is DENIED.
9. The parties are hereby ORDERED to have all depositions completed by August 31, 1995.
10. A further discovery conference is set for September 6,1995 at 10:30 a.m., in Courtroom 4, U.S. Courthouse, 1301 Clay Streеt, Oakland, CA 94612. The parties shall come prepared to discuss possible dates for a settlement conference in this matter.
11. The parties are hereby ORDERED to meet and confer on the issue of setting a trial date. The following starting dates for trial are available in Judge Wilken’s courtroom: 11/27/95,12/4/95,12/18/95, and 1/29/96. Within 5 days of the issuance of this Order, the parties shall inform the Court of the trial dates to which they have stipulated. If no stipulation is reached, the Court will choose the date of the trial.
IT IS SO ORDERED.
Notes
. Plaintiff originally filed his Complaint for Damages in California Superior Court, stating causes of action in Unreasonable Force in Effecting Arrest, Assault, Battery, Battery Committed By Unlawful Arrest, False Imprisonment, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Invasion of Privacy, Negligence, and Negligence Per Se. On August 16, 1994, Defendants removed the action to the Federal District Court, pursuant to 28 U.S.C. § 1441(b).
. This Court determined that "[i]n federal question cases, privileges are determined under federal common law. Fed.R.Evid. 501; United States v. Zolin,
The federal policy on discovery is a liberal standard, and applying California privilege law, such as California Evidence Code § 1043 and Penal Code § 832.5 would severely limit Plaintiff from gaining access to the police files in dispute. See Miller v. Pancucci,
. In adopting this pre-weighting test in favor of disclosure, the Kelly court determined that the policies underlying civil rights laws, public confidence in the court system, and in doing individual justice outweighed both the police department’s desire for secrecy and privacy rights of officers or citizen complainants. Id. at 661.
. 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) whethеr 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,
. Plaintiff has previously stipulated that certain documents contained in the personnel files will not be sought in discovery. Those documents that are sought are considered in the Court’s analysis, discussed infra.
. The Tenth Circuit has adopted the "Colorado test” to determine whether information contained in personnel files is of such a highly personal or sensitive nature that it falls within the zone of confidentiality and should be shielded from discovery. Courts consider (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner. Denver Policemen’s Protective Ass'n v. Lichtenstein,
. The court in Pagano v. Oroville Hospital,
. This Court rejects defense counsel's statements that Plaintiff is able to obtain comparable information through interrogatories or depositions of the individual officer-defendants.
. Although this Court recognizes the privacy interests of police officers, it does not endorse the Martinez court’s application of the California statutory privilege scheme to a federal claim. Rather, this Court recognizes a privacy interest under Art. 1, sect. 1 of the California Constitution as used in Pagano v. Oroville Hospital,
. Although the court in Smith v. McCormick,
. This case does not change the fact that neither federal common law, nor the Ninth Circuit recognizes the physician-patient privilege, as discussed supra. See In re Grand Jury Proceedings,