Danny Duran v. City of Covina

C.D. California

Danny Duran v. City of Covina

District Court, C.D. California·Decided December 11, 2023·No. 2:23-cv-06507·Unknown

Opinion

1 Mildred K. O'Linn (State Bar No. 159055) missy.olinn @ manningkass.com 2 Craig Smith (State Bar No. 265676) craig saith @marningkass.com 3 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 4 801 S. Figueroa St, 15" Floor Los Angeles, California 90017-3012 5 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 6 Attorneys for Defendants, City of Covina, 7 a public entity; David Povero 10

DANNY DURAN, Case No. 2:23-cv-6507 ODW (AGRx) District Judge: Otis D. Wright, I; — 12 Plaintiff, Magistrate Judge: Alice G. Rosenberg © = 13 v. . . . > Joint Stipulated Protective Order = 14)|CITY OF COVINA, a public entity;

19 Discovery in this action is likely to involve production of confidential,

50 proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

33 enter the following Stipulated Protective Order. The parties acknowledge that this

Order does not confer blanket protections on all disclosures or responses to

35 discovery and that the protection it affords from public disclosure and use extends

only to the limited information or items that are entitled to confidential treatment

under the applicable legal principles. The parties further acknowledge, as set forth in

38 Section 12.3, below, that this Stipulated Protective Order does not entitle them to

1 file confidential information under seal; Civil Local Rule 79-5 sets forth the 2 procedures that must be followed and the standards that will be applied when a party 3 seeks permission from the court to file material under seal. 4 1. B. GOOD CAUSE STATEMENT 5 Defendants contend that there is good cause and a particularized need for a 6 protective order to preserve the interests of confidentiality and privacy in peace 7 \| officer personnel file records and associated investigative or confidential records for 8 the following reasons. 9 First, Defendants contend that peace officers have a federal privilege of 10 privacy in their personnel file records: a reasonable expectation of privacy therein 11 || that is underscored, specified, and arguably heightened by the Pitchess protective x 12 || procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, } 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14 14665, *2-3, 12-13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based discovery disputes involving federal claims,” the “state privilege law which is consistent with its federal equivalent significantly assists in applying [federal] privilege law to discovery disputes’’); Soto v. City of Concord, 162 F.R.D. 603, 613 n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights [that] are not inconsequential” in their police personnel records); □□□ Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendants further contend that uncontrolled disclosure of such personnel file information can threaten the safety of non-party witnesses, officers, and their families/associates. Second, Defendants contend that municipalities and law enforcement agencies have federal deliberative-executive process privilege, federal official information privilege, federal law enforcement privilege, and federal attorney-client privilege (and/or attorney work product protection) interests in the personnel files of their peace officers — particularly as to those portions of peace officer personnel files that contain critical self-analysis, internal deliberation/decision-making or

1 evaluation/analysis, or communications for the purposes of obtaining or rendering 2 legal advice or analysis — potentially including but not limited to 3 evaluative/analytical portions of Internal Affairs type records or reports, 4 evaluative/analytical portions of supervisory records or reports, and/or reports 5 prepared at the direction of counsel, or for the purpose of obtaining or rendering 6 legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa Audubon Soc’y v. 7 United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir. 1997); Soto, 162 8 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D. 9 Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. 10 Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United 11 || States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further x 12 || contend that such personnel file records are restricted from disclosure by the public entity’s custodian of records pursuant to applicable California law and that uncontrolled release is likely to result in needless intrusion of officer privacy; impairment in the collection of third-party witness information and statements and related legitimate law enforcement investigations/interests; and a chilling of open and honest discussion regarding and/or investigation into alleged misconduct that can erode a public entity’s ability to identify and/or implement any remedial measures that may be required. Third, Defendants contend that, since peace officers do not have the same rights as other private citizens to avoid giving compelled statements, it is contrary to the fundamental principles of fairness to permit uncontrolled release of officers’ compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822, 828-830 (1985); cf. U.S. Const., amend V. Accordingly, Defendants contend that, without a protective order preventing such, production of confidential records in the case can and will likely substantially impair and harm defendant public entity’s interests in candid self-critical analysis, frank internal deliberations, obtaining candid information from witnesses,

| || preserving the safety of witnesses, preserving the safety of peace officers and peace officers’ families and associates, protecting the privacy officers of peace officers, and preventing pending investigations from being detrimentally undermined by publication of private, sensitive, or confidential information — as can and often does result in litigation. Plaintiff does not agree with and does not stipulate to Defendants’ contentions herein above, and nothing in this Stipulation or its associated Order shall resolve the parties’ disagreement, or bind them, concerning the legal statements and claimed privileges set forth above. However, Plaintiff agrees that there is Good Cause for a Protective Order so 11 || as to preserve the respective interests of the parties without the need to further x 12 || burden the Court with such issues. Specifically, the parties jointly contend that, absent this Stipulation and its associated Protective Order, the parties’ respective S 14 || privilege interests may be impaired or harmed, and that this Stipulation and its associated Protective Order may avoid such harm by permitting the parties to facilitate discovery with reduced risk that privileged and/or sensitive/confidential information will become matters of public record. The parties jointly contend that there 1s typically a particularized need for protection as to any medical or psychotherapeutic records, because of the privacy interests at stake therein. Because of these sensitive interests, a Court Order should address these documents rather than a private agreement between the parties. The parties therefore stipulate that there is Good Cause for, and hereby jointly request that the honorable Court enter, a Protective Order re confidential documents consistent with the terms and provisions of this Stipulation. However, the

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