Dorotik v. County of San Diego

• Court: District Court, S.D. California
• Decided: April 28, 2025
• Docket: 3:23-cv-01045
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 JANE DOROTIK, Case No.: 23-cv-1045-CAB-DDL

9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART MOTION FOR IN CAMERA REVIEW OF 11 COUNTY OF SAN DIEGO, et al., INTERNAL AFFAIRS DOCUMENTS

12 Defendants. [Dkt. No. 74] 13

15 16 Bef ore the Court is the parties’ joint motion for in camera review of Defendants 17 Richard Empson, James Blackmon, Janet Ryzdynski, Connie Milton, and Bill Donohue’s 18 Internal Affairs records. Dkt. No. 74. The parties ask the Court to resolve the County of 19 San Diego’s general objections to producing Internal Affairs documents and then 20 determine whether any of these records include sustained findings of “dishonesty, 21 deception, failure to provide information or evidence, . . . fabrication, mishandling, or 22 contamination of evidence, wrongful detention or arrest, illegal search, manipulation of 23 eyewitness identifications, improper tactics during investigations, obstruction of justice, 24 providing false, inaccurate or misleading information, concealment of exculpatory or 25 impeachment information, [and] false testimony or statements.” Id. Having considered 26 the pleadings, the parties’ arguments at the April 23, 2025 discovery hearing, and its in 27 camera review of the disputed documents, the Court GRANTS IN PART AND DENIES 28 IN PART the motion. 1 I. 2 BACKGROUND 3 A. The Underlying Action 4 On February 13, 2000, plaintiff Jane Dorotik reported her husband, Robert Dorotik, 5 missing. Dkt. No. 25 (“FAC”) ¶ 26. His body was discovered the next day approximately 6 2.4 miles from their home. Id. Plaintiff was charged with the murder and, following her 7 jury trial conviction in 2001, was sentenced to 25 years to life in prison. Id. ¶ 59. 8 On July 24, 2020, the San Diego Superior Court granted Plaintiff’s petition for writ 9 of habeas corpus and vacated her conviction. Id. ¶ 63. The San Diego District Attorney’s 10 Office (“the DA”) announced it would retry Plaintiff but ultimately dismissed the murder 11 charge against her in May 2022. Id. ¶ 64. 12 Plaintiff has continuously maintained her innocence. Id. ¶ 6. In this action under 42 13 U.S.C. § 1983, Plaintiff seeks to hold the County and certain County employees civilly 14 liable for the conduct and policies that she alleges led to her conviction. See generally 15 FAC. 16 Specifically, Plaintiff alleges that, during the 2000-2001 investigation, Sheriff’s 17 Department detectives Empson, Ryzdynski, and Donohue, and deputy Blackmon, ignored 18 exculpatory forensic reports, omitted or altered eyewitness testimony from their written 19 reports, and failed to disclose evidence to the DA and defense counsel. Id. ¶¶ 78-83, 28- 20 29. Plaintiff also alleges the San Diego Sheriff’s Department Regional Crime Lab (“Crime 21 Lab”) lacked proper infrastructure and training to “ensure the integrity of evidence or the 22 proper procedures to be followed by criminalists or lab technicians.” Id. ¶¶ 93-99. This 23 included the Crime Lab having “no Brady policy and conduct[ing] no effective training to 24 ensure that technicians fulfilled their Brady obligations.” Id. ¶ 30. Furthermore, Plaintiff 25 alleges Crime Lab personnel Connie Milton and Charles Merritt engaged in an “ongoing 26 pattern and practice in which they both” mishandled or suppressed evidence and failed to 27 follow approved procedures while performing blood tests, including during Plaintiff’s 28 investigation. Id. ¶¶ 31-54, 94. 1 Plaintiff brings the following claims for relief: (1) against all named Defendants, for 2 depriving Plaintiff of the right to a fair trial free of unreliable eyewitness identifications 3 tainted by police influence and of the right to have exculpatory material disclosed, id. 4 ¶¶ 77-89; (2) against the County, for having a policy and practice of suppressing Brady 5 materials and for failing to conduct training or prescribe rules, regulations, and practices to 6 prevent Plaintiff’s allegedly wrongful conviction, id. ¶¶ 92-107; and (3) against Ron Barry 7 in his individual capacity as supervisor of the Crime Lab, for deliberate indifference to 8 Plaintiff’s rights by knowingly allowing Milton and Merritt to continue working on cases 9 despite multiple documented instances of performance issues. ¶¶ 108-116. 10 B. The Discovery Dispute 11 The disputed documents comprise 129 pages of records relating to Internal Affairs 12 investigations of certain Defendants, corresponding to Bates Nos. 159905-159918 and 13 172459-172575. Dkt. No. 74 at 3. Plaintiff argues these documents “contain vitally 14 important evidence for establishing Plaintiff’s Monell theories for failure to train, supervise 15 or implement appropriate policies, as well as offering evidence relevant to the individual 16 defendants’ knowledge, state of mind, habits and customs.” Dkt. No. 75 at 7. Plaintiff 17 alleges each of the disputed documents is responsive to either Request for Production Nos. 18 Three1 or Fifteen2. Dkt. No. 74 at 2-3. The County objects to production, arguing the 19 documents (1) are protected by the official information privilege, (2) contain sensitive 20

21 1 “Any and all DOCUMENTS from any source reflecting or relating to allegations . . . 22 of misconduct . . . or failure to follow policies, practices or protocols against Defendants 23 EMPSON, BLACKMON, RYZDYNSKI AND DONOHUE, and any investigation of those allegations and/or discipline resulting from the allegations, where the misconduct 24 relates to or reflects dishonesty, deception, . . . false statements, and/or misconduct.” 25 Dkt. No. 74 at 2-3. 2 “Any and all DOCUMENTS reflecting or relating or relating to allegations of 26 incompetence, negligence, misconduct, . . . or failure to follow policies, practices, or 27 protocols against . . . MILTON . . . , and any investigation of those allegations and/or discipline resulting from the allegations, including instances of dishonesty, deception, . . . 28 1 information that would “violate privacy rights of Defendants and members of the public”, 2 and (3) “are not proportional to the needs of this case.” Id. at 3-4. The Court addresses 3 these contentions in turn. 4 II. 5 DISCUSSION 6 A. The official information privilege does not apply 7 “Federal common law recognizes a qualified privilege for official information.” 8 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). The County bears the 9 burden of establishing the privilege applies and must make a “substantial threshold 10 showing” to do so. Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995). 11 Specifically, the “party asserting the privilege must submit a declaration or affidavit from 12 a responsible official with personal knowledge of the matters to be attested to in the 13 affidavit.” Id. The affidavit must include: 14 (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 15 personally reviewed the material in question; (3) a specific identification of 16 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 17 disclosure subject to a carefully crafted protective order would create a 18 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 19 if disclosure were made. 20 21 Id. “If the nondisclosing party does not meet this initial burden, the court will order 22 disclosure of the documents; if the party meets this burden, the court generally conducts an 23 in camera review of the material and balances each party’s interests.” Rogers v. Giurbino, 24 288 F.R.D. 469, 481 (S.D. Cal. 2012) (overruling privilege claim where defendant did not 25 submit appropriate declaration). 26 Here, Defendants have not met their burden because the affidavits submitted do not 27 contain “a statement that the official has personally reviewed the material in question,” a 28 “specific identification of the governmental or privacy interest that would be threatened by 1 disclosure,” or a “description of how disclosure subject to a carefully crafted protective 2 order would create a substantial risk of harm.” Soto, 162 F.R.D. at 613. The relevant 3 declarations are from Deputy District Attorney Stephen Marquardt and Deputy District 4 Attorney Kurt Mechals. Dkt. Nos. 75-6 (“Marquardt Decl.”), 75-7 (“Mechals Decl.”). 5 First, although Marquardt and Mechals reviewed hundreds of documents that are the 6 subject of a different motion to compel pending before the Court, Dkt. No. 75, neither 7 declare they have reviewed the Internal Affairs documents. See Marquardt Decl. ¶ 2 8 (listing Bates Nos. reviewed); Mechals Decl. ¶ 2 (same). 9 Second, the declarations do not specifically identify how disclosure of Internal 10 Affairs documents would harm a governmental or privacy interest. Marquardt avers 11 disclosure “would cause significant harm to the long-term integrity of the District 12 Attorney’s Office. Requiring disclosure of such notes and information would serve to 13 discourage government attorneys from memorializing or sharing impressions, conclusions, 14 opinions, or legal analysis with other prosecutors for fear of disclosure in other criminal 15 cases, exploitation in civil lawsuits, or the risk of public disclosure.” Marquardt Decl. ¶ 6. 16 Mechals declares disclosure “would create a chilling effect against frank and open internal 17 dialogue within the District Attorney’s Office and with its prosecution team members, 18 adversely impacting the essential legal work of the District Attorney’s Office.” Mechals 19 Decl. ¶ 6. Even assuming Marquardt and Mechals had reviewed the Internal Affairs 20 documents, these are the types of “general assertions” or “general claims of harm” that 21 courts find insufficient to invoke the official information privilege. See Soto, 162 F.R.D. 22 at 614; Carr v. Cnty. of San Diego, No. 19CV1139-JLS-MDD, 2020 WL 7074881, at *3 23 (S.D. Cal. Dec. 3, 2020) (no threshold showing where declaration warned disclosure “may 24 discourage individuals from providing information; diminish the confidentiality of others 25 who have provided information to the Department; [and] disrupt the vital, day to day 26 operations of the department”). 27 Third, the declarations fail to describe how production of the Internal Affairs 28 documents pursuant to the Protective Order in this case would create a substantial risk of 1 harm to significant governmental or privacy interests. The declarations state “even if such 2 documents were to be disseminated pursuant to a protective order, this would still not 3 alleviate the significant impact of dispersing such documents in a civil case,” Marquardt 4 Decl. ¶ 7, and “[d]isclosure could erode the integrity and security of the records insofar as 5 once the records are disseminated . . . no practical means exist to ensure that the records 6 will not be disseminated further.” Mechals Decl. ¶ 7. They continue with only generalized 7 privacy and public interest concerns and fail to explain why disclosure of responsive 8 documents in this case would be detrimental if done pursuant to a carefully crafted 9 Protective Order, such as the one in place here. Dkt. No. 56. Thus, the Court finds the 10 official information privilege does not apply. 11 B. The protective order adequately addresses privacy rights 12 “Federal Courts ordinarily recognize a constitutionally-based right of privacy that 13 can be raised in response to discovery requests.” Soto, 162 F.R.D. at 616. “Resolution of 14 a privacy objection . . . requires a balancing of the need for information sought against the 15 privacy right asserted.” Id. Plaintiff’s “need for the requested personnel files is great,” id. 16 at 617, because she alleges . Courts in the Ninth Circuit have recognized that “in civil rights 17 cases against police departments, plaintiffs cannot usually obtain information of 18 comparable quality from any other source.” Id. (officer personnel files “may be quite 19 relevant to issues involved in Plaintiff’s excessive force claim, because such documents 20 may reveal the defendant officers’ patterns of behavior, as well as the City’s response to 21 such behavior”); Kelly v. City of San Jose, 114 F.R.D. 653, 667 (N.D. Cal. 1987) (stressing 22 the strong public interest in uncovering civil rights violations of the type at issue in this 23 case). 24 Here, any Internal Affairs records evidencing dishonesty by individual Defendants 25 would be relevant to Plaintiffs’ claims, and production of those records “subject to the 26 existing Protective Order will adequately protect the privacy interests” of Defendants. 27 Morton v. Cnty. of San Diego, No. 21-CV-1428-MMA-DDL, 2023 WL 6150402, at *11 28 (S.D. Cal. Sept. 20, 2023); accord Stuart v. Cnty. of Riverside, No. 522CV701SPGMAR, 1 2023 WL 4826231, at *2 (C.D. Cal. June 15, 2023) (“[P]rivacy objections can be 2 appropriately addressed by: (1) redacting any personally identifying information from the 3 documents produced; and (2) producing documents under a protective order to minimize 4 any invasion into the individual’s privacy rights.”). To the extent the Internal Affairs 5 records contain personal identifiable information regarding Defendants (other than their 6 names and titles), such as marital status, spouse names, children’s names, driver’s license 7 numbers, Social Security numbers, or home addresses, the County may redact that 8 information. Stuart, 2023 WL 4826231, at *3-4. 9 C. The documents are relevant and proportional to the needs of the case 10 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to 11 any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 12 26(b)(1). “Information within this scope of discovery need not be admissible in evidence 13 to be discoverable.” Fed. R. Civ. P. 26(b)(1). 14 The Internal Affairs documents as to which the Court is compelling production are 15 relevant to Plaintiff’s case. Defendants’ arguments that “Internal Affairs records such as 16 these are inadmissible remedial measures evidence” and are “inadmissible as highly 17 prejudicial” raise issues of admissibility, not whether Plaintiff is entitled to discovery under 18 Rule 26. And Defendants’ argument that Plaintiff “can obtain general information 19 concerning the Internal Affairs investigations by less intrusive means by deposing the 20 individual defendants” runs into the same issue discussed in the privacy rights section 21 above. See Soto, 162 F.R.D. at 617, n.8 (“This Court rejects defense counsel’s statements 22 that Plaintiff is able to obtain comparable information through interrogatories or 23 depositions of the individual officer-defendants.”). The Court overrules this objection. 24 III. 25 CONCLUSION 26 Having concluded none of the objections shield the Internal Affairs records from 27 disclosure, the Court turns to whether the records are responsive to Plaintiff’s requests for 28 production. As stated on the record at the April 23 hearing, the Court grants the motion to 1 ||}compel as to those documents relating to misconduct, or allegations of misconduct, 2 ||arguably reflecting dishonesty, deception, mishandling of evidence, or false statements. 3 || Defendants shall produce these documents to Plaintiff by May 2, 2025. The Court denies 4 ||the motion as to all other documents. Those findings are summarized in this chart:

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15 16 The document corresponding to Bates No. CSD00172524 is an audio file. 17 Defense counsel shall listen to the audio file and produce it to Plaintiff if it contains any 18 |/indicia of “dishonesty, deception, . . . false statements, and/or misconduct” such that it 19 || would be responsive to Plaintiff's Request for Production Nos. 3 and/or 15. See Dkt. No. 20 ||79-1 at 5, 18. If, on the other hand, the audio file merely memorializes the information 21 ||already contained in the documents corresponding to Bates Nos. CSD00172495-172523, 22 || Defendants need not produce it to Plaintiff. 23 IT IS SO ORDERED. 24 ||Dated: April 28, 2025 eee 25 Tbr! lho 26 Hon. □□□□□□□□□□□□□□□□□□□□□□ 97 United States Magistrate Judge 28