Ngo v. Romero

District Court, E.D. California·Decided August 12, 2024·No. 1:24-cv-00472·Unknown

Opinion

1 Mildred K. O’Linn (State Bar No. 159055) missy.olinn @ manningkass: com Lynn Carpenter (State Bar No. 310011) lynn.carpenter @ manningkass, com Maya Sorensen (State Bar No. 250722) aa Sorensen @manningkass. com MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 51/801 S. Figueroa St, 15" Floor Los Angeles, California 90017-3012 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 Attorneys for Defendants, CITY OF FRESNO. OFFICER MANUEL ROMERO, and OFFICER GUSTAVO GUTIERREZ 11 UNITED STATES DISTRICT COURT x 12 EASTERN DISTRICT OF CALIFORNIA © z= 13 S$ 14 || CHI THANH NGO, Case No. 1:24-cv-00472-KES-BAM < District Judge Kirk E. Sherriff = 15 Plaintiff, Magistrate Judge Barbara A. McAuliffe V. FRESNO POLICE OFFICER STIPULATION AND JOINT MANUEL ROMERO FRESNO REQUEST FOR ENTRY OF POLICE OFFICER REY MEDELES; PROTECTIVE ORDER RE FRESNO POLICE OFFICER CONFIDENTIAL DOCUMENTS; || GUSTAVO GUTIERREZ; THE CITY | ORDER OF FRESNO; UNKNOWN LAW ENFORCEMENT OFFICERS Trial Date: n/a Defendants. TO THE HONORABLE COURT: By and through their counsel of record in this action, plaintiff CHI THANH NGO (“Plaintiff”) and defendants CITY OF FRESNO, OFFICER MANUEL ROMERO, OFFICER REY MEDELES, and OFFICER GUSTAVO GUTIERREZ (““Defendants”’) — the parties — hereby stipulate for the purpose of jointly requesting that the Honorable Court enter a protective order regarding confidential documents 4890-2163-3365.1

] ||in this matter and pursuant to Federal Rules of Civil Procedure Rules 5.2, 7, and 26, 2 as well as U.S. District Court, Eastern District of California Local Rules 141, 141.1, 3 143, 230 and/or 251; and any applicable Orders of the Court — as follows: 4}/1. GOOD CAUSE STATEMENT. 5 1.1. Defendants’ Contentions. 6 Defendants contend that there is good cause and a particularized need for a 7 protective order to preserve the interests of confidentiality and privacy in peace 8 officer personnel file records and associated investigative or confidential records for 9 the following reasons. 10 First, defendants contend that peace officers have a federal privilege of 11 || privacy in their personnel file records: a reasonable expectation of privacy therein x 12 || that is underscored, specified, and arguably heightened by the Pitchess protective procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, S$ 14 || 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 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); cf. 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 2 evaluation/analysis, or communications for the purposes of obtaining or rendering 3 legal advice or analysis — potentially including but not limited to evaluative/ 4 analytical portions of Internal Affairs type records or reports, evaluative/analytical 5 portions of supervisory records or reports, and/or reports prepared at the direction of 6 counsel, or for the purpose of obtaining or rendering legal advice. See Sanchez, 936 7\| F.2d at 1033-1034; Maricopa Audubon Soc’y v. United States Forest Serv., 108 F.3d 8 1089, 1092-1095 (9th Cir. 1997); Soto v. City of Concord, 162 F.R.D. 603, 613 n. 4 9 (1995); Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D. Cal. 1987); Tuite ”n v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. Duncan, 2007 U.S. 11 || Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United States Dist. Ct., 881 x 12 || F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further contend that such personnel file records are restricted from disclosure by the public entity’s custodian S$ 14 || 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 defendant public entity’s interests in candid self-critical analysis, frank

] || internal deliberations, obtaining candid information from witnesses, preserving the 2 safety of witnesses, preserving the safety of peace officers and peace officers’ 3 families and associates, protecting the privacy officers of peace officers, and 4 preventing pending investigations from being detrimentally undermined by 5 publication of private, sensitive, or confidential information — as can and often does 6 result in litigation. 7 1.2. Plaintiff agrees that there is Good Cause for a Protective Order 8 consistent with the terms and provisions of this Stipulation so as to preserve the 9 respective interests of the parties. 10 1.3. The parties jointly contend that there is typically a particularized need 11 || for protection as to any medical or psychotherapeutic records and autopsy 12 photographs, 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. 1.4. The parties therefore stipulate that there is Good Cause for, and hereby jointly request that the Honorable Court issue/enter, a Protective Order regarding confidential documents consistent with the terms and provisions of this Stipulation. However, the entry of a Protective Order by the Court pursuant to this Stipulation shall not be construed as any ruling by the Court on the aforementioned legal statements or privilege claims in this section (§ 1), nor shall this section be construed as part of any such Court Order. Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting or defending this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulation and an associated Order.

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