Opinion
2:19-cv-1191-JAM-CKD
12-28-2021
KORI MCCOY, et al., Plaintiffs, v. CITY OF VALLEJO, et al., Defendants.
ORDER (ECF NO. 128)
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
Presently before the court is plaintiffs' motion to compel from defendants nearly all materials created in connection with a Vallejo Police Department (“VPD” or “Department”) independent internal investigation into a suspected badge-bending practice within the Department. (ECF No. 128.) The parties filed a Joint Statement regarding the discovery disagreement, along with supporting exhibits-which were all provisionally filed under seal at the parties' request. (ECF Nos. 138-138.14.) Following supplemental briefing on the request to seal (ECF Nos. 145, 146), the court ordered defendants to re-file on the docket redacted versions of these same documents (ECF Nos. 142-143; see ECF Nos. 144-144.15). The court heard remote arguments on the motion to compel on December 15, 2021. (ECF No. 139.) Following the hearing, the court accepted for in camera review the main badge-bending investigative report and a supplemental report; and the court permitted defendants to also submit proposed redacted versions of the reports, which defendants have done. (ECF Nos. 140, 141.)
The court cites to the publicly accessible redacted filings and refers only generically to the redacted portions thereof. The order and pagination of both sets of documents is the same.
After careful review, the court GRANTS IN PART and DENIES IN PART plaintiffs' motion to compel, without prejudice to renewal. Defendants shall forthwith produce to plaintiffs both the main and supplemental reports with some-but not all-of their proposed redactions. The parties shall further confer as to production of any of the interviews or other exhibits to the report, with the benefit of the general guidance in this order and with plaintiffs having reviewed the contents of the reports, before seeking further judicial intervention as to those items.
BACKGROUND
A. The Underlying Action
This excessive force case is brought by the surviving siblings of Willie McCoy, a 20-year-old man who in February 2019 was fatally shot by a group of VPD officers as he slept in his car. Plaintiffs are suing six VPD officers involved in the shooting, two VPD supervisors, former VPD Chief Andrew Bidou, and the City of Vallejo for-as relevant to this motion-excessive force, municipal liability, and supervisory liability under 42 U.S.C. § 1983. Plaintiffs also name as Doe defendants other yet-to-be-identified VPD officers. (ECF No. 84, Second Amended Complaint (“SAC”), at 5-9, 26-29, 34-35.)
To briefly describe the facts as relevant to this discovery dispute, around 10:30 PM on February 9, 2019, VPD officers responded to a citizen's call requesting a welfare check for an unconscious man, slumped over the steering wheel of his car at a Taco Bell drive-thru in Vallejo. (SAC ¶¶ 33-34.) VPD defendant officers Anthony Romero-Cano, Mark Thompson, Jordan Patzer, Bryan Glick, Collin Eaton, and other Doe officers arrived on scene to find Willie McCoy still unconscious, apparently sleeping, but with a handgun on his lap-although the magazine was removed. (SAC ¶¶ 5, 34, 36, 43.) The car's doors were locked, but the passenger-side window was missing and had only a thin piece of plastic covering it. (SAC ¶ 36.)
The officers “stood around the car” and put out a radio dispatch that they might have a potential shooting situation. (SAC ¶¶ 3, 37, 40.) The allegedly on-call VPD supervisors, defendants Steve Darden and Kyle Wylie, ignored the call and watched Netflix instead of responding over the radio. (SAC ¶ 38.) The officers at the scene formulated no plan, except that defendant Romero-Cano told the other officers to shoot McCoy if he moved. (SAC ¶¶ 3, 39.) The officers gave McCoy no verbal commands, and when McCoy started to rouse (scratching his shoulder, still with his eyes closed), the officers collectively fired at him while yelling for him to show his hands. (SAC ¶¶ 3, 41, 44.) In the middle of officers firing at McCoy, defendant officer Ryan McMahon arrived and joined in the shooting without any knowledge of the circumstances. (SAC ¶¶ 4, 42.) The officers fired 55 rounds at McCoy, who died where he sat. (SAC ¶¶ 5, 43.)
In the context of this discovery disagreement, defendants argue that only Sergeant Wylie-not now-Lieutenant Darden-was the officers' supervisor that night. (ECF No. 144 (Joint Statement) at 9, 28.) The SAC refers to Sergeant Wylie only as “FNU WILEY” or “WILEY.” However, subsequent filings confirm that this defendant's correct name is Kyle Wylie. (See, e.g., ECF No. 94 (motion to dismiss, filed on behalf of all defendants, including “KYLE WYLIE”), ECF No. 144 (Joint Statement, same).)
Since this action's filing in June 2019, plaintiffs have included a Monell claim for municipal liability against former Chief Bidou (who retired in June 2019) and the City, alleging a pattern and practice of officers using excessive force without facing disciplinary consequences. (ECF No. 1 at 21-23, ECF No. 14 at 21-23.) The original complaint also included a Monell claim against City Manager Greg Nyhoff, but plaintiffs stipulated to dismiss this claim with prejudice, out of acknowledgement that Nyhoff was not “the final decision-maker for the Vallejo Police Department.” (ECF No. 12 at 12 (quoting plaintiffs' opposition to motion to dismiss).) In support of these claims, plaintiffs listed some 21 other incidents where VPD officers allegedly used excessive force and were not disciplined for it. The current SAC, filed with defendants' consent in March 2021 after discovery was underway, retains those general pattern-and-practice allegations but-importantly for this motion-adds an additional basis for imposing municipal liability.
According to the SAC, there exists within the VPD a “vigilante police gang” known as the “Badge of Honor” gang, which Chief Bidou “knew about, protected and endorsed.” (SAC ¶¶ 6, 47.) The SAC attributes these allegations to the contents of a whistleblower lawsuit filed in state court last year by former VPD Captain John Whitney. (Id.; see John Whitney v. The City of Vallejo, et al., No. FCS055842 (Cal. Super. Ct. Solano Cty., complaint filed Dec. 22, 2020).) Plaintiffs allege that the gang rewarded officers for shooting and killing citizens, commemorating each killing by bending one point on the officer's police badge for each fatality-and treating them to “beer and a barbecue” for their killing. (SAC ¶¶ 48, 49.) Part of gang members' reward was also to be promoted within the VPD and protected from internal affairs investigations and discipline. (SAC ¶ 49.) The SAC specifically alleges that two of the defendant officers-now-Lieutenant Darden and former officer McMahon-have at least two badge bends. (SAC ¶¶ 50-52.) Plaintiffs also allege that McMahon had engraved a “vigilante motto” on the back of his gun (Veritas Aequitas), inspired by the movie The Boondock Saints-and that McMahon used that gun to shoot McCoy. (SAC ¶¶ 53-54.)
When Captain Whitney learned of McMahon's bent badge, he ordered all supervisors to have their officers submit any bent badges-and at least ten other VPD officers submitted bent badges. (SAC ¶¶ 55-56.) Chief Bidou allegedly ordered this evidence be “destroyed” and that the officers personally repair their badges so there would be no “paper trail.” (SAC ¶¶ 60-61.) Plaintiffs even allege that Chief Bidou was part of the gang-or at least met and conspired with the gang in order to promote, maintain, and conceal the group's existence. (SAC ¶¶ 57, 63.)
Plaintiffs allege that, as the VPD's final decision-maker, the Chief's “failure to discipline [the defendant officers] demonstrates the existence of an entrenched culture, policy or practice of promoting, tolerating and/or ratifying with deliberate indifference, the use of excessive force and the fabrication of official reports to cover up the [defendant officers'] misconduct.” (SAC ¶¶ 64, 66.) The SAC also repeats the prior complaints' broader allegations that, based on the numerous prior excessive force incidents, the VPD has a pattern and practice of using excessive force against citizens and failing to discipline or retrain the officers involved. (SAC ¶ 67.) Thus, the SAC alleges, the City and the Chief's knowledge of-or negligence as to-this policy of inadequate supervision and training constituted ratification of the unlawful behavior and proximately caused the violation of plaintiffs' constitutional rights in this case. (SAC ¶¶ 80-89.)
B. The Giordano Investigation & Present Discovery Dispute
In August 2020, after media reports of badge bending within the VPD, the City retained as independent contractors Robert Giordano, a retired former Solano County Sheriff, and attorney Christine Maloney “to investigate allegations Vallejo officers bent the points on their badges to mark fatal shootings.” (ECF No. 144, Joint Statement (JS) at 9.) The present discovery dispute is about whether plaintiffs should obtain virtually all of the contents of Mr. Giordano's badge-bending investigation.
In December 2020, with the Giordano investigation barely begun, plaintiffs served Requests for Production of Documents (“RPD”), Set Three, requesting documents related to Whitney's termination, any and all investigations of badge bending in the VPD, and communications regarding the same. (ECF No. 144.1, Buelna Decl. Ex. 1.) In February 2021, while interviews were still underway, plaintiffs served RPD, Set Five, requesting (as relevant) documents related to McMahon's firearm engraving, a “Badge of Honor” group in the VPD, and investigations into the destruction of evidence by Chief Bidou or any other VPD employee. (ECF No. 144.2, Buelna Decl. Ex. 2.)
In January and March 2021, defendants served responses to the respective RPDs asserting broad objections and privileges and stating that no responsive documents would be produced before the conclusion of the City's investigation. (ECF Nos. 144.3 & 144.4.) On April 27, 2021, defendants served a declaration from Mr. Giordano dated March 4, 2021 regarding his “ongoing internal affairs investigation.” (JS at 5; see ECF No. 144.11 at 29-31.) Meanwhile, on April 21, 2021, plaintiffs' counsel had sent a meet-and-confer letter pointing out that defendants had not produced a privilege log or properly asserted their privileges-so waived them. (JS at 5.)
Some four months later, on September 10, 2021, defendants amended their RPD responses and produced a privilege log describing 22 items from the Giordano investigation being withheld on the basis of the official information privilege and privacy privilege, along with relevance and proportionality objections. (Id.; see ECF Nos. 144.5 (fully redacted privilege log), 144.14 (Abaci Decl.) at 35-59.) With the amended responses and privilege log, defendants produced-subject to the parties' stipulated protective order (ECF No. 21)-audio recordings and transcripts of a select number of officer interviews conducted by Giordano, and a Kelly affidavit from VPD Deputy Chief Michael Kihmm, dated September 10, 2021, in support of the City's asserted official information privilege. (ECF No. 144.11, Kihmm Aff.) Defendants explain in the Joint Statement that their production choices were informed in part by Magistrate Judge Newman's order on a similar motion to compel in another excessive force case against the City of Vallejo. (JS at 11.) See Burrell v. City of Vallejo, No. 2:19-CV-1898-WBS-KJN, 2021 WL 2661807, at *7-9 (E.D. Cal. June 29, 2021) (ordering production of Giordano's interview of the defendant officer, but not full production of all documents related to badge bending).
After unsuccessful meet and confer efforts, plaintiffs brought this motion to compel Items #1, 5-8 and 10-23 of the privilege log. (JS at 8; ECF No. 128.) These comprise the Giordano Report itself and Report Exhibits 4-22, which include-among various other items-all audio recordings and transcripts of the numerous interviews Giordano conducted for the VPD. Not separately listed on the privilege log is a Supplemental Report prepared by Giordano after the privilege log was produced. Plaintiffs' motion embraces this Supplemental Report as well. Finally, plaintiffs' counsel also request attorneys' fees and costs under Rule 37 for bringing this motion. (JS at 26.)
DISCUSSION
A. Legal Standard
The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. Discovery may be obtained as to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). “The relevance standard is extremely broad, especially in civil rights excessive force cases.” James v. Hayward Police Dep't, 2017 WL 2437346, * 1 (N.D. Cal. Feb. 27, 2017) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). “Relevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016). The court may limit discovery if it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive”; or if the party who seeks discovery “has had ample opportunity to obtain the information by discovery”; or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401.
“The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, 2009 WL 1390794 at *1 (S.D. Cal. May 14, 2009) (citations omitted). “Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Id.
B. Analysis
The court addresses the relevance and proportionality of the requested discovery, and then turns to the asserted privileges.
1. Relevance
a. The Report
The centerpiece of plaintiffs' motion to compel is the Giordano Report and the Supplemental Report, both of which the court has reviewed in camera without the accompanying exhibits (collectively, “the Report” or “the Giordano Report”). Without divulging the specific contents (as the Report shall remain subject to the parties' stipulated protective order), the Report is part of an administrative investigation into badge-bending allegations that almost perfectly mirror those leveled in the SAC. The Report extensively summarizes Mr. Giordano's investigative methods, interviews conducted, overall findings, and specific recommendations for discipline.
The Report labels those interviewed as “witnesses” if “they were not suspected of having committed any violation of any Department policy, rule or law”; and it labels interviewees as “subjects” if they were “considered to have potentially violated policy, a rule or a law, which could result in disciplinary action against them.” (Kihmm Aff. ¶ 15.) In addition to detailed interview summaries, the Report makes factual findings and “reaches conclusions on misconduct” both regarding badge bending in the Department overall and as to specific policy violations by current and former VPD personnel. (Id.) The Report concludes with “sustained” findings as to “some, but not all, ” subjects-and “exonerate[s]” other subjects. (Id.) At the hearing on the motion to compel, defense counsel confirmed that, while the Giordano Report “is finalized, ” the current VPD Chief has not yet decided on any disciplinary action based on the Report's recommendations.
There is no doubt that this Report, encapsulating Mr. Giordano's investigation of nothing but badge bending in the VPD, contains information relevant to plaintiffs' claims of excessive force, Monell claims, and supervisory claims. The level to which bending badges pervaded the Department such that Bidou and the City cannot claim reasonable ignorance of it, or Bidou's actual knowledge of the badge bending is key to proving the Monell claim. And evidence that any particular individual defendant engaged in badge bending-or was inspired by a culture of badge bending or lackluster discipline in the VPD-would go toward proving their motivation for shooting McCoy without warning and in the reckless manner alleged.
Having reviewed the entirety of the Report, the court notes that Mr. Giordano's findings do not necessarily confirm plaintiffs' theory of the reasons for, or meaning of, officers bending their badge. However, that does not mean the Report-whose summaries and findings are open to multiple reasonable interpretations-is not relevant, for purposes of discovery.
b. The Interviews
In the course of his investigation, Mr. Giordano conducted numerous interviews, all of which were audio-recorded and transcribed-and included as exhibits to the Report. Defendants have already produced to plaintiffs the interviews of “every officer involved in the McCoy shooting.” (JS at 27.) However, these are but a fraction of the existing interview recordings and transcripts.
Two of the audio recordings were filed with the court under seal for this discovery dispute. (ECF Nos. 144.7, 144.8.)
As discussed below, the undersigned currently does not find it proportional to the needs of the case to compel production of every interview conducted in the Giordano investigation. However, to guide the parties in their anticipated continuing negotiations regarding interview production, the court offers the following observations on interview relevance.
Defendants argue that, having already received the interviews of every officer involved in the McCoy shooting, plaintiffs already know whether the defendant officers were or were not involved in badge bending and whether it motivated their use of deadly force. (JS at 27.) Without any additional analysis, defendants further claim that “[w]hether any other of the . . . officers subject to the investigation bent a badge[] is irrelevant to the claims against the City and the officers defendant here.” (Id.)
The court disagrees on both fronts. First, plaintiffs should not have to rely solely on any defendant's own self-interested statements to Mr. Giordano to establish whether or not the officer defendants bent their own badges or had any connection to badge bending within the VPD. Obtaining at least those interviews of others who mentioned the defendant officers in connection with badge bending would also be helpful, if not necessary, to establishing plaintiffs' claims. Second, although it may not be relevant which (if any) non-defendant officers were involved in badge bending, the overall number of officers with bent badges-or with knowledge of badge bending-is relevant to show how prevalent the practice was at the VPD before and during Chief Bidou's tenure. Knowing the names of the officers with bent badges or knowledge of badge bending might also be required in order to figure out whether any of them were also involved in excessive force incidents for which they were not timely disciplined. In contrast to the Burrell case where allegations of badge bending never came into the pleadings, see 2021 WL 2661807, at *2-3, here, plaintiffs' Monell claims rely significantly (though not exclusively) on express and detailed allegations of badge bending within the VPD.
Defendants also argue that four specific interviews are not relevant to plaintiffs' claims. First, defendants argue that the interviews of the supervisory defendants Darden and Wylie are not relevant because their liability does not arise from badge bending. (JS at 28.) The only remaining cause of action against Darden and Wylie in the SAC is the Eighth Cause of Action for supervisory liability, which arises from their failure to respond to the pre-shooting radio dispatch. (SAC at 34-35.) Further, according to defendants, Darden and Wylie are not alleged to be final decision-makers for the City, so their knowledge would not go toward proving the Monell claim. However, in the court's view, Darden and Wylie's interviews are at least as relevant as every other officer's to the extent they might show knowledge of any general Department-wide awareness of the practice. And as supervisors in the Department, they (more so than a patrol officer) might have particular familiarity with former Chief Bidou's knowledge of the practice.
Second, defendants specifically challenge the relevance of Mr. Giordano's interviews with two high-level Vallejo city officials, arguing that Chief Bidou alone was the final decision-maker for the VPD. (JS at 27.) Even accepting this legal proposition (as plaintiffs appear to, having dropped their Monell claim against City Manager Nyhoff early in the litigation, see ECF No. 12 at 12), the undersigned sees continuing relevance in the interviews with other high-level city officials. These officials presumably interacted with Chief Bidou at least intermittently as part of their duties and likely have some knowledge of Chief Bidou's level of awareness about, and response to, any badge bending. That these officials do not control VPD policy does not make them unknowledgeable about VPD practices, or Chief Bidou's decision-making.
Once plaintiffs have reviewed the redacted version of the Giordano Report themselves, they will presumably be able to tailor their relevance arguments in requesting production of these or other specific interviews from defendants.
By addressing these four interviews, the court does not suggest that they are more or less important to plaintiffs' claims than any others. The court is simply addressing the only specific relevance arguments asserted by defendants, in hopes of informing the parties' discovery negotiations going forward.
c. The Other Exhibits
Finally, plaintiffs are seeking to compel production of some 17 other exhibits to the Giordano Report-besides the interview transcripts and audio recordings. Neither party devotes much argument in the Joint Statement to the specific exhibits, which the undersigned also views as more ancillary to the Report. With only the somewhat generic descriptions of the exhibits listed in the privilege log, the undersigned can offer little guidance on which may or may not be relevant to plaintiffs' claims. Most, if not all, of the exhibits are specifically described or reproduced within the Report itself, however. Accordingly, the court leaves it to the parties to discuss the relevance and need to produce any individual exhibits to the Report, after plaintiffs have reviewed the contents of the Report.
2. Proportionality
Defendants' main opposition to plaintiffs' motion is that broader production is not proportional to the needs of the case. Defendants argue that further production of any materials prepared as part of the Giordano investigation is not proportional, given all they have already produced to plaintiffs, citing delivery of more than 9, 000 pages of documents. (JS at 8-9.)
Rule 26 requires that discovery be proportional to the needs of the case, including balancing “the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). The proportionality inquiry can also account for the “burden of production on the privacy rights of non-parties.” Rodriguez Ayala v. Cty. of Riverside, 2017 WL 2974919, at *4 (C.D. Cal. July 12, 2017).
a. Proportionality of the Report
The undersigned sees very little reason to view production of the Giordano Report itself as disproportional or unduly burdensome in this case. The Report already exists as a standalone document, so no culling of scattered records is required. And based on defendants' proposed redactions reviewed in camera, the privacy rights of non-parties can easily be protected through limited redaction. Furthermore, production of the Report strikes the court as an ideal starting point for resolving the present dispute because Mr. Giordano has already done the work of summarizing the interviews conducted and-presumably-omitting any private details not relevant to badge-bending allegations.
b. Proportionality of the Interviews
On the other hand, it would be disproportional and unduly burdensome to compel production of the audio recordings and transcripts of all of Giordano's interviews at this point. There are a large number of interviews, and it would be a heavy burden to require defendants to review the voluminous transcripts to redact any personal or medical details that the interviewees might have shared-information which plaintiffs acknowledge having no interest in.
At the same time, some further production of interviews beyond those officers “involved in the McCoy shooting” (JS at 27) does appear warranted, based on the nature of plaintiffs' allegations and the undersigned's review of the Report's interview summaries. Defendants' reliance on Judge Newman's order in Burrell to inform their decision to limit their production thus far to the shooting-involved officer-defendants is not entirely justified because this case differs from Burrell in two material respects. First, the underlying incident in Burrell was not a fatal shooting, making it more difficult to connect the defendant officer's actions toward Mr. Burrell to a group that allegedly rewards killings specifically. Judge Newman's decision to order production of the officer's interview with Mr. Giordano, nonetheless, was based on the allegation that the officer pulled his gun on another civilian without obvious cause, see Burrell, 2021 WL 2661807, at *6, creating a potential, distant connection. Here, the connection between officers firing without warning on a sleeping person, on the one hand, and their awareness of or membership in a gang that allegedly rewards killing, on the other, is easily drawn.
Second, the Burrell case's Monell claims are not based on any badge-bending allegations, despite the plaintiff's efforts to add them in after discovery was well underway. See id. at *2-3. The absence of such allegations likely factored heavily in Judge Newman's decision to compel only limited production of the defendant-officer's own interview with Mr. Giordano. See id. at *6 (finding plaintiff “entitled to some discovery related to badge bending-even without specific allegations regarding that practice in the operative complaint-but that full production of all communications regarding badge bending is not presently warranted”). As described above, the SAC in this case is full of detailed allegations of badge bending, both as to the shooting-involved officer-defendants' personal motivation for shooting McCoy-and to show Chief Bidou's knowledge of badge bending and ratification of the practice either actively or passively. Simply put, this case has much more to do with badge bending than does Burrell.
At the hearing, neither side could suggest a bright-line approach to narrowing down which interviews might warrant production. However, the undersigned trusts that once the Giordano Report is (essentially) equally available to both parties, they will be able to compromise as to an initial set of interviews to be produced-and potentially continue any further production on a rolling basis, depending on what the initial interviews reveal.
3. Privileges
The bulk of the discovery disagreement, as originally presented, was whether defendants' privilege objections noted in the privilege log should prevent production of the requested materials in toto. Specifically, plaintiffs argued that (a) defendants waived any claims of privilege by not timely and specifically asserting them in response to plaintiffs' RPDs Three and Five, (b) that defendants failed to adequately invoke the official information privilege through Dep. Chief Kihmm's affidavit, and (c) that in any event plaintiffs' need for disclosure outweighs the competing privacy and governmental interests in confidentiality. (JS at 19-26.)
The court first dispenses with the waiver and inadequate invocation arguments, finding at least the privileges actually asserted in the privilege log (the official information privilege and the privacy rights of individual officers) timely asserted, and having already reviewed the Report in camera. Then, given that defendants now propose only one set of redactions under the official information privilege, the court conducts the official information balancing test with respect to that specific information-before addressing defendants' purely privacy-based redactions, and other remaining proposed redactions based on newly asserted privileges.
a. Waiver & Invoking the Official Information Privilege
Given the circumstances and timeline of the creation of the materials responsive to plaintiffs' RPDs, the court declines to find waiver of any privilege objections for not being asserted within 30 days of the production requests. See Burlington N. & Santa Fe Ry. Co. v. U.S., 408 F.3d. 1142, 1149 (9th Cir. 2005) (rejecting per se waiver of privileges if privilege log not produced within Rule 34(b)'s 30-day limit, and listing factors for district court to apply holistic case-by-case waiver determination). It is unclear at best whether any responsive documents existed prior to Mr. Giordano's investigation, which was ongoing when plaintiffs served the RPDs and for many months thereafter. Considering the magnitude of the requests, the impossibility of disclosing not-yet-created documents, and the reasonable desire to wait until the Report was finalized before assessing privileges all at once, there was no waiver here.
Next, the court already impliedly found the affidavit of VPD Deputy Chief Michael Kihmm sufficient to warrant in camera review of the Giordano Report, making it unnecessary to belabor whether the affidavit sufficiently invoked the official information privilege with respect to the Report. See Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) (if party raising official information privilege submits sufficient Kelly affidavit, then court will order in camera review and balance each party's interests); Kelly v. City of San Jose, 114 F.R.D. 653, 671 (N.D. Cal. 1987). Accordingly, the court proceeds to the necessary balancing of interests.
b. Proposed Redactions Based on the Official Information Privilege
Although defendants withheld the entire Giordano Report from plaintiffs based on the official information privilege, in response to the court's order to submit the Report with proposed redactions for in camera inspection (ECF No. 141), defendants now assert the official information privilege to redact only select passages of the Report-all pertaining to one officer-defendant in this action. Defendants proposed no redactions at all to the Supplemental Report.
The court declines to assess at this juncture whether the official information privilege might properly protect disclosure of portions of any interviews. The privilege likely would not apply to prevent disclosure of an entire interview, but the court's discussion of the official information redactions proposed in the Report should not be taken as a wholesale rebuke of the privilege's assertion in other contexts. Defendants would be wise, however, to tailor their assertions of the privilege in line with the reasoning expressed in this order. The court will take up any disagreements the parties cannot resolve themselves regarding redaction of specific portions of interviews, as necessary.
“Federal common law recognizes a qualified privilege for official information.” Soto, 162 F.R.D. at 613 (citing Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975)). “In determining what level of protection should be afforded by this privilege, courts conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” Id. “In the context of civil rights suits against police departments, this balancing approach should be ‘moderately pre-weighted in favor of disclosure.'” Id. (quoting Kelly, 114 F.R.D. at 661)).
Defendants' Kelly affidavit by Deputy Chief Kihmm identifies two governmental interests at stake: (1) the Department's interest in imposing effective discipline on any officers found unfit to serve based on the Giordano Report's findings, and (2) the privacy rights of non-defendant police officers in maintaining confidentiality as to medical and personnel matters and personal information not relevant to this lawsuit. (Kihmm Aff. ¶¶ 20-22.) The latter interest (in preserving the privacy of non-defendant officers interviewed) does not apply to the “official information” redactions now proposed to the Report because the only such proposed redactions are for passages regarding one of the named defendants in this case.
Defendants propose redacting from the Report all conclusions regarding misconduct by this defendant-both Mr. Giordano's narrative summary of the misconduct found and his “sustained” findings as to particular policy violations by this defendant. The court finds that plaintiffs' need for this information surpasses defendants' asserted disciplinary interest in preventing disclosure to plaintiffs.
Defendants (through Kihmm) argue that disclosing Mr. Giordano's findings of a particular officer's “sustained” policy violations-which might lead to formal discipline-raises due process concerns under the United States and California Constitutions because those findings might then be revealed to the officer himself, or to others, over the course of discovery (even if used confidentially, under the parties' protective order) before the officer receives the constitutionally required notice of intent to discipline. (Kihmm Aff. ¶¶ 20, 25, 26.)
The court does not give much weight to defendants' concern that disclosure of Mr. Giordano's findings to plaintiffs (subject to the protective order) will jeopardize any forthcoming discipline by inviting due process challenges. The court recognizes peace officers' constitutionally guaranteed procedural rights in the disciplinary context, including their rights to adequate notice of contemplated discipline and an opportunity to respond to the underlying complaint before any discipline is imposed. However, even when pressed further on the subject at the hearing on the motion to compel, defendants have not been able to explain why it might offend due process for an officer-or one if his colleagues-to find out through this litigation that he might later be notified of an intent to discipline based on Mr. Giordano's findings. As defendants themselves emphasize, no disciplinary decisions based on the Giordano Report have yet been reached, so any officer discovering for the first time that he was (for instance) identified as a “subject” in the Report and assigned “sustained” violations of VPD policy would essentially just be learning what he likely already knows-that he may face formal discipline for his conduct revealed through the investigation. Should the VPD someday decide to discipline any of the officers for whom Mr. Giordano found “sustained” policy violations, they would presumably first be issued the constitutionally required pre-disciplinary notice of intent to discipline and would still be able to respond to the complaint before any discipline is imposed. Receiving “extra notice” of the grounds for potential future discipline does not violate an officer's due process rights.
Defendants' due process liability argument rings all the more hollow when viewed against the proposed redactions ultimately provided. Defendants propose redacting only the narrative summary and “sustained” policy violations for one VPD officer-one of the defendants in this case-without proposing any similar redactions for other current VPD personnel who Mr. Giordano also concluded had violated Department policy. The interest in preventing premature disclosure of possible forthcoming discipline should apply equally for all similarly situated personnel, were it to apply at all.
On the other side of the scale, plaintiffs' interest in obtaining conclusions as to misconduct related to badge bending by one of the defendants named in this action is quite high. Accordingly, the Giordano Report will be ordered produced to plaintiffs-subject to the existing protective order-without any of the redactions proposed under the official information privilege. The court orders production subject to the parties' protective order in recognition of the VPD's interest in maintaining some degree of confidentiality in the Report, both to minimize the broadcasting of disciplinary recommendations that are still hypothetical at this point and to preserve the Department's ability to conduct reliable internal investigations which depend on officers participating in a candid and forthcoming manner.
The court rejects defendants' suggestion that the protective order cannot adequately serve these interests because plaintiffs' counsel in a previous case with the City violated the stipulated protective order in place there. See I.F. v. City of Vallejo, No. 2:18-CV-0673-JAM-CKD, 2021 WL 601054 (E.D. Cal. Feb. 16, 2021). The undersigned presided over that discovery dispute and is intimately acquainted with the full circumstances of the violation, which was found to be accidental. See id. at *15 (finding that counsel “believed he was simply passing along to the media information that was already publicly available, ” and that the firm was “unlikely to repeat their mistake”). The court maintains that belief and declines the invitation to hold plaintiffs' counsel's admitted mistake against their clients in subsequent cases.
c. Proposed Redactions Based on Privacy
Nearly all of the other redactions proposed in the Report are based purely on the privacy interests of VPD employees who are not defendants in this case.
“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.” Soto, 162 F.R.D. at 616. “In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential.” Id. (citing Kelly, 114 F.R.D. at 660). “However, these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments.” Id. Further, a carefully drafted protective order can “minimize the impact” of disclosure. Id.
Defendants propose redacting from the Report three categories of information based on privacy concerns. The court finds that the interest in redacting two of the three types of information outweighs plaintiffs' need for the information sought.
The first category of privacy-based redactions is to omit medical information and personal relationship details mentioned about numerous officers throughout the Report. Although this information is scattered across the Report, defendants' proposed redactions are appropriately limited to the bare minimum needed to prevent the needless disclosure of very personal information that would not be relevant to plaintiffs' claims in any event. The court approves these redactions.
Second, defendants propose redacting on privacy grounds two photographs of a sample badge that Mr. Giordano used in his investigation to understand what a “bent badge” actually looked like. The photographs depict a VPD badge with a badge number visible in the center. Defendants labeled these proposed redactions as “Privacy. Unknown if badge number is associated with any current or former officer.”
The court agrees that plaintiffs have no need to see the badge number depicted on the sample badges shown in these two photographs. The Report makes clear that the badge was not bent when Mr. Giordano obtained it-rather, he bent it himself, for the reader's reference-and the photos are included in the Report only to demonstrate Mr. Giordano's understanding of what a bent badge actually looked like. However, plaintiffs have a strong interest in viewing these photographs in order to understand the Report, themselves. Thus, the court strikes a middle ground. The photographs of the sample badge shall not be redacted, except that the badge number shall be blurred or otherwise obstructed.
Third and finally, defendants propose redacting from the Report all named references to four VPD officers who were identified as “subjects” of investigation but were ultimately found to have done nothing wrong. Defendants propose redacting these officers' names along with all information that would allow one to deduce the officers' identities from the context of the Report. The court finds that these officers' privacy interests outweigh plaintiffs' need for the information being redacted. For the most part, defendants propose simply omitting these four officers' names wherever they appear in the Report. The court finds it appropriate to protect these officers' identities; however, instead of flatly redacting the officers' names, defendants shall replace each of the four officers' names with a generic identifier, such as Witness A, B, C, and D, to be consistently used for that officer throughout the Report. This substitute identifier will allow plaintiffs to follow the contents of the Report and perhaps make connections involving these four officers-without discovering their actual names.
In three instances, defendants propose redacting entire sections of the Report relating to three of these four officers. These redactions are overinclusive, given the limited goal of protecting each officer's identity. The block redactions on pages 151, 162, and 163 of the Report shall be removed; and instead, defendants shall simply replace the name of the protected officer with their designated generic identifier-leaving the surrounding text visible.
d. Other Proposed Redactions
The last set of redactions to be addressed are proposed based on entirely different grounds of attorney-client and deliberative-process privilege. Initially, these proposed redactions go beyond the scope of the court's invitation for defendants to propose redactions “on the basis of privacy or official information privilege as asserted in the privilege log.” (ECF No. 141.) Nevertheless, these proposed redactions are not entirely unexpected as defendants argued in the Joint Statement that the City only recently learned-after producing the privilege log-that “some interviews disclosed communications protected by attorney-client and deliberative-process privileges.” (JS at 9.) In support of the proposed redactions to the Report, defendants refer (as they did in the Joint Statement) to the declaration of Chief Assistant City Attorney Randy Risner. (ECF No. 144.13.) Because defendants only raised these privileges in the Joint Statement, it is unclear whether and to what extent plaintiffs oppose the assertion of these privileges which were not indicated in the September 2021 privilege log.
In an abundance of caution, the court permitted the Risner Declaration to be filed with certain paragraphs redacted, so the court does not describe the full contents of the declaration in this order.
Without revealing the specific contents of the Report, the first passage defendants propose redacting on attorney-client and deliberative-process grounds describes the interviewee's own recollections and feelings regarding oversight of the VPD around the time of the McCoy shooting. The second passage describes a different interviewee's statements of what they observed in watching body-camera footage of the McCoy shooting. Looking at the text of Mr. Giordano's summaries of these interviews, the court cannot readily find grounds for redaction under either the attorney-client or deliberative-process privileges. Neither of the two passages overtly describe communications with an attorney or governmental deliberations beyond the interviewee's own personal thought process. It may well be that the underlying interviews themselves contain privileged information protectable on these grounds (based on information not reflected in the Report); however, the court cannot find the identified portions of the interview summaries to be privileged. The redactions proposed on pages 18-19 and on pages 20-21 shall be removed.
“The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney's advice in response to such disclosures.” U.S. v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (cleaned up). Notably, “[t]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn Co. v. United States, 449 U.S. 383, 395 (1981); see id. at 395-96 (“A fact is one thing and a communication concerning that fact is an entirely different thing.” (cleaned up)). The deliberative-process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations and deliberations comprising a part of a process by which government decisions and policies are formulated.” Federal Trade Comm'n v. Warner Commc'ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The ultimate purpose of the privilege is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for governmental decision-making. Id.
CONCLUSION
For these reasons, defendants shall forthwith produce to plaintiffs-subject to the existing protective order-the Giordano Report and Supplemental Report with all proposed redactions except those specifically rejected or modified herein (as bolded above). Defendants shall label the basis for each redaction in the margins. The parties shall thereafter meet and confer in good faith to negotiate which interviews and/or other exhibits to the Report shall be produced as well. The court anticipates that any interviews produced would warrant redaction of information similar to the redacted information the court has approved in this order.
Should plaintiffs wish to pursue an award of attorneys' fees for bringing the instant motion, they may file a supplemental fees request along with billing records to substantiate the request. The court is inclined, however, to have each side bear its own costs and expenses for this motion, given the mixed result for plaintiffs and the additional efforts already required of defendants in providing the court with proposed redactions of voluminous materials. See Fed.R.Civ.P. 37(a)(5)(C) (“If the motion [to compel discovery] is granted in part and denied in part, the court . . . may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.”); Morgan Hill Concerned Parents Ass'n v. California Dep't of Educ., 2017 WL 3116818, at *5 (E.D. Cal. July 21, 2017) (Rule 37(a)(5)(C) “confers substantial discretion on a court to determine how to apportion expenses”).
Such a request should be limited to time expended on the motion to compel, itself, not the supplemental briefing regarding the separate (albeit related) request to seal. Defendants would then receive an opportunity to oppose the fees requested.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs' motion to compel (ECF No. 128) is GRANTED IN PART and DENIED IN PART, without prejudice to renewal;
2. Defendants shall forthwith produce to plaintiffs-subject to the existing protective order-the Giordano Report and Supplemental Report with all proposed redactions except those specifically rejected or modified herein (as bolded above), labeling the basis for each redaction in the margins;
3. The motion is denied without prejudice as to the accompanying interviews and other exhibits to the reports.