Nguyen v. City of Garden Grove
Nguyen v. City of Garden Grove
2023 WL 2558536 (C.D. Cal. 2023)
February 2, 2023
Spaeth, Autumn D., United States Magistrate Judge
Summary
The court granted the Motion to Compel, ordering Defendants to produce unredacted documents that had been redacted on the basis of relevance, privacy, or the official information privilege. The court found that the official information privilege did not protect the training and evaluation forms from production, and applied a balancing test that favored disclosure. The documents must be produced by February 23, 2023, or another date mutually agreed to by the parties.
Nguyen, et al.
v.
City of Garden Grove, et al
v.
City of Garden Grove, et al
Case No.: 8:21-01775 JVS (ADSx)
United States District Court, C.D. California
Filed February 02, 2023
Counsel
Rodrigo Ismael Padilla Hernandez, Barrett S. Litt, Lindsay Battles, McLane Bednarski and Litt LLP, Pasadena, CA, for Nguyen, et al.Meredith Dawn Stewart, Caroline Anne Byrne, Woodruff Spradlin and Smart APC, Costa Mesa, CA, for City of Garden Grove, et al.
Spaeth, Autumn D., United States Magistrate Judge
Proceedings: (IN CHAMBERS) ORDER GRANTING PLAINTIFFS' MOTION RE: COURT'S OCTOBER 20, 2022 ORDER TO COMPEL RESPONSES TO PLAINTIFFS' REQUESTS FOR PRODUCTION (DKT. NO. 50)
I. INTRODUCTION
*1 Before the Court is a second Motion to Compel Responses to Plaintiff's Requests for Production (“Motion to Compel”) in a civil rights action pursuant to 42 U.S.C. § 1983. (Dkt. No. 50.) Plaintiffs Aaron Nguyen, Ngoc Le Thi Phan, and Hoang Minh Nguyen (“Plaintiffs”[1]) move to compel Defendants City of Garden Grove, Mark Lord, Michael Reynolds, and Sergeant Mike Martin (“Defendants”) to produce documents responsive to Request for Production Nos. 30, 31, 34, 35, and 36. The Requests for Production seek police personnel records of Defendants Detective Mark Lord, Sergeant Mike Martin, and Officer Michael Reynolds (the “Individual Defendants”), all of whom were officers for the Garden Grove Police Department when the underlying incident occurred.
Having reviewed the parties' briefing and hearing oral argument, the Motion to Compel is granted. Defendants must serve unredacted responsive documents, consistent with this Order, by no later than February 23, 2023.
II. BACKGROUND
The Court summarized this case's factual background in its previous Motion to Compel Order, (Dkt. No. 48), and will not restate it here. At issue here are several Requests for Production that were the subject of Plaintiffs' previous motion to compel (Dkt. No. 38) and the Court's previous Order on the Motion to Compel. (Dkt. No. 48.) Specifically, Plaintiffs served the City with two sets of requests for production of documents. Relevant here are Request for Production Nos. 30 and 31 and Request for Production Nos. 34–36. Those requests sought police personnel records for Detective Lord, Sergeant Martin, and Officer Reynolds. The specific police personnel records at issue were their (1) disciplinary records and complaints of misconduct; (2) performance records; (3) hiring records; and (4) training records. The Individual Defendants objected to the requests, in part, arguing they were irrelevant and protected from discovery by the official information privilege.
The Court held a hearing on that motion on October 12, 2022. See (Dkt. No. 47.) Subsequently, the motion was granted in part and denied in part. (Dkt. No. 48.) Defendants were ordered to produce records pertaining to the Individual Defendants, including (1) hiring records (without limitations); (2) training records that relate to criminal investigations; and (3) performance records pertaining to criminal investigations for the 15 years preceding the March 2011 incident. (Id.)
In response, Defendants produced hiring, training, and performance records pertaining to the Individual Defendants on November 21, 2022. (Dkt. No. 50 at 20.) Defendants' production contained significant redactions. Defendants assert these redactions relate to irrelevant information, private information, and/or information protected from discovery by the official information privilege. (Id.) Plaintiffs then filed the instant motion to compel, seeking unredacted versions of the documents Defendants produced on November 21, 2022. (Id. at 1-2.) On February 1, 2023, the Court held a hearing on Plaintiffs' Motion to Compel. After hearing oral argument, the Court took the Motion to Compel under submission.
III. LEGAL STANDARD
*2 A party may request that another party produce documents that are relevant to any party's claim or defense and is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1), 34(a)(1). If a party fails to serve an adequate written response or produce responsive documents, a party may move for an order compelling such information. Fed. R. Civ. P. 37(a)(3)(B)(iv). On a motion to compel discovery, the requesting party bears the initial burden of demonstrating the discovery is relevant. United States v. McGraw-Hill Cos., Inc., No. CV 13-779-DOC (JCGx), 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014). Once relevance has been shown, the party resisting discovery bears the burden to show discovery should be disallowed and to support any objections. Laub v. Horbaczewski, 331 F.R.D. 516, 521 (C.D. Cal. 2019).
IV. DISCUSSION
The Court notes at the outset that this Motion to Compel arrives on a peculiar posture. The relevance of the documents at issue was already established (1) through the Court's October 20, 2022 order compelling the production of responsive documents (Dkt. No. 48), and (2) through Defendants' resulting production of these very materials. Defendants' production of the documents in response to the Court's Order is an admission that at least some portion of each document is relevant; otherwise they would not have been produced in the first place. Accordingly, the Court will not analyze whether the documents themselves are relevant. Instead, the Court's analysis focuses on whether Defendants' asserted reasons for the redactions, after the order compelling, are justified.
A. Redactions for Relevance
The first issue before the Court relates to numerous redactions Defendants made to documents they produced on the grounds that the redacted material was not relevant. Defendants state that they “produced hundreds of pages of personnel records and redacted those portions that fell outside the scope of records ordered produced by the Court,” (Dkt. No. 50 at 20), and that “other redacted categories do not relate to criminal investigations.” (Id. at 29.) In response, Plaintiffs argue that “Federal and Ninth Circuit precedent consistently dictates that parties may not redact irrelevant material.” (Id. at 15.)
The Court agrees that Defendants should not have redacted documents on the basis that the redacted material was allegedly irrelevant. Courts in this district routinely state that “unilateral redactions are inappropriate if they seek not to protect sensitive or protected information, but merely to keep non-responsive information out of an adversary's hands.” United States v. McGraw-Hill Companies, Inc., No. CV 13-0779-DOC JCGX, 2014 WL 8662657, at *4 (C.D. Cal. Sept. 25, 2014); see also Laub, 331 F.R.D. at 526 (quoting Toyo Tire & Rubber Co. v. CIA Wheel Grp., No. SACV1500246DOCDFMX, 2016 WL 6246384, at *2 (C.D. Cal. Feb. 23, 2016)) (a party “may not redact otherwise responsive documents because those documents contain irrelevant material.”). The reasons underlying this principle are readily apparent. As another court in this district reasoned,
[i]t is a rare document that contains only relevant information. And irrelevant information within a document that contains relevant information may be highly useful to providing context for the relevant information. Fed. R. Civ. P. 34 concerns the discovery of “documents”; it does not concern the discovery of individual pictures, graphics, paragraphs, sentences, or words within those documents. Thus, courts view “documents” as relevant or irrelevant; courts do not, as a matter of practice, weigh the relevance of particular pictures, graphics, paragraphs, sentences, or words, except to the extent that if one part of a document is relevant then the entire document is relevant for the purposes of Fed. R. Civ. P. 34.
*3 Francisco v. Emeritus Corp., No. CV 17-2871 BRO (SSX), 2017 WL 11036693, at *5 (C.D. Cal. Sept. 5, 2017) (quoting Bartholomew v. Avalon Capital Grp., Inc., 278 F.R.D. 441 (D. Minn. 2011)). Furthermore, “if materials are already shielded by a protective order, unilateral redactions do little more than breed suspicion between the parties, generate discovery disputes, and invite unnecessary intervention by the court.” McGraw-Hill Cos., Inc., 2014 WL 8662657 at *3. Such is the case here.
In response, Defendants have asserted that their redactions were not done unilaterally. Specifically, Defendants argue that they “did not unilaterally decide to redact documents. Instead, [Defendants] redacted documents in response to and consistent with the Court's Order, which limited the scope of the production.” (Dkt. No. 50 at 34.) However, the Court never authorized Defendants to redact information from otherwise relevant documents on the basis that certain parts of the document were allegedly irrelevant.
The Court refers back to the October 12, 2022 hearing on the initial Motion to Compel. The Court asked Plaintiffs whether certain types of trainings would fall outside the scope of Plaintiffs' document requests. Plaintiffs responded that a scuba diving class, for example, would not be relevant. The Court understood this to mean that if there were training records solely related to scuba diving, Defendants would not have to produce them because they were irrelevant. Defendants did not make any argument to the Court about irrelevant portions of documents. Defendants were not authorized to redact parts they consider irrelevant.
Finally, Defendants argue that even if their redactions were done unilaterally, they may be permitted “to the extent the redactions are made to protect important and legitimate interests.” (Id.) (quoting McGraw-Hill Cos., Inc., 2014 WL 8662657 at *4). However, Defendants do not argue that redactions based on relevance relate to “important and legitimate interests”; instead, they argue that those interests relate to privacy and the official information privilege. (Dkt. No. 50 at 34.) The Court finds no support for unilateral redactions on the basis of relevance. Accordingly, Defendants must produce unredacted documents where redactions were made on the basis of relevance. See, e.g., In re Medeva Sec. Litig., No. 93-4376-KN AJWX, 1995 WL 943468, at *3 (C.D. Cal. May 30, 1995) (ordering defendants to produce unredacted copies of documents that had been redacted for relevance if parties could not independently arrive at such arrangement themselves).
B. Redactions for Privacy
The second issue before the court relates to redactions Defendants made on the basis of privacy considerations. Specifically, Defendants state that “redactions were placed on the records supplementally produced to preserve Defendants' and third-parties' rights to privacy.” (Dkt. No. 50 at 27.) In response to these redactions, Plaintiffs argue that the protective order in this case “obviates any potential privacy concerns.” (Id.)
The Court finds that any privacy concerns are addressed by (1) the Protective Order in this case, see (Dkt. No. 25), and (2) seeming agreement between the parties as to what material may be redacted because of privacy concerns. To the first point, the Protective Order in this case is sufficient to address any of the privacy concerns Defendants raise. The Protective Order's Good Cause Statement addresses just this scenario, as it contemplated protecting materials such as “confidential information related to juvenile defendants and witnesses”, “sensitive investigatory information,” and “materials [that likely] include law enforcement records including information implicating privacy rights of third parties.” (Id. at 2.) Numerous courts have held that a protective order addresses similar privacy concerns that arise in the context of law enforcement productions. See, e.g., Harris v. Solorzano, No. CV 17-5780-PA (SP), 2020 WL 6782055, at *6 (C.D. Cal. Sept. 30, 2020) (“the use of a carefully drafted, narrowly tailored protective order substantially reduces the confidentiality interests.”); Ayala v. Cnty. of Riverside, No. EDCV16686DOCKKX, 2017 WL 1734021, at *4 (C.D. Cal. Apr. 28, 2017) (“[t]he Court finds disclosure of the [defendants'] personnel evaluations subject to the protective order already issued in this case will not harm the generally asserted governmental interest in confidentiality of performance evaluations.”). Defendants respond that the
*4 protective order [ ] entered in this case does not negate the private and privileged nature of the balance of the performance and training records that do not relate to criminal investigations. Entry of a protective order in this case is insufficient to protect this important governmental interest in maintaining the privacy rights of officers and third parties as well as protecting the official information privilege.
(Dkt. No. 50 at 35.) The Court does not accept such conclusory assertions, as Defendants do not meet their burden in explaining why the existing protective order is insufficient.
To the second point, the Court finds that Plaintiffs do not seem to seek the type of sensitive information Defendants look to shield. The Court has reviewed Defendants' amended privilege log. (Dkt. No. 50-2, Ex. 3.) Defendants' privilege log asserts several privacy protections, including (1) “Individual and Third Party Privacy under Federal and California Constitution, Art. 1, Sec. 1, including residence addresses and phone numbers of [Individual Defendants] and third parties, drivers' license numbers, social security numbers”; (2) “[f]inancial privacy, including salary information, asset information, and account numbers”; and (3) “[s]ensitive medical information and records protected by the right to privacy under Federal and California Constitution, Art. 1, Sec. 1; Cal. Gov't Code § 6254(c); Cal. Gov't Code § 6254(k).” (Id.) In the Motion to Compel, Plaintiffs state that they “have communicated to defendants' counsel [that] Plaintiffs do not seek redacted personal identifying information, nor do they seek unresponsive medical information.” (Dkt. No. 50 at 2.) To the extent Defendants' redactions removed personal identifying information or medical information, the Court finds that those redactions may remain. Redactions of financial information may remain as well. All other redactions that were done on the basis of privacy must be removed and re-produced to Plaintiffs in an unredacted form.
C. Redactions for Official Information Privilege
The third issue before the Court relates to redactions Defendants made to documents on the grounds that the material was subject to the official information privilege. “Federal common law recognizes a qualified privilege for official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). The Court finds that Defendants have sufficiently invoked the official information privilege.[2] Defendants' original responses to Plaintiffs' discovery requests assert the privilege, and Defendants filed a declaration from Sergeant Kory Ferrin that meets the criteria specified in Kelly v. City of San Jose, 114 F.R.D. 653, 663 (N.D. Cal. 1987). (Dkt. No. 46, Ex. 3.) However, the Court has found that the privilege does not apply to the documents at issue here.
*5 At the outset, the Court notes that none of Defendants' privilege log entries assert the official information privilege as a ground for withholding or redacting any document. See (Dkt. No. 50-2, Ex. 3.) The Court is left to assume that Defendants assert the official information privilege over all of the documents they have produced. It is unclear which redactions were done on the basis of the official information privilege, if any. Regardless, the official information privilege does not protect either the training records or the evaluation records at issue from discovery. The Court found as much in its previous order, (Dkt. No. 48), when it ordered the Defendants to produce the documents despite Defendants asserting privilege.
Specifically, the official information privilege does not protect from production the training and evaluation forms at issue because they are not the types of information courts have found to fall under the privilege. Kelly is the seminal case in this circuit on the official information privilege. Kelly outlined ten factors for a court to apply to determine if the privilege applies:
These factors include: (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 be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the 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) whether 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; and (10) the importance of the information sought to the plaintiff's case.
Est. of Bui v. City of Westminster Police Dep't, 244 F.R.D. 591, 595–96 (C.D. Cal. 2007) (citing Kelly, 114 F.R.D. at 659). This balancing test has been moderately pre-weighted in favor of disclosure. Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992).
After weighing the various factors, the Court finds that neither the training records nor evaluation records are protected from discovery by the official information privilege. Courts in this circuit have traditionally limited the privilege to documents that could lead to actual harm against law enforcement, such as identifying law enforcement officials to inmates or disclosing sensitive security procedures within prisons. See, e.g., Haddix v. Burris, No. C-12-1674 EMC (PR), 2014 WL 6983287, at *6 (N.D. Cal. Dec. 9, 2014) (holding that official information privilege applied to documents that would identify prison employees' personal information to inmates because it could endanger prison officers, their families or their property); Garcia v. Juarez, No. 112CV00750AWIEPG, 2016 WL 3648938, at *8 (E.D. Cal. July 7, 2016) (official information privilege might properly apply to documents that disclosed institutional secrets such as a prison's security measures).
Instead, the documents at issue are the type that are more properly disclosed, at least to parties to this litigation. Sergeant Ferrin's declaration asserts that disclosure of these documents would “seriously compromise the Department's ability to obtain candid disclosure from complainants, third party witnesses and police officers involved in the incidents” (Dkt. No. 46, Ex. 3 at 4), “impair the ability of our Department to conduct an appropriate administrative investigation” (id.), “impede and interfere with ongoing and future investigations” (id. At 5), “will seriously impair the Department's deliberative process in analyzing officer conduct and formulating departmental policy,” (id. At 6), and prevent candid statements from officers amidst investigations. (Id. At 7.)
*6 Yet other courts in this district and circuit have routinely found that the same or similar concerns in other cases do not merit the official information privilege. Kelly in particular thoroughly addressed many of the concerns Sergeant Ferrin's declaration raises. In Kelly, the court reasoned that
Since no empirical study supports the contention that the possibility of disclosure would make officers who participate (as respondents or as investigators) in internal affairs investigations less honest it is doubly important to examine the assumptions that underlie that contention. If we posit two alternatives, one in which there is no possibility of disclosure and one in which there is some possibility of disclosure to litigants (protective orders can be used to prevent disclosure to the public generally), and ask which is most conducive to candor, strong arguments can be advanced that it is the alternative in which there is some possibility of disclosure. A police officer who knows that no one from outside the law enforcement community will scrutinize his statements or his investigatory work may not feel the same level of pressure to be honest and accurate as would his counterpart in a system where some disclosure was possible. An officer might expect that someone within his organization would be less exacting in reviewing his statements or reports than someone from the outside, especially if the person from the outside already has substantial information about the incident under investigation and has a strong motive to challenge the accuracy of the officer's memory or the reliability of his conclusions. We rely in our adversary system of justice on the fear of being challenged and exposed by an opponent to keep litigants and lawyers honest.
Kelly, 114 F.R.D. at 664–65. Further, the Kelly court stressed that “[f]ear of scrutiny by knowledgeable people motivated to be aggressive is likely to inspire police officers to conduct investigations and write reports that are less vulnerable to criticism, and the way to make them less vulnerable is to make them more thorough, more accurate and better reasoned.” Id. at 665. The Court finds this reasoning both persuasive and applicable to the instant case. The weight of other cases in this district supports this. See, e.g., Est. of Bui, 244 F.R.D. at 596 (finding that allowing discovery of police department's internal affairs investigation report would encourage officer candor during investigations); Ramirez v. Cnty. of Los Angeles, 231 F.R.D. 407, 411 (C.D. Cal. 2005) (quoting King v. Conde, 121 F.R.D. 180, 191 (E.D.N.Y.1988)) (reasoning that “nondisclosure of professional [personnel] records should be especially limited in view of the role played by the police officer as a public servant who must be accountable to public review.”).
While some courts in this district have held that the official information privilege may apply to documents that do not directly implicate harm to law enforcement, those cases are inapplicable to Defendants' documents in this case. In Forsyth v. City of Buena Park, the plaintiffs were officers from Buena Park Police Department who brought a lawsuit alleging discrimination and retaliation against the Police Department. No. SACV1401251JVSKESX, 2015 WL 13757344, at *1 (C.D. Cal. Sept. 17, 2015). The officer plaintiffs sought the performance evaluations of a higher-ranking officer who was unrelated to the alleged wrongdoing. Id. at *4. The Forsyth court found that the official information privilege applied to the evaluation forms because defendant asserted that “disclosing a captain's performance evaluations to lower-ranking officers would ‘harm the City's ability to honestly and effectively evaluate its employees’ and would ‘undermine the supervisor/subordinate relationship,’ ” which would “implicate the public's interest in effective policing.” Id.
*7 The considerations that supported Forsyth do not apply here. Plaintiffs are not other officers seeking training and evaluation forms of the Individual Defendants such that it would implicate Defendants' ability to maintain proper supervisor/subordinate relationships, nor would it compromise Defendants' ability to honestly evaluate their employees. Accordingly, the official information privilege does not protect the ordered documents from discovery in this case.
V. CONCLUSION
For the above reasons, the Motion to Compel is granted. (Dkt. No. 50.) Specifically, the Court orders that:
1. Defendants must produce, un-redacted, those documents it redacted on the basis of relevance or for allegedly being outside the scope of the Court's October 20, 2022 order.
2. Defendants must produce, un-redacted, those documents it redacted on the basis of privacy concerns, except to the extent the redacted information contains personally identifying information or medical information.
3. Defendants must produce, un-redacted, those documents it redacted on the basis of the official information privilege.
Defendants must make the supplemental production of documents, consistent with this Order, by February 23, 2023, or another date mutually agreed to by the parties.
IT IS SO ORDERED.
Initials of Clerk kh
Footnotes
It is not entirely clear whether the Motion to Compel is filed by all three plaintiffs or if only plaintiff Aaron Nguyen is the movant; however, clarity on this issue is not required for the Court to decide the motion.
In order to invoke the official information privilege, the party objecting to the discovery request must set forth the objection separately in response to each discovery request to which the objection applies and submit a declaration or affidavit from the head of the department which has control over the matter and meets the following criteria: (1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality (if the agency has shared some or all of the material with other governmental agencies it must disclose their identity and describe the circumstances surrounding the disclosure, including steps taken to assure preservation of the confidentiality of the material), (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 interest, (5) and a projection of how much harm would be done to the threatened interests if the disclosure were made. Harris v. Solorzano, No. CV 17-5780-PA (SP), 2020 WL 6782055, at *6 (C.D. Cal. Sept. 30, 2020) (citing Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. Cal. 1987)).