Opinion
CIVIL ACTION NO. 02-2250 SECTION "K" (2)
May 21, 2004
MINUTE ENTRY
I previously deferred in part plaintiffs' motion to compel response to discovery, Record Doc. No. 15, as to plaintiffs' Requests for Production Nos. 3 and 10. Record Doc. No. 18. I sustained defendants' objections in part as to Request No. 10, which is overly broad. I ordered defendants to produce to me for in camera review all personnel files responsive to Request No. 3. As to Request No. 10, I ordered defendants to produce to me for in camera review only those Internal Affairs or other internal investigations files relating to complaints of use of excessive force against the named defendants and Richard Hebert (incorrectly named as Harvey in my prior order) that may be responsive to Request No. 10, so that I might evaluate the factors and make the determination suggested by the Fifth Circuit concerning such discovery inCoughlin v. Lee, 946 F.2d 1152, 1159-60 (5th Cir. 1991).
Defendants produced to me the personnel files of defendants Richard Hebert, Jr., Derrick Leggett, Colleen Patterson, Chris Washington, Peter Rachel and Russell Raines; two Disciplinary Action Report ("DAR") files concerning Hebert; and Internal Affairs Division ("IAD") files numbered B-11-02, C-9-02, H-5-01, G-1-01, E-14-01, G-11-01 and 2003 1015. I have reviewed those files in camera and I find as follows.
To whatever extent Sheriff Lee is claiming a confidentiality privilege that would preclude discovery of these materials under any circumstances, that objection is overruled. Under Louisiana's Public Records Law, the requested records are defined as public records and are therefore available for public inspection unless specifically excepted by law. La.Rev.Stat. §§ 44:1, 44:3; Nix v. Daniel, 669 So.2d 573, 575 (La.App. 1st Cir. 1996). The Louisiana Public Records Law provides in pertinent part that Sheriff's records and the information contained therein are protected from disclosure only if they are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; or (2) Records containing the identity of a confidential source or information which would tend to reveal the identity of a confidential source of information; or (3) Records containing security procedures, investigative training information or aids, investigative techniques, investigative technical equipment or instructions on the use thereof, or internal security information; . . . (5) Records containing the identity of an undercover police officer or records which would tend to reveal the identity of an undercover police officer;. . . .
La.Rev.Stat. § 44:3(A). Furthermore, the home telephone number of the public employee if it is unlisted; the home telephone number of the public employee when the employee has requested that the number be kept confidential; and the home address of the employee when the employee has requested that the address be kept confidential, shall be confidential personnel records. Id. § 44:11.
However, federal common law, not Louisiana law, governs defendant's discovery objections. Fed.R.Evid. 501. "When considering a federal claim, federal courts apply federal common law, rather than state law, to determine the existence and scope of a privilege. Federal courts will, however, consider state policies supporting a privilege in weighing the government's interest in confidentiality." Coughlin, 946 F.2d at 1159 (citing Fed.R.Evid. 501). Although plaintiffs have asserted claims under both federal and state law, "all of the circuits that have directly addressed this issue have held that the federal law of privilege governs on issues of discoverability and/or admissibility" even when the evidence sought is relevant to a pendent state claim. Hinsdale v. City of Liberal, 961 F. Supp. 1490, 1493 (D.Kan. 1997) (citing cases from Second, Third, Sixth, Seventh Eleventh Circuits), aff'd. 981 F. Supp. 1378 (D. Kan. 1997);accord Walters v. Breaux, 200 F.R.D. 271, 273 (W.D. La. 2001) (Tynes, M.J.); Torres v. Kuzniasz, 936 F. Supp. 1201, 1208 (D.N.J. 1996).
Coughlin is the controlling case law on this question.
Federal common law recognizes a qualified privilege protecting investigative files in an ongoing criminal investigation or information which would reveal the identity of confidential informants. . . . Louisiana law creates a similar privilege. To determine whether this qualified privilege bars discovery of given documents, the trial court should consider the ten factors articulated in Frankenhauser v. Rizzo, [ 59 F.R.D. 339, 344 (E.D. Pa. 1973)] in balancing the government's interest in confidentiality against the litigant's need for the documents.Coughlin, 946 F.2d at 1159-60 (citing La.Rev.Stat. Ann. §§ 44:1, 44:3) (emphasis added). Some courts have held that similar statutes in other states do not create evidentiary privileges, but are merely exceptions to the general rule that the public has a right to inspect any public record. E.g., Hinsdale, 961 F. Supp. at 1494-95 (Kansas law, which prohibits disclosure of personnel matters discussed in closed executive sessions, is designed to protect privacy rights of public employees, not to create privilege against disclosure in court proceedings); Brown v. State, 173 F.R.D. 262, 263-64 (D. Or. 1997) (same as to Oregon public records law). The Fifth Circuit's opinion in Coughlin makes it clear that no blanket privilege exists under federal common law for either personnel files or Internal Affairs Division records. Coughlin, 946 F.2d at 1159-60; Wilson v. Martin County Hosp. Dist., 149 F.R.D. 553, 555 (W.D. Tex. 1993); accord Arinder v. Lee, No. 99-1487, 2000 WL 680343, at *2 (E.D. La. May 23, 2000) (Roby, M.J.); Everitt v. Brezzel, 750 F. Supp. 1063, 1066(D. Colo. 1990); Mockler v. Skipper, No. 93-1117-FR, 1994 WL 41334, at *3-4 (D. Or. 1994).
Sheriff Lee, as the party resisting discovery, bears the burden of demonstrating the existence of any privilege. High Tech Communications, Inc. v. Panasonic Co., C.A. No. 94-1477, 1995 WL 45847, at *1 (E.D. La. Feb. 2, 1995) (Vance, J.) (citing Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)). Privileges, as exceptions to the demand for relevant evidence and derogations from the search for the truth, are strictly construed. Hinsdale, 961 F. Supp. at 1495 (citingUnites States v. Nixon, 418 U.S. 683, 710 (1974)). Special caution should be exercised in recognizing a privilege in a civil rights case because "application of the federal law of privilege, rather than state law, in civil rights actions is designed to ensure that state and county officials may not exempt themselves from the very laws which guard against their unconstitutional conduct by claiming that state law requires all evidence of their alleged wrongdoing to remain confidential." Torres, 936 F. Supp. at 1213; accord Hinsdale, 961 F. Supp. at 1495. To invoke a privilege against disclosure of law enforcement records, the Sheriff must make a "'substantial threshold showing' that specific harms are likely to result from disclosure." Morrissey v. City of N.Y., 171 F.R.D. 85, 92 (S.D.N.Y. 1997).
Sheriff Lee has made no showing, much less a substantial showing, that specific harms are likely to result from disclosure of information contained within the files. Therefore, to the extent he is asserting a confidentiality privilege as an objection to producing these documents, the objection does not suffice to prevent discovery of these public records. Loewenwarter v. Morris, 420 So.2d 550, 557 (La.App. 4th Cir. 1982); cf. Nix, 669 So.2d at 576-77 (records of sheriff and district attorney were privileged when evidence showed that grand jury had subpoenaed the records and issued indictments in connection with federal investigation; U.S. Attorney had requested that records not be disclosed to plaintiff, who was the subject of federal criminal investigation; and district attorney testified that records were part of ongoing federal investigation). Any sensitive personal information contained in these files can be protected via entry of a protective order of the type contained herein, short of finding that such information is privileged.
Even if Sheriff Lee had made such a threshold showing, application of the Frankenhauser factors, as the Fifth Circuit directed in Coughlin, would dictate in favor of permitting the discovery. These factors are:
(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 governmental 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.Frankenhauser, 59 F.R.D at 344.
Applying these factors to plaintiffs' request for information contained within the deputies' personnel and Internal Affairs Division files, I find that all of the personnel records, the two DAR files and the IAD files numbered B-11-02, C-9-02, H-5-01 and E-14-01 should be disclosed, with redactions made by Sheriff Lee's counsel as provided herein. 1 find that the IAD files numbered G-1-01, G-11-01 and 20031015 need not be produced because they are wholly irrelevant to the claims and defenses of the parties in that they reflect no complaints of excessive force.
Sheriff Lee has submitted no evidence that any of the factors set out above weighs against disclosure in this case. On the face of the complaint and subject to Fed.R.Civ.P. 11, plaintiffs have made nonfrivolous allegations of serious misconduct, which the federal civil rights laws are designed to redress. It is probable that plaintiffs would be unable to discover relevant, discoverable information contained in the files through other means.
Accordingly, IT IS ORDERED that, within ten days of entry of this order, Sheriff Lee must make the redacted files available for inspection by plaintiffs' counsel, subject to the protective order contained herein. Sheriff Lee must redact the following information from the files before producing them to plaintiffs: each defendant's Social Security number, the Social Security numbers of any persons other than the named defendant that appear in the files, the home address and telephone number of any defendant or other present or former law enforcement officer, fingerprints and birth certificates.
IT IS FURTHER ORDERED that all records produced by Sheriff Lee pursuant to this order shall be subject to the following protective order: All information produced in accordance with this order must be kept confidential and used only for purposes of this litigation and must not be disclosed to any one except named parties to this litigation, the parties' counsel of record and experts retained in connection with this litigation. Before reviewing any of the subject information, all persons to whom such information is disclosed must sign an affidavit that must be filed into the record, agreeing to the terms of the protective order and submitting to the jurisdiction of this court for enforcement of those terms. If any party seeks to add other terms to this protective order, counsel must confer immediately and submit by motion any proposed protective order.
IT IS FURTHER ORDERED that defendants' counsel must arrange to pick up the files from the undersigned's chambers during regular business hours so that the redaction and production ordered herein may be expeditiously completed.