Opinion
Civil No. 01-1203 MV/LCS.
March 18, 2002
O R D E R
THIS MATTER came before the Court on March 13 and 15, 2002, for hearings on Plaintiffs' Motion to Extend Expert Disclosure Deadline (Doc. 29), filed March 7, 2002, and Defendants' informal request for in camera review of personnel records and internal affairs file. The Court, having considered the arguments of the litigants, record, applicable law, and being otherwise fully advised, finds that this Motion is well-taken and should be GRANTED.
I. Plaintiffs' Motion to Extend Expert Disclosure Deadline.
Plaintiffs shall disclose a supplemental expert report, to be considered a FINAL REPORT, by April 5, 2002, pursuant to FED.R.CIV.P. 26 (a)(2). Plaintiffs' original expert report shall be deemed a preliminary expert report. In the supplemental report, Plaintiffs' expert may not consider the issues of hiring or training. Plaintiffs' expert will be permitted to consider the documents ordered produced herein.
Defendants shall disclose a supplemental report, to be considered a FINAL REPORT, by April 22, 2002, pursuant to FED.R.CIV.P. 26(a)(2). Defendants' original expert report shall be deemed a preliminary expert report.
The Initial Pretrial Report remains in full force and effect with the following caveats. The discovery termination date of April 17, 2002 remains firm, with the exception of expert witness depositions, which must be competed by May 15, 2002. Other pretrial motions shall be fully briefed by July 3, 2002. Plaintiffs shall submit their portion of the pretrial order to Defendants by June 24, 2002. Defendants shall submit the consolidated pretrial order to the Court by July 8, 2002.
II. Defendants' informal request for in camera review of personnel records and internal affairs file.
Plaintiffs served written discovery on Defendants, and Defendants objected to producing the following documents: (A) copies of complaints/inquiries regarding Defendant Officer David Maggio; (B) the internal affairs file related to this case; and (C) portions of Defendant Officer Maggio's personnel file consisting of a psychological statement and evaluation and personnel evaluations. Counsel for Defendants itemized these documents, and submitted them for in camera review in a letter dated March 8, 2002. At the hearing of March 15, 2002, counsel for Plaintiffs stated that the only documents still at issue were the documents designated (B)(1), (B)(4), (B)(7), (B)(9), (B)(11), (B)(12), and all documents designated (C).
The documents designated (B)(1), (B)(4), (B)(7), (B)(9), (B)(11), (B)(12) involve the internal affairs file and FBI investigation and report of the incident underlying this case. Defendants contend that these documents are not discoverable and cannot be disclosed under NMSA § 14-2-1.
Contrary to Defendants' position, there is no blanket privilege with respect to internal affairs files. The statute cited by Defendants relates to exceptions to the public's right to inspect public records, and does not directly address police internal affairs files. The Tenth Circuit has noted that there is "no absolute right to privacy in the contents of personnel files. Only highly personal information is protected." Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989). Although police officers have constitutionally-based privacy interests in personal matters contained within internal police files, these interests are limited in view of the role played by the police officer as a public servant who must be accountable to public review. Mason v. Stock, 869 F. Supp. 828, 833 (D.Kan. 1994).
Police internal investigation files are not protected by the right to privacy when the documents relate simply to the officer's work as a police officer. Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). In determining whether the materials are discoverable, the court must consider, (1) whether the party asserting the right has a legitimate expectation of privacy, (2) whether disclosure serves a compelling state interest, and (3) whether disclosure can be made in the least intrusive manner. Id. Information of a highly personal or sensitive nature falls within the zone of confidentiality. Flanagan, 890 F.2d at 1570.
Generally, a party may request production of documents that contain matters within the scope of Rule 26(b) and are in the possession, custody or control of another party. FED.R.CIV.P. 34(a). Rule 26(b), as amended, provides in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
FED.R.CIV.P. 26(b) (emphasis added).
With these factors in mind, I have reviewed the documents at issue in camera and have determined that the documents designated (B)(1), (B)(4), (B)(7), and (B)(12) are discoverable and should be produced. The documents designated (B)(9) and (B)(11) are not discoverable and need not be produced. All documents ordered produced herein are subject to the parameters of the Stipulated Protective Order (Doc. 32), issued March 12, 2002.
Plaintiffs also seek production of a psychological statement and evaluation and personnel evaluations contained in Defendant Officer Maggio's personnel file, designated in section (C) of the letter of March 8, 2002. The documents designated in (C) satisfy Flanagan factors and fall within the scope of Rule 26(b). Accordingly, the documents designated in (C) should be produced, subject to the requirements of the Stipulated Protective Order of March 12, 2002.
IT IS SO ORDERED.