Opinion
Civ. No. 05-984 LH/ACT.
April 6, 2006
ORDER
THIS MATTER comes before the Court on Plaintiff's Motion to Compel filed March 2, 2006. [Docket No. 28.] Plaintiff is seeking an order compelling Defendants Matthew Wright ("Wright") and Sylvester Stanley ("Stanley") to more fully respond to specific discovery requests. Upon review of the pleadings and being otherwise advised in the premises the Court finds that Plaintiff's Motion is well taken in part.
This lawsuit involves the arrest and detention of Plaintiff on October 3, 2004. Plaintiff alleges excessive force was used during his arrest, that various state-law torts were committed and that he was denied medical care while incarcerated in the McKinley County Adult Detention Center. Amended Complaint for Deprivation of Civil Rights under Color of State Law and Pendent Tort Claims, filed December 28, 2005, Docket No. 20. Plaintiff also asserts a municipal liability claim against the City of Gallup. Id.
In Interrogatory No. 2 Plaintiff asks for all documents from 1996 to the present, "regarding alleged misconduct by employees of the Gallup Police Department, including, but not limited to, violations of established rules, regulations, and procedures; sexual misconduct, property crimes, assaults and batteries, drug possession and/or trafficking offenses . . ." The Court sustains Defendants' objection. The Interrogatory is overly broad, is not reasonably calculated to lead to the discovery of admissible evidence and is an undue burden on the Defendants. The Court further notes that Plaintiff did not address Defendants' argument in his Reply brief.
In Request for Production No. 5 Plaintiff seeks the Internal Affairs file of Wright concerning the incident underlying this lawsuit and all Internal Affairs files prior to this incident. Defendants agreed to produce the Internal Affairs file concerning this lawsuit subject to a Confidentiality Order. A Confidentiality Order was entered on March 13, 2006, Docket No. 32. Thus, the Internal Affairs file concerning the incident underlying this lawsuit is not at issue. However, Defendant has found another Internal Affairs' file involving Wright and an incident preceding Plaintiff's arrest. Defendants have offered to produce this file to the Court for an in camera review.
In Request for Production No. 2 Plaintiff requests the personnel file of Wright. In Request for Production No. 5 Plaintiff asks for "any file relating to Wright, whether personnel, internal affairs, employment application, training or or any other file." In Request No. 6 Plaintiff requests "all document evidence of Defendant Wright's training, including tests, test scores and evaluations." Defendant's response is that they have provided the documents that are not privileged. In his Reply Brief, Plaintiffs has attached which appears to be Defendants' privilege log. Exhibit A, Reply Brief, Docket No. 43.
The Tenth Circuit recognizes that individual police officers have a right to maintain the confidentiality of some personal data contained in their personnel files. Denver Policemen's Protective Assn. v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981) ("[P]ublic officials. . . . are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity." quoting Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977). However, where the documents do not contain personal data but are related simply to the officers work as police officers, the information is not protected from disclosure in a civil lawsuit by considerations of privacy. Lichtenstein, 660 F.2d at 435. As the Tenth Circuit held elsewhere, 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). And even a "legitimate expectation of privacy . . . may be overridden by a compelling state interest." Lichtenstein, 660 F.2d at 436. In discussing a discovery issue in a Section 1983 action, the court noted: "The compelling state interest involved here in the ascertainment of the truth. . . . [I]t is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden." Id.
In Lichtenstein the Court set up a three-part balancing test for the Court to consider in determining discoverabilty of information sought from police files: (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner. Lichtenstein, 660 F.3d at 435. In applying this test one court found that psychological evaluations were privileged but payroll and vacation/absence records, official oaths, letters of appreciate, and periodic performance evaluations were not privileged. Mason v. Stock, 869 F.Supp. 828, 833 (D. Kan. 1994).
In this case the Court notes that Defendants assert in the privilege log, but do not argue in their Response brief, that documents are privileged pursuant to the New Mexico Inspection of Public Records Act, NMSA 1978, § 14-2-1, et seq. This Act does not apply because the Plaintiff is not requesting documents pursuant to the Act. Rather, the Plaintiff is asking for these documents in discovery requests served pursuant to his federal lawsuit. Thus, the federal common law of privileges applies. Fed.R.Evid. 501; Mason, 869 F. Supp. at 832.
The Defendants also cite in the privilege log but do not argue in their Response brief the self-critical analysis privilege. Most federal courts that have considered this privilege in the law enforcement context have rejected it. Mason, 869 F. Supp. at 831-35. This Court agrees with the reasoning in Mason that because privileges can interfere with the search for the truth and it is "doubtful that citizens and police officers will absolutely refuse to cooperate in investigations because of a few isolated instances of disclosure." Id. at 834. The self-critical analysis privilege does not apply in this matter.
With the above analysis in mind, the Court will order the Defendants to review the documents in the withheld Internal Affairs file and those listed in their privilege log. If after review and production of additional documents, if any, the parties cannot agree as to whether the remaining documents are privileged, the Defendants will submit to the Court an amended privilege log and the documents to the Court for review in camera.
In reviewing Defendants' Response and Plaintiff's Reply it appears to the Court that counsel could have resolved many of the disputes raised in this Motion by better communication and more effort. In the future the Court would encourage counsel to engage in face to face (or at least telephonic) communication rather then writing and faxing letters with demands for a response within a short time frame. Counsel are instructed to review the "A Creed of Professionalism of the New Mexico Bench and Bar" and Federal Rule of Civil Procedure 37(a)(2) regarding a good faith attempt to confer before filing a motion to compel for future reference.
IT IS THEREFORE ORDERED that Defendants' objection to Interrogatory No. 2 is sustained. IT IS FURTHER ORDERED that Plaintiff's Motion to Compel is granted in part and denied in part.
FINALLY, IT IS ORDERED that within twenty (20) days of entry of this Order, Defendants will submit, if necessary, in accordance with this Order, an amended privilege log and those documents identified for in camera review by the Court.