Robertson v. City of Concord ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSHUA ROBERTSON, Case No. 19-cv-01918-SI 8 Plaintiff, ORDER ON DISCOVERY DISPUTE 9 v. Re: Dkt. No. 95, 102, 105 10 CITY OF CONCORD, a municipal corporation; RON BRUCKERT, 11 individually and in his official capacity as Police Officer for the CITY OF 12 CONCORD; and DOES 1-50, individually and in their official capacities as Police 13 Officers for the CITY OF CONCORD, jointly and severally, 14 Defendant. 15 16 Before the Court are pending discovery disputes first presented in plaintiff’s unilateral 17 discovery letter brief filed on November 2, 2021. Dkt. No. 95. The Court directed defendants to 18 file a response, which they did so on November 16, 2021. Dkt. No. 102. Plaintiff’s reply followed 19 on December 3, 2021. Dkt. No. 105. Having carefully considered the parties’ submissions, the 20 Court issues the following instructions: 21 First, defendant is instructed to produce Concord Police Department Policies pertaining to 22 “high-risk felony stops” or “fleeing felons,” or, if such policies to not exist, defendant must submit 23 a written verification under penalty of perjury that after a search, the City has no such policies. 24 Second, defendant is instructed to produce, for in camera review, the 94 withheld pages from 25 Officer Bruckert’s personnel files, as described in Dkt. No. 95-2, Ex. B at 3-4. The Court orders 26 such production by December 17, 2021. 27 Third, defendant is instructed to produce internal affairs documents of the six Concord police 1 officers who witnessed the shooting or its immediate aftermath, insofar as those document bear on 2 || the credibility or dishonesty of those witness officers. Generally, “personnel records of the officers 3 who were at the scene of the incident but did not make arrests and are not named as defendants” are 4 || only discoverable if the plaintiff's need outweighs policy officer’s privacy interests. DeArmand E. 5 v. City of Antioch, No. C 08-1709 SI, 2009 WL 1704686, at *3 (N.D. Cal. June 17, 2009). However, 6 internal affairs records are “different” from personnel records. Jd. “The internal affairs histories 7 and statements of any police officers on the scene are relevant, regardless of whether or not those 8 officers are named parties to the action.” Soto v. City of Concord, 162 F.R.D. 603, 611 (N.D. Cal. 9 1995). Such histories “may be relevant to the non-party officers’ credibility.” Hampton v. City of 10 San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993). 11 Because the incident in this case was not captured on video, the Court agrees that internal q 12 affairs documents that bear on the veracity of police eyewitnesses are relevant and discoverable. 5 13 || To the extent defendant has concerns that such production will permit plaintiff to reach “into the S 14 || protected personnel records of non-party officers,’ Dkt. No. 102 at 4, the documents may be 3 15 produced pursuant to the Stipulated Protective Order agreed upon by all parties and approved by the a 16 Court on March 25, 2021. See Dkt. No. 61. 18 IT IS SO ORDERED. 19 Dated: December 13, 2021 Sate ee 20 SUSAN ILLSTON 21 United States District Judge 22 23 24 25 26 27 28