18-CIV-03280 JOSE CHAVEZ VS. CITY OF EAST PALO ALTO, ET AL.

JOSE CHAVEZ CITY OF EAST PALO ALTO
NIKOLAUS W. REED MATTHEW J. OREBIC

MOTION FOR PRODUCTION OF CERTAIN PERSONNEL FILES PURSUANT TO EVIDENCE CODE SECTION 1043 BY JOSE CHAVEZ TENTATIVE RULING:

Plaintiff’s motion for discovery of personnel records pursuant to Evid. Code §1043, et seq. is DENIED.

Plaintiff has the burden to establish the materiality of the discovery to the subject matter of this litigation under Evid. Code §1043(b)(3). As indicated in the declaration of Plaintiff’s counsel, Plaintiff contends that the disclosure sought is material to the litigation because it is relevant to Officer McAlindon’s credibility and to establish a “pattern of practice”:

Officer McAlindon’s discovery answers regarding the facts surrounding the incident differs materially from Plaintiff’s version of the events in that it is claimed that [Plaintiff] was not cooperating, yet [Plaintiff] states that he was not resisting when he was violently subjected to force and thrown to the ground causing him to sustain personal injuries. Officer Kevin McAlindon’s truthfulness, veracity, and training is a central issue and past complaints, discipline, incidents, and personnel records are relevant to show a pattern of practice. It is extremely relevant whether Officer Kevin McAlindon took it upon himself in the past to determine other suspects’ guilt and exact punishment and what repercussions and training, if any, was provided. Further, given the dispute as to the facts surrounding the incident, good cause exists to determine Officer Kevin McAlindon’s past record for honesty. Moreover, the [Internal Affairs] report is relevant to determine how an oversight agency viewed Officer Kevin McAlindon’s conduct in question.

[Reed Decl., ¶4.] Counsel’s declaration does not satisfy Plaintiff’s burden to demonstrate good cause for discovery of any of the records sought. With respect to Officer McAlindon’s credibility, Plaintiff asserts that the “different recollections/positions of the parties” justifies discovery. Notably, however, Plaintiff stated in his deposition that he did not remember any physical interaction with a police officer due to his intoxication. [Orebic Decl, Ex. A, p.41-42.] Accordingly, it’s not clear how Plaintiff’s account contradicts any account of the events provided by any witness, including Officer McAlindon, who has not yet responded to discovery in this case. Further, although there is video evidence of the events in question, Plaintiff has not provided the video to the Court so that the Court may compare the events depicted to the account of any witness. Additionally, Plaintiff has not provided the Court with a copy of the police report setting forth the circumstances under which Plaintiff was arrested, as required under Evid. Code §1046 when “the party seeking disclosure is alleging excessive force by a peace officer or custodial officer.” Accordingly, Plaintiff has failed to demonstrate that Officer McAlindon’s credibility is an issue in dispute.

Similarly, with respect to Plaintiff’s claim that Officer McAlindon’s personnel records may demonstrate a “pattern of practice,” Plaintiff has not provided any evidence, in the form of declarations or otherwise, to indicate that disclosure of Officer McAlindon’s personnel records may lead to the discovery of such evidence. Indeed, based on the evidence that has been presented to the Court, Plaintiff’s request to search Officer McAlindon’s personnel files for evidence of a “pattern of practice” amounts to nothing more than a fishing expedition. Further, Plaintiff has not set forth any explanation as to how a “pattern of practice” is potentially material to his claims or why, assuming the relevance of such information, evidence of a pattern of practice cannot be obtained through less intrusive means.

Finally, Plaintiff asserts that “the [Internal Affairs] report is relevant to determine how an oversight agency viewed Officer Kevin McAlindon’s conduct in question.” Again, however, Plaintiff has not explained how such evidence is material to his claims. Additionally, in the context of criminal proceedings, Evid. Code §1045(b)(2) specifically excludes an investigating officer’s preliminary conclusions, including those contained in an internal affairs report. As noted in Haggerty v. Superior Court, 117 Cal.App.4th 1079, 1085–91 (2004), a case in which the plaintiff sought discovery of an internal affairs report, the rule applies equally to civil proceedings where the moving party fails to articulate how an investigating officer’s conclusions “would be of meaningful benefit to the litigation.” With this authority in mind, the Court concludes Plaintiff has not established that information relating to “how an oversight agency viewed Officer Kevin McAlindon’s conduct in question” is discoverable.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.