Hart v. City of Redwood City

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 KRISTIN HART, et al., Case No. 4:21-cv-02653-YGR (KAW) 8 Plaintiffs, ORDER REGARDING 9/21/22 JOINT DISCOVERY LETTER 9 v. Re: Dkt. No. 58 10 CITY OF REDWOOD CITY, et al., 11 Defendants. — 12 — 13 On September 21, 2022, the parties filed a joint discovery letter regarding the validity of 14 the subpoenas1 seeking the opposing parties’ police practices experts’ personnel files, including 15 each respective expert’s qualifications, discipline record, and work history. (Joint Letter, Dkt. No. 16 58.) Discovery in this case, including this pending letter, were referred to the undersigned on 17 October 25, 2022. 18 Here, Defendants do not object to Plaintiffs’ subpoena for the personnel files of their 19 police practices expert.2 (Joint Letter at 1.) Thus, this letter pertains only to Plaintiffs’ attempt to 20 prevent the disclosure of the personnel files of their retained expert, Adam Bercovici, on the 21 grounds that the subpoena is inappropriate and violates his right to privacy. Id. Defendants argue 22 that both experts have waived their privacy rights due to their election to participate in this case as 23 paid experts, and that the requested information is relevant to verifying their qualifications and 24 assessing credibility and bias. Id. 25 First, Plaintiffs argue that California statutes pertaining to peace officer personnel records — 26 — 1 The parties did not attach copies of the respective subpoenas to the joint letter, so the — 27 — undersigned did not have the benefit of reviewing them prior to issuing this order. 1 should prevent the disclosure of Bercovici’s records. (Joint Letter at 2.) California statutes and 2 || case law, however, do not prevent the discovery of police personnel records in federal civil rights 3 || cases, because it would “make no sense to permit state law to determine what evidence is 4 || discoverable in cases brought pursuant to federal statutes whose central purpose is to protect 5 citizens from abuses of power by state and local authorities.” Kelly v. City of San Jose, 114 F.R.D. 6 653, 656 (N.D. Cal. 1987). While federal courts should give some weight to state privacy laws, 7 none of those rights appear to be implicated here. Furthermore, as Defendants argue, Bercovici’s 8 expert testimony is based on his 30 years of law enforcement experience with the Los Angeles 9 || Police Department (“LAPD”), so they are entitled to conduct discovery into his employment and 10 his actions as an officer. (Joint Letter at 3.) Thus, Defendants have satisfied their burden under 11 Rule 26 of showing that Bercovici’s personnel records are relevant and proportional to the needs 12 || of the case. Moreover, the undersigned finds that the stipulated protective order adequately 13 || protects Bercovici’s privacy interests in his personnel records. 14 Second, in objecting to the subpoena, Plaintiffs assert the official information privilege. 3 15 (Joint Letter at 2.) Bercovici was employed by LAPD, so the official information privilege 16 || belongs to the public entity, rather than to Plaintiffs or Bercovici. See Kelly, 114 F.R.D. at 660 3 17 (courts must weigh interests of party seeking discovery against interests of governmental entity 18 || asserting official information privilege). While Plaintiffs expect that LAPD will object and assert 19 the official information privilege, that has not occurred despite the subpoenas having been served 20 || more than a month ago, so the undersigned declines to quash Defendants’ subpoena on that 21 speculatory basis. 22 Accordingly, the Court finds that the personnel files for the parties’ respective police 23 practices experts are discoverable, and orders that the records be produced within 14 days of this 24 || order. 25 IT IS SO ORDERED. 26 Dated: November 7, 2022 □ 28 United States Magistrate Judge