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Scherbarth v. Office Woods

United States District Court, D. Colorado

February 13, 2018

CORY S. SCHERBARTH, Plaintiff,
v.
OFFICER WOODS, Aurora City Police Department OFFICER VAN CLEAVE, Aurora City Police Department Defendants.

          ORDER

         This case is before the court on the motions of Defendants William Woods and Erik Van Cleave ("Defendants") to quash Plaintiff Cory Scherbarth's subpoena to the City of Aurora (doc. 46) and to stay certain discovery pending a determination of qualified immunity (doc. 52).[1] In the latter motion, Defendants ask the court to "limit[] discovery in this matter to only those facts and issues that are necessary to determine whether Defendants are qualified immune from suit under the circumstances of this case." The motions are fully briefed. The court also has before it the parties' joint motion to amend the schedule. Doc. 55.

         BACKGROUND

         Plaintiff s operative pleading is the amended complaint he filed prose. Doc. 18. Mr. Scherbarth alleges two claims against Officers Woods and Van Cleave. First, Plaintiff alleges the officers used excessive force in arresting him, violating his Fourth Amendment right to be free of unreasonable seizure and violating C.R.S. § 18-8-803. Am. Complaint at p. 8 of 17. Second, Plaintiff alleges the officers falsely arrested and imprisoned him without probable cause, violating his Fourth, Fifth and Fourteenth Amendment rights. Id. at pp. 9-10 of 17. Plaintiff seeks damages, punitive or exemplary damages, medical coverage, and attorneys' fees and costs. Id. at p. 12 of 17.

         In his original complaint, Plaintiff also sued the officers in their official capacities, which the court construed as a Monell[2] claim against the City of Aurora for a policy or custom that caused the alleged violations of Plaintiffs constitutional rights. On initial review pursuant to 28 U.S.C. § 1915, Magistrate Judge Gordon P. Gallagher found the complaint lacked fact allegations of a policy or custom causing the alleged violations. Doc. 10 (Order of October 14, 2016) at p. 3. Judge Gallagher gave Plaintiff an opportunity to amend his complaint to add such allegations, and Plaintiff instead moved to stay Monell claims until he could investigate. Judge Lewis T. Babcock denied the motion and to the extent the Amended Complaint still sought to sue the officers in their official capacities, dismissed those claims. Doc. 20 (Order of Jan. 11, 2017) at p. 4. Mr. Scherbarth thus sues only the officers in their individual capacities.

         ANALYSIS

         Defendants' two discovery motions in part overlap each other. Both motions take issue with Plaintiffs subpoena for documents from the non-party City of Aurora. Both motions also argue that most of the documents Plaintiff seeks would only be relevant to a Monell claim. The court addresses the motion regarding the subpoena first.

         I. Defendants' Motion to Quash or Modify Subpoena

         On a timely motion, the court must quash or modify a subpoena if it "requires the disclosure of privileged or other protected matter, if no exception or waiver applies ... or (4) requires the disclosure of a trade secret or other confidential research, development, or commercial information." Charles Schwab & Co. v. Highwater Wealth Mgmt., LLC, No. 17-cv-00803-CMA-NYW, 2017 WL 4278494, at *4 (D. Colo. Sept. 27, 2017) (citing Fed.R.Civ.P. 45(d)(3)(A), (d)(3)(B)). Defendants argue virtually all documents requested in the subpoena are irrelevant, but they have standing to challenge it only as to privilege or privacy. Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997); Charles Schwab, 2017 WL 4278494, at *4. Defendants do not assert a privilege and assert a privacy interest only in their personnel files and (if any exist)[3] internal affairs investigation files. Therefore, the court considers Defendants' arguments only as to the subpoena requests for their personnel or internal investigation files: Doc. 46-1, subpoena categories 1, 2, 14 and 15. Defendants argue the court should use an inherent power to hear their relevance arguments, but under Windsor and its progeny, this court declines to do so. Defendants' motion to quash is denied as to subpoena categories 3-13.[4]

         It is undisputed that Defendants have some privacy expectation in their personnel and internal investigation files; the question is whether Plaintiff has a need for the information that would outweigh that interest. The U.S. Supreme Court recognizes public officers have a constitutional right of confidentiality - albeit not absolute - in private, personal information such as may be contained within a personnel or investigation file. Woolen v. Roe, 429 U.S. 589, 599 (1977) ("individual interest in avoiding disclosure of personal matters"); Nixon v. Admin, of Gen. Servs., 433 U.S. 425, 457 (1977) ("public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity"). Defendants argue the court should determine whether that right of privacy outweighs Plaintiffs need for discovery pursuant to the balancing test that Colorado state courts established in Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980).

When the right to confidentiality is invoked to prevent disclosure of personal materials or information, a tri-partite balancing inquiry must be undertaken by the court, as follows: (1) does the party seeking to come within the protection of right to confidentiality have a legitimate expectation that the materials or information will not be disclosed? (2) is disclosure nonetheless required to serve a compelling state interest? (3) if so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to confidentiality?

Martinelli, 612 P.2d at 1091 (paragraph breaks omitted).

         In 2011, the Colorado Supreme Court modified this test such that "the requesting party must prove either that disclosure is required to serve a compelling state interest or that there is a compelling need for the information, " and either "the information is not available from other sources, " or if "available from other sources, ... that it is using the least intrusive means to obtain the information." In re District Court, 256 P.3d 687, 691-92 (Colo. 2011).

         Plaintiff argues Martinelli and In re District Court may not apply here because discoverability for federal claims is governed by federal rules and law. Plaintiff cites Everitt v. Brezzel, 750 F.Supp. 1063 (D. Colo. 1990) and Cisneros v. Town of Center, No. 08-cv-02661-WYD-MEH, 2009 WL 2568534, at *3 (D. Colo. Aug. 18, 2009). In both cases, the plaintiff alleged (as does Mr. Scherbarth) excessive force, and false arrest or false imprisonment. Both cases find Federal Rule of Civil Procedure 26 - not Martinelli - governs the discoverability of police personnel or internal investigation files.

         Defendants do not address Everitt or Cisneros, but point to Flanagan v. Manger, 890 F.2d 1557, 1570 (10th Cir. 1989) and Denver Policemen's Protective Association v. Lichtenstein, 660 F.2d 432, 434-35 (10th Cir. 1981). Flanagan and Lichtenstein applied Martinelli to assess claims that disclosures of police personnel or internal investigation files which occurred (or were ordered) outside of federal court violated the federal constitutional right of privacy. Defendants also cite a criminal case, United States v. Neal, No. 11-cr-00163-WJM, 2011 WL 3648381, at *4-5 (D. Colo. Aug. 18, 2011), in which this court applied Martinelli to determine the discoverability of police officer's personnel files. None of these cases analyze whether the issue of discoverability for a federal claim action should be decided under state or federal law.[5]

         In the end, the court agrees with Everitt and Cisneros' reasoning that Rule 26 governs the discoverability of Defendants' personnel and internal investigation files. However, In re District Court and Rule 26 differ significantly only in the procedure to follow after a court finds officers' files should be produced. Martinelli requires in camera review in all such cases to ensure no irrelevant or highly personal information is disclosed. Rule 26 does not require in camera review, although the court has discretion to require it case-by-case. This court has found in camera review should be reserved to the rare or exceptional instance that the parties cannot resolve a dispute on the issue. See, e.g., Everitt, 750 F.Supp. at 1067-68; Cisneros, 2009 WL 2568534, at *3-4.

         But other than the question of in camera review, the court's analysis would be the same under either In re District Court or Rule 26. First, Martinelli does not purport to create a state law right of privacy; it addresses the federal constitutional right of privacy. Martinelli, 612 P.2d at 1091-92 (citing Whalen, 429 U.S. at 599; Nixon, 433 U.S. at 457, 458). See also McDonald v. Wise, 769 F.3d 1202, 1217 (10th Cir. 2014) (discussing Martinelli as a case regarding whether the "constitutional right of privacy prevents disclosure ... during the discovery process, " not a case establishing substantive scope for the right of privacy). The court is not aware of any Colorado law that creates a state law right of privacy in police personnel or internal investigation files more expansive than the federal right of privacy.[6] Defendants for instance cite the protection given to their files in the Colorado Open Records statute, C.R.S. § 24-72-204(3)(a) ("The custodian shall deny the right of inspection of [personnel files]... unless otherwise provided by law") and the Colorado Criminal Justice Records Act, C.R.S. § 24-72-305(5) (''unless otherwise provided by law, the custodian may deny access to" investigatory files). The statutes are consistent with the federal privacy interest, but do not add to it. Both statutes defer to other laws for the scope of privacy. Indeed, the Tenth Circuit rejected firefighters' assertions of a broader privacy right in their internal investigation files. Mangels v. Pena, 789 F.2d 836, 839-40, n.3 (10th Cir. 1986) ("Rights of substantive due process are founded not upon state provisions but upon deeply rooted notions of fundamental personal interests derived from the Constitution.").

         Second, the state and federal balancing tests are largely the same. Martinelli 's balancing test was based in part on Nixon. Martinelli, 612 P.2d at 1091-92 (citing Nixon, 433 U.S. at 458). In re District Court's balancing of a compelling state interest or need for the information against the privacy interest is analogous to Rule 26's balancing of the need for information with the annoyance, embarrassment or oppression likely to result from disclosure. Fed.R.Civ.P. 26(b)(1) ("importance of the discovery in resolving the issues"); (b)(2)(C) (court must limit discovery that "can be obtained from some other source that is more convenient [or] less burdensome"); (c)(1) (authorizing protective orders regarding confidential information). In re District Court's limitation to the "least invasive" means is likewise analogous to Rule 26(c)'s provision for specifying the terms of disclosure for confidential information.

         Turning to whether these files should be produced under Rule 26, Plaintiff argues he needs Defendants' personnel and internal investigation files because Defendants' credibility is a critical issue for his excessive force claim and the files may contain impeachment evidence. Plaintiff alleges he did not resist arrest or attempt to flee. Defendants assert to the contrary Plaintiff did resist or attempt to flee, necessitating their use of force. Plaintiff further argues that "it appears that Plaintiff and Defendants were the only witnesses to this event. Without the personnel files. Plaintiff may have no other way to impeach Defendants' credibility or challenge their versions of these events." Doc. 50 (response) at p. 11. Defendants reply that Plaintiff s brother witnessed the arrest. The parties thus disagree whether the files in question are the only potential source of impeachment.

         Plaintiff argues the Tenth Circuit and Colorado courts find officers' privacy interests outweighed by a defendant's need for exculpatory evidence and the right to confront witnesses, relying on Neal, Lichtenstein, and People v. Walker, 666P.2dll3, 121-22 (Colo. 1983). Defendants distinguish these cases as allowing discovery of officers' files only when the defendant is charged with assaulting an officer, there was no other source of evidence to impeach their credibility, or all of the prosecution's witnesses were police officers. Walker, 666 P.2d at 122; Neal, 2011 WL 3648381; Lichtenstein, 660 F.2d at 436 (holding "[i]nasmuch as the instant case involves a 'swearing match' between the accused and police officers, ascertainment of the truth is of particular importance."). These cases are persuasive that unless a claim involves a police officer's credibility (or the defendant's alleged conduct toward the officer during an arrest), the need for an officer's file is not compelling enough to overcome the officer's privacy interest. However, these cases do not purport to premise discoverability on the absence of other potential sources of impeachment evidence.

         The court also finds Everitt and Cisneros persuasive on this issue. On excessive force and false arrest/imprisonment claims, neither case focuses on whether there are other potential sources of impeachment evidence. Both cases find officers' personnel files and internal investigation files relevant and order production; a Monell claim was central to that finding but does not appear to be the sole basis. See, e.g., Everitt, 750 F.Supp. at 1066 ("especially since plaintiff has made claims against both the individual officers and the municipality"); Cisneros, 2009 WL 2568534, at *2 ("especially in light of her claims against both the individual officers and the municipality itself"). Both courts restricted access to the parties' attorneys only, and allowed the officers to identify in a log any information within the files they deemed so confidential or private that it warranted withholding even from the plaintiffs attorney. If the plaintiff wished to pursue that information, the court would then conduct an in camera review.

         Unlike the above cases, however, with respect to internal investigation files Defendants also assert they received "Garrity advisements, " in which the chief of police gave assurance that he or she would resist any request for disclosure of those files except as required by law. Specifically, Defendants assert

the Aurora Police Department's Garrity Advisement provides that "[f]he information I provide shall remain confidential and no truthful information will be used in any criminal proceeding against me. Any request for this statement, whether criminal or civil, will be analyzed by the Chief of Police and the Department to resist any disclosure not mandated by law."

Doc. 46 (motion) at p. 12. Defendants argue this advisement as an alternative basis for their expectation of "limited confidentiality, " citing American Civil Liberties Union of Colorado v. Whitman, 159 P.3d 707, 711 (Colo.App. 2006). The first difficulty with this argument is the Tenth Circuit found a similar advisement did not give officers a broader privacy interest than the federal Constitution does. Mangels, 789 F.2d at 839-40, n.3. Secondly, even assuming Mangels' holding is inapplicable here, the Chief and Department agree to resist only disclosures that are "not mandated by law." Defendants could not rely on the advisement as protection from a court finding a compelling need or state interest for discovery of the file. The court ...


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