Trial Magazine

“Sunlight is said to be the best of disinfectants,” according to the late U.S. Supreme Court Justice Louis Brandeis.¹ Shining light on officials’ systemic abuse of power moves us forward in our fight for justice in civil rights cases.

The Federal Rules of Civil Procedure offer victims of civil rights violations certain advantages: The rules regulating discovery and the wider berth they provide are sometimes enough to offset the significant disadvantages these plaintiffs face—for example, a hostile jury or the lack of voir dire. This is particularly true in states with strong police unions and thus strong protections under state laws such as peace officer bills of rights.² Defense attorneys rely on these laws to drape an all-encompassing “confidential” blanket over critical documents, indiscriminately labeling them “privileged” and refusing to produce them.

But the spirit of discovery in federal court is intended to be liberal and is meant to encourage production. Federal courts have held state laws that limit discovery and provide privileges to be “fundamentally inconsistent” with federal law and the liberal federal policy on discovery. “[S]tate privilege doctrine, whether derived from statutes or court decision, is not binding on federal courts in civil rights cases.”³

Allowing state law to govern what evidence is discoverable under federal law would ignore that the “central purpose [of these statutes] is to protect people from abuses of power by state and local authorities. If state law controlled, state authorities could effectively insulate themselves from constitutional norms simply by developing privilege doctrines that made it virtually impossible for plaintiffs to develop the kind of information they need to prosecute their federal claims.”⁴

Here are some ways to ensure defendants cannot keep you in the dark and you get the discovery you need for your client’s federal claims.

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The more carefully crafted and narrowly tailored your protective order, The better your chances of cutting through the veil of secrecy.

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Broad Privilege Designations

At the inception of discovery, draft any stipulated protective orders to ensure they cater to the specific needs of a civil rights case. Many federal district courts have sample orders on their websites that are of little use to civil rights plaintiffs because they may focus on trade secrets or other highly sensitive issues. In civil rights cases, there is a presumption that documents and information involving the public should belong to the public.⁵ Assuming that these general model orders will suffice without careful examination is a mistake. The more carefully crafted and narrowly tailored your protective order, the better your chances of cutting through that veil of secrecy.⁶

This is particularly important in addressing privilege log parameters. Defendants can refuse to produce privileged documents, but they should be required to provide sufficient information to the propounding party so it may challenge the privilege designation.

Your stipulated protective order should specify that the party resisting discovery must include in a privilege log a detailed description of the documents it is withholding, including the date, a general description of the document, and all authors and recipients. The specific language in the protective order prevents defendants from lumping hundreds of pages of documents into a single packet, sending it to their lawyer, and marking it privileged.

Common Objections

The “self-critical analysis” privilege and the “deliberative process” privilege are fan favorites of the defense.⁷ “[T]he self-critical analysis privilege should not be applied to police personnel files and records of internal affairs investigations in civil rights suits against police officers.”⁸ The deliberative process privilege applies only in the context of communications designed to contribute directly to the formulation of important public policy.⁹

“Official information” refers to information that may consist of intragovernmental opinions or recommendations made in the performance of decisional or policymaking functions. This privilege is considered on a case-by-case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the government entity asserting the privilege.¹⁰ In the context of civil rights suits against police departments, this balancing approach should be “moderately pre-weighed in favor of disclosure.”¹¹

Departments that shield investigations by having an attorney present for meetings will attempt to invoke the attorney-client privilege. For an internal investigation to be entitled to attorney-client privilege, it must be clear that the investigation was for the purpose of seeking legal advice and that attorneys themselves conducted or supervised the inquiries.¹² And the attorney-client privilege does not attach to communications that would have been made in any event because of a business purpose (such as personnel files).¹³

Monell Discovery

A plaintiff pursuing a §1983 Monell claim against a municipal entity that employed the officers must identify a municipal policy or custom that caused the plaintiff’s injury.¹⁴ The plaintiff must show that the policy is deficient on its face and provide evidence of widespread unconstitutional practices or repeated constitutional violations, which may include evidence of inaction.

This typically means that the plaintiff must allege a specific written policy was so deficient that it caused the injury to the plaintiff (such as policies requiring handcuffing to the back without exceptions, which can cause or exacerbate shoulder injuries) or prior similar instances of misconduct by the officials in the same department.

The challenge here is that before you can get to the discovery to determine what prior similar instances exist, the defense will move to dismiss your complaint for lack of specific allegations. But the plaintiff has not alleged sufficient facts because there hasn’t been any discovery.

Before filing the complaint, turn to publicly available sources such as news articles related to the misconduct within the department and prior complaints available on Pacer. Speak to lawyers who have sued the department in the past and criminal defense attorneys who are familiar with that department’s tactics—it may lead to sufficient evidence to plead a Monell claim. There is no clarity on how many prior instances of misconduct are sufficient, but some courts have rejected three or less as insufficient.¹⁵

Defendants often argue that the prior misconduct alleged in the Monell claim must be a sustained misconduct, meaning that an investigative body has found that the officer engaged in unconstitutional conduct or that there was a jury verdict in the prior case. But this is untrue. A series of prior incidents, whether adjudicated or not, that put the department on notice of a problem should be sufficient to form the foundation for a Monell claim.¹⁶

Absent information that a prior pattern of incidents placed the department on notice, your pleading option is to allege “single incident” liability. A plaintiff may succeed in proving a failure-to-train claim without showing a pattern when “a violation of federal rights may be a highly predictable consequence of a failure to equip [the employees] with specific tools to handle recurring situations.”¹⁷

For example, Kendrick v. County of San Diego involved an allegation that deputies had limited training in the academy on dealing with members of the public with mental disabilities.¹⁸ The deputy testified that he did not receive any specific on-the-job training on “suicide by cop.” The district court observed that other district courts have held that lack of any training or policies on how to handle mentally unstable individuals creates a triable issue of fact for a jury to resolve.¹⁹ The fact that officers received basic training or certification through the Commission on Peace Officer Standards and Training does not mean that they received sufficient training for recurring situations they confront day to day.

Once your case survives the motion to dismiss and discovery begins, defendants often attempt further delay by arguing that the plaintiff is required to prove the underlying constitutional violation by the individual defendants before the trial of the Monell claims. They will try to bifurcate discovery.

But the Supreme Court has long established that separate trials are not favored and are not meant to be routine. “Under the Rules, the impulse is towards entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.”²⁰ Separate trials are held “only in exceptional instances where there are special and persuasive reasons” for doing so.²¹

Municipalities often argue that if a verdict is rendered in favor of the individual defendants on the question of a constitutional violation, then the municipality is not liable under City of Los Angeles v. Heller.²² However, in City of Canton v. Harris, the Supreme Court found that the city could be held liable independently under §1983 for failure to train its police officers even though no individual defendants were named in the lawsuit.²³ And in Hopkins v. Andaya, the Ninth Circuit held that a city could be liable under §1983 for improper training or improper practice and procedure even if the individual officer charged with violating the plaintiff’s constitutional rights was exonerated.²⁴

If a plaintiff establishes that he or she suffered a constitutional injury by the municipality, the fact that individual officers are exonerated is immaterial to liability under §1983.²⁵ A successful defense by the individual defendants does not necessarily preclude a successful claim against the municipality. The conclusion that an individual defendant is not liable does not foreclose the need to examine the municipality’s liability.²⁶ “A municipality may be liable if an individual officer is exonerated on the basis of the defense of qualified immunity, because even if an officer is entitled to immunity a constitutional violation might still have occurred.”²⁷

Or, even if no individual officer is held liable for violating a plaintiff’s constitutional rights, “constitutional deprivations may occur ‘not as a result of actions of the individual officers, but as a result of the collective inaction’ of the municipal defendant.”²⁸

Similarly, a municipality may be found liable for constitutional violations under §1983 even in the absence of individual liability of any of the named defendants if, for example, the constitutional violation was caused at least in part by some other individual or entity not named as a defendant.²⁹ In Owen v. City of Independence, a §1983 case, the Supreme Court ruled that the jury could find “‘systemic’ injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith.”³⁰

Discovery Rule Violations

When defendants in civil rights cases fail to produce required discovery, turn to the federal rules to support your argument to the court for the consequences that should be imposed.

“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.”³¹ Specifically, Rule 37 states that “if a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”³²

Consider a case from earlier this year in which a San Diego federal jury awarded $85 million to the family of Lucky Phounsy, who died in 2015 after sheriff deputies hogtied, Tasered, and restrained him.³³ The first trial resulted in a hung jury. Before the second trial, the plaintiffs’ attorneys discovered from another attorney who previously sued the city that a training video on hogtying existed and that the county counsel had withheld this evidence.

The plaintiffs’ lawyers now had evidence from the county, years later, that the deputies involved in Phounsy’s death did not follow their own training on the use of restraints and that the training was inadequate because it did not instruct officers on monitoring the person’s medical condition.³⁴

The court found that the county violated its legal obligation to turn over such materials and informed jurors about these violations, instructing them that they could distrust the county’s version of events related to deputy training because of the improper behavior.

After deliberating for one day, the jury returned a verdict for the plaintiffs. The county filed motions to set aside the verdict, arguing that when the court told jurors four times about the discovery violations, it was excessive and tilted the case against the county. While it remains to be seen what ultimately will happen in this case, it is a fair warning to defendants that they play a dangerous game when withholding evidence.

Transparency in the conduct of public agencies is critical in a democracy. It is the prerequisite for accountability. Knowing how to acquire critical evidence in a civil rights suit serves not only the interests of the individual plaintiff but also these important public values.

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Julia Yoo is a partner at Iredale and Yoo in San Diego and the president of the National Police Accountability Project. She can be reached at jyoo@iredalelaw.com.

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Notes

1. Louis D. Brandeis, Other People’s Money, Ch. V (1914), https://tinyurl.com/mrxx98j3.
2. More than a dozen states have some versions of a law enforcement officers’ bill of rights. See Eli Hager, Blue Shield—Did You Know Police Have Their Own Bill of Rights?, The Marshall Project, Apr. 27, 2015, https://tinyurl.com/2p6x7yr8.
3. Kelly v. City of San Jose, 114 F.R.D., 653, 655 (N.D. Cal. 1987) (citing Breed v. U.S. Dist. Court for the N. Dist. of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976)); see also  King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988) (“New York state law does not govern discoverability and confidentiality in federal civil rights actions.”); Carr v. Monroe Mfg. Co., 431 F.2d 384, 389 (5th Cir. 1970), cert. denied sub nom. Aldridge v. Carr, 400 U.S. 1000 (1971) (“Special danger” in permitting state governments to shield their own agents with a state-defined privilege).
4. Kelly, 114 F.R.D. at 655–56 (emphasis added).
5. “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commnc’ns, Inc., 435 U.S. 589, 597 (1978); see also, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003); United States v. Amodeo (Amodeo II), 71 F.3d 1044, 1048 (2d Cir. 1995).
6. For instance, the Northern District of California offers two separate model protective orders, one specifically for patent cases and one for standard litigation, which offers good language to build from. See U.S. Dist. Court for the N. Dist. of Cal., Model Protective Orders, https://cand.uscourts.gov/forms/model-protective-orders/.
7. The “self-critical analysis privilege” protects certain self-critical, evaluative analyses from discovery. This privilege has not been universally adopted and those jurisdictions that have accepted it have applied it unevenly. “Deliberative process” is a common law privilege that permits the government to withhold pre-decisional, deliberative documents from discovery. See  U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021).
8. Soto v. City of Concord, 162 F.R.D. 603, 611–12 (N.D. Cal. 1995); see also  Ellis v. City of Anniston, 289 F.R.D. 352, 356 (N.D. Ala. 2013) (City not entitled to protective order limiting disclosure of the results of any city investigation of pretrial detainee’s death because post-incident investigation records do not implicate sensitive government interests in the same manner as policy documents and guidelines.).
9. Soto, 162 F.R.D. at 611–12.
10. Even when courts find that defendants made a threshold showing for the official information privilege, they will order information produced subject to a protective order. See, e.g., Noble v. City of Fresno, 2017 WL 5665850, at *10–11 (E.D. Cal. Nov. 27, 2017).
11. See Soto, 162 F.R.D. at 603.
12. Upjohn Co. v. United States, 449 U.S. 383, 394 (1981).
13. McCaugherty v. Siffermann, 132 F.R.D. 234, 238 (N.D. Cal. 1990).
14. Such claims were read into §1983 by the U.S. Supreme Court in Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978); see also  Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403–04 (1997).
15. Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012); Greene v. City of New York, 742 F. App’x 532, 537 (2d Cir. 2018).
16. See  Villa v. Cty. of San Diego, 2020 WL 5535384, at *3 (S.D. Cal. Sept. 15, 2020).
17. Brown, 520 U.S. at 409. See also  Est. of Nunez v. Cty. of San Diego, 2019 WL 2164052, at *5 (S.D. Cal. May 17, 2019) (despite lack of prior deaths related to a specific policy of placing mentally ill patients into the Psychiatric Security Unit, because defendant’s training and supervision efforts were so minimal, their inadequacy would have been patently obvious to defendant); Frary v. Cty. of Marin, 81 F. Supp. 3d 811, 839 (N.D. Cal. 2015) (concluding that inmates with medical needs being sent into the jail’s general population was a recurring situation); Morris v. Dallas Cty., 960 F. Supp. 2d 665, 687 (N.D. Tex. 2013) (absence of procedures for communication between staff concerning medical issues satisfied Monell when it was obvious that its likely consequence would be a deprivation of medical care).
18. 2018 WL 1316618, at *7 (S.D. Cal. Mar. 14, 2018), aff’d, 776 F. App’x 530, 531 (9th Cir. 2019).
19. Id. (citing Kirby v. City of East Wenatchee, 2013 WL 1497343, at *13 (E.D. Wash. Apr. 10, 2013)); Newman v. San Jaoquin Delta Comm. College Dist., 814 F. Supp. 2d 967, 978 (E.D. Cal. 2011).
20. United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).
21. Miller v. Am. Bonding Co., 257 U.S. 304, 308 (1921).
22. 475 U.S. 796, 799 (1986).
23. 489 U.S. 378, 380 (1989).
24. 958 F.2d 881, 888 (9th Cir. 1992).
25. Fairley v. Luman, 281 F.3d 913, 916–17 (9th Cir. 2002) (“[Heller] ha[s] no bearing on . . . Fourth and Fourteenth Amendment claims against the City for . . . alleged constitutional deprivations [that] were not suffered as a result of actions of the individual officers, but as a result of the collective inaction of the [municipality].”).
26. McCoy v. City of New York, 2008 WL 3884388, at *1 (E.D.N.Y. 2008).
27. Horton by Horton v. City of Santa Maria, 915 F.3d 592, 603–04 (9th Cir. 2019) (quoting Gibson v. Cty. of Washoe, 290 F.3d 1175, 1186 n.7 (9th Cir. 2002)) (internal citations and alterations omitted).
28. Id. at 604 (quoting Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002)).
29. See  Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999); Est. of McIntosh v. City of Chicago, 2015 WL 5164080 (N.D. Ill. Sept. 2, 2015).
30. 445 U.S. 622, 652 (1980).
31. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
32. Fed. R. Civ. P. 37(c)(1).
33. Jade Hindmon, San Diego County Seeks to Overturn $85M Verdict or Have Retrial in Lucky Phounsy Case, KPBS, May 10, 2022, https://tinyurl.com/ycks5rjf.
34. Mid-trial, the plaintiffs’ attorneys also discovered that the county had withheld blood test results that were negative for drugs other than ecstasy that Mr. Phounsy had taken days before his death.