Discovery and police officers: The Pitchess process

Discovery relating to a peace officer’s job performance or disciplinary actions must follow a unique, statutory process

2014 February

Under California law, certain information related to peace officers enjoys a conditional privilege. This limited privilege is held by both the peace officer and the agency. (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) So whether you are representing an officer in a personal-injury or employment matter, or suing a law enforcement agency for battery or other civil-rights’ violations, you need to understand what information is privileged and how to get the information you need – or how to protect your client’s right to privacy

To obtain information from officer personnel records, complaint investigations, or disciplinary action against a peace officer, a party must follow a unique, statutory discovery method. Although this discovery vehicle is generally codified at Evidence Code sections 1043 et seq., it is often referred to as Pitchess, for the landmark California Supreme Court case Pitchess v. Superior Court (Echeveria) (1979) 11 Cal.3d 531. This article discusses the development of the Pitchess process and describes what kind of information is conditionally privileged. The article concludes by offering guidance through the Pitchess-motion procedure, which generally consists of a noticed motion setting forth, by counsel’s affidavit, good cause for the court to conduct an in camera review to determine which records are relevant and to be produced.

The development of the Pitchess process

In 1974, the Legislature adopted Penal Code section 832.5.This section requires law-enforcement agencies to establish a procedure for investigating citizen complaints against peace officers. Section 832.5 also requires the agencies to retain records of the original complaint and investigation for at least five years.

That same year, the California Supreme Court decided Pitchess. Cesar Echeveria was charged with battery of certain deputy sheriffs. Echeveria claimed that he acted in self-defense in response to excessive force by the deputies. As part of his defense, Echeveria sought investigations of citizen complaints of excessive force against those same officers. The Pitchess Court permitted Echeveria to obtain the investigations over Sheriff Pitchess’s objections. (Pitchess, supra, 11 Cal.3d at 534.)

The Pitchess decision rocked the law-enforcement world, and record shredding and discovery abuses allegedly followed. (See San Francisco Police Officers’ Assn. v. Sup. Ct. (City & Cty. of San Francisco) (1988) 202 Cal.App.3d 183, 189.) To curtail these practices, the Legislature enacted changes to the statutory scheme to balance the right to privacy of the peace officer and the employing agency with the interest of justice. (See City of Azusa v. Sup. Ct. (Madrigal) (1987) 191 Cal.App.3d 693, 696-97.) In 1978, Penal Code section 832.5 was amended at the same time Penal Code sections 832.7, 832.8 and Evidence Code section 1043 were added by Senate Bill No. 1436. With these amendments, the Legislature attempted to protect a party’s right to a fair trial and the officer’s privacy interest. (People v. Mooc (2001) 26 Cal.4th 1216, 1227.)

Evidence Code section 1043(a) sets forth the initial Pitchess procedure:

In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

Case law has refined the parameters of this process. Notably, a Pitchess motion trumps general discovery rules in both the civil and criminal context. (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400; see also, People v. Sup. Ct. (Gremminger) (1997) 58 Cal.App.4th 397, 403 [statutory Pitchess scheme takes precedence over discovery procedures in the Code of Civil Procedure]; Fagan v. Sup. Ct. (People) (2003) 111 Cal.App.4th 607, 310 [prosecutor must comply with Pitchess process to disclose Pitchess information of retired peace officer defendant].) So, information protected by the Pitchess privilege is not discoverable under Civil Discovery Act inspection demands. (See Cty. of Los Angeles v. Sup. Ct. (Uhley) (1990) 219 Cal.App.3d 1605, 1609; but cf. Dominguez v. Sup. Ct. (City of San Gabriel) (1980) 101 Cal.App.3d 6, 11 [finding that the City’s rights under Evidence Code sections 1043 et seq. were not impaired irrespective of how plaintiff’s motion to compel was entitled].)

In fact, the agency with custody or control of the records has no obligation to respond to a Code of Civil Procedure section 2031 request for production of Pitchess information. Moreover, the failure to respond to such a request does not waive any Pitchess objections the agency may have. (Uhley, supra, 219 Cal.App.3d at 1611.) Nor may Pitchess information be disclosed pursuant to a California Public Records Act request. (Hemet v. Sup. Ct. (Press-Enterprise Co.) (1995) 37 Cal.App.4th 1411, 1422; Cty. of Los Angeles v. Sup. Ct. (Kusar) (1993) 18 Cal.App.4th 588, 600.) The privilege applies to both pre-trial discovery and live testimony. (Fletcher v. Sup. Ct. (Oakland Police Dep’t) (2002) 100 Cal.App.4th 386, 403.)

Whether the Pitchess process is available in administrative proceedings is uncertain. In Brown v. Valverde (2010) 183 Cal.App.4th 1531, the First District Court of Appeal found that the Pitchess process is not available in Department of Motor Vehicle administrative per se hearings. (Id., 183 Cal.App.4th at 1535.) In Riverside County Sheriff’s Department v. Stiglitz (2012) 147 Cal.Rptr.3d 292, however, the Fourth District court of appeal expressly analyzed and “completely” distinguished Brown, supra. The Stiglitz court found that an administrative hearing officer may rule on a Pitchess motion where such discovery is relevant in a Government Code section 3304(b) hearing, which is an administrative appeal of discipline imposed against a public safety officer. (Id., 147 Cal.Rptr. at 308, 313.) On January 16, 2013, the California Supreme Court granted review of the Fourth District’s opinion, depublishing the appellate opinion and leaving the issue uncertain until the case is decided.

As for federal court, the Pitchess process is not binding. (Jackson v. Cty. of Sacramento (E.D.Cal.1997) 175 F.R.D. 653, 654.) The California Pitchess discovery rule requires that the requesting party make showing of materiality, which was specifically rejected in Federal Rule of Evidence 402. (Soto v. City of Concord (N.D.Cal.1995) 162 F.R.D. 603, 609 at n.2.)

Information subject to the Pitchess privilege

Penal Code sections 832.7 and 832.8 provide the foundation for what kind of information related to peace officers is subject to the conditional Pitchess privilege. The information is protected regardless of whether it could be obtained from other sources. (Hackett v. Sup. Ct. (Glin) (1993) 13 Cal.App.4th 96, 100.)

Penal Code section 832.7(a) states, in pertinent part:

Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. . . .

Penal Code section 832.8 states,

As used in Section 832.7, “personnel records” means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(b) Medical history.

(c) Election of employee benefits.

(d) Employee advancement, appraisal, or discipline.

(e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.

(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

“Personal data” does not include the officer’s identity, unless the officer was the subject of a complaint or disciplinary hearing, the employing agency, dates of current employment, or other information relating to the officer’s current job status. (Comm’n on Peace Officer Standards & Training v. Sup. Ct. (Los Angeles Times Commc’ns, LLC) (2007) 42 Cal.4th 278, 294-96, 299.) Nor does personal data include an officer’s salary. (Int’l Fed’n of Prof’l & Technical Eng’rs v. Sup. Ct. (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319, 341.)

The definition of “personnel records” pertaining to “complaints” is expansive and includes many types of documents related to potential or actual disciplinary action against an officer. Such records are not limited to Internal Affairs investigations, but also include Citizen Review Board’s reports. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 898, 900.) Furthermore, “[u]nsustained complaints are discoverable as well as sustained complaints.” (People v. Zamora (1980) 28 Cal.3d 88, 93, n.1 (citing Saulter v. Muni. Ct. (People) (1977) 75 Cal.App.3d 231, 240; Kelvin L. v. Sup. Ct. (Cabell) (1976) 62 Cal.App.3d 823, 829).)

“Personnel records” also encompass disciplinary proceedings against peace officers. (Copley Press, Inc. v. Sup. Ct. (Cty. of San Diego) (2006) 39 Cal.4th 1272, 1279.) Disciplinary proceedings and citizen complaints are subject to the Pitchess scheme regardless of “the mechanisms set up by a local jurisdiction to handle such matters . . . .” (Berkeley Police Ass’n v. City of Berkeley (2008) 167 Cal.App.4th 385, 401 (citing Copley Press, Inc., supra, 39 Cal.4th at 1294-95); see also San Francisco Police Officers’ Ass’n, supra, 202 Cal.App.3d at 188 (determining that a local rule allowing the complainant access to the hearing officer’s decision or director’s recommendation violates confidentiality provisions).) The Pitchess privilege remains applicable to “personnel records” even after a peace officer leaves her or his employment, so long as the former peace officer was employed as an officer when the conduct being investigated occurred. (Gremminger, supra, 58 Cal.App.4th at 406.)

The agency often argues that any disclosure of information related to complaint investigations should be limited to the names and addresses of witnesses, as typical in criminal cases. In the criminal context, disclosure was limited to names and contact information of witnesses and complainants because the court believed the information was sufficient for the requesting litigant to prepare his or her case. In civil litigation, however, the rationale for this limitation may not apply. The court in Haggarty v. Superior Court (Guindazola) (2004) 117 Cal.App.4th 1079, 1090 stated:

The central rationale underlying the rule limiting discovery to witness identifying information is that the actual documents of third-party complaint information often have minimal relevance and constitute a substantial invasion of officer privacy. This reasoning does not apply in this case. As compared with the third-party complaint situation, the information contained in the Internal Affairs report is highly probative. Guindazola has the burden of proving the elements of his claims, and the investigation at issue concerns the very incident that is the subject of the civil claim. Additionally, Haggerty’s reasonable privacy concerns are diminished because he is the defendant in the litigation and the requested internal investigation records concern his actions that are alleged to be wrongful and will be fully litigated at trial. (Ibid.)

Moreover, the criminal-case opinions explicitly hold that if the information disclosed proved inadequate, the requesting party is not precluded from discovering additional information from the personnel files. (See, e.g., Carruthers v. Muni. Ct. (People) (1980) 110 Cal.App.3d 439, 442 [recognizing right to receive additional discovery if initial disclosures prove inadequate]; City of Azusa, supra, 191 Cal.App.3d at 696-97 [noting that disclosure of additional information was proper under Pitchess, supra, where witnesses were unavailable for interviews or could not remember details of events about which they had complained]; Kelvin L., supra, 62 Cal.App.3d at 829 [approving disclosure of witness identification information, but noting that if for any reason that information was inadequate, petitioner could move for further discovery].)

The nuts and bolts of the Pitchess procedure

The Noticed Motion

Evidence Code section 1043 sets forth the requirements of the Pitchess motion, and states,

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.

A party must set forth with “some specificity” the type of information sought. (Warrick v. Sup. Ct. (City of Los Angeles Police Dep’t) (2005) 35 Cal.4th 1011, 1021.) The information requested must demonstrate that the party is not simply going on a fishing expedition. (City of Santa Cruz, supra, 49 Cal.3d at 85.) In City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal.3d 74, the Court found that “other complaints of excessive force” sufficiently described the type of records sought and met the standard for good cause. (See id., 49 Cal.3d at 90-91.) In addition, if a party is seeking records related to an excessive force claim, the motion must also include the relevant police reports on the circumstances of the force alleged. (See Evid. Code, § 1046.)

The motion should be served on opposing counsel as well as the agency, or agencies, with custody or control of the records requested. (See Evid. Code, § 1043(c).)

The Affidavit(s) Showing Good Cause

The affidavit or declaration demonstrating good cause is the most critical component of the Pitchess motion. Evidence Code section 1043(b)(3) requires a showing of “good cause” by affidavit, which must demonstrate both “materiality” as well as a “reasonable belief” that the government agency has custody and control of the records or information from the records. An affiant need not, however, prove the existence of particular records – the “‘reasonable belief’ . . . may be premised upon a rational inference from known or reasonably assumed facts.” (City of Santa Cruz, supra, 49 Cal.3d at 90 (emphasis in the original).)

“This two-part showing of good cause is a ‘relatively low threshold for discovery.’” (Warrick, supra, 35 Cal.4th at 1019 (citing City of Santa Cruz, supra, 49 Cal.3d at 83); see also People v. Gaines (2009) 46 Cal.4th 172, 182 (accord).) These “‘relatively relaxed standards’ serve to ‘insure the production’ for the trial court review of ‘all potentially relevant documents.’” (Warrick, supra, 35 Cal.4th at 1016 (citing Santa Cruz, supra, at 49 Cal.3d 84).)

“Information is material if it ‘will facilitate the ascertainment of the facts and a fair trial.’” (Haggerty, supra, 117 Cal.App.4th at 1086 (internal citations omitted).) The California Supreme Court articulated four factors by which a party can demonstrate materiality: (1) a logical connection between the information requested and the party’s claims at issue; (2) the information requested is tailored to support the party’s; (3) the requested discovery will support or is likely to lead to information that would support the claims; and (4) the theory under which the information might be admissible at trial. (Warrick, supra, 35 Cal.4th at 1027; see also Gaines, supra, 46 Cal.4th at 182 (accord).) Obtaining information to impeach an officer’s credibility is permitted. (Garden Grove Police Dep’t v. Sup. Ct. (Reimann) (2001) 89 Cal.App.4th 430, 433 (review denied).)

Note, however, that the trial court is not tasked with evaluating whether a party’s theories are credible, or whether the party will prevail. The trial court does not weigh or assess the allegations, and does not determine whether they are persuasive. (Warrick, supra, 35 Cal.4th at 1025-1026.) A party is not required to present a credible or believable factual account of, or a motive for, police misconduct. (Uybungco v. Sup. Ct. (San Diego Police Dep’t) (2008) 163 Cal.App.4th 1043, 1049.) A party must simply present a plausible factual foundation for the discovery requested: a scenario that could or might have occurred. (Warrick, supra, 35 Cal.4th at 1026.)

Importantly, the affidavit for “good cause may be submitted by counsel.” (People v. Memro (1985) 38 Cal.3d 658, 676, overruled on other grounds.) The California Supreme Court expressly allows counsel’s declaration to be made on information and belief – no personal knowledge is required. In fact, “the Legislature expressly considered and rejected a requirement of personal knowledge [for section 1043(b)(3) affidavits].” (City of Santa Cruz, supra, 49 Cal.3d at 88-89 (emphasis in original. Indeed, “counsel need not disclose the source of the information asserted or how it was obtained . . . .” (Garcia v. Sup. Ct. (City of Santa Ana) (2007) 42 Cal.4th 63, 72.) The declaration may be filed under seal if necessary to protect the attorney-client or attorney work product privileges. (Id., 42 Cal.4th at 68.) Submitting a declaration by counsel protects a party from cross-examination on the document.

Thus, the declaration lays out the theory of the case, explaining why the records are essential to the issue. If you are making a Pitchess motion, don’t be coy in the declaration. Lay out the facts, and demonstrate to the court why these records are crucial to your theory of the case. The declaration is your best chance to have a “presence” in chambers while the court is conducting the in camera review to determine which documents the court will order produced. The court generally will not stop the in camera proceedings to question you about why certain documents might be relevant, or request additional briefing on an issue. The declaration is your only opportunity to refute the agency’s objections to relevance in chambers. If you are opposing a Pitchess motion, scrutinize the supporting affidavit for whether the facts averred to adequately support the requested information.

The In Camera Review and Production

The court will conduct in camera review of the documents before ordering any of the records produced. On occasion, the custodian of records for the agency will appear with the relevant documents on the day of the hearing on the Pitchess motion, so the court may proceed with the in camera inspection right away. The court may also schedule the in camera review for a later date.

Upon order of the court, “the custodian of records is obligated to bring to the trial court all ‘potentially relevant’ documents . . . .” (City of Santa Cruz, supra, 49 Cal.3d at 84.)

[I]f the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. . . [T]he locus of decision making is to be the trial court, not the . . . . custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive . . . . The trial court should then make a record of what documents it examined before ruling on the Pitchess motion.

(Mooc, supra, 26 Cal.4th at 1229.)

To make an adequate record of the documents examined, the court may photocopy the records the custodian produced and place them in a confidential file, or the court can make a list of or state for the record the documents examined. (Sisson v. Sup. Ct. (Dumanis) (2013) 216 Cal.App.4th 24, 38.) A proper record facilitates any appellate review for abuse of discretion.

To determine which records, if any, will be ordered produced, the court reviews the documents in camera for relevance. To be relevant, the records must contain information which may lead to the discovery of admissible evidence. (Gaines, supra, 46 Cal.4th at 182; Warrick, supra, 35 Cal.4th at 1024; Haggerty, supra, 117 Cal.App.4th at 1087.) The information discovered does not have to be ultimately admissible at trial. (Larry E. v. Sup. Ct. (City of Long Beach) (1987) 194 Cal.App.3d 25, 31-32.) The court may also consider whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).)

Despite the permissive standard of relevance, the Evidence Code places certain restrictions on what information can and cannot be disclosed. Evidence Code section 1045(b) enumerates specific exceptions to what information is per se not relevant and cannot be disclosed. Section 1045(b) finds that information that is not relevant includes:

(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

Furthermore, “[r]ecords of peace officers or custodial officers, . . . including supervisorial officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure.” (Evid. Code, § 1047.) The court must also consider whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).)

The in camera proceeding may take minutes, days, or even a series of hearings of a course of months. With the budget cuts, be prepared to provide a private court reporter. The transcript will be sealed, and any documents ordered produced will be subject to a protective order. At minimum, the protective order will prohibit the records disclosed or discovery from being used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code, § 1045(e).) The court may also issue a protective order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression” upon a showing of good cause pursuant to a motion of the agency or the officer. (Evid. Code, § 1045(d).)

A Pitchess motion is a powerful tool to obtain information from the personnel records of peace officers, including complaint investigations or disciplinary actions by the employing agency. Often, law enforcement agencies have dedicated Pitchess units to respond to – i.e., oppose – Pitchess motions. Understanding how the Pitchess process works will help you make an informed decision on how to best serve your client’s interests, whether you are making a Pitchess motion, or opposing one.