Martinelli v. District Court In and For City and County of Denver

• Citation: 199 Colo. 163,612 P.2d 1083
• Decision Date: 04 February 1980
• Docket Number: No. 79SA349,79SA349
• Parties: Joseph MARTINELLI, Robert Dill, L. F. Carlson, Charles George Campbell, Dennis Degenhart, and the City and County of Denver, a municipal corporation, Petitioners, v. The DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER, Colorado, Second Judicial District, and The Honorable Leonard P. Plank, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1083

612 P.2d 1083

199 Colo. 163

Joseph MARTINELLI, Robert Dill, L. F. Carlson, Charles George Campbell, Dennis Degenhart, and the City and County of Denver, a municipal corporation, Petitioners, v. The DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER Colorado, Second Judicial District, and The Honorable Leonard P. Plank, one of the Judges thereof, Respondents.

No. 79SA349.

Supreme Court of Colorado, En Banc.

Feb. 4, 1980.

Elliott & Greengard, Richard D. Greengard, James E. Goldfarb, Holm & Dill, P. C., H. Alan Dill, Jon Stonbraker, Denver, for petitioners.

Gorsuch, Kirgis, Campbell, Walker & Grover, C. Willing Browne, Stephen Klein, Denver, for respondents.

ROVIRA, Justice.

This is an original proceeding brought under C.A.R. 21. The petitioners seek a writ prohibiting the respondent district court from enforcing discovery of certain files and reports maintained by the Denver Police Department, and requiring the court to enter a protective order precluding such discovery. In the alternative, the petitioners seek a writ requiring the respondent court, before it enforces discovery, to conduct an in camera examination and to excise from the files and reports materials asserted to be beyond the scope of discovery. We issued a rule to show cause and now make the rule absolute, granting the alternative relief sought by the petitioners.

The petitioners are the City and County of Denver (Denver), the Denver Police Department (department), and individual police officers employed by the department. Petitioners are parties defendant in a civil action brought in the respondent court by Jerre D. Malone (Malone). Based on an arrest which occurred on July 15, 1976, Malone alleges: (a) assault and battery by the individual police officers and negligence on their part in effecting his arrest; (b) false arrest and malicious prosecution; (c) violations of the First, Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments to the United States Constitution, and violations of the Colorado Constitution; (d) conspiracy among all defendants to commit the assault and battery, false arrest, malicious prosecution, and constitutional violations; and (e) negligence on the part of Denver and the department in the selection, supervision, and retention of the individual police officers. Malone seeks actual and special damages in the amount of $325,000 and exemplary damages in the amount of $500,000.

Pursuant to C.R.C.P. 34, Malone served the department with a request for production of documents, seeking the opportunity to inspect, inter alia:

(1) the complete personnel file maintained by the department for each of the individual defendant police officers;

(2) "(a)ny and all documents, writings, memoranda, data, notes, reports, correspondence, or the like . . . which pertain to past performance job rating, and conduct of the individual officers in connection with the performance of their duties as officers";

(3) the reports of the department's internal investigation into the July 15, 1976, arrest.

For purposes of convenience, we refer to the requested materials as the "personnel files" and the "S.I.B. reports" (the latter designation referring to the reports of the department's Staff Investigation Bureau, and encompassing the second and third categories of requested materials).

The petitioners objected to the request for production, and Malone filed a motion to compel discovery pursuant to C.R.C.P. 37. The respondent court ordered that the personnel files and S.I.B. reports be produced for an in camera inspection. After that inspection, the court entered an order granting Malone's motion to compel discovery in its entirety. The court also ordered that the files and reports be inspected only by Malone's counsel, and that the contents of the files and reports be discussed only between Malone and his counsel.

The petitioners seek to preclude discovery of the personnel files and S.I.B. reports on the grounds that: (1) they are irrelevant to the causes of action brought by Malone; (2) they are privileged materials; (3) discovery would violate the constitutional rights to privacy of the individual police officers named as parties defendant; and (4) they are exempted from discovery pursuant to section 24-72-204(3)(a)(II), C.R.S.1973, and section 24-72-305(5), C.R.S.1973 (1978 Supp.), and pursuant to specified provisions of federal statutory law.

I. The Claim of Irrelevance

The petitioners contend initially that the information contained in the personnel files and S.I.B. reports is neither "relevant to the subject matter involved in the pending action" nor "reasonably calculated to lead to the discovery of admissible evidence," within the meaning of C.R.C.P. 26(b)(1). Our discussion in Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959), makes it clear that the standard of relevance for purposes of discovery under C.R.C.P. 26(b)(1) is not equivalent to the standard for admissibility of evidence at trial, and that nonprivileged information "generally bearing on" the pending causes of action is discoverable under the rule. Id., 140 Colo. at 520, 345 P.2d at 1069.

The petitioners indicate that the personnel files contain, inter alia, the following types of information: performance reports made by the supervisors of the individual petitioner police officers; personnel orders, assignments, demotions, promotions, and commendations; "information concerning other litigation"; and "copies of newspaper articles concerning the subject officer." The S.I.B. reports contain information relating to: complaints made by citizens against individual police officers; records of actions taken in response to citizen complaints; and "reports on the officers' handling of many different situations."

As a general matter, some or all of this information could be probative of the department's knowledge of specific instances of misconduct on the part of the individual police officers, or their propensities toward such misconduct, if any. The information could also be probative of the department's efforts to supervise the officers and to minimize the occurrence of such misconduct, and of the department's reasons for retaining individual police officers after the resolution by the Staff Investigation Bureau of citizen complaints against the officers.

These facts (i. e., Denver's knowledge of misconduct or propensities toward misconduct by the officers, its efforts to supervise the officers, and the reasons for retaining individual officers) could be critical to the proof by Malone of Denver's independent tort liability for negligence in the selection, supervision, and retention of the officers. See generally Restatement (Second) of Agency § 213 (1958); W. Seavey, Handbook of the Law of Agency § 82(B) (1964). Cf. Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045 (1978); Colwell v. Oatman, 32 Colo.App. 171, 510 P.2d 464 (1973). These facts could also be important as related to Denver's liability to indemnify the individual police officers for any exemplary damages awarded against them pursuant to Malone's causes of action against the officers individually. Frick v. Abell, Colo., 602 P.2d 852, 856 (1979).

The order of the respondent court compelling discovery of the personnel files and S.I.B. reports does not indicate whether the court examined the materials contained in the files and reports in order to determine their relevance within the meaning of C.R.C.P. 26(b)(1). We therefore believe it necessary for the respondent court to conduct an in camera examination of the files and reports, to make specific findings of relevance as to individual items of material contained in the files and reports (within the meaning of C.R.C.P. 26(b)(1)), and to disallow discovery of those materials, if any, which it determines to be irrelevant to Malone's causes of action (pursuant to C.R.C.P. 26(c)(1)).

II. The Claim of Privilege

In opposing discovery of the personnel files and S.I.B. reports, Denver and the department place principal reliance on a qualified common law evidentiary privilege, variously referred to as the "official information," "governmental," or "executive" privilege. Comment, Discovery of Government Documents and the Official Information Privilege, 76 Colum.L.Rev. 142 (1976); 8 J. Wigmore, Evidence §§ 2378-2379 (McNaughton rev. 1961); Wood v. Breier, 54 F.R.D. 7, 11 (E.D.Wis.1972). Broadly stated, this privilege sanctions the nondisclosure by governmental agencies or instrumentalities of information, files, reports, or memoranda maintained by those agencies or instrumentalities, when "disclosure would be harmful to the public interest." United States v. O'Neill, 81 F.R.D. 664, 666 (E.D.Pa.1979).

The official information privilege ¹ is significant in the context of civil discovery under C.R.C.P. 26(b)(1), since that rule allows a litigant to obtain discovery of "any matter, not privileged, which is relevant to the subject matter involved in the pending action" (emphasis added). Under this rule, therefore, and to the extent that they come within the scope of the official information privilege, the personnel files and S.I.B. reports sought by Malone are protected from discovery.

When the official information privilege is raised in opposition to a request for civil discovery under C.R.C.P. 26(b)(1) and C.R.C.P. 34, ² the trial court must make an independent determination of the extent to which the privilege applies to the materials sought to be discovered. This determination is the result of the ad hoc balancing of: (a) the discoverant's interests in disclosure of the materials; and (b) the government's interests in their confidentiality. United States v. Leggett & Platt Inc., 542 F.2d 655, 658 (6th Cir. 1976); Crawford v. Dominic, 469 F.Supp. 260, 262 (E.D.Pa.1979); United States v. O'Neill, supra, at 666; Frankenhauser v. Rizzo, 59 F.R.D. 339, 343-344 (E.D.Pa.1973); Assured Investors Life Insurance Co. v....