Shook v. City of Davenport

• Decision Date: 24 March 1993
• Docket Number: No. 92-810,92-810
• Citation: 497 N.W.2d 883
• Parties: Dennis SHOOK, Appellee, v. CITY OF DAVENPORT, Iowa, and Thomas Lynch, Appellants.
• Court: Iowa Supreme Court

Page 883

497 N.W.2d 883

Dennis SHOOK, Appellee, v. CITY OF DAVENPORT, Iowa, and Thomas Lynch, Appellants.

No. 92-810.

Supreme Court of Iowa.

March 24, 1993.

Michael J. Meloy, City Atty., for appellant City of Davenport.

James L. Ottesen, Davenport, for appellant Thomas Lynch.

John D. Stonebraker of McDonald, Stonebraker & Cepican, P.C., Davenport, for appellee.

Considered by LARSON, P.J., and SCHULTZ, LAVORATO, SNELL, and ANDREASEN, JJ.

LAVORATO, Justice.

In this civil rights action, the district court compelled production of materials gathered by the defendant city's police department in internal investigations. The city and the defendant police officer filed an application for interlocutory appeal challenging the discovery ruling. We granted the application and now reverse and remand for further proceedings consistent with this opinion.

I. Background Facts.

On March 18, 1991, Thomas Lynch was on duty as a Davenport police officer. That evening he noticed a pickup truck near the intersection of West Kimberly Road and Fairmount Street. He saw two individuals inside the truck. Dennis Shook was driving the truck. Shook and his passenger had just left the Dugout, a local bar.

Lynch became suspicious of the vehicle after following it for a short distance and pulled it over on a traffic stop. As Lynch approached the truck, it accelerated. Lynch then fired multiple shots at the truck. The truck sped away. Lynch gave chase. Shook eventually evaded Lynch and hid in some woods.

II. Background Proceedings.

As a result of this incident, Shook filed an action against the city and Lynch. The petition alleged separate section 1983 claims against both defendants. See 42 U.S.C. § 1983.

The section 1983 claim against the city asserted that the city had (1) failed to properly train, supervise, and discipline its officers, including Lynch, (2) failed to establish, maintain, and enforce a proper system for investigating and handling citizen complaints of police misconduct, and (3) a de facto policy and custom of tolerating police officers' misconduct.

The section 1983 claim against Lynch asserted that he had violated Shook's constitutional rights to be free from excessive force and from deprivations of liberty and property without due process of law.

Shook also asserted common law claims against both defendants for (1) assault, (2) intentional infliction of emotional distress, (3) false arrest, and (4) negligence.

The city and Lynch filed answers. They denied the allegations and asserted several affirmative defenses.

The case proceeded to the discovery stage. In his fourth request for production of documents, Shook asked for two things pertinent to this appeal: (1) the internal investigation unit (IIU) files for Lynch, five other police officers, and one communications clerk employed by the Davenport police department; and (2) the shooting board of review (SBR) files for all Davenport police officers from March 1983 to March 1991. (The SBR reviews police shootings to determine whether the firing of an officer's weapon was justified. Apparently, the SBR files contain information found in the IIU's files.)

The city and Lynch individually responded. The city objected to the production of the IIU files on the grounds of work product, irrelevancy, and overbreadth. (Previously, the city had voluntarily provided Shook with all reports relating to the shooting incident which is the basis for this suit. The city did so even though it claimed these records were privileged.)

Lynch objected that he was not in possession of the desired materials. He also asserted three privileges: (1) that the materials were prepared in anticipation of litigation, (2) a police investigative report privilege, and (3) a police intelligence information privilege.

As to the SBR files, the city objected on the grounds of relevancy, burdensomeness, and overbreadth. Lynch responded that he did not have possession or control of the documents.

Shook then filed a motion to compel production under Iowa Rule of Civil Procedure 134. Again, the city and Lynch resisted separately on several grounds. One of those grounds was that the materials were not discoverable under Iowa Rule of Civil Procedure 122(c) because they were work product prepared in anticipation of litigation.

Following a hearing on the motion to compel, the district court overruled the city's and Lynch's resistances and granted Shook's motion. The district court's order directed, by implication, that the SBR files be immediately turned over to Shook. The order also directed that the IIU files be released to Shook if he could establish "the requisite level of necessity as set forth in Iowa case law."

It is from this order in its entirety that the city and Lynch applied to us for permission to appeal in advance of final judgment. See Iowa R.App. P. 2. We granted the application.

III. Scope of Review.

Our review of discovery rulings is limited. The district court has wide discretion in ruling upon the question of whether requested information is discoverable. Schaffer v. Rogers, 362 N.W.2d 552, 555 (Iowa 1985). We reverse only for an abuse of discretion. Id. Such a reversal is warranted when the district court's ruling rests upon grounds or reasons clearly untenable or unreasonable. State v. National Dietary Research, Inc., 454 N.W.2d 820, 822 (Iowa 1990). A ruling based on an erroneous interpretation of a discovery rule can constitute an abuse of discretion. Schaffer, 362 N.W.2d at 555.

IV. Discoverability of the IIU and SBR Files Under Iowa Rule of Civil Procedure 122(c).

Iowa Rule of Civil Procedure 122 defines the scope of discovery. Rule 122(a) describes generally what is discoverable:

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

a. In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(Emphasis added.) This part of the rule provides for liberal discovery regarding matters relevant to the subject matter of a civil action. In its order the district court found that Shook has to prove, as part of his civil rights claims, that the city and Lynch were involved in a course of conduct that allowed the violation of one's civil rights. On this basis the court found the records relevant to support Shook's claims.

As this court earlier recognized, "Rule 122 ... is modeled on Federal Rule of Civil Procedure 26(b), and the history and cases under the federal rule provide guidance in interpreting the Iowa counterpart." Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983).

Rule 122(a) expressly prohibits discovery of privileged information. Attorney-client privilege comes readily to mind as an example. Any confidential communication between an attorney and the attorney's client is absolutely privileged from disclosure against the will of the client. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601 (8th Cir.1977) (holding that attorney-client privilege is absolute under Federal Rule of Civil Procedure 26(b)(1), the federal counterpart of Iowa Rule of Civil Procedure 122(a)).

More pertinent to this case is subsection "c" of Rule 122. It provides in relevant part:

[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision "a" of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

(Emphasis added.)

Rule 122(c) tracks verbatim Federal Rule of Civil Procedure 26(b)(3). Federal Rule 26(b)(3) was added in 1970 and codifies the "work product" privilege dealt with in the landmark discovery case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In short the Supreme Court recognized in Hickman a qualified privilege or immunity from discovery of the lawyer's work product. Such work product is discoverable only on a showing of "necessity or justification." Hickman, 329 U.S. at 510, 67 S.Ct. at 393, 91 L.Ed. at 462. However, so much of the work product that reflects the mental impressions or opinions of the lawyer is, for all practical purposes, absolutely immune from discovery. Id. at 512-13, 67 S.Ct. at 395, 91 L.Ed. at 463.

The language of federal Rule 26(b)(3) makes it clear that

[i]n order to come within the qualified immunity from discovery created by Rule 26(b)(3) three tests must be satisfied. The material must be:

1. documents and tangible things;

2. prepared in anticipation of litigation or for trial; and

3. by or for another party or by or for that other party's representative.

8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2024, at 196-97 (1970). As one court observed,

[f]rom a reading of Rule 26(b)(3) and of the discussion of the work product rule appearing in 8 [Charles A.] Wright & [Arthur R.] Miller, ...