ALLISON CLAIRE, Magistrate Judge.
This discovery motion was referred to the undersigned magistrate judge by E.D. Cal. R. ("Local Rule") 302(c)(1). Plaintiff moves for an order compelling the deposition of a confidential informant. For the reasons set forth below, the motion will be granted with the protections and constraints set forth in the order.
In this civil rights case, plaintiff alleges that her constitutional rights were violated when police entered her home, seized her, and searched her home. Although the police had a search warrant for 5858 E Carpenter Rd., police also searched 5846 E Carpenter Rd., where plaintiff lived. The search warrant was issued after the state court judge who issued the warrant was presented with a sealed affidavit — "Exhibit C" — that defendants say supported probable cause to search both residences. The information in the affidavit was, according to defendants, provided by a confidential informant ("CI").
On November 7, 2016, the undersigned granted plaintiff's motion to compel defendants to produce the affidavit, subject to a strict "Attorneys' Eyes Only" protective order, and redacted to remove any personally identifying information about the CI. ECF No. 26. Defendants produced the affidavit, and plaintiff has re-deposed the police officers involved, Armando Garcia and Ian Osborn, in light of information gleaned from the affidavit.
II. THE DISCOVERY DISPUTE
Plaintiff now moves to depose the CI, arguing that only the CI can provide the information they need to prove their Fourth Amendment claims, namely that the warrant was overbroad, that the search violated the particularity requirement, that the search exceeded the scope of the search warrant, and that the warrant was obtained though "judicial deception."
Defendants argue that the identity of the CI is protected by the "informer's privilege," that the privilege cannot be pierced by plaintiff's "speculation" that the affidavit is false, that they themselves would be exposed to civil liability for disclosing the CI's identity, and that they cannot compel the CI to appear for a deposition.
Intentional or reckless material misrepresentations or omissions in a search warrant affidavit can form the basis for a Fourth Amendment "judicial deception" claim.
The court agrees with the reasoning of
2012 WL 92565 at *2, 2012 U.S. Dist. LEXIS 3954 at *5-6 (N.D. Cal. 2012) (quoting
Fair presentation of plaintiff's case
Here, plaintiff needs access to the CI in order to test the defendants' claim that they accurately relayed all pertinent information from the CI to the issuing judge. In the sealed portions of her submissions on this motion, plaintiff has established that she has grounds for inquiring into exactly what the CI told defendants, so that she can determine if defendants accurately relayed to the issuing judge the information they received from the CI.
Defendant argues that plaintiff has done nothing but speculate that defendants made misrepresentations or omissions in the affidavit, and that "speculation is not sufficient grounds to overcome the informer's privilege." ECF No. 47 at 9 (citing
Defendant further argues that the "only reason for Plaintiff to seek the CRI's disclosure and/or deposition would be to attack the probable cause for the warrant,"
Exposure to liability
Defendants argue that disclosing the CI's identity would expose the CI to danger and thereby expose themselves to civil liability if the CI is harmed or killed. ECF No. 47 at 10-12. However, while defendants casually mention the fact that any such disclosure would be made "only to Plaintiff's counsel under a protective order," they entirely omit any discussion of how the protective order, and the fact that the court would be ordering the disclosure, would affect the CI's safety and their own liability.
Instead, defendants rely entirely on cases that discuss liability where state action "affirmatively place[s] the plaintiff in a position of danger" through voluntary conduct that was "deliberately indifferent" to a person's safety.
Here, the defendants, through their counsel, would be carrying out a direct order of the court. They would be disclosing information only to plaintiff's attorney. The information would be disclosed under a strict Attorneys' Eyes' Only protective order. Defendants cite no authority for the proposition that any officer has ever been held civilly liable for carrying out a direct court order under these circumstances. To the contrary, the law in the Ninth Circuit is that defendants are immunized from liability for faithfully carrying out a court order:
The balancing of interests in this case weighs heavily in favor of permitting the CI to be deposed. The identity of the CI will be protected by ordering that the disclosure and the deposition be conducted under the Attorneys' Eyes Only protective order. Defendants have failed to show that they face civil liability for carrying out the court's order.
For the reasons set forth above, IT IS HEREBY ORDERED that: