Principles for Public Safety Employment

It is important to recognize that the “Pitchess” motion rules discussed herein do not apply in federal court proceedings at all. 436 Traditional federal discovery methods will apply in federal court actions (e.g., requests for production of documents, subpoenas). b. Contents of a “Pitchess” Motion A “Pitchess” motion must contain a supporting affidavit that demonstrates good cause for the discovery. The motion cannot be a “blanket” request and the items sought must be specifically identified. In addition, the affidavit must show the relevancy of the requested items. Also, the records sought by the defendant must not be readily available or obtainable through the defendant’s own efforts. In 2005, the California Supreme Court clarified that “a showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events.” 437 If the “Pitchess” motion contains defects, the responding agency can file an opposition. But, as noted above, it is relatively easy for a litigant to demonstrate the “good cause” necessary to get an in camera review of an officer’s personnel file. As recently noted by the California Supreme Court, “[a] showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’” 438 This means that to obtain an in-chambers review, a litigant need only demonstrate that the scenario of alleged officer misconduct “could or might have occurred.” 439 Practically speaking, an in chambers review is virtually automatic since parties seeking discovery can now submit their supporting affidavits/declarations to the Court “in camera” if they craft it in such a way as to include attorney-client privileged information. 440 This means that an agency opposing a Pitchess motion now cannot even see the supporting affidavits/declarations to argue the good cause requirement has not been satisfied. c. The Officer Must Be Notified That His or Her Personnel Records are Being Sought A public safety department has an obligation to “immediately” notify an officer if his or her personnel records are sought via a “Pitchess” motion. 441 An officer is entitled to 16 days’ notice if the motion is made in civil litigation, or 10 days if the motion is made in a criminal case. 442 d. Hearing of the Motion The custodian of the subject records should appear in court at the scheduled hearing. The custodian should bring all files which could potentially be responsive to the discovery request to the initial hearing. There may be various attorneys present including counsel for the custodian and counsel for the officer whose records are sought. Once the judge has heard oral arguments, he or she may grant or deny the motion. If the motion is granted, the judge will conduct an in camera review of the personnel files in his or her chambers. If the custodian has not brought the files to court, the judge will set a date for the in camera review. The custodian should bring the all files that are requested by the defendant and are reasonably discoverable. If the custodian does not bring the officer’s entire personnel file,

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