The Pitchess motion: obtaining law enforcement personnel records

Pursuant to the California Penal Code and Evidence Code, a peace officer's personnel records are conditionally privileged from discovery. To obtain an officer's personnel records, law enforcement department complaint investigations, or disciplinary action taken against a peace officer, the party seeking disclosure must file a written motion under Evidence Code sections 1043, et seq.

Pitchess Overview

A motion for disclosure of peace officer personnel records is colloquially referred to as a "Pitchess" motion in reference to the California Supreme Court's ruling in Pitchess v. Superior Court (1974) 11 Cal.3d 531 (permitting discovery of peace officer personnel records on an appropriate showing of good cause).

Penal Code sections 832.5, 832.7, and 832.8 provide the foundation for what information is subject to Pitchess privilege. Importantly, law enforcement agencies are required to investigate complaints by members of the public against their officers and retain records of such investigations; thereafter, the records of such investigations become part of an officer's personnel records. Cal. Pen. Code §§ 832.5(a)-(c); 832.7. Moreover, most law enforcement agencies maintain various policies which require that certain internal complaints (e.g., a harassment complaint made by one officer against another) be investigated, and those investigations also become part of the officer's personnel records.

The statutory scheme to obtain such personnel records is set forth in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8. See People v. Mooc (2001) 26 Cal.4th 1216, 1226. The first step in a Pitchess motion is a showing of good cause for disclosure of the records and the materiality of the records. Evid. C. § 1043(b)(3). If the court finds the good cause requirement was met, an in camera hearing will be held for the trial court to review the records, after which the court may issue an order disclosing the relevant documents.

Overcoming the Good Cause Requirement

The affidavit demonstrating good cause is the most crucial element of any Pitchess motion. A showing of good cause is measured by "relatively relaxed standards" that serve to ensure the production of all potentially relevant documents for trial court review. People v. Gaines (2009) 46 Cal.4th 172, 179. While the good cause requirement of Evidence Code section 1043(b)(3) creates a "relatively low threshold for discovery," Riske v. Sup. Ct. (2016) 6 Cal.App.5th 647, 655, it is imperative for the declarant (usually the attorney of the party seeking disclosure) to set forth a "plausible factual foundation" for how the records sought are material to the subject matter of the litigation. Id. at 655-56. "Materiality" in the Pitchess context means only that the evidence sought is admissible or may lead to the discovery of admissible evidence. Id. at 658; Haggerty v. Sup. Ct. (2004) 117 Cal.App.4th 1079, 1087.

To properly establish the materiality of the records sought, the affidavit should clearly set forth the specific factual allegations made by the party seeking disclosure and any relevant affirmative defenses. This is your best chance to explain to the court why the records sought are essential to the prosecution and theories of your case. Additionally, the affiant must demonstrate a reasonable belief that the agency has custody and control of the information sought. Evid. C. § 1043(b)(3). Notably, since the party seeking disclosure usually does not know the specific contents of the records, the "good cause" declaration may be made on information and belief and may be made by counsel. Abatti v. Sup. Ct. (2003) 112 Cal.App.4th 39, 51; Warrick v. Sup. Ct. (2005) 35 Cal.4th 1011, 1026.

Once the threshold showing of good cause is met, the trial court will review the documents in chambers in conformity with Evidence Code section 915 and disclose information falling within the statutorily defined standards of relevance. Cal. Evid. C. §1045(a); Riske, supra, 6 Cal.App.5th at 655-56.

Specific Procedural Considerations

There are arguments that opposing counsel will almost certainly make in opposing your Pitchess motion. First, the agency will almost always argue that your motion and declaration failed to establish good cause for the records sought. Additionally, the agency will likely argue that any disclosure of complaint investigations should be limited to the names and addresses of witnesses. In response, you may explain that the Court in Haggerty determined that the relevancy of a department's internal investigation into claims asserted in a civil lawsuit is "self-evident," and that facts gleaned from the investigation are important for determining that the events actually occurred and for the plaintiff to "prepare effective cross-examination of defense witnesses whose testimony differs from statements made to investigating officers." Haggerty, 117 Cal.App.4th at 1089. Be prepared, however, to distinguish your motion from the ultimate holding in Haggerty (that the plaintiff failed to articulate any materiality whatsoever for disclosure of information other than the identity of witnesses) by clearly setting forth in your affidavit the materiality for the entire complaint investigation - not just the identity of witnesses.

Additionally, opposing counsel may request to be present during the in camera hearing. You should oppose this request outright. The California Supreme Court stated, "Pitchess...requires the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party[.]" Mooc, supra26 Cal.4th at 1227 (emphasis added). Evidence Code section 915(b) does not give counsel to the proceedings a right to be present during the in camera review. Moreover, any ex parte communication during the court's review of the documents at the in camera hearing or regarding any contested matter would violate the well-settled rule against ex parte communications. See Cal. Rules of Professional Conduct 5-300(B)(1)-(5) (stating that attorneys may not communicate with a judge regarding the merits of a contested matter pending before that judge, subject to a few exceptions).