7 Trial Lawyer • Winter 2024 strip him naked and leave him lying on the cold jail floor without a wheelchair. He was forced to drink water from the toilet because he could not reach the sink and was denied his medications and medical catheters. After Malaer was released from jail, he wound up in the hospital nearly septic. Malaer filed a complaint with the Medford Police Department that resulted in an Internal Affairs investigation. In the complaint, Malaer named the sergeant in charge of his transport and supervising the arresting officers as an individual to be investigated. The department thought it would be a good idea for that same sergeant to conduct the Internal Affairs investigation into himself and his direct reports. Days later, he sent Malaer a letter saying that his investigation had “exonerated” himself and all other Medford police officers of wrongdoing. In that letter, he claimed that he had interviewed all officers involved. In depositions, however, each officer involved denied being interviewed as part of an Internal Affairs investigation. Without evidence The City of Medford refused to produce the Internal Affairs Narrative Report during discovery. Based on the court’s request to raise discovery disputes informally rather than engaging in motions practice, the plaintiff’s counsel submitted an informal motion to compel the city to produce the IA Report. The city resisted, arguing that a provision of Oregon’s public records law, ORS 181A.674(3),2 exempted the IA Report from disclosure. The court reviewed the IA Report in camera. After doing so, it concluded the city was not required to produce the IA Report because the city had told the court — without evidence — that it had produced all of the same information to the plaintiff in discovery. Thus, the city was “entitled to keep the inner workings of their internal affairs investigation confidential” to “encourage candor and diligence in future investigations.”3 While the court still had that issue under advisement, LeDuc Montgomery learned that several third parties — the Jackson County Sheriff’s Office, Jackson County District Attorney’s Office, the Oregon State Police and the Klamath Falls District Attorney’s Office — all received copies of the IA Report. She subpoenaed the entire file and not just the IA Report. When the city learned of those subpoenas, it instructed the third parties not to produce the IA Report in response to the subpoena. But it forgot to tell the Klamath County District Attorney. Not discoverable In a conferral with the plaintiff’s counsel, the city agreed the best route for them was a motion to quash rather than defending a motion to compel, a crucial fact omitted from the briefing to the court and one which ultimately was compelling to the court. The city moved to quash the subpoenas, this time via a formal motion with briefing. Apparently recognizing that Oregon’s public records law does not apply to discovery in federal litigation, the city argued that the IA Report was not discoverable under a judicially created Official Information Privilege.4 The Official Information Privilege, in short, is a qualified privilege that asks courts to weigh the government’s interests in keeping police internal investigations secret against the plaintiff’s interest in receiving the document in discovery. Misapplying the legal standard — which requires the party claiming the privilege to make a “substantial threshold showing”5 for keeping the documents secret — the court granted the motion to quash because the plaintiff had not “identifie[d] a current compelling litigation interest in the IA Narrative Report.”6 Later, after telling the plaintiff’s counsel that they had no documents in response to the subpoena, and after the See A Cowboy Approach p 8
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