ORDER FOR DISCLOSURE OF WITNESS PERSONNEL RECORDS AND PROTECTIVE

DALE A. DROZD, District Judge.

On March 16, 2017, the court granted defendant's request for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978) in connection with defendant's challenge to the veracity of statements made by the affiant in support of the application for a search warrant. See United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017). That evidentiary hearing is scheduled for May 22, 2017 at 1:30 p.m. before the undersigned.

In preparation for that hearing, counsel for defendant sought and obtained a subpoena calling for production of the affiant officer's personnel file, seeking to obtain any impeachment material contained therein. The City of Clovis Police Department, by whom the affiant officer was and is employed, moved to quash the subpoena and in the alternative requested in camera review of the file and, if necessary, that a protective order be issued. (Doc. No. 92.) Counsel for defendant opposed the motion to quash. (Doc. No. 94.) The court denied the motion to quash and granted the alternative request for in camera review. (Doc. No. 95.)

On May 15, 2017, the personnel records of the affiant officer were delivered to the undersigned's chambers for in camera review. On that same day the government filed a request to seal documents (Doc. No. 96) and documents related to that request were filed under seal on May 16, 2017. (Doc. Nos. 97-100.) Thereafter, the undersigned reviewed both the affiant officer's personnel file as well as the documents filed under seal by the government. Finally, on May 19, 2017 at 9:00 a.m. the court conducted an in camera, ex parte hearing attended only by the Assistant U.S. Attorneys prosecuting this case. (Doc. No. 100.) The court has ordered the record of that hearing to remain sealed.

As a result of its in camera review of the affiant officer's personnel file which was produced pursuant to the defense Rule 17(c) subpoena and after hearing from the government's counsel at the ex parte, sealed hearing, the court has determined that records relating to final discipline imposed on May 8, 2012 following a Clovis Police Department Internal Affairs investigation must be disclosed to the parties in this case for use as possible impeachment material. See United States v. Hussain, Case No. 13-cr-00408-JST, 2015 WL 4638451, at *2-3 (N.D. Cal. Aug. 4, 2015). Because the records produced for in camera review were not Bates stamped, the court will describe the records being ordered produced to the parties with respect to the May 8, 2012 discipline as follows: all notices and documents issued by the City of Clovis in connection with that Internal Affairs Investigation, the Internal Affairs narrative report, the first two pages relating to "school information," and a one page phone usage breakdown. The court will also maintain in chambers a copy of the records produced to counsel pursuant to this order and will retain the entire personnel file pending the completion of the evidentiary hearing in this action, in the event reconsideration of the scope of the disclosure ordered becomes warranted during those proceedings.

Finally, the City of Clovis Police Department's motion for a protective order is granted. The documents produced to the parties pursuant to this order shall be used by them only in connection with the evidentiary hearing before this court on defendant's motion to quash/suppress evidence, absent further order of the court. No copies of these records shall be made and they shall be disclosed only to the parties and those working with counsel in connection with the pending motion to suppress and no one else. If any aspect of the records produced are submitted in evidence in connection with the hearing on the motion, they will be submitted under seal. It is anticipated that at the conclusion of the proceedings on the pending motion to suppress evidence the court will order that the parties return the records produced to them for destruction.

Copies of the records ordered disclosed pursuant to this order are now available and counsel are directed to contact the chambers of the undersigned to make arrangements to receive them.

IT IS SO ORDERED.