Judge: Mark H. Epstein, Case: 23SMCV04372, Date: 2024-05-17 Tentative Ruling

Case Number: 23SMCV04372    Hearing Date: May 17, 2024    Dept: I

This is a request to compel production of certain records from the LAPD.  The LAPD has objected claiming that producing the documents, even with a protective order, could jeopardize an ongoing murder investigation and therefore it resists production under Evidence Code 1040.  The detective on the case has declared that there is a lot of identifying information in the materials sought, and that it is that production that could be difficult given that there is still a suspect at large.  Section 1040 is the exclusive means of protecting the documents in question from discovery.  To rule on the 1040 objection, the court must look at each piece of evidence and determine first whether the information was obtained in confidence and, if so, there is a necessity for retaining the confidentiality that outweighs the party’s interest in obtaining the information.  The statute allows the court to review the material in camera to make that determination.  The court believes that the investigative file and the information in it was obtained in confidence, so the question is weighing the evidence.

Because the evidence must be weighed piece by piece, the court assumes that the LAPD has done just that and that every single piece of information in the file that has not been produced will, in the LAPD’s opinion, jeopardize the investigation.  If the LAPD has not done that, it ought to do so now.  The court will sign the proposed protective order, and if the LAPD believes that some of the information can therefore be turned over, it ought to do so.  The court will review what is left, and only what is left, in camera.  The court will continue the hearing to allow time for that review.  At the continued hearing, the court will inquire of the LAPD and its investigating detective as to how each piece must remain confidential in order to protect the integrity of the investigation and to maximize the chance of arresting the remaining perpetrator.  The court has no question or doubt that those interests outweigh the need for defendant to obtain the information, at least at this moment.  It is a murder investigation, after all.  But the court will need to ascertain whether keeping the information confidential is actually important to achieving those goals.  The court will endeavor to have as much of the hearing in public or at least with all parties present as possible, which may mean that the evidence is identified by generic production number and that the detective’s statements are not particularized to the point of revealing the purportedly confidential information.  If necessary, though, the court may have to hold portions of the hearing in camera as well.