OAKLAND — A federal judge ordered Oakland City Attorney Barbara Parker to turn over dozens of documents to a court-appointed official investigating why independent arbitrators have frequently overturned discipline imposed against Oakland police officers.
In a five-page order that surprised some legal scholars, U.S. District Court Thelton Henderson ruled that his hand-picked investigator, Edward Swanson, could review documents that Parker said were protected by attorney-client privilege.
However, Henderson also outlined restrictions on Swanson’s use of the documents that Parker said should protect the city’s interests in not having the privileged information being used against it.
“I am very pleased that the court’s order … acknowledges my duty to protect and maintain attorney-client privilege for the City of Oakland,” Parker wrote in a prepared statement. Parker had refused to fully release 118 documents, many of which involve her office’s communications with the police department and with law firms handling arbitration cases on behalf of the city.
Henderson wields tremendous power over Oakland’s police department as the judge presiding over a court-sanctioned settlement in the Riders police brutality scandal. The settlement requires police to complete numerous reforms aimed at improving accountability, and Henderson has written that the frequent reversal of discipline by arbitrators calls into question whether Oakland is fully meeting the terms of the settlement agreement.
In granting Swanson access to the disputed documents, Henderson determined that his investigator was essentially acting as an agent of the court and that he needed the documents to complete the investigation.
Henderson’s order also precludes Swanson from sharing information contained in the documents with anyone other than his employees or the department’s federal monitor. It also sets up a process for determining whether the information could appear on reports by Swanson or the federal monitor.
David Levine, a professor at Hastings College of the Law, said that Henderson’s order “pushed the envelope” in terms of granting access to privileged documents. Typically, he said, a judge would have a neutral third party review the disputed documents and rule if they were protected by attorney-client privilege rather than simply handing them over to the party requesting them. “In a way this defeats the whole purpose of attorney-client privilege,” he said.
Henderson hired Swanson in August to review the city’s handling of arbitration cases, after an arbitrator reinstated Officer Robert Roche, who had been fired by the department for tossing a tear-gas canister at protesters tending to a wounded comrade during a 2011 Occupy Oakland protest.
Oakland police officers can challenge discipline before an independent arbitrator and they are often successful in getting the punishment reduced or overturned. City records released in August showed that arbitrators had fully sustained punishments against Oakland police in only three of the previous 15 cases.
Contact Matthew Artz at 510-208-6435.
