IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

VICTOR LANCASTER, 

Plaintiff, 

v. 

CITY OF WEST LINN;TERRY TIMEUS; 

CHRIS JORDAN, 

Defendants. 

PAPAK, Magistrate Judge: 

3: 15-cv-00561-PK 

OPINION AND ORDER 

Plaintiff Victor Lancaster brings this action against the City of West Linn, the West Linn 

Police Department ("WLPD"), WLPD Chief Terry Timeus, and West Linn City Manager Chris 

Jordan (collectively, "Defendants"). Plaintiff alleges Defendants violated his First Amendment 

rights and discriminated and retaliated against him for whistleblowing during the course of his 

employment with the WLPD. Now before the court is Plaintiffs Motion to Compel (#21) 

("Plaintiffs Motion"). For the reasons provided below, Plaintiffs Motion is granted in part and 

denied in patt. 

BACKGROUND 

Plaintiff contends the WLPD was split into two camps: those who preferred the status 

quo and those who wanted positive change. The members of the latter camp were referred to as 

the "Clique." Plaintiff was a member of the Clique. Plaintiff alleges he was te1minated from his 

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position as Captain with the WLPD in retaliation for engaging in the following protected 

whistleblowing activities: (1) testifying at an unlawful labor practices ("ULP") hearing related to 

WLPD Officer Chad Atkeson, (2) repo1ting and investigating an allegedly unconstitutional 

search of a citizen by WLPD Officer Mike Stradley 1

, and (3) disclosing information Plaintiff 

reasonably believed was evidence that the WLPD suffered from mismanagement, gross waste of 

funds, and abuse of authority. 

Plaintiff filed his Motion to Compel (#21) on December 11, 2015. Defendants filed their 

Response (#25) on December 30, 2015. The court heard oral arguments on Plaintiffs Motion on 

January 5, 2016. This matter is fully submitted and prepared for decision. 

LEGAL STANDARD 

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 

party's claim or defense" and reasonably calculated to lead to the discovery of admissible 

evidence. Fed. R. Civ. P. 26(b). Federal Rule of Civil Procedure 37(a)(3)(B) permits a 

propounding pmty to move for an order compelling production or inspection of documents if a 

request for production is not honored. "[A]n evasive or incomplete disclosure, answer, or 

response must be treated as a failure to disclose, answer, or respond." Id. 37(a)(4). Additionally, 

Federal Rule of Civil Procedure 26(b)(l) provides: "For good cause, the com1 may order 

discovery of any matter relevant to the subject matter involved in the action." 

DISCUSSION 

Plaintiff moves the court to compel production of the following three categories of 

documents: (1) the other Clique members' personnel files and all other documents that contain 

complaints made by the other Clique members or the Defendants' responses thereto (the "related 

1 Stradley was promoted to Sergeant on or about January 2013. 

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documents"), (2) Mike Stradley's personnel file, and (3) documents related to Plaintiffs 

participation in the ULP hearing and Defendants' subsequent decision to terminate Plaintiff. The 

third category of documents includes communications with Defendants' labor attorney, Kathy 

Peck. 

Defendants concede that they waived their attorney-client privilege as to the category 

three documents, and as such, those documents are discoverable. 2 Defendants ask the court to 

deny Plaintiffs Motion to Compel production of the categ01y one and category two documents. 

Alternatively, Defendants ask the court to conduct an in camera review of the requested 

documents before ordering production directly to Plaintiff. 

I. Personnel Files of Other Clique Members 

Plaintiff argues that the other Clique members' personnel files and related documents are 

discoverable as evidence that Defendants engaged in discriminatory practices. According to 

Plaintiff, the documents will show that in addition to discriminating against Plaintiff, Defendants 

discriminated against other WLPD employees who engaged in whistleblowing activities. 

In response, Defendants argue that the files and related documents are irrelevant, and 

therefore not discoverable, because the other Clique members did not occupy the same 

supervisory position as Plaintiff. Defendants further argue that the documents are not 

discoverable because Defendants' concern with protecting the privacy rights of their employees 

outweighs Plaintiffs interest in discovering the information in the files. 

2 Plaintiffs initial requests for production were seemingly broad enough to encompass attorneyclient privileged communications that were unrelated to Plaintiffs participation in the ULP 

hearing and Defendants' subsequent decision to tenninate Plaintiff. Plaintiff clarified at oral 

argument that he only seeks discovery of Peck's communications to the extent they involve 

Plaintiffs patticipation in the ULP hearing and Defendants' subsequent decision to te1minate 

Plaintiff. 

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I find that the other Clique members' personnel files and related documents are 

discoverable to the extent they contain complaints made by the other members and Defendants' 

responses to those complaints.3 Plaintiff's claims sound under Oregon statutes that prohibit 

employment discrimination and retaliation on the basis of whistle blowing. See Or. Rev. Stat. §§ 

659A.199, .203, 230. Those statutes follow a framework similar to Title VII's anti-retaliation 

provision, 42 U.S.C. § 2000e-3(a). Like Title VII, the Oregon statutes employ a burden-shifting 

framework, whereby the plaintiff must rebut the defendant's proffered legitimate reasons for its 

employment action. Larmanger v. Kaiser Found. Health Plan of the Nw., 895 F. Supp. 2d 1033, 

1049 (D. Or. 2012). 

Defendants contend that they terminated Plaintiff not in retaliation for his 

whistleblowing, but because Plaintiff actually engaged in retaliatory practices himself when he 

told a subordinate Officer that Timeus would retaliate against the Officer for whistleblowing. 

See Ellis Deel. Ex. 4 (#23-4). If the other Clique members' personnel files show that Defendants 

discriminated or retaliated against other whistleblowirig employees, that evidence could be used 

to rebut Defendants' proffered reason for terminating Plaintiff. See Diaz v. Am. Tel. & Tel., 752 

F.2d 1356, 1363 (9th Cir. 1985) (holding that a plaintiff is entitled to use evidence of a pattern or 

practice of discrimination "to show that a defendant's articulated nondiscriminatory reason for 

the employment decision in question is pretextual"); accord Obrey v. Johnson, 400 F.3d 691, 

694, 698-69 (9th Cir. 2005); see also iV!iller v. Fairchild Indus., Inc., 797 F.2d 727, 732 (9th Cir. 

1986) (considering whether other employees suffered adverse employment actions). Thus, the 

files are discoverable. 

3 Plaintiff stipulated at oral argument that he cunently seeks discovery of only the pottions of the 

personnel files that show complaints made by the other Clique members and the Defendants' 

responses thereto. 

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I reject Defendants' argument that the other Clique members' personnel files are 

irrelevant because they did not occupy the same supervisory position as Plaintiff. Defendants' 

objection goes to the weight of Plaintiff's proffered evidence, not its admissibility. See Obrey, 

400 F.3d at 694-95. I also reject Defendants' argument that their concern with protecting the 

privacy rights of their employees outweighs Plaintiff's interest in discovering the other Clique 

members' personnel files. Plaintiff clearly has an interest in remedying discriminatory and 

retaliatory practices within the WLPD. That interest is particularly strong where the purported 

retaliation is for whistleblowing. Moreover, Defendants' privacy concerns are sufficiently 

addressed by the protective order that is already in place in this matter. See Brown v. State of 

Or., Dep't of Corr., 173 F.R.D. 262, 264 (D. Or. 1997); Weiss v. Safeway, Inc., 189 F.R.D. 442, 

444 (D. Or. 1999). Therefore, Defendants' asserted privacy interests do not outweigh Plaintiff's 

interest in discovering the infonnation in the personnel files. 

In sum, I find that the other Clique members' personnel files and related documents are 

discoverable to the extent they contain complaints made by the other members and Defendants' 

responses to those complaints. Defendants are therefore ordered to produce those po1iions of the 

files. 

II. Personnel File of Mike Stradley 

Plaintiff argues that Stradley's personnel file is discoverable because it could reveal that 

Plaintiff was treated less favorably than Stradley and thereby rebut Defendants' proffered reason 

for te1minating Plaintiff Plaintiff further argues that Stradley's personnel file is discoverable 

under a line of district comi cases from outside the Ninth Circuit holding that "those employees 

whose action or inaction has a direct bearing on the Plaintiff's claims or the Defendant's 

affirmative defenses ... are subject to discove1y." E.g., Carson v. Builders FirstsourcesOPINION AND ORDER-PAGE 5 

Case 3:15-cv-00561-PK Document 27 Filed 01/06/16 Page 5 of 8
Southeast, 159 F. Supp. 2d. 242, 247 (W.D.N.C. 2001). Plaintiff's final contention regarding 

Stradley's file is that it is discoverable for impeachment purposes. 

In response, Defendants argue that Stradley's file is not relevant and therefore not 

discoverable. In this regard, Defendants contend thatthe district court cases cited by Plaintiff are 

distinguishable. Defendants further contend that Plaintiff has not cmTied his burden of showing 

that he is entitled to Stradley's personnel file for impeachment purposes. 

I find that Stradley's personnel file is relevant to the extent it contains information about 

Plaintiff's report concerning Stradley's allegedly unconstitutional search, the ensuing 

investigation, and any resulting discipline. Defendants appear to concede that this information is 

relevant, as they have already produced infotmation concerning the investigation. However, the 

remainder of Stradley's personnel file is not relevant and therefore not discoverable. See Fed. R. 

Civ. P. 26(b ). 

I agree with Defendants that, for the purposes of discovery, Stradley is not an employee 

"whose action or inaction has a direct bearing on the Plaintiff's claims or the Defendant's 

affirmative defenses .... " E.g., Carson, 159 F. Supp. 2d. at 247. The cases cited by Plaintiff in 

this regard are distinguishable, as the personnel files sought in those cases pertained to 

employees who took some action against the plaintiff that contributed to the purpo11ed 

discrimination or retaliation. See id. at 247-48; Oblesby v. Hy Vee, Inc., 2005 WL 857036 (D. 

Kan. April 13, 2005); Fox-}vfartin v. HJ. Heinz Operations, 2003 WL 23.139105 (D. Kan. Dec. 

19, 2003). As stated above, the facts of this case are just the opposite; Plaintiff alleges he was 

terminated for his actions against Stradley. There is no evidence that Stradley ever took actions 

against Plaintiff that contributed to Plaintiff's termination. 

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Moreover, Stradley's personnel file is not discoverable for impeachment purposes. 

Although personnel files may be discoverable for impeachment purposes, ''the party seeking the 

discovery should miiculate ... [the] specific parameters of [the] impeachment evidence sought 

[in order] to obtain the information despite the legitimate privacy interests of the fileholders." 

US. E.E. 0. C. v. 1VfcCormick & Schmick's Seafood Restaurants, No. CIV.A. DKC-11-2695, 2012 

WL 3563877, at *4 (D. Md. Aug. 16, 2012) (alterations in original) (internal quotation marks 

omitted); accord 1Vfarlow v. Cheste1field County School Board, 2010 WL 3660770 at *6 (E.D. 

Va. Sept. 15, 2010). Plaintiffhas failed to articulate legitimate impeachment evidence that he 

hopes to obtain from Stradley's personnel file. In sum, Stradley's personnel file is discoverable 

only to the extent it contains info1mation about Plaintiffs report concerning Stradley's allegedly 

unconstitutional search, the ensuing investigation, and MY resulting discipline. 

III. In Camera Review 

Defendants' alternative request for in camera review is denied. In camera review is most 

helpful when adjudicating claims of privilege. Defendants do not assert privilege. Moreover, 

the protective order ah'eady in place in this matter is sufficient to protect against disclosure of 

sensitive inf01mation. See, e.g., 1vfueller v. Walker, 124 F.R.D. 654, 659 (D. Or. 1989), modified, 

No. CIV. 88-661-FR, 1989 WL 35864 (D. Or. Apr. 10, 1989). 

CONCLUSION 

For the reasons provided above, Plaintiffs Motion to Compel (#21) is granted in pa1t and 

denied in pmt. Defendants are ordered to produce the p01tions of the other Clique members' 

personnel files that show complaints lodged by the members and the Defendants' responses 

thereto. Defendants are fmther ordered to produce the portions of Stradley's personnel file that 

contain info1mation about Plaintiffs repo1t concerning Stradley's allegedly unconstitutional 

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search, the ensuing investigation, and any resulting discipline. Defendants' alternative request 

for in camera review is denied. 

Dated this~h day of January, 2016. /) \\ ,\ a;,d,rf¥7 Honorable Paul Papak 

United States Magistrate Judge 

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