Can a civil rights plaintiff discover the identity of a Confidential Informant?
This is a question that has long interested me, but I have never seen a case on it before now.
Case: Chavez v. City of Albuquerque, Dist. Court, D. New Mexico 2014
[One] issue is whether a plaintiff in a civil rights action against a police officer can compel the officer to provide information about a confidential informant, including the informant’s identity, where the informant’s confidences provided the basis for the allegedly unlawful search of the plaintiff’s business. After carefully balancing the Plaintiff’s interest in making a fair presentation of his case against the Defendants’ interest in protecting investigative sources and preserving the safety of cooperating individuals, I will grant the Motion in part and order an in camera examination of the Defendants and the confidential informant.
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In searching for a just solution to the discovery dispute herein presented, the Court finds the in camera procedure [where the Confidential Informant is questioned by the judge, but not by the lawyer for the party that wants to question the Confidential Informant], . . . instructive. Therefore, similar to the procedure espoused by Rodriguez, the parties will adhere to the following in camera examination schedule and procedure:
(1) No later than October 10, 2014, Defendants will deliver the confidential informant(s)’ file(s) to the Court for in camera review. . . .
(2) The Court will issue an ex parte order to Defendants’ counsel only, requiring counsel to produce Defendants Ficke and Lopez, along with the informant(s) whose information was used in drafting the probable cause affidavits and in securing the search warrants for the searches of Plaintiff’s place of business, for an in camera examination by the Court at a place and time to be disclosed in the order. Neither Plaintiff nor his counsel will be permitted to attend this examination.
. . .
(4) . . . Plaintiff’s counsel will file, in writing, a brief list of suggested questions to be asked by the Court to Defendants Ficke and Lopez regarding the informant’s identity and background, or to the informant himself. The Court will ask the questions it deems appropriate. If the Court decides not to ask a question, it will explain its reasoning on the record. Defense counsel will not be allowed to object to questions or to question the witnesses herself. This will be an examination by the Court, not a deposition.
(5) A transcript will be made of the in camera examination and sealed.
(6) Counsel for either party may request a redacted copy of the transcript form the court reporter. The informant’s name and address, and any other identifying information of persons not parties to this litigation will be redacted from any copies provided to the parties. Nothing in this procedure will limit Plaintiff’s right to depose Defendants Ficke and Lopez, except that no questions may be asked of them tending to disclose the identity of the informant.
The Court recognizes the potential burden placed on each party by the above procedure; however, balancing the interests of the parties necessitates such action. With respect to Defendants’ interests, this procedural compromise will ensure that the identity of the confidential informant remains undisclosed. Conversely, the procedure will ensure that Plaintiff has the opportunity to pose his questions to the confidential informant and test his credibility and that of Defendants Ficke and Lopez.