In Re: Kleberg Cty, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 15, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40001
In Re: KLEBERG COUNTY, TEXAS; ROBERT ANDREW BARBOUR, In His
Individual and Official Capacity,
Petitioners.
--------------------
Petition for Writ of Mandamus
to the United States District Court
for the Southern District of Texas
USDC No. 03-CV-143
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge:*
Petitioners seek a writ of mandamus to bar the district court
from proceeding with a plan to allow Respondent, a civil rights
plaintiff, to interview a number of the County’s confidential
informants. We conclude that the district court’s plan runs afoul
of the confidential informant privilege and cannot go forward as
planned. However, we decline to issue the writ of mandamus at this
time, as we are confident that the district court will reconsider
its ruling in light of this opinion.
I.

-- 1 of 9 --

No. 04-40001
-2-
1 Case law refers to “informants” and “informers” interchangeably. We
will refer to such individuals as informants.
2 Mr. Barbour was later convicted of destruction of evidence for
destroying the photographs he took of Plaintiff. Mr. Barbour was acquitted of
sexual assault and one count of official oppression, and the jury hung on a
second count of official oppression.
This dispute arises from a civil rights suit filed by
Plaintiff-Respondent Sarah Jean Hernandez. In 2001, federal border
patrol agents stopped Hernandez at a checkpoint and detained her
for possession of marijuana. The border patrol agents transferred
Hernandez’s case to the Kleberg County Sheriff’s Office.
Defendant-Petitioner Robert Barbour, then a Kleberg County
Sheriff’s Deputy, took custody of Hernandez to transport her to the
county jail. Hernandez alleges that, while en route to the jail,
Barbour stopped the car, forced her to submit to nude photographs,
and touched her inappropriately. Hernandez further alleges that
Barbour retained her personal belongings while she was in jail and,
after she had been released from custody, induced her to perform
sexual acts before he would return them. Barbour claims that
Hernandez consented to be photographed and to the sexual contact,
and that he was trying to recruit Hernandez to serve as a
confidential informant1 for Kleberg County.2
Hernandez sued Mr. Barbour and the County for violations of
her constitutional and civil rights and for various torts. She
premises her claims against the County on an allegation that
Barbour’s behavior in recruiting confidential informants was part

-- 2 of 9 --

No. 04-40001
-3-
of a pattern or practice so pervasive that it constituted de facto
county policy.
In seeking support for her claim of a pattern or practice,
Hernandez sought to discover how other confidential informants had
been recruited. In her discovery requests, Hernandez asked the
County to “[i]dentify each and every person who was actively
serving as an informant for the Kleberg County Sheriff’s Department
or the Kleberg County District or County Attorney’s Office for the
last seven (7) years.” Hernandez also asked the County to
“[i]dentify each and every person solicited, recruited,
conscripted, or employed as an informant, confidential or
otherwise, by Robert Andrew Barbour during his employment with
Kleberg County, Texas.” Finally, Hernandez asked the County to
produce a copy of “the book,” a list of its confidential
informants.
The County, seeking to protect the identity of its
confidential informants, objected to these requests. Hernandez
responded with a motion to compel. The district court granted the
motion to compel and ordered the County to release the informants’
names subject to a protective order to be agreed upon by the
parties. However, the parties could not agree on a protective
order.
To resolve the impasse, the district court conducted a
telephone conference. Following a discussion during which the
district court emphasized that it had already ordered release of

-- 3 of 9 --

No. 04-40001
-4-
3 The district court regards this acquiescence as an indication that
the County waived its objections to the district court’s plan. We decline to
read counsel’s statements as estopping further invocation of the confidential
informant privilege for two reasons. First, during the discussion, the district
court stated repeatedly that it had already ordered release of the names;
therefore, we understand the County to have accepted the most protective plan on
the table given the district court’s stance on release of the names. Second,
although the confidential informant privilege belongs to the government rather
than the informant, Roviaro v. United States, 353 U.S. 53, 59 (1957), we are wary
of abrogating the privilege based on less-than-clear waiver when that waiver has
grave implications for the safety of informants.
the names, the district court modified its previous order. Instead
of releasing the names of all female informants to Hernandez’s
attorneys, the County would turn over the names to the district
court and instruct each informant to appear at the federal
courthouse at an appointed time. The district court would question
the informant to confirm her identity. Following this
confirmation, Plaintiff’s counsel would be allowed to question the
informant. In light of the alternative—release of the names—the
County acquiesced.3
Following the conference, the Sheriff’s Department began to
contact confidential informants to apprise them of the district
court’s orders. According to the County, none of the informants
were willing to appear for fear that their identities would be
revealed. The County asked the district court to reconsider its
order; the district court refused. The County then sought mandamus
in this court on the grounds that the district court’s order would
violate the County’s privilege not to reveal the identities of its
confidential informants.
II.

-- 4 of 9 --

No. 04-40001
-5-
Mandamus is an extraordinary remedy available only when a
district court clearly and indisputably errs and that error is
irremediable on ordinary appeal. In re Avantel, S.A., 343 F.3d
311, 317 (5th Cir. 2003). Notwithstanding this exacting standard,
when a district court clearly errs in ordering the disclosure of
privileged information, mandamus is an appropriate means of relief.
Id.; In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir.
2000). Therefore, we must determine whether the district court
clearly and indisputably erred in devising its plan for
interviewing the informants.
III.
The confidential informant privilege invoked by the County
actually refers to the government’s privilege “to withhold from
disclosure the identity of persons who furnish information of
violations of law to officers charged with enforcement of that
law.” Roviaro v. United States, 353 U.S. 53, 59 (1957). The
government may invoke this privilege “as a right” and “need not
make a threshold showing of likely reprisal or retaliation against
the informant in order to assert the privilege.” United States v.
Valles, 41 F.3d 355, 358 (7th Cir. 1994).
The privilege most often arises in criminal cases, but it also
applies to civil cases such as this one. Brock v. On Shore Quality
Control Specialists, Inc., 811 F.2d 282, 283 (5th Cir. 1987);
Suarez v. United States, 582 F.2d 1007, 1011 n.4 (5th Cir. 1978).
In civil cases, the privilege is stronger because many of the

-- 5 of 9 --

No. 04-40001
-6-
4 As we understand the record, only the district court will view the
“book” listing the names all confidential informants used by Kleberg County. So
long as only the district court views this information, we see no problem with
that portion of the district court’s order because such a disclosure would not
tend to identify any informant. See Roviaro, 353 U.S. at 60. We emphasize,
however, that the informant privilege applies if the district court discloses any
excerpt, redacted or not, that would tend to identify any informant in any way.
Id.
constitutional rights guaranteed to criminal defendants, which in
criminal trials militate in favor of disclosure, do not apply.
Matter of Search of 1638 E. 2nd Street, 993 F.2d 773, 774-75 (10th
Cir. 1993); Dole v. Local 1942, Int’l Bhd. of Elec. Workers, 870
F.2d 368, 372 (7th Cir. 1989).
The privilege does not apply in two instances, neither of
which is present in this case. First, the informant privilege does
not apply when the disclosure sought will not tend to reveal the
identity of the informant. Roviaro, 353 U.S. at 60. In its
response to the petition for mandamus, the district court argues
that the interview process it envisions will adequately protect the
identities of the informants.4
We disagree. Requiring an informant to appear at a particular
time at a particular place is tantamount to revealing that
informant’s identity. A confidential informant often has had
direct personal contact with the person she reported (or is still
reporting) to the authorities and is thus recognizable by sight to
that person. Any person interested in discerning the identities of
confidential informants could easily discern those identities, or
at least gain significant clues as to those identities, simply by
observing individuals who enter the courthouse during the time

-- 6 of 9 --

No. 04-40001
-7-
5 The factors considered in this balancing test vary according to
period during which interviews are conducted. Even were the dates
of the interviews not a part of the public record, the district
court’s plan would still be too risky. Because Plaintiff Hernandez
was caught with illegal drugs, it is conceivable that she or her
associates might be interested in identifying those people who aid
law enforcement in ferreting out drug-related activity. She need
only instruct those associates to monitor the courthouse on the
days her attorneys attend.
Second, the informant privilege does not apply when the
informant’s identity has already been disclosed. Id. Hernandez
argues that by releasing records listing all persons arrested by
Deputy Barbour, the County has already disclosed all its
confidential informants. This argument is patently illogical;
Barbour did not single-handedly recruit all the County’s
informants, not all the individuals arrested by Barbour became
confidential informants, and not all the informants recruited by
Barbour were necessarily arrested by him.
Because we conclude that the privilege applies, we must
determine whether the County must nevertheless comply with the
district court’s order. The informant privilege must “give way”
when disclosure is “essential to a fair determination of a cause.”
Roviaro, 353 U.S. at 60-61. To determine whether disclosure is
required, we balance the government’s interest in nondisclosure
against the private litigant’s interest in disclosure. Id. at 62.5

-- 7 of 9 --

No. 04-40001
-8-
context. Compare United States v. Wilson, 77 F.3d 105, 111-12 (5th Cir. 1996)
(articulating factors for consideration in criminal cases) with Brock, 811 F.2d
at 283 (articulating factors for consideration in labor dispute). The common
denominator of these cases is a balancing of governmental and private interests.
The private litigant bears the burden of demonstrating that
disclosure is essential. Valles, 41 F.3d at 358.
The County’s interest in maintaining the confidentiality of
its informants is substantial. Informants are a “vital part of
society’s defense arsenal.” United States v. Sanchez, 988 F.2d
1384, 1391 (5th Cir. 1993) (quoting McCray v. Illinois, 386 U.S.
300, 307 (1967)). As such, the government’s interest “relates to
both the safety of the informant and the informant’s future
usefulness to the authorities as a continuing confidential source.”
United States v. Orozco, 982 F.2d 152, 156 (5th Cir. 1993).
Compromising the confidentiality of the County’s informants, as the
district court’s plan would almost certainly do, thus raises two
serious threats: first, the threat of retaliation faced by the
informants themselves; and second, the threat that those
informants, realizing that the County can no longer ensure secrecy,
will refuse to assist the County with further investigations.
Hernandez’s interest in disclosure is flatly inadequate to
counterbalance these strong governmental interests. A plaintiff
must demonstrate that the disclosure she seeks is “essential.”
Roviaro, 353 U.S. at 61. Plaintiff submits that these confidential
informants may have information relevant to her claims. However,
“[m]ere conjecture or supposition about the possible relevancy of

-- 8 of 9 --

No. 04-40001
-9-
the informant’s testimony is insufficient to warrant disclosure.”
Orozco, 982 F.2d at 155 (quoting United States v. Gonzales, 606
F.2d 70, 75 (5th Cir. 1979); see also Valles, 41 F.3d at 338; Local
1942, 870 F.2d at 373. Hernandez can only speculate that other
confidential informants have information favorable to her cause.
As such, she cannot carry her burden, and the informant privilege
therefore prevails.
IV.
We thus conclude that the district court’s plan impermissibly
violated the County’s privilege not to reveal its confidential
informants. As this opinion will issue before the planned
interviews, we trust that the district court will stay the
interviews and reconsider its discovery plan in light of the
standards we have articulated. See Avantel, 343 F.3d at 324-25.
Because of the extraordinary nature of mandamus, restraint is
appropriate when, as in this case, the district court has in good
faith handled a delicate and novel legal issue but nevertheless run
afoul of controlling law. See id.; Matter of Green, 39 F.3d 582,
584 (5th Cir. 1994). We therefore DENY the County’s petition for
mandamus without prejudice.

-- 9 of 9 --