OAKLAND — The investigator selected by a federal judge to get to the bottom about why arbitrators frequently overturn discipline imposed against Oakland police officers is butting heads with City Attorney Barbara Parker over dozens of documents she is refusing to release.

Parker has cited attorney-client privilege among other legal doctrines in withholding the documents from Edward Swanson, a trial attorney with the firm Swanson McNamara.

Both Parker and Swanson made their cases to U.S. District Judge Thelton Henderson, who will decide whether the city must release the documents.

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 last 15 cases.

In court papers filed this week, Parker said her office has turned more than13,000 pages of documents to Swanson, including Internal Affairs reports, legal briefs and arbitration hearing transcripts.

But she has 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. Parker has provided Swanson with redacted copies of 34 of those documents as well as a log explaining the nature of the communications and why they are protected from release.

In court papers filed late Thursday, Parker wrote that the information contained in those documents could be used against the city at a later date by outside parties. Releasing the documents “would undercut the city’s ability to have frank and candid communications,” she wrote.

In his filing with the court on Wednesday, Swanson asked Judge Henderson to compel Parker to release the documents, while also setting protocols aimed at ensuring that the information is not shared publicly.

Privilege

Legal experts briefed on the dispute expected the city to prevail. Attorney-client privilege is typically only revoked when the documents had already been widely shared or if the attorney was being investigated for fraud, said Hastings College of the Law Professor David Levine. “A judge can’t decide that something is so important that it can outweigh attorney-client privilege,” he said.

Swanson might have more luck trying to pry certain documents that were produced by the lawyers but not shared with clients, Hastings professor Scott Dodson said. But even in those cases, the investigator would need to show that he had a substantial need for those documents, and that the city wouldn’t sustain a substantial hardship from releasing them, he said.

Henderson wields tremendous power over Oakland’s police department as the judge presiding over a court-sanctioned settlement in the 1999 Riders police brutality scandal.

The settlement requires police to institute numerous reforms, which include showing that it metes out discipline to officers in a consistent fashion. In ordering the investigation, Henderson wrote that the frequent arbitration losses compromised the city’s ability to meet that standard.

Attorney John Burris, who represented the plaintiffs in the Riders case, declined to take a side in the dispute, but acknowledged the importance of obtaining relevant information to determine why Oakland was having so many discipline cases overturned in arbitration.

“Our concern is whether we can get to the truth of the issue,” he said.

Contact Matthew Artz at 510-208-6435.