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Case 5:20-cv-00351-NC Document 26 Filed 07/06/20 Page 1 of 5

1 RICHARD DOYLE, City Attorney (88625)


NORA FRIMANN, Assistant City Attorney (93249)
2 ARDELL JOHNSON, Chief Deputy City Attorney (95340)
YUE-HAN CHOW, Senior Deputy City Attorney (268266)
3 Office of the City Attorney
200 East Santa Clara Street, 16th Floor
4 San José, California 95113-1905
Telephone Number: (408) 535-1900
5 Facsimile Number: (408) 998-3131
E-Mail Address: cao.main@sanjoseca.gov
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Attorneys for City of San Jose, Officer Eugene
7 Thompson, and Officer Saul Zepeda
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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13 MARISSA SANTA CRUZ, PAEA I'SUVA Case Number: 20-cv-00351-NC
TUKUAFU,
14 DEFENDANT CITY OF SAN JOSE’S
Plaintiff(s), ADMINISTRATIVE MOTION TO
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MAINTAIN CONFIDENTIALITY OVER
16 v. DESIGNATED MATERIALS
17 CITY OF SAN JOSE, [FNU] THOMPSON,
18 SAUL ZEPEDA, and DOES 1-10,
inclusive,
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Defendant(s).
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DEFENDANT CITY OF SAN JOSE’S ADMINISTRATIVE Case Number: 20-cv-00351-NC


MOTION TO MAINTAIN CONFIDENTIALITY OVER
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DESIGNATED MATERIALS
Case 5:20-cv-00351-NC Document 26 Filed 07/06/20 Page 2 of 5

1 Defendant City of San José (“San José”) moves to maintain confidentiality over

2 materials it so designated under the Stipulated Protective Order (Dkt. 25) (the “Order”). At

3 issue are body-worn camera footage (“BWC footage”) and an investigation report

4 produced by San José in discovery.

5 Defendants Did Not Intentionally Waive The Confidentiality Designation

6 On June 8, 2020, Plaintiff challenged the confidentiality of these materials. San

7 José asked to meet and confer on June 26, 2020, as its clients could not meet until then to

8 discuss the issue. Plaintiffs stated the last day to meet and confer was June 22, 2020, and

9 on a call that day, Plaintiffs said they would wait until June 26, 2020 to file a motion but the

10 whole world should be able to see the materials. On June 26, 2020, San José wrote that

11 its position had not changed and asked whether Plaintiffs wanted to file a joint 5-page

12 statement or separate 2-page statements, as per this Court’s Standing Order. On June

13 28, 2020, Plaintiffs proposed joint language to describe the dispute and stated they

14 intended to file by June 29th or 30th. On June 29, 2020, San José sent edits to the

15 language, asked Plaintiffs to confirm it would be a joint statement, and if so, San José

16 would send its portion the next day. San José heard nothing further, until Plaintiffs wrote

17 on July 2, 2020 that because San José did not file a motion to preserve the confidentiality

18 designations by June 29, 2020, they were waived under paragraph 6.3 of the Order. In a

19 call on July 2, 2020, Plaintiffs agreed not to do anything with the materials until July 7,

20 2020. Due to these interactions, where San José believed the parties were cooperating

21 and was induced to delay, San José requests this Court toll the provisions of paragraph

22 6.3 and find the designations not waived.

23 Safety Concerns, Privacy Concerns, and The Integrity of The Court System Require
Maintenance of The Confidential Designation
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25 Materials produced in discovery traditionally are not available to the public. Seattle
26 Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). Officer safety is a compelling reason as
27 to why this is so. One of the officers involved in the use of force here (though not a named
28 defendant) was Sgt. Michael Pina; he is a defendant in an officer-involved-shooting case
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DEFENDANT CITY OF SAN JOSE’S ADMINISTRATIVE MOTION TO Case Number: 20-cv-00351-NC
MAINTAIN CONFIDENTIALITY OVER DESIGNATED MATERIALS
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Case 5:20-cv-00351-NC Document 26 Filed 07/06/20 Page 3 of 5

1 before this Court. Dominguez v. City of San Jose, No. 18-cv-04826-BLF. Images of him

2 on the BWC footage should retain the “Confidential” designation for his safety. See

3 Collens v. City of New York, 222 F.R.D. 249, 254-55 (S.D.N.Y. 2004) (collecting cases);

4 Jacquez v. City of San Jose, et al., No. 16-cv-5330-NC (Dkt. 43) (finding that San José

5 submitted disturbing social media messages that appeared to threaten the officer and

6 granting San José’s request to designate produced images and videos of officer as

7 “Attorneys’ Eyes Only.”). Similar to the circumstances in Jacquez, relatives and friends of

8 the decedent in Dominguez sought to post photos of Sgt. Pina and made implicit death

9 threats. Messier Decl. ¶ 6 & Ex. A. In Jacquez, the social media posts showed an image

10 of a civilian shooting into a police car and stated that civilians shooting police would be

11 “good too.” Jacquez v. City of San Jose, et al., No. 16-cv-5330-NC (Dkt. 42-1). This

12 meets the Ninth Circuit’s “particularized harm” standard, warranting retention of the

13 “Confidential” designation on the images of Sgt. Pina. See In re Roman Catholic

14 Archbishop of Portland in Oregon, 661 F.3d 417, 424-24 (9th Cir. 2011). If this Court

15 removes the confidentiality designation of these materials, however, then San José

16 requests that Plaintiffs be ordered to redact images of Sgt. Pina from the BWC footage

17 before public disclosure.

18 Disclosure of these materials would also violate the privacy interests of third parties

19 and should not occur without their consent. See Glenmede Trust Co. v. Thompson, 56

20 F.3d 476, 483 (3d Cir. 1995) (first “good cause” factor); Nunez v. City of San Jose, 2019,

21 WL 1102992, *4 (N.D. Cal. Mar. 8, 2019). The encounter at issue took place at a hotel.

22 The BWC footage contains the faces of third-parties, vocalization of their contact

23 information, evidence collection like witness statements, medical treatment at a hospital,

24 and Preliminary Alcohol Screening tests; the investigation report contains names,

25 addresses, and phone numbers of the interviewed third-party witnesses. If this Court

26 removes their confidentiality, then Plaintiff should be ordered to redact any identifying

27 information (e.g., IDs or faces of non-defendant officers, witnesses, patients, and doctors),

28 mute contact information, mute medical care provided, and redact names and contact
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DEFENDANT CITY OF SAN JOSE’S ADMINISTRATIVE MOTION TO Case Number: 20-cv-00351-NC
MAINTAIN CONFIDENTIALITY OVER DESIGNATED MATERIALS
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Case 5:20-cv-00351-NC Document 26 Filed 07/06/20 Page 4 of 5

1 information in the report, before any public disclosure. Otherwise, Plaintiff should be

2 ordered to get permission from these third parties to disclose this information publicly.

3 In addition, this case should be litigated in the courtroom, not by public opinion.

4 See Glenmede Trust, 56 F.3d at 483 (second “good cause” factor). The parties are

5 nowhere near filing dispositive motions, a possible appropriate purpose for removing

6 confidentiality. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179-80

7 (9th Cir. 2006). Without confidentiality, the BWC footage may be published online,

8 possibly with commentary. This is an improper use of discovery materials in an ongoing

9 litigation. See Woods v. City and County of San Francisco, 15-cv-5666-WHO (Dkt. 36)

10 (N.D. Cal. May 3, 2016), at 2 (“this case is to be tried in the courtroom, not in the press”);

11 Nunez v. City of San Jose, 2019, WL 1102992, *4 n.4 (N.D. Cal. Mar. 8, 2019) (noting pre-

12 trial publicity restrictions like Cal. Rule of Prof. Conduct 5-120). Inadmissible evidence at a

13 trial or only portions of the materials may be circulated, affecting the integrity of the judicial

14 process and litigants getting a fair trial. See, e.g., Whitaker v. Springettsbury Twp., 2010

15 WL 1565372, at *3 (M.D. Pa. Apr. 19, 2010) (granting protective order over use of force

16 video because videos may be edited and inaccurately shift perceptions, prejudicing trial

17 rights of litigants).

18 Confidentiality of these items also did not impede, but allowed, information-sharing.

19 See Glenmede Trust, 56 F.3d at 483 (fifth “good cause” factor). Plaintiffs can access

20 witness identity and contact information easily and amend the complaint to add

21 defendants. Plaintiffs can also see the actions of Sgt. Pina.

22 Lastly, this case is distinguishable from Harmon v. City of Santa Clara, 323 F.R.D.

23 617, 623 (N.D. Cal. 2018), as to the magnitude of importance to the public. See

24 Glenmede Trust, 56 F.3d at 483 (seventh “good cause” factor). In Harmon, the BWC

25 footage was released after a high-value settlement (no trial), generating much publicity and

26 comment by the police chief. Harmon, 323 F.R.D at 624. And the BWC footage had

27 already been released, so privacy concerns were moot. Id. at 625. Here, harm may result

28 in public dissemination of the items; the proper forum to resolve this case is in court.
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DEFENDANT CITY OF SAN JOSE’S ADMINISTRATIVE MOTION TO Case Number: 20-cv-00351-NC
MAINTAIN CONFIDENTIALITY OVER DESIGNATED MATERIALS
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Case 5:20-cv-00351-NC Document 26 Filed 07/06/20 Page 5 of 5

1 Dated: July 6, 2020 Respectfully submitted,

2 RICHARD DOYLE, City Attorney


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By: /s/ Yue-Han Chow .
4 YUE-HAN CHOW
Sr. Deputy City Attorney
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Attorneys for Defendants City of San Jose,
6 Officer Eugene Thompson, and Officer
Saul Zepeda
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DEFENDANT CITY OF SAN JOSE’S ADMINISTRATIVE MOTION TO Case Number: 20-cv-00351-NC
MAINTAIN CONFIDENTIALITY OVER DESIGNATED MATERIALS
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