1 2 3 6 7 J.T., et al., Case No. 23-cv-06524-LJC
8 Plaintiffs, ORDER RESOLVING DISCOVERY 9 v. LETTER BRIEFS REGARDING SUBPOENAS FRANCISCO, et al., Re: Dkt. Nos. 75, 77 11 Defendants.
12 14 This putative class action concerns the arrest of over one hundred people in July of 2023 at 15 the Dolores Hill Bomb, an unsanctioned skateboarding event that Defendants—the City and 16 County of San Francisco and several of its police officials—contend devolved into a riot. 17 Plaintiffs, like many of the detainees they seek to represent as a class, were minors at the time of 18 the events at issue. The parties have filed two joint discovery letter briefs (ECF Nos. 75, 77) 19 concerning subpoenas served by Defendants, which the Court resolves as follows.1 This Order 20 assumes the parties’ familiarity with the facts and history of the case. 22 “A party or attorney responsible for issuing and serving a subpoena must take reasonable 23 steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. 24 Civ. P. 45(d)(1). A court must quash a subpoena that “subjects a person to undue burden.” Fed. 25 R. Civ. P. 45(d)(3)(A)(i), (iv). “Although irrelevance is not among the litany of enumerated 26 reasons for quashing a subpoena found in Rule 45, courts have incorporated relevance as a factor 27 1 [related to undue burden] when determining motions to quash a subpoena.” Moon v. SCP Pool 2 Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005). 3 “Unless otherwise limited by court order,” Rule 26 of the Federal Rules of Civil Procedure 4 provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant 5 to any party’s claim or defense and proportional to the needs of the case, considering the 6 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 7 access to relevant information, the parties’ resources, the importance of the discovery in resolving 8 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 9 benefit.” Fed. R. Civ. P. 26(b)(1). “The scope of [subpoena] discovery under Rule 45 is the same 10 as under Rule 26(b).” Waymo LLC v. Uber Techs., Inc., No. 17-cv-00939-WHA (JSC), 2017 WL 11 2929439, at *2 (N.D. Cal. July 7, 2017). 12 That said, the “Ninth Circuit has long held that nonparties subject to discovery requests 13 deserve extra protection from the courts.” Maplebear Inc. v. Uber Techs., Inc., No. 21-mc-80007- 14 SK, 2021 WL 1845535, at *1 (N.D. Cal. Mar. 23, 2021) (citation omitted); High Tech Med. 15 Instrumentation, Inc. v. New Image Indus., Inc., 161 F.R.D. 86, 88 (N.D. Cal. 1995) (citing United 16 States v. C.B.S., 666 F.2d 364, 371–72 (9th Cir. 1982)).
17 “In general, there is a preference for parties to obtain discovery from one another before burdening non-parties with discovery requests.” 18 Soto v. Castlerock Farming & Transp., Inc., 282 F.R.D. 492, 505 (E.D. Cal. 2012) (collecting cases). When the requesting party has 19 “not shown [that it] attempted to obtain documents from the [opposing party] in an action prior to seeking the documents from a 20 non-party, a subpoena duces tecum places an undue burden on a non- party.” Id. Further, “when an opposing party and a non-party both 21 possess documents, the documents should be sought from the party to the case.” Soto, 282 F.R.D. at 505. 22 23 Genus Lifesciences Inc. v. Lannett Co., Inc., No. 18-cv-07603-WHO, 2019 WL 7313047, at *4 24 (N.D. Cal. Dec. 30, 2019) (quashing a subpoena where the requesting party had not first sought 25 the same materials from the opposing party, who would have been expected to have them). 26 A party to a case may challenge a subpoena served on a non-party that implicate the party’s 27 cognizable interests, including privacy interests. See, e.g., Cabell v. Zorro Prods., Inc., 294 F.R.D. 2 Defendants have served subpoenas on Plaintiffs’ schools for “[a]ny and all academic 3 records, including, but not limited to transcripts, attendance, absences, tardiness, discipline, and 4 participation in extracurricular activities” for each of the named Plaintiffs. ECF No. 75-1 at 2.2 5 As written, Defendants’ subpoenas had no restriction as to time. Defendants have agreed to limit 6 subpoenas to the San Francisco Unified School District (but not specific schools) to a period from 7 two years before the arrest through the present. ECF No. 75 at 3. Defendants contend that such 8 records are relevant to Plaintiffs’ claims for equitable relief and damages. Id. at 2. Plaintiffs argue 9 that academic records are not relevant to any issue in the case because they have not put their 10 academic performance at issue or sought damages for loss of future academic or career prospects. 11 Id. at 4. 12 The parties dispute the significance of the Family Education Rights and Privacy Act 13 (FERPA), which includes safeguards against (and penalties for) unwarranted disclosure of 14 educational records by schools. Although FERPA allows for disclosure in response to a subpoena 15 after providing notice to students and parents, see 20 U.S.C. § 1232g(b)(2)(B), and does not create 16 a discovery privilege, it demonstrates Congress’s recognition that students have a significant 17 privacy interest in educational records. “Courts have [therefore] required a party seeking 18 disclosure of education records to meet a ‘significantly heavier burden’ to show that the party’s 19 need for the information outweighs the students’ privacy interests.” Doe v. Manhattan Beach 20 Unified Sch. Dist., No. CV19-06962-DDP (RAOx), 2020 WL 11271845, at *4 (C.D. Cal. Oct. 20, 21 2020) (quoting Jun Yu v. Idaho State Univ., No. 4:15-cv-00430-REB, 2017 WL 1158813, at *2 22 (D. Idaho Mar. 27, 2017)). Although the courts in Doe and Jun Yu found production of redacted 23 academic records warranted under the circumstances before them, such records were more 24 relevant to the claims in those cases than they are here. See Doe, 2020 WL 11271845, at *4 25 (“Defendants’ handling of other allegations of sexual misconduct is relevant to Plaintiff’s 26 allegation that there was a culture of hostility towards female complainants and there is no other 27 1 source for Plaintiff to obtain this information.”); Jun Yu, 2017 WL 1158813, at *2–3 (ordering 2 production so that a student alleging discrimination could compare his treatment by a university to 3 that of non-minority students). 4 Plaintiffs emphasize in their portion of this Joint Letter that they “are not claiming that the 5 arrest or detention had any impact on their school performance,” and “are not claiming a future 6 wage loss or damages for harm to their future careers.” ECF No. 75 at 4. Defendants counter that 7 two paragraphs of Plaintiffs’ Complaint—which Defendants characterize as “the sole foundation 8 for the equitable claim and one basis for damages”—contradict that position. Id. at 2. Those 9 paragraphs read as follows:
10 44. L.R. and other high school students were very worried about how the arrests might affect their future. An officer told them that this 11 would be on their record, and L.R. heard an officer say that they would have to “prove your innocence” in court. A star athlete, L.R. 12 was scared that the arrest could ruin her chances for a college athletic scholarship. 13 14 Corrected Am. Compl. (ECF No. 24) ¶ 44.
15 133. Plaintiffs fear that without intervention by this Court, the record of this wrongful arrest will negatively affect the plaintiffs’ futures, 16 including but not limited to their job, career, and college prospects. 17 Id. ¶ 133. One other paragraph also includes a passing reference to Plaintiffs’ fears as to “how this 18 arrest might affect their futures.” Id. ¶ 60. 19 Plaintiffs’ prayer for damages (other than punitive and statutory damages) reads as 20 follows: 2. For past, present, and future general damages for the named 21 plaintiffs and class members, including but not limited to, pain, suffering, anxiety, and/or emotional distress, deprivation of liberty, 22 and loss of constitutional rights, to be determined according to proof; 23 Id. at 21 (Prayer for Relief). 24 Construed broadly, that request for relief could perhaps encompass damages for loss of 25 future education and employment opportunities. But to the extent there was any ambiguity on the 26 face of the Amended Complaint, Plaintiffs have now clarified that their use of the word “general” 27 to describe the damages they seek was deliberate and limiting, and that their “complaint does not 1 the context of defamation claims, “‘[s]pecial damages’ are limited to actual pecuniary loss, which 2 must be specially pleaded and proved,” while “‘[g]eneral damages,’ on the other hand, cover ‘loss 3 of reputation, shame, mortification, injury to the feelings and the like and need not be alleged in 4 detail and require no proof.’” F.A.A. v. Cooper, 566 U.S. 284, 295–96 (2012) (quoting a treatise). 5 Setting aside any question of what proof Plaintiffs must offer to recover emotional distress 6 damages and other forms of “general” damages on the claims they assert, they have now made 7 clear that they do not intend to pursue damages for harm to their potential future careers. ECF No. 8 75 at 4. 9 The Court also considers whether the subpoena is relevant to Plaintiffs’ claim for 10 injunctive relief. Although Plaintiffs seek injunctive relief (including an order exonerating them 11 and destruction of their detention records) based on potential harm to their academic and career 12 prospects, see Corrected Am. Compl. ¶¶ 133, 136, such relief does not require quantifying the 13 degree of any such potential harm with specificity. Cf. Rent-A-Center, Inc. v. Canyon Television 14 & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (acknowledging that irreparable harm 15 may be “difficult to valuate,” in holding that this element of a claim for injunctive relief may be 16 established by such difficulty of valuation). The extent to which Plaintiffs’ juvenile records could 17 be subject to future disclosure is not clear, but assuming for the moment that such disclosure is a 18 possibility and might influence future employers, institutions for vocational or higher education, 19 scholarship providers, or the military, it is not self-evident that such harm would be limited to 20 particularly strong or weak students, or to alleged “star athletes” like L.R. An arrest record might 21 affect the prospects of a straight-A student with no record of academic discipline or attendance 22 problems. At the same time, an arrest record also might affect the prospects of a student who 23 struggles academically, has attendance challenges, or has been involved in a disciplinary incident, 24 as that student enters adulthood and pursues their path after high school. Defendants’ subpoena 25 appears to be premised on a belief that a “poor” student does not have prospects that could be 26 harmed by an arrest record, and by delving into school records to determine whether a student is 27 promising or not, Defendants may defend themselves against Plaintiffs’ request for injunctive 1 deciding factor in whether Plaintiffs can obtain injunctive relief, particularly on behalf of a class. 2 Plaintiffs’ claims do not place their academic records materially at issue, and Defendants 3 have not met their “significantly heavier burden” to warrant disclosure of such records. See Doe, 4 2020 WL 11271845, at *4. To the extent that Plaintiffs’ future plans and prospects could bear on 5 their request for injunctive relief, and academic performance might have some tangential 6 relevance to that inquiry, those issues are better addressed at least in the first instance through 7 Plaintiffs’ deposition testimony. 8 All subpoenas for academic records are therefore QUASHED. 10 A. Background 11 E.J. is a minor who was detained at the Dolores Hill Bomb, and he was a named plaintiff in 12 this case before voluntarily dismissing his claims without prejudice on January 3, 2024. See ECF 13 No. 13.3 E.J.’s mother, Sophia Chumley (spelled “Sofia” in Defendants’ subpoenas, apparently 14 erroneously), applied to serve as his guardian ad litem during his brief participation in this 15 litigation. Defendants served subpoenas on both E.J. and Chumley seeking production of fifteen 16 categories of documents and information from E.J., and sixteen categories from Chumley: 17 (1) All documents reflecting any statements related to the Dolores Hill Bomb; 18 (2) All of the E.J.’s and Chumley’s “social media” (defined as including any electronic 19 messaging, such as iMessage text messages, as well as related metadata) for a three- 20 month period from June 1, 2023 through August 31, 2023; 21 (3) Records of all usage of any electronic device during the same three-month period, 22 including geolocation, search history, messages, drafts, and any other electronic data4; 23 3 E.J.’s notice of voluntary dismissal was filed on January 3, 2024 but is dated December 19, 24 2023, which is the same day that this case was filed. The December date appears to be an error, but the discrepancy is not relevant to the present dispute. 25 4 This request seeks all “activity” recorded on any electronic device from that three-month period, with the term “activity” defined in the subpoenas as: 26 physical, electronic and virtual state or conduct, including but not limited to any record thereof, geotracking, geolocation, date/time 27 stamp, diaries, calendars, log, index, stamp, “fingerprint,” tracker, 1 (4) All documents related to any communications about the Dolores Hill Bomb; 2 (5) All documents authored or maintained by E.J. or Chumley related to the Dolores Hill 3 Bomb; 4 (6) All communications regarding E.J.’s whereabouts from July 1, 2023 through July 15, 5 2023; 6 (7) All documents reflecting either E.J. or Chumley’s location from July 7, 2023 through 7 July 9, 2023, including any recorded geolocation data; 8 (8) All communications regarding E.J.’s activity on July 8 and 9, 2023; 9 (9) All communications sent, received, or posted by E.J. regarding the Dolores Hill Bomb; 10 (10) All records of any deletion of data of any kind that was created “on or about July 1, 11 2023 through and including August 31, 2023” on any device or platform used by E.J.; 12 (11) All documents reflecting any electronic activity by E.J. from July 7, 2023 through 13 July 10, 2023; 14 (12) “All photographs, videos, or images created, saved, modified, forwarded, received, 15 related to, and/or deleted at any time between July 7 through 10, 2023” (in the 16 subpoena served on Chumley, this is limited to media related to E.J.); 17 (13) All geolocation data reflecting E.J.’s location or movement on July 8 and 9, 2023; 18 (14) All documents reflecting any purchases or funds received from noon on July 7, 2023 19 through noon on July 9, 2023 (in the subpoena served on Chumley, this is limited to 20
21 drive, as well as cloud-based and/or internet-based applications or “apps”, including SOCIAL MEDIA, NEWS apps, and/or music 22 and/or video streaming applications (such as Spotify, Apple Music, Podcasts). For the avoidance of doubt, activity, also includes but is 23 not limited to, reading, searching, reviewing, saving, viewing, deleting, altering, modifying, creating, storing, sending, forwarding, 24 drafting and/or any other on-line/internet-based conduct and used, accessed, subscribed to, viewed, copied, or in any way accessed. 25 Activity, electronically, can also mean the metadata of the device, such as all records of the history, viewing, geolocation, access, 26 interaction, account information, and/or activity logs, as well as deletions, drafts, creation, posts, comments, messages, emojis, 27 “likes”, views, downloading, saving, forwarding, editing, modifying, 1 transactions related “in any way” to E.J.); 2 (15) All documents reflecting communications with the media regarding the Dolores Hill 3 Bomb and subsequent mass detention; and 4 (16)5 “All [of Chumley’s] monthly invoices, mobile data history, activity, location, usage, 5 and/or monitoring logs related to telecommunication carriers, mobile communication 6 apps, videogame consoles or games, and/or any other devices for [E.J.] and/or 7 [Chumley] from June 1, 2023 through September 30, 2023.” 8 ECF No. 77-1 at 5–8; ECF No. 886 at 5–8 (paraphrased except as indicated by quotation marks). 9 Some of those requests include examples of more specific topics or types of documents, 10 but those are offered specifically “without limitation” and do not narrow the scope of the requests. 11 E.g., ECF No. 77-1 at 7 (Request No. 6, seeking all communications regarding E.J.’s whereabouts 12 for a two-week period, “including but not limited to the Dolores Hill Bomb, skateboarding, 13 sideshows, parties, and/or Dolores Park”). 14 Defendants also demanded that E.J. and Chumley produce for inspection any electronic 15 device that contained data from July 1 through 31, 2023, including but not limited to smartphones 16 and laptops. ECF No. 77-1 at 9 (listing a narrower date range of July 7 through 10, 2023 in the 17 subpoena to E.J.); ECF No. 88 at 9 (listing the full month of July in the subpoena to Chumley, and 18 seeking both Chumley’s and E.J.’s devices). Defendants assert in the joint letter that they “never 19 asked for unfettered access to E.J.’s devices,” instead proposing extraction and production of 20 5 This request appears only in the subpoena served on Chumley, where it is one of two requests 21 bearing the number “15.” ECF No. 88 at 8. 6 The Court sealed sua sponte the version of the subpoena to Chumley that was filed with the 22 parties’ joint letter because it included E.J.’s full name in violation of Rule 5.2(a) of the Federal Rules of Civil Procedure. See ECF Nos. 77-2 (sealed), 86 (text-only Order). Plaintiffs refiled a 23 redacted version of that subpoena as ECF No. 88. The Court notes that E.J. was seventeen years old when this case was filed and will reach the age of majority soon. This use of E.J.’s name 24 foreshadows potential issues regarding references to other non-parties or putative class members who were minors during the events at issue but might reach majority while this litigation is 25 pending. Taking into account background rules regarding privacy of juvenile detention records, the Court now clarifies that the parties must continue to identify any non-party or putative 26 class member who was a minor when detained only by their initials absent further order of the Court, even if such a detainee has since turned eighteen, unless the detainee affirmatively 27 consents to public disclosure of their name in connection with this litigation after reaching 1 certain information like geotracking data by a vendor, ECF No. 77 at 5, but no such limitation 2 appears on the face of the subpoenas. 3 E.J. and Chumley contend that these requests are overly broad, especially when E.J. is no 4 longer a named plaintiff in the case and Chumley was not involved in the events at issue except to 5 pick up her son when he was released from detention. ECF No. 77 at 1–2. E.J. has agreed to 6 produce documents as follows:
7 He will produce his text messages with Ms. Chumley and others from that day related to the Hill Bomb, police response or arrests; his 8 photos and videos of the event; and all social media posts, notes, and statements related to the Hill Bomb, police response or arrests; as well 9 as any available location data for July 8, 2023, 4pm – 8:40pm (he and Ms. Chumley do not use any geolocation tracking.) 10 11 ECF No. 77 at 1. Chumley has not agreed to produce any documents. See id. 12 B. Analysis 13 The breadth of these subpoenas strains belief, particularly Request Nos. 2 and 3. At least 14 based on the subpoenas as originally served, Defendants sought literally all electronic records and 15 messages created or retained by a non-party minor and his mother over a three-month period. The 16 subpoenas would include location data, search history, and communications that either E.J. or 17 Chumley had about any topic with any other person—friends, family, intimate partners, 18 professional colleagues, financial institutions, or anyone else with whom they might have 19 exchanged messages. There is no reason to think that the vast majority of information falling 20 within that scope would have any relevance to this case. 21 As should go without saying to experienced counsel, this is not how discovery typically 22 works. In a normal case, a request for production of documents (whether in a subpoena to a non- 23 party or a request to a party under Rule 34) identifies specific categories of potentially relevant 24 documents. Documents might be identified by type, like financial statements covering a time 25 period where an entity’s assets are at issue, or by topic, such as communications regarding certain 26 events or issues giving rise to a claim, or by search terms reasonably calculated to appear in 27 relevant documents. But they are almost always identified in some way that ties the request to 1 might have from the months surrounding an event. 2 “As the Supreme Court has recognized, ‘[m]odern cell phones are not just another 3 technological convenience. With all they contain and all they may reveal, they hold for many 4 Americans the privacies of life.’” Henson v. Turn, Inc., No. 15-CV-01497-JSW (LB), 2018 WL 5 5281629, at *6 (N.D. Cal. Oct. 22, 2018) (quoting Riley v. California, 134 S. Ct. 2473, 2494–95 6 (2014)). “An Internet search and browsing history, for example, . . . could reveal an individual’s 7 private interests or concerns—perhaps a search for certain symptoms of disease, coupled with 8 frequent visits to WebMD.” Riley, 573 U.S. 373, 395–96 (2014). Smartphone applications might 9 include data related to intimate topics like a person’s political views, drug or alcohol use, religious 10 practices, finances, romantic relationships, or reproductive information. Id. at 396. In Henson, 11 Judge Beeler therefore denied requests by a defendant to inspect the plaintiffs’ smartphones (or 12 complete forensic images thereof) and for the plaintiffs to produce their complete browsing 13 history, even where the case turned the defendant’s alleged use of browser cookies that were 14 stored on the plaintiffs’ phones. Henson, 2018 WL 5281629, at *5, *8. Defendants contend that 15 “Henson is a red herring” because Defendants here have “never asked for direct access to the 16 devices,” but that position contradicts the inspection requests stated on the face of the subpoenas 17 Defendants served, and ignores that their requests for production of documents would sweep so 18 broadly as to approximate a complete forensic review, at least with respect to a discrete but 19 relatively long period of time. 20 The subpoenas that Defendants have served here seeking all of a person’s electronic 21 records of any kind over a period of several months, as well as inspection of all of their electronic 22 devices, would be inappropriate even for party discovery in most cases. Such a request is beyond 23 the pale when it comes to non-parties. 24 Defendants assert that, during the meet-and-confer process, they offered a proposal that 25 “contemplates the device is turned over to a third-party vendor, search terms and a time-stamp 26 algorithm is applied, and produced after counsel reviews for privilege.” ECF No. 77 at 3. They 27 do not detail that proposal in the Joint Discovery Letter or explain what search terms they intended 1 although they characterize those requests as somewhat narrower than what appears on the face of 2 the subpoenas, and Plaintiffs assert that Defendants were “willing to ‘limit’ their subpoenas to 3 complete mirror imaging of E.J.’s phone; plus his mother’s phone bills and other ‘records related 4 to E.J.’s activity.’” ECF No. 77 at 1. According to Defendants, the subpoenas seek “two types of 5 ESI:”
6 (1) non-privileged data related to “activity” (defined in the subpoenas) during the 48 hour period of time around July 8, 2023, 7 including all activity on apps and geotracking data (Category One), (2) a two-month period of time as to E.J.’s social media activity and 8 visual images, and (3) data that relates to hill bombing, skateboarding, graffiti, and the Dolores Hill Bomb Event (collectively, 9 the “Subject Matter”) (Category Two). 10 ECF No. 77 at 4. 11 It appears that either Defendants have backed off from the full scope of their subpoenas 12 and particularly Request No. 3, which seeks all electronic “activity” (i.e., data of any kind) from 13 both E.J. and Chumley over a three-month period, or Defendants accidentally drafted and served 14 much broader subpoenas than they intended. Regardless, even as characterized or potentially 15 narrowed by Defendants, these subpoenas are not proportional to the needs of the case. The 16 request for all “social media” (defined to include any electronic messages) over a period of months 17 remains particularly egregious. 18 Defendants assert that Plaintiffs’ original Complaint includes “admissions” that E.J. 19 “(a) knew the street party and Dolores Hill Bomb was dangerous and illegal, (b) heard the notices 20 to disperse by police for two hours around the vicinity, and (c) he easily ‘complied’ and ‘left 21 through Church Street,’” before later “rejoin[ing] the crowd.” ECF No. 77 at 4. These assertions 22 exaggerate and in some ways misstate Plaintiffs’ allegations.7 Even so, E.J.’s personal knowledge 23 of any danger or illegality has no apparent relevance to whether Defendants had probable cause to 24 7 The Court previously sealed Plaintiffs’ original Complaint sua sponte because it included the full 25 names of minors in violation of Rule 5.2(a) of the Federal Rules of Civil Procedure. Plaintiffs did not file a redacted version of the original Complaint, presumably because it had been amended and 26 superseded. A redacted version of the original Complaint remains necessary to complete the public record, particularly now that its allegations have been referenced in arguments. Plaintiffs 27 are ORDERED to file a redacted version of the original Complaint no later than October 8, 1 arrest the crowd, and police orders to disperse are presumably captured on their body-worn camera 2 recordings. The extent to which E.J. was able to leave the area in response to those orders may be 3 relevant, but that does not justify the full forensic audit of his and his mother’s electronic records 4 and communications that Defendants seek, particularly when few if any such records are likely to 5 shed light on that question. 6 Defendants also suggest that evidence will show E.J. engaged in vandalism and graffiti,8 7 ECF No. 77 at 4, but if they already have evidence to that effect, it is not clear why a burdensome 8 and wide-ranging subpoena is needed to show that a single person engaged in such conduct, 9 particularly when there does not seem to be any dispute that at least some individuals in the 10 community did so either during or following the Hill Bomb. If police had probable cause to arrest 11 the crowd based on vandalism by some members of the crowd, evidence from participants as to 12 what occurred may have some relevance at the margins, but probable cause will likely be proven 13 in large part by police video recordings and testimony to show what the officers involved knew 14 and perceived at the time of the arrest. It is therefore reasonable to ask E.J. to produce some 15 documents relevant to the events at the Dolores Hill Bomb (as he concedes), but Defendants have 16 not shown cause to impose a significant burden on him in doing so, or to require production of 17 largely irrelevant records from the days, weeks, or months surrounding the event based on the 18 possibility that E.J. might overlook the potential relevance of some of them. 19 Defendants assert that all of E.J.’s (and apparently also Chumley’s) digital “activity” from 20 the days surrounding the Dolores Hill Bomb is relevant because Plaintiffs “argue[] these are 21 ‘children’[9] and, therefore, adult supervision and involvement is relevant,” and anything tending 22 to suggest that E.J. “hid his participation in the Hill Bomb or his graffiti activity from his 23 guardian” would “disprove[] blaming the City [for] a guardian not being contacted.” ECF No. 77 24 at 4. Defendants’ theory appears to be that if E.J. wasn’t forthright with his mother about his plans 25
26 8 There is no evidence currently in the record that E.J. engaged in graffiti or vandalism, and the Court expresses no opinion on the truth or falsity of this assertion. 27 9 That Plaintiffs and E.J. were children at the time of their detention does not appear to be subject 1 to attend the Dolores Hill Bomb, he has somehow waived his rights to relief for an allegedly 2 illegal detention, or perhaps that any such concealment by E.J. would support an inference that he 3 did not provide his mother’s contact information to police when he was detained. E.J. is no longer 4 a plaintiff in this case. Whether he provided sufficient information to allow police officers to 5 contact his mother has no apparent relevance to the remaining Plaintiffs’ claims, and given that 6 Plaintiffs allege that some but not all of the minor detainees’ parents or guardians were contacted, 7 any failure to contact parents seems unlikely to be an issue suitable for class treatment. See 8 Corrected Am. Compl. (ECF No. 24) ¶ 53. In any event, whatever information E.J. did or did not 9 provide to police about his guardian(s) would be better captured by police records and deposition 10 testimony than by electronic messages that E.J. sent to his mother or anyone else, and any 11 contemporaneous messages that E.J. sent about his involvement in the Dolores Hill Bomb would 12 be included within the narrower scope of documents the Court now orders him to produce, as 13 detailed below. 14 Defendants further argue that Plaintiffs failed to preserve evidence, including 15 electronically stored information. ECF No. 77 at 5. Whether or not that is true provides little if 16 any support for demanding forensic examination of the records of a former plaintiff who decided 17 not to continue in that role within a few weeks after filing the case. 18 Defendants cite a decision from this district authorizing forensic inspection of plaintiffs’ 19 devices. ECF No. 77 at 5 (citing In re Apple Inc. Device Performance Litig., No. 5:18-md-02827- 20 EJD, 2019 WL 3973752 (N.D. Cal. Aug. 22, 2019)). The claims in that case were based 21 specifically on the performance of the devices at issue, and the defendant proposed that forensic 22 images of the devices would be reviewed only by its experts, who would provide counsel with 23 opinions on the issues in dispute while revealing as little information as possible about the 24 plaintiffs’ data stored on the devices. 2019 WL 3973752, at *2. Judge Davila found such review 25 warranted under a heightened “compelling need” standard, which applied to the “serious” invasion 26 of the plaintiff’s privacy implicated by forensic imaging. See generally id. Given the limited 27 potential relevance of E.J.’s records, as well has his current status as a non-party, this case does 1 The Court finds E.J.’s proposed production more reasonable than Defendants’ requests, but 2 overly constrained. For example, E.J. has only agreed to produce messages (and only text 3 messages) “from that day,” as opposed to potential subsequent descriptions of the event. The 4 Court therefore ORDERS as follows: E.J. shall produce all non-privileged documents (including 5 but not limited to photographs, videos, and messages of any kind) describing or depicting the 6 events of the July 2023 Dolores Hill Bomb and subsequent mass detention, including but not 7 limited to documents that reflect E.J.’s whereabouts, activities, or state of mind during those 8 events, regardless of when such documents were created. 9 E.J. agreed to produce “any available location data for July 8, 2023 4pm – 8:40pm,” but 10 asserts that “he and Ms. Chumley do not use geolocation tracking.” ECF No. 77 at 1. Defendants 11 assert “that is impossible” because “geotracking is embedded in devices and apps,” and that only a 12 vendor could extract that information. Id. at 5. Because E.J. has agreed to produce location data 13 to the extent that it exists, and because E.J.’s previous allegation that he was able to comply with a 14 dispersal order at least for a time suggests that his locations during the police response to the 15 Dolores Hill Bomb might have some relevance to the case, the Court is open to exploring the 16 production of that data if it exists. On the other hand, because E.J. is no longer a party to the case 17 and the location of any single person is likely to have only limited relevance to the reasonableness 18 of a mass arrest, any forensic review for such data must be narrowly targeted, any production of 19 geolocation data must be limited to the period from 4:00 PM on July 8, 2023 (when Plaintiffs 20 allege skateboarders began to arrive) to 2:00 AM on July 9, 2023 (when E.J. previously alleged he 21 was released), and Defendants must bear the cost of any forensic review and extraction. If 22 Defendants wish to pursue E.J.’s geolocation data under those conditions, the parties are 23 ORDERED to meet and confer to determine whether the data likely exists and whether reasonable 24 means are available to access it. E.J. need not produce a complete list of applications on his 25 smartphone, but must cooperate in good faith to identify potential sources of geolocation data. 26 The parties shall file either a stipulation setting forth a process for review and extraction or a joint 27 letter addressing any disputes as to this issue no later than October 15, 2024. 1 way other than picking E.J. up from the police station, or that she is likely to have relevant 2 || evidence beyond what is also in E.J.’s possession or control. The request for Chumley’s invoices 3 and other information regarding “telecommunications carriers, mobile communication apps, 4 || videogame consoles,” and other services or devices that E.J. might have used, see ECF No. 88 at 5 8, is an intrusive distraction not proportional to the needs of the case. The subpoena served on 6 || Chumley is therefore QUASHED in its entirety. 8 For the reasons discussed above, all subpoenas for academic records are QUASHED. 9 Defendants shall provide a copy of this Order to all of the educational institutions on which they 10 served subpoenas. 11 The subpoena served on E.J. is QUASHED in part, and E.J. is ORDERED to produce 12 documents consistent with this Order no later than October 15, 2024. If Defendants intend to 13 pursue location data under the conditions set forth above, the parties shall meet and confer and file 14 || either a stipulation or a joint letter no later than October 15, 2024. The subpoena served on Sophia 3 15 Chumley is QUASHED in its entirety. a 16 IT IS SO ORDERED. 3 17 Dated: October 1, 2024 18 19 Ls, | sarin — ‘A J. CISNEROS 20 ited States Magistrate Judge 21 22 23 24 25 26 27 28