Lien v. City of San Diego

• Court: District Court, S.D. California
• Decided: January 14, 2022
• Docket: 3:21-cv-00224
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANDY LIEN, et al., Case No. 21-cv-224-MMA (WVG)

12 Plaintiffs, ORDER OVERRULING 13 v. PLAINTIFFS’ OBJECTIONS TO MAGISTRATE JUDGE’S OCTOBER 14 CITY OF SAN DIEGO, et al., 18, 2021 ORDER 15 Defendants. [Doc. No. 24] 16 17 18 19 Plaintiffs Mandy Lien and Erin Smith (collectively, “Plaintiffs”) bring this civil 20 rights action pursuant to 42 U.S.C. § 1983 against Defendants City of San Diego (the 21 “City”), Captain Matt Novak, Lieutenant Ernesto Servin, Lieutenant Rick Aguilar, 22 Sergeant Robert Gassman, Officer Andrew Le, Officer Ryan Heinze, Officer Sean Harn, 23 Officer Alyce Sullivan, Officer Michael Wheelus, Officer Ryan Welch, and unidentified 24 Does (collectively, “Defendants”). See Doc. No. 34 (“Second Amended Compl.”). 25 On October 18, 2021, Magistrate Judge William V. Gallo issued an order denying 26 Plaintiffs’ motion to compel production of the unredacted versions of four documents. 27 See Doc. No. 23. On November 1, 2021, Plaintiffs objected to Judge Gallo’s order 28 pursuant to Federal Rule of Civil Procedure 72(a), to which Defendant City of San Diego 1 responded. See Doc. Nos. 24, 31. The Court found the matter suitable for determination 2 on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. 3 No. 28. For the reasons set forth below, the Court OVERRULES Plaintiffs’ objections. 4 I. BACKGROUND 5 Plaintiffs’ action arises from a demonstration involving supporters and opponents 6 of former President Donald Trump that took place in Pacific Beach on January 9, 2021. 7 See Second Amended Compl. ¶¶ 1, 2, 24. Plaintiffs claim that the San Diego Police 8 Department dispersed only “those on the anti-Trump side” of the demonstration, in 9 violation of their First, Fourth, and Fourteenth Amendment rights. Id. ¶¶ 4, 7. 10 In response to one of Plaintiffs’ requests for production of documents, the City 11 produced a twelve-page group of documents that contained, inter alia, (1) an outside 12 agency’s “Special Bulletin” regarding a named suspect who threw a burning munition 13 canister at anti-Trump protesters at a January 9, 2021 protest in Pacific Beach, and 14 (2) identifying information and photographs of two suspected “antifa” members who are 15 subjects of ongoing criminal investigations. Id. at 1–2. The City redacted identifying 16 information of the three individuals from portions of four of the twelve pages it produced. 17 Id. at. 2. Plaintiffs sought unredacted copies of the documents. Id. 18 The City’s redactions can be categorized into two groups. Id. The first group 19 involves redactions of the name of a suspect who threw a burning munition canister at 20 anti-Trump protestors. Id. The redactions appear on pages COSD000219 and 21 COSD000220. Id. The second group involves redactions of the full names, dates of 22 birth, photographs, and prior arrest history of two suspected antifa members who were 23 present at the January 9 event. Id. These redactions appear on pages COSD000229 and 24 COSD000230. Id. 25 The City refused to produce unredacted copies of these documents, claiming that 26 the information is protected by various privileges. Id. at 14–18. On October 4, 2021, 27 Judge Gallo held a discovery conference and ordered briefing on the matter. Id. at 1. On 28 October 18, 2021, Judge Gallo issued an order denying Plaintiffs’ motion to compel 1 production of the unredacted documents. Doc. No. 23. On November 1, 2021, Plaintiffs 2 filed the instant objections to Judge Gallo’s discovery order. Doc. No. 24. 3 II. LEGAL STANDARD 4 A party may object to a non-dispositive pretrial order of a magistrate judge within 5 fourteen days after service of the order. See Fed. R. Civ. P. 72(a). The magistrate 6 judge’s order will be upheld unless “it has been shown that the magistrate [judge]’s order 7 is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). “The ‘clearly 8 erroneous’ standard applies to factual findings and discretionary decisions made in 9 connection with non-dispositive pretrial discovery matters.” Obesity Research Inst., LLC 10 v. Fiber Research Int’l, LLC, No. 15-cv-595-BAS (MDD), 2017 WL 3335736, at *1 11 (S.D. Cal. Aug. 4, 2017) (quoting F.D.I.C. v. Fid. & Deposit Co. of Md., 196 F.R.D. 375, 12 378 (S.D. Cal. 2000)). “Under Rule 72(a), [a] finding is clearly erroneous when, 13 although there is evidence to support it, the reviewing court on the entire evidence is left 14 with the definite and firm conviction that a mistake has been committed.” Waterfall 15 Homeowners Ass’n v. Viega, Inc., 283 F.R.D. 571, 575 (D. Nev. 2012) (internal quotation 16 marks and citation omitted). “An order is contrary to law when it fails to apply or 17 misapplies relevant statutes, case law or rules of procedure.” Id. (citation omitted). 18 “When reviewing discovery disputes, however, the Magistrate [Judge] is afforded 19 broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. 20 v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007) (internal citations and quotation 21 omitted). 22 III. DISCUSSION 23 Plaintiffs object to Judge Gallo’s discovery order on three grounds. See Doc. No. 24 24 at 2. Specifically, Plaintiffs contend that Judge Gallo erred in his: (1) application of 25 the law enforcement privilege; (2) application of the official information privilege; and 26 (3) decision to deny Plaintiffs’ motion to compel “despite there being a protective order 27 in place that would prevent dissemination of the documents or their use for anything 28 other than this litigation.” Id. The Court addresses each of Plaintiffs’ objections in turn. 1 A. Law Enforcement Privilege 2 Although the Ninth Circuit has not expressly recognized the law enforcement 3 privilege, several courts within this circuit have acknowledged and applied it. See Jones 4 v. Hernandez, No. 16-CV-1986 W (WVG), 2018 U.S. Dist. LEXIS 71378, at *8–10 (S.D. 5 Cal. Apr. 27, 2018); Roy v. County of Los Angeles, No. CV 12-09012-AB (FFMx), 2018 6 WL 914773, at *12 (C.D. Cal. Feb. 7, 2018); United States v. Rodriguez-Landa, No. 13- 7 cr-00484-CAS, 2019 WL 653853, at *16 (C.D. Cal. Feb. 13, 2019). The law 8 enforcement investigatory privilege is based on the harm to law enforcement efforts that 9 might arise from public disclosure of investigatory files. United States v. Winner, 641 10 F.2d 825, 831 (10th Cir. 1981). The party claiming the privilege has the burden to 11 establish its existence. Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 12 1341 (D.C. Cir. 1984). 13 In his discovery order, Judge Gallo applied the following test in deciding whether 14 the law enforcement privilege applies to the redacted information at issue: 15 16 ‘In order to assert the privilege, the following requirements must be met: (1) there must be a formal claim of privilege by the head of the department 17 having control over the requested information, (2) assertion of the privilege 18 must be based on actual personal consideration by that official, and (3) the information for which the privilege is claimed must be specified, with an 19 explanation why it properly falls within the scope of the privilege.’ Roman v. 20 Wolf, No. EDCV20-0768-TJH(PVC), 2020 U.S. Dist. LEXIS 213025, at *5 (C.D. Cal. July 16, 2020) (citing Landry v. F.D.I.C., 204 F.3d 1125, 1135 21 (D.C. Cir. 2000)). 22 23 Doc. No. 23 at 4–5. 24 1. Identification of the Suspect Who Threw a Burning Munition Canister 25 Judge Gallo found the following regarding the applicability of the law enforcement 26 privilege to the redactions on COSD000219 and COSD000220: 27 28 1 Here, Defendant has met its burden. The City submitted a signed declaration from SDPD Captain Novak, who avers that he personally reviewed the 2 redacted documents and explains the need for the privilege and redactions: an 3 ongoing, pending criminal prosecution against the male shown holding what appears to be an incendiary grenade . . . Safeguarding this information under 4 these circumstances is precisely the purpose of the law enforcement 5 investigation privilege.

6 7 Doc. No. 23 at 4–5. 8 Plaintiffs argue that Judge Gallo’s application of the law enforcement investigatory 9 privilege to the identity of the suspect who threw a burning munition canister is contrary 10 to law. Doc. No. 24 at 4–5. Specifically, Plaintiffs argue that “[t]he Declaration of 11 Captain Novak is [ ] incapable of exerting . . . the ‘law enforcement investigation 12 privilege,’ as he is not the ‘head of the department having control over the requested 13 information’ because “the investigation was by the Sheriff’s Department, not SDPD.” Id. 14 at 5. Additionally, Plaintiffs argue that “Captain Novak does not state he is the ‘head’ of 15 the department as is required to invoke the privilege.” Id. 16 Plaintiffs’ argument is unsupported by the plain language of the law enforcement 17 privilege test. The test states that “there must be a formal claim of privilege by the head 18 of the department having control over the requested information[,]” Roman, 2020 U.S. 19 Dist. LEXIS 213025, at *5 (emphasis added), not that declarant must be head of the 20 department that was the genesis of the information. In his Declaration, Captain Novak 21 declares—under penalty of perjury—that he is “employed by the San Diego Police 22 Department[,]” that he is “currently assigned as a Captain to Investigations 1 Unit[,]” that 23 his “duties include the supervision and oversight of the operations of that unit[,]” that he 24 has personally reviewed the redactions at issue, and that “[t]he redacted information was 25 generated or collected by SDPD which has maintained its confidentiality.” Doc. No. 23 26 at 19–20. Plaintiffs do not cite, and the Court is unaware of, any binding case law 27 suggesting this declaration is insufficient or that the law enforcement privilege test 28 requires particular language be used to properly invoke the privilege. Plaintiffs therefore 1 fail to show that Judge Gallo’s order is clearly erroneous or contrary to law. See, e.g., 2 Jones, 2018 U.S. Dist. LEXIS 71378, at *8–10. Accordingly, the Court OVERRULES 3 Plaintiffs’ objection on this ground. 4 2. Identifying Information of Suspected “Antifa” Members 5 Judge Gallo found the following regarding the applicability of the law enforcement 6 privilege to the redactions on COSD000229 and COSD000230: 7 Here, Defendant has met its burden. The City submitted a signed declaration 8 from SDPD Captain Novak, who avers that he personally reviewed the 9 redacted documents and explains the need for the privilege and redactions: . . . ongoing active criminal investigations by the Joint Terrorism Task Force 10 against the [ ] two individuals. Safeguarding this information under these 11 circumstances is precisely the purpose of the law enforcement investigation privilege. 12

13 Doc. No. 23 at 4–5. 14 Plaintiffs similarly argue that Judge Gallo’s application of the law enforcement 15 investigatory privilege to the identifying information of the two suspected “antifa” 16 members is contrary to law. Doc. No. 24 at 6–7. Specifically, Plaintiffs argue that 17 Captain Novak’s declaration is insufficient because he “does not explain what [the Joint 18 Terrorism Task Force] is or what agencies it is comprised of” and that “[h]e is certainly 19 not the head of this department either, and is thus incapable of asserting a privilege for 20 the City to withhold this information.” Id. at 6. 21 Plaintiffs’ argument is unpersuasive. Captain Novak states that he is “Captain to 22 Investigations 1 Unit[,]” that his “duties include the supervision and oversight of the 23 operations of that unit[,]” that he has personally reviewed the redactions at issue, and that 24 “[t]he redacted information was generated or collected by SDPD which has maintained 25 its confidentiality.” Doc. No. 23 at 19–20. Again, Plaintiffs provide no case law 26 suggesting this is insufficient, and the law enforcement privilege test itself does not 27 require that particular language be used in the declaration to properly invoke the 28 privilege. See Roman, 2020 U.S. Dist. LEXIS 213025, at *5. 1 Plaintiffs’ additional arguments that the privilege is inapplicable because “the 2 individuals are not under any ‘investigation’ for their participation in the protest” and 3 because the declaration “does not explain at all how or why ‘the investigation could be 4 compromised if their identifying information is released” are similarly unavailing. Doc. 5 No. 24 at 6–7. In his Declaration, Captain Novak states that the two individuals “are 6 targets of the Joint Terrorism Task Force and the investigation could be compromised if 7 their identifying information is released.” Doc. No. 23 at 20. The purpose of the law 8 enforcement privilege is “to prevent disclosure of information that would be contrary to 9 the public interest in the effective functioning of law enforcement.” Al Otro Lado, Inc. 10 v. Wolf, No. 17-cv-2366-BAS-KSC, 2020 U.S. Dist. LEXIS 112345, at *8 (S.D. Cal. 11 June 26, 2020) (quoting Chinn v. Blankenship, No. 09-5119 RJB, 2010 WL 11591399, at 12 *6 (W.D. Wash. Feb. 26, 2010)). Limiting the privilege to law enforcement activities 13 directly at issue in the case at bar is at odds with this purpose; it would narrow the 14 privilege and make it effectively useless. Nor does the test applied by Judge Gallo 15 include the requirement that the government explain “how or why” the investigation 16 could be compromised, but instead only states that “the information for which the 17 privilege is claimed must be specified, with an explanation why it properly falls within 18 the scope of the privilege.” Doc. No. 23 at 4. Judge Gallo found that this requirement 19 was met: 20 21 Here, the Defendant has met its burden. The City submitted a signed declaration from SDPD Captain Novak, who . . . explains the need for the 22 privilege and redactions: . . . ongoing active criminal investigations by the 23 Joint Terrorism Task Force against the [ ] two individuals. Safeguarding this information under these circumstances is precisely the purpose of the law 24 enforcement investigation privilege. 25 26 Id. at 4–5. No binding authority rejects the three-part test applied by Judge Gallo. See 27 Shah v. DOJ, 714 F. App’x 657, 660 n.1 (9th Cir. 2017) (“[T]he U.S. Supreme Court and 28 the Ninth Circuit have yet to recognize or reject a “law enforcement privilege.”). 1 Accordingly, his application of the test is not clearly erroneous or contrary to law. See, 2 e.g., Jones, 2018 U.S. Dist. LEXIS 71378, at *8–10. Therefore, the Court 3 OVERRULES Plaintiffs’ objection on this ground. 4 B. Official Information Privilege 5 Having determined that the law enforcement privilege applies, the Court declines 6 to address whether the official information privilege also applies to the redactions at 7 issue. Accordingly, the Court OVERRULES AS MOOT Plaintiffs’ objection on this 8 ground. 9 C. The Protective Order 10 Alternatively, Plaintiffs contend that they should be entitled to the unredacted 11 versions because the protective order “would prevent dissemination of the documents or 12 their use for anything other than this litigation.” Doc. No. 24 at 2. However, this 13 argument is unavailing. Plaintiffs seek to depose or at least contact these three 14 individuals regarding their potential involvement in the January 9, 2021 event. A 15 protective order does not solve the quandary of alerting the three individuals, through 16 contact initiated by counsel, to active criminal investigations into them or pending 17 prosecutions against them. Further, as Judge Gallo pointed out, Plaintiffs are not 18 prejudiced by the City’s redactions because “any evidence these three individuals may 19 have is readily obtainable from a multitude of other sources without compromising active 20 criminal investigations or pending prosecutions.” Doc. No. 23 at 6. Accordingly, the 21 Court OVERRULES Plaintiffs’ objection on this ground. 22 23 24 *** 25 26 27 28 ] IV. CONCLUSION 2 Based on the foregoing, the Court finds that Judge Gallo’s October 18, 2021 3 || discovery order was neither clearly erroneous nor contrary to law. Accordingly, the 4 ||Court OVERRULES Plaintiffs’ objections. 5 IT IS SO ORDERED. 6 Dated: January 14, 2022 7 LMhihuk Ta a tolls 8 HON. MICHAEL M. ANELLO 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28