1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS MCCOY, et al., No. 2:19–cv–1191–JAM–CKD 12 Plaintiffs, ORDER 13 v. (ECF Nos. 174, 181) 14 CITY OF VALLEJO, et al., 15 Defendants. 16 17 Presently before the court are plaintiffs’ motion to compel further deposition testimony by 18 members of the Vallejo Police Department (“VPD”) and defendants’ request to seal portions of 19 the briefing of this motion. (ECF Nos. 174, 181.) The parties filed on the docket a partly 20 redacted Joint Statement regarding the discovery disagreement, along with certain supporting 21 materials (ECF No. 180); and defendants emailed to the court (pursuant to Local Rule 141(b)) a 22 request to seal and proposed redacted versions of numerous documents and declarations related to 23 the discovery dispute—also filing on the docket a notice of this request to seal, to which they 24 attached two declarations with additional exhibits (ECF No. 181).1 After reviewing the Joint 25 Statement and related materials, the court determines this matter is suitable for resolution without 26
27 1 Because the court herein grants the request to seal, this order cites to the internal pagination of those referenced documents which have not yet been filed on the docket. When 28 discussing the sealed portions of documents, the court refers only generically to their contents. 1 oral argument, see E.D. Cal. L. R. 230(g), and therefore vacates the September 28, 2022, hearing 2 on plaintiffs’ motion. For the following reasons, the court GRANTS IN PART plaintiffs’ motion 3 to compel and GRANTS defendants’ request to seal. 4 BACKGROUND 5 This excessive force case arises from the death of Willie McCoy, a 20-year-old man who 6 in February 2019 was fatally shot by a group of VPD officers as he slept in his car. Plaintiffs are 7 suing six VPD officers involved in the shooting, two VPD supervisors, former VPD Chief 8 Andrew Bidou, and the City of Vallejo for—as relevant to this motion—excessive force, 9 municipal liability, and supervisory liability under 42 U.S.C. § 1983. (See ECF No. 169, Third 10 Amended Complaint (“TAC”).) 11 The operative complaint includes a Monell claim for municipal liability against former 12 Chief Bidou (who retired in June 2019) and the City, alleging a pattern and practice of officers 13 using excessive force without facing disciplinary consequences. (TAC at 25-28.) As one of the 14 bases for the Monell claim, the complaint asserts that at the time of McCoy’s death, there existed 15 within the VPD a “vigilante police gang” which rewarded officers for shooting and killing 16 citizens, commemorating each killing by bending one point on the officer’s police badge for each 17 fatality—and treating them to “beer and a barbecue” for their killing. (TAC ¶¶ 42-44.) Part of 18 gang members’ reward was also to be promoted within the VPD and protected from internal 19 affairs investigations and discipline. (TAC ¶ 44.) Plaintiffs allege that the defendant officers 20 treated the McCoy shooting as an opportunity to gain additional ‘badge-bends’ and that Chief 21 Bidou conspired with this gang to promote, maintain, and conceal the group’s existence before 22 and after the shooting. (TAC ¶¶ 52-58.) 23 The complaint attributes these allegations to the contents of a whistleblower employment 24 lawsuit filed in state court in 2020 by former VPD Captain John Whitney. (TAC ¶ 42; see John 25 Whitney v. The City of Vallejo, et al., No. FCS055842 (Cal. Super. Ct. Solano Cty., complaint 26 filed Dec. 22, 2020).) According to the TAC, Chief Bidou had Captain Whitney fired for 27 attempting to disband the gang. (TAC ¶¶ 47-51, 57.) Plaintiffs also claim more generally that the 28 City of Vallejo and Chief Bidou, as the VPD’s final decision-maker, proximately caused the 1 violation of McCoy’s constitutional rights by failing to address and/or ratifying the culture, 2 policy, or pattern and practice of officers using excessive force against citizens without 3 consequence. (TAC ¶¶ 59, 61-63, 75-79.) 4 In December 2021, the undersigned granted in part plaintiffs’ motion to compel 5 production of an independent internal investigative report compiled in 2021 regarding badge- 6 bending within the VPD (“the Giordano Report”). (ECF No. 147.) The Giordano Report, which 7 the court reviewed in camera, revealed that some VPD officers and supervisors had bent their 8 badges (or badges of others) in connection with being involved in a shooting on duty. As noted in 9 that order, the Report’s findings did not necessarily confirm plaintiffs’ theory of the reasons for, 10 or meaning of, officers bending their badges. (ECF No. 147 at 8 n.4.) However, the court 11 reasoned that 12 [t]he level to which bending badges pervaded the [VPD] such that Bidou and the City cannot claim reasonable ignorance of it, or 13 Bidou’s actual knowledge of the badge bending is key to proving the Monell claim. And evidence that any particular individual defendant 14 engaged in badge bending—or was inspired by a culture of badge bending or lackluster discipline in the VPD—would go toward 15 proving their motivation for shooting McCoy without warning and in the reckless manner alleged. 16 (Id. at 8.) 17 Discovery has continued since. In August 2022, plaintiffs took the depositions of five 18 current or former members of the VPD, two of whom are named defendants in the case.2 During 19 each of these depositions, defense counsel instructed the deponent not to answer one or more 20 questions posed by plaintiffs’ counsel. After unsuccessful meet and confer efforts, plaintiffs 21 brought this motion to compel on August 30, 2022. (ECF No. 174.) Plaintiffs seek to compel 22 further depositions for each witness regarding all questions not answered due to an improper 23 instruction from defense counsel; and plaintiffs also request sanctions in the form of (a) requiring 24 defendants to carry the costs of the renewed deposition, and (b) paying plaintiffs’ reasonable 25 attorney fees for bringing this motion. (Joint Statement at 24-25, 28.) 26
27 2 The materials presented in support of this motion do not indicate the date of Lt. Kent Tribble’s deposition, but the court assumes it was around the same time as the other four 28 depositions at issue, which occurred between August 16 and August 29, 2022. 1 At defendants’ request, plaintiffs filed a redacted version of the Joint Statement on the 2 docket. (ECF No. 180.) Defendants simultaneously emailed to the court an unredacted version 3 of the Joint Statement, proposed redacted versions of numerous exhibits and declarations related 4 to the Joint Statement, and a request to seal/file the documents with redactions. (See ECF 5 No. 181.) 6 DISCUSSION 7 A. Plaintiffs’ Motion to Compel 8 1. Legal Standard 9 The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. 10 Discovery may be obtained as to “any nonprivileged matter that is relevant to any party’s claim or 11 defense and proportional to the needs of the case.”3 Fed. R. Civ. P. 26(b)(1). “The relevance 12 standard is extremely broad, especially in civil rights excessive force cases.” James v. Hayward 13 Police Dep’t, 2017 WL 2437346, * 1 (N.D. Cal. Feb. 27, 2017) (citing Soto v. City of Concord, 14 162 F.R.D. 603, 610 (N.D. Cal. 1995)). “Relevancy alone is no longer sufficient to obtain 15 discovery, the discovery requested must also be proportional to the needs of the case.” Centeno 16 v. City of Fresno, No. 1:16–CV–653 DAD SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 17 2016). The court may limit discovery if it is “unreasonably cumulative or duplicative, or can be 18 obtained from some other source that is more convenient, less burdensome, or less expensive”; or 19 if the party who seeks discovery “has had ample opportunity to obtain the information by 20 discovery”; or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. 21 R. Civ. P. 26(b)(2)(C). 22 “The party seeking to compel discovery has the burden of establishing that its request 23 satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, 2009 WL 1390794 at *1 24 (S.D. Cal. May 14, 2009) (citations omitted). “Thereafter, the party opposing discovery has the 25 burden of showing that the discovery should be prohibited, and the burden of clarifying, 26
27 3 Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be 28 without the evidence.” Fed. R. Evid. 401. 1 explaining or supporting its objections.” Id. Notably, “the burdens on a motion to compel versus 2 a motion for protective order are reversed—with the party requesting discovery on a motion to 3 compel having to show relevance, but the requested party having to show irrelevance on a motion 4 for protective order.” Food Mkt. Merchandizing, Inc. v. California Milk Processor Bd., No. 2:15- 5 CV-1083-TLN-CKD, 2022 WL 1811076, at *4 n.5 (E.D. Cal. June 2, 2022). 6 “A party seeking discovery may move for an order compelling an answer . . . . if . . . a 7 deponent fails to answer a question asked under Rule 30 or 31.” Fed. R. Civ. P. 37(a)(3)(B)(i). 8 “Generally, instructions not to answer questions at a deposition are improper.” Vasquez v. 9 Leprino Foods Company, No. 1:17-cv-0796-AWI-BAM, 2019 WL 1934015, at *2 (E.D. Cal. 10 May 1, 2019) (citing Detoy v. City and County of San Francisco, 196 F.R.D. 362, 365 (N.D. Cal. 11 2000)). “A person may instruct a deponent not to answer only when necessary to preserve a 12 privilege, to enforce a limitation ordered by the court, or to present a motion under 13 Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2) (emphasis added); see also Covington v. Curtis, No. SA 14 CV 12–1258 FMO (ANx), 2013 U.S. Dist. LEXIS 53406, at *6 (C.D. Cal. Apr. 12, 2013) 15 (Rule 30(c)(2) “provides the exclusive grounds for instructing a deponent not to answer” 16 (quotation omitted)). “If a party believes that a particular question asked of a deponent is 17 improper for any other reason, that party may object; however, ‘the examination still proceeds; 18 the testimony is taken subject to any objection.’” Mendez v. R+L Carriers, Inc., 2012 WL 19 1535756, at *1 (N.D. Cal. Apr. 30, 2012) (quoting Fed. R. Civ. P. 30(c)(2)). 20 2. Analysis 21 Of the three exclusive scenarios that allow an instruction not to answer, only one (to 22 preserve privilege) is applicable to the depositions in question. Here, there was no court-ordered 23 limitation of the deposition testimony, and defendants made no motion to terminate any of the 24 five depositions pursuant to Rule 30(d)(3).4 The court rejects defendants’ arguments that many of 25
4 See Fed. R. Civ. P. 30(d)(3)(A) (“At any time during a deposition, the deponent or a party 26 may move to terminate or limit it on the ground that it is being conducted in bad faith or in a 27 manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.”); Mashiri v. Ocwen Loan Servicing, LLC, No. 12CV2838-L MDD, 2014 WL 4608718, at *2 (S.D. Cal. 28 Sept. 15, 2014) (noting that “Rule 30(d)(3) requires the motion be made during the deposition”). 1 the instructions not to answer were to enforce a limitation ordered by the court by virtue of the 2 undersigned’s rulings on the degree to which the Giordano Report could be redacted before being 3 produced to plaintiffs’ counsel. (Joint Statement at 5, 17, 19, 23, 29, 31.) Although the court 4 acknowledges the parallels between some of the information ordered redacted in the Giordano 5 Report and the topics of questioning challenged at the deposition, the court’s December 2021 6 discovery order (ECF No. 147) did not constitute a court ordered limitation of permissible 7 deposition topics within the meaning of Rule 30(c)(2). 8 Therefore, the only permissible basis for defense counsel’s instructions not to answer was 9 to preserve a privilege. A review of the deposition transcripts reveals that defense counsel 10 instructed deponents not to answer based on a wide variety of objections: privacy, outside the 11 scope of discovery, calling for improper opinion, irrelevance, argumentative question, abusive or 12 harassing line of questioning, proportionality, overbreadth and ambiguity, speculation, improper 13 hypothetical, official information privilege. All of these grounds—except for privacy and the 14 official information privilege—are patently improper grounds for instructing a witness not to 15 answer. See, e.g., Boyd v. University of Maryland Med. System 173 F.R.D. 143, 147 (D. Md. 16 1997) (instruction not to answer is “presumptively improper”); Vasquez, 2019 WL 1934015, 17 at *6 (instruction not to answer based on relevance or as outside the scope of discovery are 18 improper); Arcadian Cap., LLC v. Cura Partners, Inc., 2021 WL 1153356, at *1 (C.D. Cal. 19 Feb. 22, 2021) (objection of calling for legal opinion not proper basis for instruction not to 20 answer); Robinson v. Chefs’ Warehouse, 2017 WL 4509142, at *3 (N.D. Cal. Oct. 10, 2017) 21 (finding improper instructions not to answer based on exceeding the scope, harassing the witness, 22 lack of relevance); see also Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 11(IV)-A 23 § 11:1565 (“Rule 30(c)(2) renders ‘relevancy’ objections meaningless in most depositions. The 24 deponent must even answer questions calling for blatantly irrelevant information ‘subject to the 25 objection.’”). 26 Although the court understands defense counsel’s desire to cut short certain lines of 27 questioning that defense counsel deemed invasive and/or irrelevant, the proper remedy was not to 28 simply instruct the deponent not to answer—unless to invoke a particular privilege. See Mashiri, 1 2014 WL 4608718, at *2 (“If counsel for Plaintiff believed that counsel for Defendant was asking 2 the same question repeatedly in bad faith or to unreasonably annoy, embarrass or oppress 3 Plaintiff, counsel’s option was to move to terminate or limit the deposition under 4 Rule 30(d)(3).”); Cobell v. Norton, 213 F.R.D. 16, 27 (D.D.C. 2003) (alleged “harassment” is not 5 a proper ground for instructing witness not to answer). On at least two occasions, defense 6 counsel instructed a deponent not to answer while expressly confirming—in answer to plaintiffs’ 7 counsel—that he was not basing that instruction on any privilege. (See Ramsay Depo. pp. 94-95; 8 Horton Depo. p. 129.) 9 The only arguable privileges counsel asserted as grounds for the instructions not to answer 10 were the right to privacy and the official information privilege. The court sets out the general 11 standards for assessing these two types of objections before then addressing the individual 12 depositions. 13 i. Privacy Objections 14 Although privacy is not technically a “privilege,” see E.E.O.C. v. California Psychiatric 15 Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“the right to privacy is not a recognized 16 privilege or absolute bar to discovery”), courts sometimes entertain privacy objections as 17 potentially proper bases for instructions not to answer. See Toman v. Glomboske, 2021 WL 18 3503062, at *4-5 (C.D. Cal. Mar. 25, 2021) (analyzing privacy objections as basis for protective 19 order to preclude further depositions); Williams v. City of Long Beach, 2020 WL 7059601, at *2 20 (C.D. Cal. Oct. 27, 2020) (addressing privacy rights of non-party police officers on motion to 21 compel further deposition testimony); McClure v. Prisoner Transportation Servs. of Am., LLC, 22 No. 1:18-CV-00176-DAD-SKO, 2020 WL 1182653, at *2-3 (E.D. Cal. Mar. 12, 2020) 23 (proceeding to assess privacy objection after finding improper instructions not to answer based on 24 relevance or scope); Robinson, 2017 WL 4509142, at *2-3 (assessing privacy objection as basis 25 for instruction not to answer, before ultimately overruling that objection). But see Mashiri, 2014 26 WL 4608718, at *2 (finding that none of the asserted objections, including “objections based 27 upon privacy” justified an instruction not to answer, while also noting that stipulated protective 28 order obviated privacy concerns); Arcadian Cap., 2021 WL 1153356, at *1 (finding relevance, 1 privacy, and calling for legal opinion not proper bases for instruction not to answer, and noting 2 that protective order could address any legitimate privacy concerns). 3 “Resolution of a privacy objection or request for a protective order requires a balancing 4 of the need for the information sought against the privacy right asserted.” Soto v. City of 5 Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995); see Laub v. Horbaczewski, 331 F.R.D. 516, 522 6 (C.D. Cal. 2019). “In the context of the disclosure of police files, courts have recognized that 7 privacy rights are not inconsequential.” Soto, 162 F.R.D. at 616 (citing Kelly, 114 F.R.D. at 8 660). “However, these privacy interests must be balanced against the great weight afforded to 9 federal law in civil rights cases against police departments.” Id. Further, a carefully drafted 10 protective order can “minimize the impact” of disclosure. Id. 11 ii. Objections Based on the Official Information Privilege 12 “Federal common law recognizes a qualified privilege for official information.” Soto, 162 13 F.R.D. at 613 (citing Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 14 1975)). “In determining what level of protection should be afforded by this privilege, courts 15 conduct a case by case balancing analysis, in which the interests of the party seeking discovery 16 are weighed against the interests of the governmental entity asserting the privilege.” Id. “In the 17 context of civil rights suits against police departments, this balancing approach should be 18 ‘moderately pre-weighted in favor of disclosure.’” Id. (quoting Kelly v. City of San Jose, 114 19 F.R.D. 653, 661 (N.D. Cal. 1987)). 20 A party raising an official information privilege objection must first make a “substantial 21 threshold showing,” in the form of “a declaration or affidavit from a responsible official with 22 personal knowledge of the matters to be attested to in the affidavit.” Id. A so-called Kelly 23 affidavit must include: 24 (1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a statement that 25 the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that 26 would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully 27 crafted protective order would create a substantial risk of harm to significant governmental or privacy interests[;] and (5) a projection 28 of how much harm would be done to the threatened interests if 1 disclosure were made. 2 Id. at 613 (citing Kelly, 114 F.R.D. at 670). 3 The party resisting discovery must specifically describe how disclosure of the requested 4 information in that particular case would be harmful. Soto, 162 F.R.D. at 613-14. If the opposing 5 party fails to meet the threshold burden requirement of establishing cause to apply the privilege, 6 the privilege will be overruled. Chism v. County of San Bernardino, 159 F.R.D. 531, 533 (C.D. 7 Cal. 1994). If the Kelly affidavit is found sufficient, then the court proceeds to balance the 8 parties’ interests. Soto, 162 F.R.D. at 613. 9 At the subject depositions, defense counsel instructed only former Captain Lee Horton not 10 to answer questions based on the official information privilege. As their Kelly affidavit in 11 support of this objection, defendants provide a declaration by City of Vallejo Assistant City 12 Attorney Katelyn Knight, who represents both the City and the individual VPD officers in this 13 case (alongside private defense counsel). (ECF No. 181.2.) The court finds that Ms. Knight’s 14 affidavit satisfies the first three elements of the Kelly test. Although Ms. Knight is not an official 15 within the VPD itself, she is unquestionably a City official with knowledge of the matters 16 plaintiffs’ counsel sought to elicit from Horton: the nature of the City’s litigation with Captain 17 Whitney and the VPD personnel investigations that may have factored into his discharge. See 18 Soto, 162 F.R.D. at 613 (requiring “a declaration or affidavit from a responsible official with 19 personal knowledge of the matters to be attested to in the affidavit”).5 The court addresses the 20 final two elements in the context of the individual objections asserted at former Captain Horton’s 21 deposition. 22 //// 23 //// 24 5 The unredacted version of the Knight declaration that defendants emailed to the court and 25 to plaintiffs’ counsel in support of their Request to Seal contains only those pages of the declaration that contain the proposed redactions, causing plaintiffs’ counsel to object that the 26 declaration is unsigned and cut off. (See Oppo. to Req. to Seal at 3-4.) However, defendants 27 filed a complete and signed version of the Knight declaration on the docket. (ECF No. 181.2.) Defense counsel should avoid this confusing approach in the future—and should also mark all 28 proposed redactions in documents emailed to the court with requests to seal. 1 iii. Thompson Deposition 2 With respect to the deposition of defendant Officer Mark Thompson, only one 3 unanswered question is at issue in this motion. Plaintiffs’ counsel asked Officer Thompson, who 4 was one of the six officers involved in the McCoy shooting, how many alcoholic beverages he 5 typically drinks on his days off. (Joint Statement at 9, 16; Thompson Depo. p. 37.) Defense 6 counsel objected to the question based on privacy and being outside the scope of discovery, and 7 instructed Thompson to answer only as to around the time of the incident in February 2019. 8 (Thompson Depo pp. 37-40.) 9 Exceeding the scope of discovery is not a proper ground for an instruction not to answer. 10 As for the privacy objection, the court balances plaintiffs’ need for the information (i.e., its degree 11 of relevance) against the officer’s privacy interest. Officer Thompson answered how much and 12 what type of alcohol he typically drank in February 2019, which was undisputedly relevant to his 13 reaction time and competence at the shooting. Plaintiffs argue at a high level of generality that 14 VPD members’ present drinking habits are relevant because “[m]any officers” have denied 15 excessive drinking during and before the shooting, and their present drinking habits “impact the 16 credibility of those statements.” (Joint Statement at 27.) Plaintiffs fail to develop this 17 impeachment argument and offer no explanation for the relevance of Officer Thompson’s present 18 drinking habits in particular. See Bryant, 2009 WL 1390794 at *1 (party moving to compel has 19 burden to show relevance of requested discovery). On the other side, the court sees a slight 20 privacy interest in not sharing the details of an officer’s alcohol consumption—albeit quite a 21 minimal interest in light of the existing protective order (ECF No. 21). 22 Given that plaintiffs raise no other subjects to be addressed further with Officer 23 Thompson, the court will not order a reconvening of his deposition for this one question. 24 iv. Glick Deposition 25 As to the deposition of defendant Officer Bryan Glick, plaintiffs’ motion challenges three 26 questions that went unanswered at defense counsel’s instruction: one question soliciting Officer 27 Glick’s opinion of how another officer should have been disciplined for his conduct in the McCoy 28 shooting, and two questions asking if Officer Glick felt harassed or upset by this line of 1 questioning (in response to defense counsel’s objections on those grounds). (Joint Statement 2 at 11-12, Glick Depo. at 11:33:43 – 11:36:48.) 3 Defense counsel did not ground his instructions not to answer in any privilege, though he 4 referenced the privacy rights of the other officer about whom plaintiff’s counsel was inquiring. 5 As laid out above, an instruction not to answer is not an appropriate response to purportedly 6 irrelevant or harassing lines of questioning.6 Regarding the first question, the court need not 7 decide whether the other officer’s privacy interests outweigh plaintiff’s need for the disputed 8 opinion testimony from Officer Glick because, again, plaintiffs fail to make any argument as to 9 why this testimony is relevant to their claims. As to the second two questions, although the court 10 does not condone the improper instructions not to answer (as reflected in the sanctions ordered 11 below), the court also sees no conceivable need to reconvene a deposition to determine whether 12 Officer Glick felt harassed at his August 17 deposition. 13 Plaintiffs’ motion is denied as to Officer Glick’s deposition as well. 14 v. K. Tribble Deposition 15 From the deposition of former Lieutenant Kent Tribble, plaintiffs likewise challenge three 16 questions that went unanswered at defense counsel’s instruction: two regarding Tribble’s 17 drinking habits and one regarding Tribble’s recreation habits with an officer who had a bent 18 badge and had bent other officers’ badges. (Joint Statement at 10.) Tribble is not a defendant in 19 this case, but he was one of 6–9 lieutenants within the VPD during the time of the McCoy 20 shooting—placing him two ranks below the Chief (just after the two captains) at the time. (Joint 21 Statement at 6, 10.) Tribble retired from the VPD in 2021. (Tribble Depo. p. 226.) 22 Defense counsel instructed Tribble not to answer any questions regarding his drinking 23 habits—whether before, during, or after the McCoy shooting—on privacy grounds; and counsel 24 also asserted privacy as the basis for not answering the question about Tribble’s recreation with 25
6 The court acknowledges that defense counsel attempted to contact the undersigned during 26 Officer Glick’s deposition and was informed that the undersigned was unavailable. (Glick Depo. 27 at 11:50:59.) For any future depositions where the parties anticipate needing real-time rulings on deposition challenges, the parties are encouraged to contact the Courtroom Deputy in advance to 28 request the undersigned’s availability that day. 1 the other officer. (Tribble Depo. pp. 162-63, 227-28.) 2 In conducting the privacy balancing on these topics, the court concludes that testimony 3 about Tribble’s drinking habits surrounding the McCoy shooting is relevant to plaintiffs’ Monell 4 claim; whereas testimony about Tribble’s present drinking habits is not. Plaintiffs are pursuing a 5 theory that badge-bending occurred as part of an overall VPD culture of drinking after shooting 6 incidents, and that the department tolerated an environment of alcohol abuse that encouraged 7 officers to use excessive force. Therefore, the court rejects defendants’ argument that alcohol use 8 at or before the shooting “is only relevant as to shooting officers.” (Joint Statement at 17.) As a 9 VPD commander at the time, Tribble’s drinking habits before and surrounding the incident bear 10 on the question of whether the VPD’s higher-ranking members may have been drinking to a level 11 that could impact (a) their competence and ability to prevent or discipline problematic rituals and 12 uses of excessive force, or (b) the credibility of their testimony about that period. The court notes 13 that public testimony by Tribble from March 2022 in an unrelated state court criminal case 14 suggests that Tribble brought the badge-bending practice to the VPD in 2003 and that he bent the 15 badges of at least 11 VPD officers involved in shootings.7 (Joint Statement at 6.) Another more 16 junior VPD officer also publicly testified in that criminal case that he viewed Tribble as a 17 “reckless,” “scary” person with an alcohol problem. (ECF No. 180.4 at 4, 8-9; Transcript of 18 3/22/2022 morning session in California v. Dominic James Milano, No. VCR233208, (Cal. 19 Super. Ct. Solano Cty.) This makes questioning Tribble on his alcohol consumption around the 20 time of the McCoy shooting all the more likely to yield relevant testimony. 21 VPD supervisors’ alcohol use following the shooting and up to the end of 2020 (by which 22 point the badge-bending practice was becoming publicly known) is also relevant because 23 plaintiffs claim that the VPD also had a culture of not investigating and/or covering up 24 misconduct—and supervisors’ levels of competence and credibility would bear on the degree to 25 which that culture persisted after the McCoy shooting. However, as with Officer Thompson 26 (above), plaintiffs have not demonstrated how the present drinking habits of VPD members 27 7 The court has not reviewed the entirety of the transcripts from that criminal case, but 28 defendants do not dispute this characterization of the testimony. 1 (whether officers or supervisors) are relevant. 2 On the other side of the balance, whatever minimal privacy interest Tribble possesses in 3 his past drinking habits can be adequately protected by designating it Confidential under the 4 parties’ protective order. See Arcadian Cap., 2021 WL 1153356, at *1 (finding on motion to 5 compel further deposition testimony that to the extent deponent’s responses implicate legitimate 6 privacy concerns, they could be subject to the existing protective order). Accordingly, the court 7 will grant plaintiffs’ motion as to Tribble’s deposition. 8 Defendants propose that plaintiffs should propound additional interrogatories to gather 9 answers to any questions that the court orders must still be answered. (Joint Statement at 32.) 10 However, written discovery seems an inefficient method of resuming this line of questioning 11 which might require additional and unforeseeable follow-up questions, depending on Tribble’s 12 answers. Therefore, the court will order the resumption of a limited deposition of Kent Tribble. 13 As to the recreation-related question, plaintiffs argue that the desired testimony is relevant 14 to show how Tribble and another officer spent time together and whether it is credible that they 15 never discussed badge bending before the McCoy shooting. The court finds this topic relevant, 16 and the protective order will similarly protect whatever purported privacy interest Tribble has in 17 his sporting habits. Although the specific unanswered question appears to have very limited 18 utility, and Tribble already answered many of plaintiffs’ counsel’s more relevant questions on the 19 topic, the court orders Tribble to answer this final line of questioning given that his further 20 testimony is already being required as to the alcohol topic. 21 Therefore, the court orders that Kent Tribble’s deposition be resumed for the 22 limited purpose of eliciting his testimony on the above-identified topics. That testimony shall 23 be designated Confidential under the stipulated protective order, unless both sides agree 24 otherwise. 25 vi. Ramsay Deposition 26 Next, plaintiffs challenge some 14 questions that Captain Drew Ramsay was instructed 27 not to answer at his deposition. (Joint Statement at 10-11.) Like Tribble, now-Captain Ramsay is 28 not a defendant in this case, but around the time of the McCoy shooting he was a sergeant (the 1 rank just below lieutenant) charged with internal affairs investigations at the VPD. (Ramsay 2 Depo. p. 98.) 3 Defense counsel instructed Ramsay not to answer the first 8 questions at issue based on 4 objections that included an assertion of the right to privacy, and those are analyzed further below. 5 For the remaining 6 questions, no privilege was asserted in support of the instructions not to 6 answer. (Ramsay Depo. pp. 55-56, 94-97.) Defense counsel rested the instructions exclusively 7 on objections like calling for improper opinion, relevance, proportionality, and 8 argumentativeness. (Id.) This was improper, as explained above. However, a review of the 9 transcript satisfies the court that Captain Ramsay essentially answered 4 of the final 6 questions 10 anyway,8 and that the other 2 questions would not yield relevant testimony.9 Plaintiffs fail to 11 spell out their argument for the relevance of the testimony they seek to compel from Captain 12 Ramsay, resting instead on the fact that defense counsel’s instructions violated Rule 30(c)(2). 13 While breaking the rules warrants sanctions, it does not automatically warrant compelling the 14 underlying testimony at issue. 15 As to the 8 privacy-based objections, the first 5 questions Ramsay was instructed not to 16 answer asked about Ramsay’s current height and weight, former weight at the time of the 17 shooting, whether he experienced weight issues due to the shooting, his exercise routine before 18 and after the incident, and whether he attributed any change in that routine to the shooting. 19 (Ramsay Depo pp. 24-27.) Again, plaintiffs fail to explain the relevance of these subjects. 20 Ramsay was not involved in the McCoy shooting, and it is totally unclear how his height or 21 weight might factor into the Monell claim. The court also will not guess at the relevance of any 22 changes in Ramsay’s weight or exercise routine following the shooting. Accordingly, 23 defendants’ privacy objection is sustained for these 5 questions. 24 The 6th question Ramsay was instructed not to answer was regarding his current drinking 25 and illicit drug use. (Ramsay Depo pp. 27-28.) Ramsay answered both questions as to the time 26 8 See Ramsay Depo page 55, lines 18-19; page 56, lines 12-16; page 94, lines 20-24; 27 page 95, lines 12-15.
28 9 See Ramsay Depo page 55, lines 11-13; page 96, line 22 to page 97, line 1. 1 surrounding the shooting (both while on duty and off duty); testified that he has never used drugs 2 as a member of the VPD (id. pp. 28-31); and, as with Officer Thompson and Lt. Tribble, plaintiffs 3 fail to show the relevance of whether Ramsay currently drinks. Defendants’ privacy objection is 4 sustained for the 6th question as well. 5 Finally, the 7th and 8th unanswered questions asked Ramsay about how and why he used 6 to live with another member of the VPD. (Ramsay Depo. p. 33.) Defense counsel instructed 7 Ramsay not to answer based on privacy and based on a theory that in permitting certain 8 redactions to the Giordano Report the court had previously precluded discovery regarding 9 officers’ personal living arrangements. (Id.; see Joint Statement at 19.) The court’s prior ruling 10 on redactions in the Giordano Report should not be construed so broadly. Discovering the nature 11 of the relationships between members of the VPD reasonably close to the time of the McCoy 12 shooting (say, within 5 years or so) is relevant to plaintiffs’ Monell claim because that 13 information would bear on the likelihood that knowledge of the badge-bending practice was not 14 widespread and did not reach Chief Bidou before the shooting. However, in this particular 15 instance, the court knows from its prior in camera review of the Giordano Report that these 16 deposition questions were inquiring about Ramsay’s living situation for a 6-month period in 17 2005. While more recent shared housing experiences between VPD members might be relevant 18 to the level of awareness about badge bending, the questions about who Ramsay lived with 19 14 years before the McCoy shooting is not. These privacy objections are sustained as well. 20 Therefore, plaintiffs’ motion is denied as to Captain Ramsay’s deposition. 21 vii. Horton Deposition 22 The fifth and final deposition at issue is that of former Captain Lee Horton, who was one 23 of Chief Bidou’s two captains at the top of the VPD (alongside Captain Whitney) at the time of 24 the McCoy shooting. (Joint Statement at 6, 12.) Horton retired from the VPD in 2020 and is not 25 a defendant in this case. 26 By the court’s count, Horton did not answer some 16 questions at defense counsel’s 27 instruction. Of these unanswered questions, all but 2 of the instructions were based on objections 28 that included the right to privacy and/or the official information privilege. The court takes each 1 question or set of questions in turn. 2 As with Ramsay’s deposition, the first set of (four) questions Horton was instructed not to 3 answer asked about Horton’s current height and weight, his former weight at the time of the 4 shooting, any weight change since the shooting, and whether the shooting impacted his physical 5 health. (Horton Depo. pp. 20-21, 24-26.) For the same reasons just discussed with Ramsay, the 6 court sustains defendants’ privacy objection for these 4 question. 7 Likewise, the court sustains the privacy objections asserted for the 5th question (id. 8 page 26, lines 22-25), 6th question (id. page 27, lines 5-8), and 16th question (id. page 154, 9 lines 14-15) that Horton was instructed not to answer, because of plaintiffs’ failure to explain the 10 relevance of the answers to these questions probing into medical information. 11 The 7th, 10th, and 12th questions Horton was instructed not to answer inquired about 12 information that Horton learned about fellow Captain Whitney in 2017, Horton’s opinion of 13 Whitney based on the information learned, and their subsequent conversation(s) about that 14 information. (Id. pp. 49-51, 59.) Defense counsel instructed Horton not to answer, or to limit his 15 answers to, these questions based on (i) Captain Whitney’s right to privacy and (ii) the official 16 information privilege because the information Horton learned about Whitney in 2017 became the 17 subject of a personnel investigation of Captain Whitney. The court need not decide whether 18 defense counsel could properly instruct Horton not to answer based on the privacy rights of 19 Captain Whitney, whom they do not represent, because the court sustains the official information 20 privilege objection. 21 Defendants argue, in Ms. Knight’s Kelly affidavit, that permitting Horton to answer these 22 questions would have required him to divulge the contents of three VPD personnel investigations, 23 one of which ultimately resulted in Captain Whitney’s termination and is the subject of the 24 Whitney’s ongoing employment lawsuit against the City. (ECF No. 181.2 ¶ 3.) Defendants 25 further argue that Horton’s testimony on the matters underlying the personnel investigation(s) 26 would potentially subject the City to further liability in that suit for revealing confidential 27 employment records protected under California law. (Id. ¶ 5.) This argument is bolstered by the 28 fact that Whitney’s counsel in the employment litigation has requested a protective order to cover 1 the personnel investigation that resulted in Whitney’s termination. (Id. ¶ 7.) 2 As for why the stipulated protective order does not adequately protect against these risks, 3 defendants argue that disclosure even to plaintiffs and plaintiffs’ counsel would create this risk of 4 additional liability—and violate Horton’s and Whitney’s privacy rights. (Id.) In balancing these 5 interests against plaintiffs’ need for the testimony, the court finds that the risks of harm to 6 defendants wins out with respect to these three questions. In the deposition, plaintiffs’ counsel 7 obtained Horton’s testimony as to the nature of his relationship with Captain Whitney, his opinion 8 of Captain Whitney, and the general basis for that opinion. Given the City’s averment that the 9 resulting personnel investigations of Captain Whitney had nothing to do with badge bending or 10 any use of force, the court does not see a great enough need for plaintiffs to discover the precise 11 reasons for Horton’s and Whitney’s relationship being as it was. 12 The 8th, 9th, 13th, and 15th questions Horton was instructed not to answer all related to 13 his relationship with Chief Bidou prior to the McCoy shooting. Although Horton was instructed 14 not to answer the 8th question (Horton Depo. page 55, lines 6-7), he had in fact previously 15 answered that question (Horton Depo. page 51, line 7 to page 52, line 22). Skipping to the 15th 16 question (Horton Depo. page 137, line 11), the court cannot tell from the limited excerpt of the 17 transcript what topic was being discussed when Horton was instructed not to answer—and it 18 appears the question may have been sufficiently answered despite defense counsel’s instruction. 19 As for the 9th and 13th unanswered questions, however, the court overrules defense 20 counsel’s objections. The 9th question (Horton Depo. page 55, line 18) and the 13th question 21 (Horton Depo. page 103, lines 22-23) bear directly on one of the central aspects of the Monell 22 claim: the nature of the relationship between Chief Bidou and his second-in-command captains, 23 including Captain Horton, and how they communicated with one another around the time of the 24 McCoy shooting. The Kelly affidavit from Ms. Knight speaks only to the risk of harm from 25 disclosing details of the personnel investigations of Captain Whitney. While those details need 26 not be disclosed (as just discussed), it appears likely that Horton could answer questions 9 and 27 13—and related follow-up questions—without necessarily revealing such details. 28 //// 1 Accordingly, the court overrules the official information privilege objection asserted for 2 question 9. The court also sees no basis to sustain defendants’ instruction not to answer 3 question 9 based on the other objections of privacy or relevance. Defense counsel asserted no 4 privilege at all in support of the instruction not to answer question 13. (Horton Depo pp. 103-04, 5 stating only that it was argumentative, irrelevant, not proportional, and seeking improper 6 opinion.) 7 The final disputed question 14 asked whether Horton had any interest in reading the 8 public testimony given by members of the VPD (including Tribble, as mentioned above) in the 9 Milano state court criminal case. (Horton Depo. p. 129.) Defense counsel instructed Horton not 10 to answer purely based on non-privilege objections. (Id., asserting improper opinion, 11 argumentative, irrelevant, and expressly disclaiming assertion of any privilege.) This is another 12 example of a patently improper instruction not to answer. However, the court also sees no utility 13 in allowing plaintiffs to inquire further into Horton’s level of interest in reading the Milano 14 testimony. 15 Therefore, the court orders that Lee Horton’s deposition be resumed for the limited 16 purpose of eliciting his testimony on the above-identified questions 9 and 13, and follow-up 17 questions related to the nature of Horton and Bidou’s relationship and how they 18 communicated with each other from 2017 through Bidou’s retirement in 2019. That 19 testimony shall be designated Confidential under the stipulated protective order, unless both sides 20 agree otherwise. 21 3. Sanctions 22 Under Rule 37, if a motion to compel discovery is granted in part and denied in part, the 23 court may “apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). As to 24 depositions, under Rule 30, “[t]he court may impose an appropriate sanction—including the 25 reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, 26 or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). District courts have 27 wide discretion in imposing sanctions under both of these subsections. See Morgan Hill 28 Concerned Parents Ass’n v. California Dep’t of Educ., 2017 WL 3116818, at *5 (E.D. Cal. 1 July 21, 2017) (Rule 37(a)(5)(C)); Batts v. Cty. of Santa Clara, 2010 WL 545847, at *2 (N.D. 2 Cal. Feb. 11, 2010) (Rule 30(d)(2)). As Rule 30(d)(2) sanctions, courts frequently impose re- 3 deposition costs where “counsel was unjustified in instructing a deponent not to answer.” Lucas 4 v. Breg, Inc., 2016 WL 2996843, at *2 (S.D. Cal. May 13, 2016) (quotation omitted). 5 Here, the court is granting only a small fraction of plaintiffs’ motion to compel by 6 ordering the reconvening of two of the five depositions, and only for very limited lines of inquiry. 7 The court therefore imposes no attorney’s fees sanctions under Rule 37, leaving each side to bear 8 its own costs and expenses for litigating this motion. See Fed. R. Civ. P. 37(a)(5)(C). Based on 9 plaintiffs’ counsel’s failure to adequately support much of their motion to compel, an attorneys’ 10 fees award would not be in the interests of justice. See Fed. R. Civ. P. 37(a)(5)(A)(iii). 11 However, sanctions under Rule 30(d)(2) are warranted by defense counsel’s continuous 12 invocation of non-privilege-based reasons to instruct deponents not to answer. Even when 13 plaintiffs’ counsel pointed out that defense counsel’s instructions went against Rule 30, defense 14 counsel continued to instruct the above deponents not to answer based on his belief that the 15 questioning was too irrelevant or invasive. While the court ultimately agreed with defense 16 counsel in several instances listed above, defense counsel’s conduct still plainly violated the 17 federal rules. See Lucas, 2016 WL 2996843, at *4 (“Regardless of whether a judge would have 18 permitted such questions, Plaintiffs’ counsels’ role during a deposition does not include the 19 authority to essentially rule on their own objections and determine whether such questions need to 20 be answered.”). 21 Because these violations necessitate the reconvening of two depositions, the court will 22 require defense counsel to bear any reasonable expenses associated with facilitating the follow-up 23 depositions of Lee Horton and Kent Tribble. See, e.g., McClure, 2020 WL 1182653 at *6. 24 B. Defendants’ Request to Seal 25 Finally, the court turns to defendants’ request to seal and/or redact portions of the Joint 26 Statement and the declarations and exhibits offered in support. (See ECF No. 181.) Defendants 27 request that the court protect from public view (1) most (but not quite all) of the excerpts of the 28 five subject depositions—all of which were designated Confidential under the parties’ stipulated 1 protective order; (2) various portions of the Joint Statement that discuss materials designated 2 Confidential; and (3) a few lines of Ms. Knight’s declaration.10 3 Plaintiffs filed on the docket the Joint Statement with redactions proposed by defendants, 4 along with several exhibits. (ECF No. 180.) Defendants emailed their request to seal directly to 5 the court, along with unredacted versions of the Joint Statement and further exhibits that they 6 propose be filed under seal or with redactions. Plaintiffs oppose the request to seal and emailed 7 their opposition directly to the court along with several additional exhibits; and defendants 8 emailed a reply along with three more exhibits.11 9 1. Legal Standard 10 “[T]here is a ‘strong presumption in favor of access’ to information filed with a court.” In 11 re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 429 (9th Cir. 2011) (quoting 12 Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). In general, to 13 overcome the presumption, a party seeking to seal judicial records must demonstrate not just 14 “good cause,” but “compelling reasons.” Id. (citations omitted). “Despite this strong preference 15 10 Defendants also request the sealing of a sixth deposition (Req. to Seal, Exhibits 11-12) 16 and two sets of responses to Requests for Admission (Req. to Seal, Exhibits 13-14). The court did not rely upon these exhibits and STRIKES them from the record. Accordingly, defendants 17 shall omit these exhibits when re-filing their redacted exhibits as ordered herein.
18 11 Plaintiffs also submitted an Objection and Request to Strike defendants’ reply brief and its 19 exhibits, which were emailed to the court on September 23, 2022, four days after plaintiffs submitted their opposition. Plaintiffs are correct that Local Rule 141 does not contemplate reply 20 briefs in support of requests to seal—only expressly inviting opposition briefs within three days of the filing of a Notice of Request to Seal. See L.R. 141(c). The court does not condone 21 defendants’ decision to submit an uninvited reply with additional exhibits four days after plaintiffs’ opposition; however, the court had already reviewed the reply brief before receiving 22 plaintiffs’ objection. Because the reply brief proved useful to the court’s understanding of the 23 issues, the court exercises its discretion to accept the reply in this instance. However, the court had no occasion to review or rely upon the three exhibits attached to the reply. The court 24 therefore STRIKES the supplemental Slentz Declaration and the three exhibits thereto, labeled Exhibits 16-18. Accordingly, the court does not order these documents to be filed on the docket 25 (under seal or otherwise).
26 On a separate but similar note, the court finds no utility in the exhibits attached to 27 plaintiffs’ opposition brief. Accordingly, the court STRIKES the Buelna Declaration and the five exhibits attached thereto. Accordingly, the court does not order these documents to be filed on 28 the docket (under seal or otherwise). 1 for public access,” the Ninth Circuit has “carved out an exception for sealed materials attached to 2 a discovery motion unrelated to the merits of a case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 3 809 F.3d 1092, 1097 (9th Cir. 2016) (cleaned up). When this exception applies, a party seeking 4 to file under seal “need only satisfy the less exacting ‘good cause’ standard” found in Rule 26(c). 5 Id.; see Fed. R. Civ. P. 26(c)(1) (stating that a court “may, for good cause, issue an order to 6 protect a party or person from annoyance, embarrassment, oppression, or undue burden or 7 expense”). The documents defendants wish to file under seal or with redactions are all offered as 8 part of, or in support of, the instant non-dispositive discovery motion. Thus, as the parties agree, 9 defendants must demonstrate “good cause” for the protection sought. See Nixon v. Warner 10 Commc’ns, Inc., 435 U.S. 589, 599 (1978) (decisions on public access are “best left to the sound 11 discretion of the trial court, a discretion to be exercised in light of the relevant facts and 12 circumstances of the particular case”). 13 To establish good cause, first, the party seeking protection (here, defendants) must show 14 that “specific prejudice or harm will result,” absent sealing. See Foltz v. State Farm Mut. Auto. 15 Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “Broad allegations of harm, unsubstantiated by 16 specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman 17 Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). “A party asserting 18 good cause bears the burden, for each particular document it seeks to protect, of showing that 19 specific prejudice or harm will result if no protective order is granted.” Foltz, 331 F.3d at 1130. 20 This court’s local rules echo these principles by requiring requests to seal to “describe generally 21 the documents sought to be sealed, the basis for sealing,” and the “statutory or other authority for 22 sealing,” among other things. E.D. Cal. R. 141(b). 23 Second, if the court concludes that denying protection will cause particularized harm, it 24 must balance “the public and private interests” to decide whether protection is necessary. Roman 25 Catholic, 661 F.3d at 424. The Ninth Circuit has instructed district courts to conduct this 26 balancing under the factors identified in Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d 27 Cir. 1995). See Roman Catholic, 661 F.3d at 424. But even when both analytical steps weigh in 28 favor of protecting the material “a court must still consider whether redacting portions of the 1 discovery material will nevertheless allow disclosure.” Id. at 425. 2 2. Analysis 3 As a threshold matter, defendants maintain that plaintiffs are attempting to use this motion 4 as a vehicle to make public significant amounts of discovery material currently designated 5 Confidential under the parties’ stipulated protective order (“SPO”), without following the 6 procedure outlined in the SPO for challenging a confidentiality designation. (Joint Statement 7 at 15; ECF No. 181.1 (Slentz Decl.), Ex. B; Reply ISO Request to Seal at 2, 6.) The court 8 understands defendants’ complaint to be that they have been deprived of the meet-and-confer 9 requirements set forth in Section 6.2 of the SPO and have had to brief the good cause for retaining 10 the confidentiality of the subject materials on a more expedited basis than they otherwise would if 11 plaintiff had challenged the Confidentiality designations as provided in Section 6 of the SPO. 12 (Reply ISO Request to Seal at 6.) 13 The court shares defendants’ suspicion that plaintiffs wish to make public as much 14 discovery information as possible related to badge-bending within the VPD. The court will 15 continue to serve as an intermediary in that regard, ensuring that only information whose value to 16 the public outweighs the confidentiality interests hits the public record. See Glenmede Tr. Co., 17 56 F.3d at 483 (good cause factors). However, the court does not see how plaintiffs’ counsel has 18 acted contrary to either this court’s Local Rules or the terms of the SPO in litigating this motion 19 and the request to seal. While plaintiffs’ portion of the Joint Statement indeed contains far more 20 Confidential-designated information than required for the motion to compel (see Joint Statement 21 at 7-9), plaintiffs filed the Joint Statement with all of defendants’ proposed redactions. Plaintiffs’ 22 counsel did not, nor does it appear they ever intended to, publicly file any Confidential- 23 designated information on the docket. 24 This court’s process for a movant requesting to file under seal documents designated 25 confidential by an opposing party is that the movant files on the docket a notice of the request to 26 seal and sends to the court a request to seal (along with the subject materials) advising that the 27 request is based on an opposing party’s designation of the materials as confidential under a 28 stipulated protective order. The non-movant party who designated the materials confidential then 1 bears the burden of making the necessary showing to justify protection under Local Rule 141 and 2 the case law set forth above. This is precisely what plaintiffs’ counsel offered to do with this 3 motion, although defendants opted to instead file the sealing notice themselves. (ECF No. 181.) 4 Plaintiffs’ decision to oppose defendants’ request to seal also does not violate either the 5 letter or the spirit of the SPO. Defendants continue to argue, as they did in their last request to 6 seal (accompanying plaintiff’s motion to compel production of the Giordano Report) that “there is 7 a rebuttable presumption that records subject to a protective order should be ordered sealed.” 8 (Request to Seal at 3.) The court already informed defendants that no such presumption exists 9 when the records in question are subject to a stipulated protective order. (ECF No. 142 at 6, 10 explaining that defendants “are wrong” based on Roman Catholic, 661 F.3d at 424.) The court 11 expects not to see further mention of this supposed rebuttable presumption in future 12 briefing from defendants in this case unless they are prepared to demonstrate why the court’s 13 current reading of the law is incorrect. In the context of seeking to file under seal documents 14 covered by the SPO, the burden remains squarely on the party opposing disclosure to show good 15 cause. See Roman Catholic, 661 F.3d at 424 (“If a party takes steps to release documents subject 16 to a stipulated order, the party opposing disclosure has the burden of establishing that there is 17 good cause to continue the protection of the discovery material.”). 18 The risk defendants run in creating, or failing to independently resolve, discovery disputes 19 with opposing counsel is that underlying discovery materials may become public in the course of 20 the court resolving a discovery motion—if defendants fail to show good cause for protection. 21 (The same goes for plaintiffs, of course, but they do not share the same institutional 22 confidentiality concerns as the City.) To the extent the parties feel the briefing schedule for a 23 request to seal on a motion to compel is too truncated, they are welcome to offer a stipulated 24 proposal to extend the briefing deadlines (or an ex parte application, if necessary).12
25 12 To aid the parties’ understanding for any future discovery disputes brought to the court— which hopefully will be few and far between—the court also briefly addresses defendants’ new 26 argument raised in their reply that documents for which sealing is not granted should be returned 27 to the parties for re-crafting a joint statement that avoids discussing confidential-designated material, as opposed to being filed publicly without the requested redactions. Notwithstanding 28 (continued) 1 With all of that being said, the court finds that in this motion defendants have shown good 2 cause for all of the requested redactions and filings under seal. The majority of the materials 3 sought to be protected relate in one way or another to internal personnel investigations within the 4 VPD, and the rest offer no obvious public value to counterbalance the privacy interests involved. 5 While plaintiffs argue that much of the badge-bending-related information sought to be 6 protected is already in the public domain by virtue of the public testimony in the Milano criminal 7 case, they simply attach hundreds of pages of transcripts to their opposition to the request to seal 8 without any specific citations. The court will not wade through such voluminous records to make 9 plaintiffs’ argument for them. 10 Accordingly, defendants’ request to seal is granted. 11 CONCLUSION 12 For the above reasons, IT IS HEREBY ORDERED that: 13 1. Plaintiffs’ motion to compel (ECF No. 174) is GRANTED IN PART and DENIED IN 14 PART, and the September 28, 2022, hearing on that motion is VACATED; 15 a. By no later than October 5, 2022, the parties SHALL meet and confer to decide 16 upon a mutually agreeable date, time, and location for conducting the reconvened 17 depositions of Kent Tribble and Lee Horton. Each deposition is limited to no more 18 than 20 minutes to cover the subjects identified in this order; 19 b. Plaintiffs’ request for sanctions is granted only to the extent that defense counsel 20 shall bear all reasonable expenses associated with facilitating these reconvened 21 depositions; 22 //// 23 //// 24 //// 25
the text of Local Rule 141(e)(1), which refers to returning paper documents delivered to the court, 26 the court will be loath to give either party more than one bite at the apple to show good cause for 27 filing materials under seal. As has been this court’s practice in other cases involving the City of Vallejo, failure to provide good cause for proposed redactions or sealing will generally result in 28 those materials being filed publicly on the docket without the requested protection. ] 2. Defendants’ request to seal (ECF No. 181) is GRANTED; 2 a. Defendants shall forthwith: 3 i. File on the docket the Declaration of Matthew Slentz with all exhibits 4 (except those designated as Exhibits 11-14), reflecting the proposed 5 redactions submitted to the court with the request to seal; and 6 i. Send to the Clerk of Court (at ApprovedSealed@caed.uscourts.gov) for 7 filing UNDER SEAL separate PDFs of: 8 1. Defendants’ Request to Seal; 9 2. The Declaration of Matthew Slentz with all exhibits (except those 10 designated as Exhibits 11-14) in unredacted form; and 11 3. An unredacted complete copy of the Declaration of Katelyn Knight 12 (the redacted version of which was already filed at ECF No. 181.2); 13 and 14 b. The Clerk of Court is directed to immediately file UNDER SEAL the following 15 documents already in the court’s possession in file-ready format: 16 1. An unredacted copy of the Joint Statement; 17 2. Defendants’ proposed order granting the Request to Seal; 18 3. Plaintiffs’ opposition to the Request to Seal; 19 4. Defendants’ reply in support of the Request to Seal; and 20 5. Plaintiffs’ objection to defendants’ reply in support of the Request 21 to Seal. 22 | Dated: September 26, 2022 / ae / 4 ly a 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 19.meco.1191 25