1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 J.T., et al., Case Nos. 23-cv-06524-LJC Plaintiffs, 24-cv-00522-LJC 8 v. 9 ORDER REGARDING DISCOVERY 10 C FRIT AY N A CN ISD C OC ,O eU t aN l.T , Y OF SAN I DS ES FU EE NS D A AN ND T S SE RVICE OF DOE 11 Defendants. 12
13 R.P., 14 Plaintiff, 15 v.
16 CITY AND COUNTY OF SAN FRANCISCO, et al., 17 Defendants. 18
19 20 The parties in these two related cases have raised a number of discovery issues in their 21 Case Management Statements and at the case management conference on April 30, 2024. The 22 Court addresses some of those issues as follows, as well as the deadline for service of process in 23 the R.P. case. The Court further notes that, contrary to an assertion by counsel at the April 30 24 conference, discovery is now open in both cases. Any discovery disputes not resolved by this 25 Order may be raised in a manner consistent with this Court’s Standing Order. Defendants’ 26 Motions to Dismiss and Motion to Strike remain under submission and will be addressed in 27 subsequent order(s). 1 1. Named Plaintiffs’ Arrest Records 2 Plaintiffs in both cases seek police records concerning the circumstances of their arrests. 3 Such documents are routinely produced in civil rights cases challenging police action. Defendants 4 object on the basis that such records are protected under state law because plaintiffs are minors, 5 and state law procedures are available for Plaintiffs to petition for their disclosure. The law is 6 clear that a “district [can] order[] disclosure [of such records] notwithstanding state law”. 7 Gonzalez v. Spencer, 336 F.3d 832, 835 (9th Cir. 2003), abrogated on other grounds by Filarsky 8 v. Delia, 566 U.S. 377 (2012). To do so, district courts typically require a showing that “the 9 information sought must be ‘extremely relevant to the issues in the case.’” Meyer v. County of 10 San Diego, No. 21-cv-341-RSH-BLM, 2024 WL 86603, at *5 (S.D. Cal. Jan. 8, 2024) (quoting, 11 with a slight error, Maldonado v. Sec’y of Calif. Dep’t of Corr. & Rehab., No. 2:06CV02696- 12 MCE/GGH, 2007 WL 4249811, at *5 (E.D. Cal. Nov. 30, 2007) (“significantly relevant”)). 13 There is no dispute that records pertaining to Plaintiffs’ arrests are highly relevant to this 14 case challenging those arrests. As for countervailing privacy interests, all of the named Plaintiffs 15 are represented by competent counsel and duly appointed guardians ad litem, and have chosen to 16 seek disclosure of records regarding their own arrests. It is not clear to the Court why Plaintiffs 17 should not be permitted to access their own records (with any identifying information for other 18 minors redacted), or why requiring Plaintiffs to exhaust a separate process under state law would 19 serve any useful purpose. That said, because this issue has not yet been formally presented to the 20 Court by motion or discovery letter brief, the Court will allow further briefing if Defendants 21 intend to stand by their objections to disclosure. 22 Accordingly, and without waiting for a specific request for documents, the parties are 23 ORDERED to meet and confer as to whether Defendants object to a Court order allowing 24 discovery of police records without any restriction based on the privacy interests of the named 25 Plaintiffs seeking such records. Such an order would not prevent Defendants from redacting 26 information related to other minors besides the named Plaintiffs, but would not allow Defendants 27 to withhold in full documents that pertain both to the named Plaintiffs and to other minors. If 1 consistent with this Court’s Standing Order no later than May 10, 2024. If not, the parties shall 2 file a joint statement by the same deadline indicating that they have resolved this dispute. The 3 parties’ letter brief or joint statement must address whether each Plaintiff consents to disclosure of 4 such documents to the other Plaintiffs, either within the J.T. case or across both of these cases. 5 2. Absent Class Members’ Records 6 Plaintiffs in the J.T. case also seek police records pertaining to other members of the 7 putative class of arrestees, many of whom are minors. Although some minors who were arrested 8 (like the named Plaintiffs) might wish to pursue redress through this action, others might prefer 9 not to be involved and to avoid disclosure of records tying them to an arrest that would otherwise 10 generally be protected by state law. Given that Plaintiffs are reportedly in contact with many 11 putative class members, and that they can pursue discovery regarding the circumstances of the 12 alleged mass arrest without requiring disclosure of other putative class members’ identities, it is 13 not clear why Plaintiffs need identifying information for all putative class members in advance of 14 class certification. The Court is therefore inclined to defer questions of class discovery to a later 15 stage of the case, either after or closer to class certification. That said, if the Court denies 16 Defendants’ pending Motion to Strike Plaintiffs’ class allegations, and if Plaintiffs believe they 17 need such documents earlier than this Order contemplates addressing the issue, Plaintiffs may 18 serve a request for production of documents and follow the procedures in this Court’s Standing 19 Order to raise a discovery dispute if Defendants object to production. 20 3. Preservation Obligations 21 The parties do not dispute that they are obligated to preserve relevant evidence, but 22 disagree as to the specific contours of that obligation. Plaintiffs assert that Defendants failed to 23 preserve relevant Microsoft Teams chat logs, and object to Defendants’ request that Plaintiffs 24 create backup images of Plaintiffs’ smartphones and other devices. 25 The Court is satisfied that Defendants’ Teams records may be relevant to this case to the 26 extent that any named Defendant or other employee of the San Francisco Police Department 27 discussed the intended or actual police response to the 2023 Dolores Hill Bomb, including any 1 preserve any such messages. If, as Plaintiffs assert, any such messages have already been 2 destroyed, Defendants must take all reasonable steps to recover them. The parties to both cases 3 shall meet and confer either in person or by videoconference to discuss appropriate steps to 4 preserve or attempt to recover relevant Teams messages, and file no later than May 10, 2024 5 either: (1) a joint statement listing the agreed steps that Defendants will take; or (2) a discovery 6 letter brief setting forth the parties’ respective positions. 7 As for Plaintiffs’ obligations, the Court rejects Plaintiffs’ apparent position that only 8 Defendants’ evidence is relevant to this case. If Plaintiffs proceed on a claim for arrest without 9 probable cause, evidence of their location and activities (which might include location data, 10 photographs, videos, or messages describing such activities) may be relevant to resolve any 11 conflicts between Defendants’ and Plaintiffs’ accounts of what Defendants observed on the night 12 in question. If Plaintiffs proceed on claims based on conditions of confinement or excessive force, 13 there may be relevant evidence in the form of messages Plaintiffs sent describing such conditions 14 or force, either during their confinement or after the fact. (These examples are intended to be 15 illustrative rather than comprehensive.) 16 In light of the wide variety of potential evidence contained in a smartphone, and the risks 17 inherent in trusting the retention of such evidence to a small, relatively fragile device carried 18 throughout daily life by a teenager, the Court finds some method of backup imaging of each 19 named Plaintiff’s phone to be reasonable and proportional to the needs of the case.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 J.T., et al., Case Nos. 23-cv-06524-LJC Plaintiffs, 24-cv-00522-LJC 8 v. 9 ORDER REGARDING DISCOVERY 10 C FRIT AY N A CN ISD C OC ,O eU t aN l.T , Y OF SAN I DS ES FU EE NS D A AN ND T S SE RVICE OF DOE 11 Defendants. 12
13 R.P., 14 Plaintiff, 15 v.
16 CITY AND COUNTY OF SAN FRANCISCO, et al., 17 Defendants. 18
19 20 The parties in these two related cases have raised a number of discovery issues in their 21 Case Management Statements and at the case management conference on April 30, 2024. The 22 Court addresses some of those issues as follows, as well as the deadline for service of process in 23 the R.P. case. The Court further notes that, contrary to an assertion by counsel at the April 30 24 conference, discovery is now open in both cases. Any discovery disputes not resolved by this 25 Order may be raised in a manner consistent with this Court’s Standing Order. Defendants’ 26 Motions to Dismiss and Motion to Strike remain under submission and will be addressed in 27 subsequent order(s). 1 1. Named Plaintiffs’ Arrest Records 2 Plaintiffs in both cases seek police records concerning the circumstances of their arrests. 3 Such documents are routinely produced in civil rights cases challenging police action. Defendants 4 object on the basis that such records are protected under state law because plaintiffs are minors, 5 and state law procedures are available for Plaintiffs to petition for their disclosure. The law is 6 clear that a “district [can] order[] disclosure [of such records] notwithstanding state law”. 7 Gonzalez v. Spencer, 336 F.3d 832, 835 (9th Cir. 2003), abrogated on other grounds by Filarsky 8 v. Delia, 566 U.S. 377 (2012). To do so, district courts typically require a showing that “the 9 information sought must be ‘extremely relevant to the issues in the case.’” Meyer v. County of 10 San Diego, No. 21-cv-341-RSH-BLM, 2024 WL 86603, at *5 (S.D. Cal. Jan. 8, 2024) (quoting, 11 with a slight error, Maldonado v. Sec’y of Calif. Dep’t of Corr. & Rehab., No. 2:06CV02696- 12 MCE/GGH, 2007 WL 4249811, at *5 (E.D. Cal. Nov. 30, 2007) (“significantly relevant”)). 13 There is no dispute that records pertaining to Plaintiffs’ arrests are highly relevant to this 14 case challenging those arrests. As for countervailing privacy interests, all of the named Plaintiffs 15 are represented by competent counsel and duly appointed guardians ad litem, and have chosen to 16 seek disclosure of records regarding their own arrests. It is not clear to the Court why Plaintiffs 17 should not be permitted to access their own records (with any identifying information for other 18 minors redacted), or why requiring Plaintiffs to exhaust a separate process under state law would 19 serve any useful purpose. That said, because this issue has not yet been formally presented to the 20 Court by motion or discovery letter brief, the Court will allow further briefing if Defendants 21 intend to stand by their objections to disclosure. 22 Accordingly, and without waiting for a specific request for documents, the parties are 23 ORDERED to meet and confer as to whether Defendants object to a Court order allowing 24 discovery of police records without any restriction based on the privacy interests of the named 25 Plaintiffs seeking such records. Such an order would not prevent Defendants from redacting 26 information related to other minors besides the named Plaintiffs, but would not allow Defendants 27 to withhold in full documents that pertain both to the named Plaintiffs and to other minors. If 1 consistent with this Court’s Standing Order no later than May 10, 2024. If not, the parties shall 2 file a joint statement by the same deadline indicating that they have resolved this dispute. The 3 parties’ letter brief or joint statement must address whether each Plaintiff consents to disclosure of 4 such documents to the other Plaintiffs, either within the J.T. case or across both of these cases. 5 2. Absent Class Members’ Records 6 Plaintiffs in the J.T. case also seek police records pertaining to other members of the 7 putative class of arrestees, many of whom are minors. Although some minors who were arrested 8 (like the named Plaintiffs) might wish to pursue redress through this action, others might prefer 9 not to be involved and to avoid disclosure of records tying them to an arrest that would otherwise 10 generally be protected by state law. Given that Plaintiffs are reportedly in contact with many 11 putative class members, and that they can pursue discovery regarding the circumstances of the 12 alleged mass arrest without requiring disclosure of other putative class members’ identities, it is 13 not clear why Plaintiffs need identifying information for all putative class members in advance of 14 class certification. The Court is therefore inclined to defer questions of class discovery to a later 15 stage of the case, either after or closer to class certification. That said, if the Court denies 16 Defendants’ pending Motion to Strike Plaintiffs’ class allegations, and if Plaintiffs believe they 17 need such documents earlier than this Order contemplates addressing the issue, Plaintiffs may 18 serve a request for production of documents and follow the procedures in this Court’s Standing 19 Order to raise a discovery dispute if Defendants object to production. 20 3. Preservation Obligations 21 The parties do not dispute that they are obligated to preserve relevant evidence, but 22 disagree as to the specific contours of that obligation. Plaintiffs assert that Defendants failed to 23 preserve relevant Microsoft Teams chat logs, and object to Defendants’ request that Plaintiffs 24 create backup images of Plaintiffs’ smartphones and other devices. 25 The Court is satisfied that Defendants’ Teams records may be relevant to this case to the 26 extent that any named Defendant or other employee of the San Francisco Police Department 27 discussed the intended or actual police response to the 2023 Dolores Hill Bomb, including any 1 preserve any such messages. If, as Plaintiffs assert, any such messages have already been 2 destroyed, Defendants must take all reasonable steps to recover them. The parties to both cases 3 shall meet and confer either in person or by videoconference to discuss appropriate steps to 4 preserve or attempt to recover relevant Teams messages, and file no later than May 10, 2024 5 either: (1) a joint statement listing the agreed steps that Defendants will take; or (2) a discovery 6 letter brief setting forth the parties’ respective positions. 7 As for Plaintiffs’ obligations, the Court rejects Plaintiffs’ apparent position that only 8 Defendants’ evidence is relevant to this case. If Plaintiffs proceed on a claim for arrest without 9 probable cause, evidence of their location and activities (which might include location data, 10 photographs, videos, or messages describing such activities) may be relevant to resolve any 11 conflicts between Defendants’ and Plaintiffs’ accounts of what Defendants observed on the night 12 in question. If Plaintiffs proceed on claims based on conditions of confinement or excessive force, 13 there may be relevant evidence in the form of messages Plaintiffs sent describing such conditions 14 or force, either during their confinement or after the fact. (These examples are intended to be 15 illustrative rather than comprehensive.) 16 In light of the wide variety of potential evidence contained in a smartphone, and the risks 17 inherent in trusting the retention of such evidence to a small, relatively fragile device carried 18 throughout daily life by a teenager, the Court finds some method of backup imaging of each 19 named Plaintiff’s phone to be reasonable and proportional to the needs of the case. The Court has 20 not reached a conclusion as to whether forensic imaging is necessary or if commercial backup 21 software might be sufficient. The parties to both cases shall meet and confer in person or by 22 videoconference to identify a specific process to preserve data from Plaintiffs’ smartphones, and 23 file no later than May 10, 2024 either a joint statement identifying an agreed process or a 24 discovery letter brief setting forth their respective positions. 25 Defendants also requested that Plaintiffs preserve relevant evidence saved through game 26 consoles. Modern gaming often takes place online, and gaming consoles are used frequently to 27 facilitate social networking and communication through various online gaming platforms. There 1 PlayStation Network, Twitch, YouTube Gaming, and messaging functions included within 2 specific games available on those and other platforms. The duty to preserve evidence “includes an 3 obligation to identify, locate, and maintain information that is relevant to specific, predictable, and 4 identifiable litigation.” Apple v. Samsung Electronics Co., Ltd., 881 F. Supp. 2d 1132, 1137 (N.D. 5 Cal. 2012) (quoting The Sedona Conf. Working Group on Electronic Document Retention & 6 Production, the Sedona Conf. Comment on Legal Holds: The Trigger and the Process 1 (public 7 cmt. Aug. 2007)). Plaintiffs counsel in both the J.T. and R.P. cases shall ask the individual 8 Plaintiffs if they communicated about the incidents at issue in this case using any gaming console 9 or platform, and if they did, Plaintiffs shall take steps to preserve any messages that may be 10 relevant to the claims and relief sought. Such steps need not include complete backup imaging of 11 gaming devices, so long as other reliable methods are available to preserve all such messages. 12 If the meet-and-confer process and follow-up steps outlined above lead any party to 13 believe that relevant evidence has been irrevocably lost at a time when an opposing party had an 14 obligation to preserve it, the parties may address potential sanctions for spoliation at an 15 appropriate later stage of the case. 16 4. Service of Doe Defendants in R.P. 17 Plaintiff R.P.’s only federal claims are asserted against unidentified and unserved 18 individual Doe Defendants. Although the use of Doe defendants is generally disfavored in federal 19 court, it is permissible in circumstances like this case. “Where the identity of the alleged 20 defendant is not known prior to the filing of a complaint, the plaintiff should be given an 21 opportunity through discovery to identify the unknown defendants, unless it is clear that discovery 22 would not uncover the identities, or that the complaint would be dismissed on other grounds.” 23 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Dismissal under such 24 circumstances, without an opportunity for discovery, is reversible error. Id.; see also Gillespie v. 25 Civiletti, 629 F.2d 637, 642–43 (9th Cir. 1980). The Court does not find other clear grounds for 26 dismissal of all claims against Doe Defendants at this time, and therefore grants R.P. leave to 27 conduct discovery to identify the individuals he wishes to sue. 1 motion or on its own after notice to the plaintiff—must dismiss the action without prejudice 2 against that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 44m). 3 Dismissal without prejudice would serve no purpose here, when R.P. intends to pursue his claims, 4 || could simply refile his complaint if dismissed, and is entitled to pursue discovery as discussed 5 above. The Court therefore extends time for service through July 29, 2024, and grants R.P. leave 6 || to amend his Complaint any time before that deadline to name the Doe Defendants he intends to 7 serve. R.P. is encouraged to amend and serve his Complaint sooner than that deadline if he is able 8 to do so. He may also file an administrative motion to further extend time if he believes good 9 cause requires such an extension. 10 Pending identification and service of the Doe Defendants, the Court declines to rule on 11 Defendants’ Motion to Dismiss in the R.P. case (ECF No. 25), which implicates state law claims 12 || against the City and County of San Francisco that might ultimately fall outside this Court’s subject 13 matter jurisdiction if R.P. is not able to identify and serve a defendant against whom he can state a 14 || viable claim under federal law. 3 15 IT IS SO ORDERED. 16 || Dated: May 2, 2024
lps, | party — ‘A J. CISNEROS 19 ited States Magistrate Judge 20 21 22 23 24 25 26 27 28