1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MICHAEL ZELENY, Case No. 17-cv-07357-RS (TSH)
7 Plaintiff, DISCOVERY ORDER 8 v. Re: Dkt. No. 115 9 GAVIN NEWSOM, et al., 10 Defendants.
11 12 This case is about crusades. Plaintiff Michael Zeleny has been on a crusade to expose the 13 wrongdoing of a prominent Silicon Valley executive, Min Zhu. From 2005 to 2012 Zeleny staged 14 public protests of Zhu and his cohorts at New Enterprise Associates and WebEx. Zeleny’s 15 protests took the form of in-person demonstrations, musical performances, and multimedia posts 16 on YouTube. His protests were intended to be provocative. They included flyers and posters with 17 graphic content that called out individuals by name. Zeleny eventually combined the First 18 Amendment with the Second and started openly carrying and displaying unloaded firearms during 19 his protests. 20 But Zeleny says the City of Menlo Park has been on a crusade too. Fed up with his loud 21 and unwelcome message, the City allegedly entered into a conspiracy with NEA to stifle Zeleny 22 and stop his protests. The conspiracy began in 2009, and the City’s part of it consisted of 23 harassing Zeleny, with police constantly stopping and questioning him and his supporters without 24 any reasonable suspicion of wrongdoing. Undercover officers in unmarked cars trailed him and 25 his supporters, and followed him wherever he went. The police interfered with his protests, 26 surveilled him, and falsely branded him a security risk. In 2012 the City went so far as to 27 frivolously refer Zeleny to the San Mateo County District Attorney’s Office for a sham 1 adoption of new legislation regarding open carry, the City adopted a new municipal policy that 2 requires Zeleny to obtain a permit if he is to carry an unloaded firearm during his protests. In 3 furtherance of the conspiracy, the City has continuously denied Zeleny’s applications, all to stifle 4 his free speech and Second Amendment rights. 5 Or, at least, that’s what he says. In an effort to obtain evidence to back up these 6 accusations, Zeleny served document requests on the City for any documents relating to him or to 7 any actual or contemplated arrest or criminal prosecution of him. The parties are now before the 8 Court on a dispute concerning about 40 pages of responsive documents, over which the City 9 claims the official information privilege. 10 Federal courts recognize a “qualified privilege” for official information. See Kerr v. U.S. 11 District Court for Northern Dist. of California, 511 F.2d 192, 198 (9th Cir. 1975).1 A 12 governmental entity seeking to invoke the privilege must “make a substantial threshold showing.” 13 Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987). It must, “through competent 14 declarations,” “provide[] the court with specific information about how the disclosure of the 15 subject material, in the situation presented by the case at hand, would harm significant law 16 enforcement or privacy interests.” Id. (emphasis original).2 If it does so, the court must “conduct 17 a case by case balancing analysis, in which the interests of the party seeking discovery are 18 weighed against the interests of the governmental entity asserting the privilege.” Soto v. City of 19 Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). The test is “moderately pre-weighted in favor of 20
21 1 The City also objects to production of these documents pursuant to California Evidence Code § 1040. However, all of Zeleny’s claims arise under federal law, see Second Amended Complaint, 22 ECF No. 99, ¶¶ 194-235, so the federal law of privilege applies. See Fed. R. Evid. 501. Indeed, the Ninth Circuit has specifically rejected the application of California Evidence Code § 1040 in a 23 federal lawsuit alleging a claim under 42 U.S.C. § 1983, see Kerr, 511 F.2d at 197, as Zeleny does here against the City, see SAC ¶¶ 218-24 (fourth claim for relief). See also Kelly v. City of San 24 Jose, 114 F.R.D. 653, 655 (N.D. Cal. 1987) (“At the outset it is important to emphasize that in a civil rights case brought under federal statutes questions of privilege are resolved by federal 25 law.”). The cover page of the parties’ joint discovery letter brief, as well as Zeleny’s section of the letter, says that the City also objects to production based on California Government Code § 26 6253(f). However, the City’s section of the letter makes no reference to that provision. Regardless, as explained, the federal law of privilege applies. 27 2 The law enforcement investigatory privilege is similar and does not require separate analysis. 1 disclosure.” Kelly, 114 F.R.D. at 661. 2 Because this is a qualified privilege, we have to start with relevance. If a document is core 3 to the case, a qualified privilege is easier to overcome. But if it’s collateral or unimportant, there’s 4 less need to compromise the legitimate interests law enforcement may have in confidentiality. See 5 Kelly, 114 F.R.D. at 663 (“Some courts have stated expressly that . . . the importance of the 6 information sought to the plaintiff’s case is clearly the most important” factor) (citations and 7 quotations marked omitted). Here, the documents are clearly relevant to Zeleny’s conspiracy 8 allegations. They are mostly dated 2012 and 2013 (with one in April 2011), during the most 9 dangerous time in the conspiracy, when the police were harassing Zeleny and his supporters, and 10 when the City was trying to have him imprisoned on a trumped up concealed-carry charge. 11 But a document has to be relevant to a “claim or defense,” Fed. R. Civ. Proc. 26(b)(1), not 12 just to an allegation. So, we need to analyze the role the conspiracy plays in Zeleny’s claims 13 against the City and its police chief. Let’s start with the first claim for relief. Zeleny alleges that 14 the City threatened him with criminal prosecution by claiming that some of his protest materials 15 are obscene as to children and he seeks a declaration that they’re not obscene and, more generally, 16 that his protests are protected First Amendment activity. The role of the conspiracy in this claim 17 seems to depend on how the City responds to it. If the City says yes, it did make those threats and 18 his posters are obscene as to children, the claim boils down to evaluating the obscenity status of 19 some posters, which really has nothing to do with the City’s conduct. But if the City denies 20 making the threats, or says the threats were because of neutral time, place and manner restrictions, 21 then the City’s motives become important in deciding who to believe. The conspiracy allegations 22 function here mostly as evidence of motive and pretext. If they can be borne out by evidence, they 23 would tend to show that the City’s actions were driven by bias against Zeleny and his message and 24 that the City’s denials should be disbelieved. In his second claim, Zeleny alleges that the City has wrongly interpreted the state open 25 carry laws to create three problems (requirement for a permit, unfettered discretion, distinctions 26 between forms of speech that are not meaningfully different) that give rise to a First Amendment 27 1 pleaded, it doesn’t seem to turn on bias against Zeleny and his message. Of course, an unfettered 2 discretion claim looks better to the trier of fact if the plaintiff can also show that the unfettered 3 discretion was exercised with bias against him, so atmospherically the conspiracy allegations help 4 here, even if they are not the essence of the claim. 5 But things come into sharper focus in the third claim.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MICHAEL ZELENY, Case No. 17-cv-07357-RS (TSH)
7 Plaintiff, DISCOVERY ORDER 8 v. Re: Dkt. No. 115 9 GAVIN NEWSOM, et al., 10 Defendants.
11 12 This case is about crusades. Plaintiff Michael Zeleny has been on a crusade to expose the 13 wrongdoing of a prominent Silicon Valley executive, Min Zhu. From 2005 to 2012 Zeleny staged 14 public protests of Zhu and his cohorts at New Enterprise Associates and WebEx. Zeleny’s 15 protests took the form of in-person demonstrations, musical performances, and multimedia posts 16 on YouTube. His protests were intended to be provocative. They included flyers and posters with 17 graphic content that called out individuals by name. Zeleny eventually combined the First 18 Amendment with the Second and started openly carrying and displaying unloaded firearms during 19 his protests. 20 But Zeleny says the City of Menlo Park has been on a crusade too. Fed up with his loud 21 and unwelcome message, the City allegedly entered into a conspiracy with NEA to stifle Zeleny 22 and stop his protests. The conspiracy began in 2009, and the City’s part of it consisted of 23 harassing Zeleny, with police constantly stopping and questioning him and his supporters without 24 any reasonable suspicion of wrongdoing. Undercover officers in unmarked cars trailed him and 25 his supporters, and followed him wherever he went. The police interfered with his protests, 26 surveilled him, and falsely branded him a security risk. In 2012 the City went so far as to 27 frivolously refer Zeleny to the San Mateo County District Attorney’s Office for a sham 1 adoption of new legislation regarding open carry, the City adopted a new municipal policy that 2 requires Zeleny to obtain a permit if he is to carry an unloaded firearm during his protests. In 3 furtherance of the conspiracy, the City has continuously denied Zeleny’s applications, all to stifle 4 his free speech and Second Amendment rights. 5 Or, at least, that’s what he says. In an effort to obtain evidence to back up these 6 accusations, Zeleny served document requests on the City for any documents relating to him or to 7 any actual or contemplated arrest or criminal prosecution of him. The parties are now before the 8 Court on a dispute concerning about 40 pages of responsive documents, over which the City 9 claims the official information privilege. 10 Federal courts recognize a “qualified privilege” for official information. See Kerr v. U.S. 11 District Court for Northern Dist. of California, 511 F.2d 192, 198 (9th Cir. 1975).1 A 12 governmental entity seeking to invoke the privilege must “make a substantial threshold showing.” 13 Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987). It must, “through competent 14 declarations,” “provide[] the court with specific information about how the disclosure of the 15 subject material, in the situation presented by the case at hand, would harm significant law 16 enforcement or privacy interests.” Id. (emphasis original).2 If it does so, the court must “conduct 17 a case by case balancing analysis, in which the interests of the party seeking discovery are 18 weighed against the interests of the governmental entity asserting the privilege.” Soto v. City of 19 Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). The test is “moderately pre-weighted in favor of 20
21 1 The City also objects to production of these documents pursuant to California Evidence Code § 1040. However, all of Zeleny’s claims arise under federal law, see Second Amended Complaint, 22 ECF No. 99, ¶¶ 194-235, so the federal law of privilege applies. See Fed. R. Evid. 501. Indeed, the Ninth Circuit has specifically rejected the application of California Evidence Code § 1040 in a 23 federal lawsuit alleging a claim under 42 U.S.C. § 1983, see Kerr, 511 F.2d at 197, as Zeleny does here against the City, see SAC ¶¶ 218-24 (fourth claim for relief). See also Kelly v. City of San 24 Jose, 114 F.R.D. 653, 655 (N.D. Cal. 1987) (“At the outset it is important to emphasize that in a civil rights case brought under federal statutes questions of privilege are resolved by federal 25 law.”). The cover page of the parties’ joint discovery letter brief, as well as Zeleny’s section of the letter, says that the City also objects to production based on California Government Code § 26 6253(f). However, the City’s section of the letter makes no reference to that provision. Regardless, as explained, the federal law of privilege applies. 27 2 The law enforcement investigatory privilege is similar and does not require separate analysis. 1 disclosure.” Kelly, 114 F.R.D. at 661. 2 Because this is a qualified privilege, we have to start with relevance. If a document is core 3 to the case, a qualified privilege is easier to overcome. But if it’s collateral or unimportant, there’s 4 less need to compromise the legitimate interests law enforcement may have in confidentiality. See 5 Kelly, 114 F.R.D. at 663 (“Some courts have stated expressly that . . . the importance of the 6 information sought to the plaintiff’s case is clearly the most important” factor) (citations and 7 quotations marked omitted). Here, the documents are clearly relevant to Zeleny’s conspiracy 8 allegations. They are mostly dated 2012 and 2013 (with one in April 2011), during the most 9 dangerous time in the conspiracy, when the police were harassing Zeleny and his supporters, and 10 when the City was trying to have him imprisoned on a trumped up concealed-carry charge. 11 But a document has to be relevant to a “claim or defense,” Fed. R. Civ. Proc. 26(b)(1), not 12 just to an allegation. So, we need to analyze the role the conspiracy plays in Zeleny’s claims 13 against the City and its police chief. Let’s start with the first claim for relief. Zeleny alleges that 14 the City threatened him with criminal prosecution by claiming that some of his protest materials 15 are obscene as to children and he seeks a declaration that they’re not obscene and, more generally, 16 that his protests are protected First Amendment activity. The role of the conspiracy in this claim 17 seems to depend on how the City responds to it. If the City says yes, it did make those threats and 18 his posters are obscene as to children, the claim boils down to evaluating the obscenity status of 19 some posters, which really has nothing to do with the City’s conduct. But if the City denies 20 making the threats, or says the threats were because of neutral time, place and manner restrictions, 21 then the City’s motives become important in deciding who to believe. The conspiracy allegations 22 function here mostly as evidence of motive and pretext. If they can be borne out by evidence, they 23 would tend to show that the City’s actions were driven by bias against Zeleny and his message and 24 that the City’s denials should be disbelieved. In his second claim, Zeleny alleges that the City has wrongly interpreted the state open 25 carry laws to create three problems (requirement for a permit, unfettered discretion, distinctions 26 between forms of speech that are not meaningfully different) that give rise to a First Amendment 27 1 pleaded, it doesn’t seem to turn on bias against Zeleny and his message. Of course, an unfettered 2 discretion claim looks better to the trier of fact if the plaintiff can also show that the unfettered 3 discretion was exercised with bias against him, so atmospherically the conspiracy allegations help 4 here, even if they are not the essence of the claim. 5 But things come into sharper focus in the third claim. Here, Zeleny alleges that the City’s 6 policy with respect to issuing permits for people to use unloaded firearms in various types of 7 performances is unconstitutionally vague. But he also alleges in the alternative in paragraph 215 8 that the City singled him out to stifle his protests because of the content of his speech. Bias 9 against Zeleny’s message is the core of that contention. And whatever evidence he is able to 10 assemble of a years-long conspiracy against him is presumably how he would prove that 11 contention. 12 Finally, any doubt about the relevance of the conspiracy is wiped away by the fourth claim 13 for relief. Paragraphs 221 and 223 allege that the City threatened Zeleny with criminal 14 prosecution to silence him and his message. So, while the role of bias against Zeleny’s message is 15 not necessarily clear in the first and second claims for relief, it is an alternative liability theory in 16 the third claim and the very essence of the fourth claim. Accordingly, the documents at issue are 17 relevant. And they are not just a little bit relevant. They date from the time Zeleny alleges the 18 police were constantly harassing him and his supporters, so the police file is among the most 19 important evidence necessary to evaluate the allegations at the heart of the fourth claim for relief. 20 Thus, the qualified privilege starts out on shaky ground because these documents look like they’re 21 core. 22 The City’s position is not helped by Police Chief Dave Bertini’s boilerplate declaration 23 that is the opposite of substantial and specific. The first two paragraphs state his job title and that 24 the declaration is based on personal knowledge. The next paragraph says that the police investigate things, sometimes working with other law enforcement agencies, and keep what they 25 find confidential. The fourth paragraph appears to be the entire justification for the official 26 information privilege, and it is so generic the police could use it in any lawsuit about anything: 27 the instant litigation pursuant to a protective order, would irreparably 1 harm the ability of the Menlo Park Police Department and other law enforcement agencies (local, state and federal) to conduct criminal 2 and/or public safety investigations. It is in the interest of justice to maintain the confidentiality of this material because its production 3 would necessarily disclose how the Menlo Park Police Department and other law enforcement agencies obtain information and conduct 4 their investigations and thus complicate their ability to conduct future investigations and irreparably damage any ongoing investigations. 5 The production of this confidential official information would also 6 disclose private and confidential information about third persons. 7 The paragraph after that states that Zeleny’s document requests seek, in part, confidential police 8 || documents. And then Bertini swears the declaration under penalty of perjury. Bertini’s 9 || declaration is so lackluster, the Court could overrule the City’s privilege claim on this ground 10 alone. Indeed, Kelly holds that the Court should do exactly that and not even bother with an in 11 camera review if the defendant’s affidavit is insufficient. 114 F.R.D. at 671. 12 But in an abundance of caution, the Court has conducted an in camera review of the
& 13 documents at issue. They contain some information that was sensitive eight years ago, such as
v 14 || planned visits to the area by a presidential candidate and the Secretary of Defense. There are also
15 || law enforcement updates on then-recent events, suspicious activities, and assessments of security Sam A 16 || threats to the 2012 election. None of the documents are classified. These documents are so stale
3 17 || that their production will not in any way undermine legitimate law enforcement objectives.
Z 18 Because the documents have the names of specific people in them, including law enforcement 19 officers and others, they should not be posted on the internet for the whole world to see, but there 20 || isn’t anything in them that justifies not giving them to Zeleny. 21 The Court OVERRULES the City’s privilege objection and ORDERS it to produce these 22 || documents, subject to an appropriate protective order. Within seven days the parties shall file a 23 || jointly proposed protective order, or they shall file competing proposed orders and a joint 24 || discovery letter brief, not to exceed five pages, arguing for their respective positions. 25 IT IS SO ORDERED. 26 || Dated: February 28, 2020 27 TAA. | THOMAS S. HIXSON 28 United States Magistrate Judge