The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JUDY O’NEIL, Case No. 17-cv-07190-JCS
8 Plaintiff,
ORDER DENYING IN PART MOTION
9 v. TO RETAIN CONFIDENTIALITY AND
DENYING ADMINISTRATIVE
10 CITY AND COUNTY OF SAN MOTION TO FILE UNDER SEAL
FRANCISCO, et al.,
11 Re: Dkt. Nos. 134, 136
Defendants.
12
13 I. INTRODUCTION
14 This civil case arises from the fatal 2017 shooting of Keita O’Neil. Defendants the City
15 and County of San Francisco, Edric Talusan, and Christopher Samayoa designated a large portion
16 of the documents they produced in discovery as confidential pursuant to a protective order, and
17 Plaintiff Judy O’Neil—Keita O’Neil’s mother—challenged the validity of many of those
18 designations, and Defendants withdrew some of them. Criminal charges related to the shooting
19 are currently pending against Samayoa, a former police officer. Defendants now move to retain
20 confidentiality as to several broad categories of documents. The Court held a hearing on April 30,
21 2021. For the reasons discussed below, the motion is DENIED as to the only document addressed
22 with any specificity: a photograph of what appears to be a memorial to Mr. O’Neil.
23 The Court declines to resolve the propriety of confidentiality designations for documents
24 not specifically addressed by the parties. The parties agreed at the hearing that further disputes
25 will be addressed as needed for documents that Plaintiff intends to use for summary judgment or
26 trial. Plaintiff’s administrative motion to file under seal (dkt. 136) is DENIED.1
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1 II. BACKGROUND
2 The Court entered a stipulated protective order in this case allowing parties to designate
3 material produced in discovery as confidential, subject to the following conditions:
4 5.1 Exercise of Restraint and Care in Designating Material for
Protection. Each Party or Non-Party that designates information or
5 items for protection under this Order must take care to limit any such
designation to specific material that qualifies under the appropriate
6 standards. The Designating Party must designate for protection only
those parts of material, documents, items, or oral or written
7 communications that qualify – so that other portions of the material,
documents, items, or communications for which protection is not
8 warranted are not swept unjustifiably within the ambit of this Order.
9 Mass, indiscriminate, or routinized designations are prohibited.
Designations that are shown to be clearly unjustified or that have been
10 made for an improper purpose (e.g., to unnecessarily encumber or
retard the case development process or to impose unnecessary
11 expenses and burdens on other parties) expose the Designating Party
to sanctions.
12
If it comes to a Designating Party’s attention that information or items
13 that it designated for protection do not qualify for protection, that
Designating Party must promptly notify all other Parties that it is
14 withdrawing the mistaken designation.
15 Protective Order (dkt. 39) at 3–4. The protective order limits the use and disclosure of material
16 designated as confidential, although it generally allows use as needed for the prosecution or
17 defense of the case. Id. at 7–8.
18 The protective order provides the following procedure for resolving any disputes as to
19 designations. A party may challenge an opponent’s designation of confidentiality at any time “by
20 providing written notice of each designation it is challenging and describing the basis for each
21 challenge,” and generally does not waive a challenge by failing to raise it promptly after receiving
22 notice of the designation. Id. at 5. The parties must meet and confer to attempt to resolve the
23 dispute. Id. at 5–6. If they are unable to reach an agreement, “the Designating Party shall file and
24 serve a motion to retain confidentiality” and bears the burden of persuasion to show that the
25 document should remain confidential. Id. at 6. “Frivolous challenges, and those made for an
26 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)
27 may expose the Challenging Party to sanctions.” Id.
1 confidentiality designations of the following categories of documents:
2 1. Homicide Investigative File (CCSF 1-1235)
2. DPA Audio Interviews
3 3. Medical Examiners’ Report (CCSF 2051-2078)
4. Body Worn Cameras (CCSF 2079-2080; 3051; 5059)
4 5. DPA Investigations (CCSF 2081-2499; 2510-2851)
6. Police Commission Report (CCSF 2500-2509)
5 7. Incident Reports (CCSF 2852-2893)
8. SFPD Notes for Presentation (CCSF 2894-2896)
6 9. Field Training Program (CCSF 2897-2995)
10. 911 Call Audio & Dispatch Audio (CCSF 2996-3030; 5005-5030)
7 11. Audio Interviews (CCSF 3031-3049; 5049; 5059; 5063-5079)
12. Surveillance Videos (CCSF 3050)
8 13. Scene Photos & Videos (CCSF 5032-5048; 5050-5058;5080-
5731; 5934-6037)
9 14. Video Interviews & Training Videos (CCSF 5732-5739; 5758-
5777)
10 15. Medical Examiner Photos (CCSF 5779-5833)
16. Samayoa BWC Still Shots (CCSF 6038-6533)
11
12 Sims Decl. (dkt. 134-1) Ex. A at 1.
13 Plaintiff’s counsel cited section 832.7 of the California Penal Code, which generally
14 provides for public access to records regarding shootings by police officers. Id. at 1–2; see Cal.
15 Penal Code § 832.7(b)(1)(A). Defense counsel responded that section 832.7(b)(7) of the Penal
16 Code creates an exception to that right of access when criminal charges are pending, and
17 Plaintiff’s counsel argued that the Federal Rules of Evidence and general principles of public
18 access to discovery nevertheless prohibit Defendants’ broad designations of confidentiality. Sims
19 Decl. Ex. B, C. When the parties met and conferred by telephone, Defendants agreed to withdraw
20 their designations as to 1,231 pages, but the parties were not otherwise able to resolve the dispute.
21 Sims Decl. ¶ 5.
22 Defendants argue in their motion that disclosure of the documents at issue would influence
23 the jury pool and witnesses for Samayoa’s criminal trial, embarrass third-party witnesses
24 (including Mr. O’Neil’s alleged accomplices in a carjacking) and members of Mr. O’Neil’s
25 family, and imperil public safety by disclosing police tactics in training materials, among other
26 justifications. See generally Mot. (dkt. 134). Defendants address the documents at issue in broad
27 categories: (1) interview transcripts and videos; (2) the San Francisco Police Department
1 file; (4) the medical examiner’s report and photographs; (5) audio from a 911 call and a police
2 dispatcher; (6) documents regarding an SFPD tactical training course; (7) SFPD incident reports;
3 and (8) photographs and videos from the scene of the shooting. See id. Defendants also asserted
4 that the official information privilege or law enforcement privilege applies, see id. at 16 & Notice
5 of Mot. ¶ 5, but withdrew that argument in their reply, recasting that portion of their motion as
6 having “only ma[de] a mention of the official information privilege to bolster the argument that
7 the law frequently recognizes that there can be harm to law enforcement officers or agencies when
8 information is publicly disclosed,” Reply (dkt. 137). Plaintiff argues in her opposition brief that
9 the burden is on Defendants to justify their designations, Plaintiff should not be required to
10 address specific documents, and the motion should be denied because Defendants have not
11 provided all of the documents at issue to the Court. See generally Opp’n (dkt. 135).
12 III. ANALYSIS
13 A. Legal Standard
14 The Ninth Circuit has addressed the standard for a motion to sustain confidentiality as
15 follows:
16 If a party takes steps to release documents subject to a stipulated
order, the party opposing disclosure has the burden of establishing
17 that there is good cause to continue the protection of the discovery
material.
18
A court considering a motion for a continuation of the protective order
19 must proceed in two steps. First, it must determine whether
“particularized harm will result from disclosure of information to the
20 public.” As we have explained, “[b]road allegations of harm,
unsubstantiated by specific examples or articulated reasoning, do not
21 satisfy the Rule 26(c) test.” Rather, the person seeking protection
from disclosure must “allege specific prejudice or harm.” Second, if
22 the court concludes that such harm will result from disclosure of the
discovery documents, then it must proceed to balance “the public and
23 private interests to decide whether [maintaining] a protective order is
necessary.” . . . .
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But even when the factors in this two-part test weigh in favor of
25 protecting the discovery material (i.e., where the court determines that
disclosure of information may result in “particularized harm,” and the
26 private interest in protecting the discovery material outweighs the
public interest in disclosure), a court must still consider whether
27 redacting portions of the discovery material will nevertheless allow
1 In re Roman Cath. Archbishop of Portland in Or., 661 F.3d 417, 424–25 (9th Cir. 2011) (citations
2 omitted without ellipses; some alterations in original).
3 The following factors identified by the Third Circuit inform the inquiry:
4 1) whether disclosure will violate any privacy interests;
5 2) whether the information is being sought for a legitimate purpose
or for an improper purpose;
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3) whether disclosure of the information will cause a party
7 embarrassment;
8 4) whether confidentiality is being sought over information
important to public health and safety;
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5) whether the sharing of information among litigants will promote
10 fairness and efficiency;
11 6) whether a party benefitting from the order of confidentiality is a
public entity or official; and
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7) whether the case involves issues important to the public.
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14 Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995); see In re Roman Cath.
15 Archbishop, 66 F.3d at 424 (endorsing the factors identified in Glenmede Trust).
16 B. The Parties Have Not Presented a Manageable Dispute
17 With both parties having largely failed to address the contents of specific documents at
18 issue, the Court is unable to resolve the dispute as to all of the myriad documents for which
19 Plaintiff challenges Defendants’ confidentiality designations.
20 Some of Defendants’ arguments likely sweep to far. For example, the contention that
21 disclosing the “extent and number of staff hours the DPA devoted to this investigation” would
22 unduly influence the jury pool by “reveal[ing] the DPA’s impressions regarding how seriously
23 they regarded this matter,” Mot. at 20, rests on assumptions not only that a significant portion of
24 the jury pool would be exposed to that information, but also that jurors would infer guilt from the
25 fact that the DPA conducted a thorough investigation. The latter is particularly questionable, as it
26 is neither surprising nor inherently indicative of guilt that relevant authorities thoroughly
27 investigated a fatal shooting. Similarly, the assumption that disclosing the “SFPD officers who
1 discipline or misconduct” appears to be unfounded, as it is not clear why anyone would infer
2 misconduct rather than such officers having merely been witnesses to the events at issue. See id.
3 And Defendants’ concern that “Mr. O’Neil’s accomplices to the carjacking . . . would be publicly
4 tied to this shooting,” id. at 18, which “would likely cause them embarrassment,” id. at 22, rings
5 hollow when Defendants themselves have disclosed those alleged accomplices’ names in their
6 publicly-filed motion, id. at 9–10. Defendants having already publicly disclosed video footage of
7 the shooting also tends to undermine the degree of additional prejudice that could result from
8 disclosing other objective evidence of the events captured in those videos.2
9 On the other hand, Defendants have a strong interest in preventing the dissemination of
10 (1) prejudicial information to the jury pool for Samayoa’s criminal trial, and likely for this case as
11 well; (2) information that might impede or undermine the investigation and prosecution of the
12 criminal case; (3) information that might prejudice the defense in the criminal case;
13 (4) information that may invade the privacy of third parties; and (5) information that might impair
14 other significant interests. Some degree of overcautiousness in designating documents as
15 confidential is therefore understandable.
16 The dispute resolution process provided in the protective order contemplates narrower
17 disputes than the parties raise here. While it is ultimately Defendants’ burden to justify their
18 designations of confidentiality, it is not reasonable to expect Defendants to address thousands of
19 documents in a single motion, nor is it inherently improper for Defendants to have designated a
20 large number of documents as confidential. And while there may be some reason to believe
21 Defendants violated the protective order’s prohibition of “[m]ass, indiscriminate, or routinized
22 designations,” Protective Order at 4, Plaintiff’s failure to identify in her opposition brief or meet-
23 and-confer letter any particular need to disclose the thousands of documents she has challenged
24 raised questions of whether her challenges were “made for an improper purpose (e.g., to harass or
25 impose unnecessary expenses and burdens on other parties),” id. at 6. Counsel’s explanation at
26 the hearing—that he seeks clarity as to what can be disclosed or would need to be filed under seal
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1 in future proceedings—largely dispels that concern, but does not require immediate action as to all
2 of the documents at issue. The Court therefore declines at this time to resolve the propriety of the
3 massive number of confidentiality designations in dispute, and addresses in the following
4 subsection of this order only the single document that either party has addressed with any
5 specificity: a photograph of what appears to be a memorial to Mr. O’Neil, consisting of candles
6 and stuffed animals, labeled as CCSF 2469. Opp’n at 2.
7 The parties agreed at the hearing that the remaining disputes need not be resolved before
8 Plaintiff determines which documents she intends to use for summary judgment or trial, and that
9 they will meet and confer to resolve any such disputes sufficiently in advance of those stages of
10 the case to allow Plaintiff to determine what documents she may disclose in the public record.
11 C. Defendants Have Not Shown That the Photograph Is Confidential
12 Defendants argue that although the photograph of a memorial would “likely not be
13 deserving of confidentiality protection” if it had not been taken as part of the DPA’s investigation,
14 but since it was taken in that context, “the very fact that DPA sought to take such a photograph
15 reveals impressions of the investigator and exposes what the DPA saw as an appropriate scope of
16 the investigation.” Reply at 3. According to Defendants, “simply show[ing] this photograph out
17 of context would be misleading, and to reveal it publicly as part of the DPA file would raise
18 [concerns regarding revealing the scope of the DPA investigation].” Id. Defendants have not
19 explained how the photograph of the memorial could be “misleading” out of context, and while it
20 is certainly possible that disclosing some aspects of the DPA investigation could be prejudicial, the
21 Court is not persuaded that any prejudicial inference could be drawn from disclosing that this
22 particular photograph was taken by an investigator. Defendants thus have not shown
23 particularized harm that would result from disclosure, and their motion is DENIED as to this
24 photograph.
25 D. The Administrative Motion to File Under Seal Is Denied
26 Plaintiff filed an administrative motion to file portions of her opposition brief under seal
27 solely on the basis that it addresses documents that Defendants designated as confidential. Under
] required to file a responsive declaration in support of sealing the material at issue no later than
2 || four days after the Plaintiff filed the administrative motion, Civ. L.R. 79-5(e)(1), but did not do so.
3 Regardless, it appears that the only material designated as confidential that is disclosed in the
4 || redacted portions of the opposition brief is the photograph discussed above, which the Court holds
5 is not properly designated as confidential. The administrative motion is therefore DENIED, and
6 || Plaintiff shall file an unredacted version of her opposition brief in the public record no earlier than
7 || May 7, 2021 and no later than May 13, 2021. See Civ. L.R. 79-S(e)(2).
8 Plaintiff is admonished that the unredacted versions of documents filed in conjunction with
9 || any future administrative motion to file under seal “must indicate, by highlighting or other clear
10 method, the portions of the document that have been omitted from the redacted version, and
11 prominently display the notation ‘UNREDACTED VERSION OF DOCUMENT(S) SOUGHT TO
BE SEALED.’” Civ. L.R. 79-5(d)(1)(D).
13 || IV. CONCLUSION
14 For the reasons discussed above, Defendants’ motion is DENIED as to the photograph
3 15 designated as CCSF 2469, and the Court declines to resolve the propriety of any other
16 || confidentiality designations at this time. The parties shall meet and confer to resolve any relevant
17 || disputed designations in advance of summary judgment or trial.
18 Plaintiffs administrative motion to file under seal is DENIED, and Plaintiff is ORDERED
19 || to file her opposition brief in the public record no earlier than May 7, 2021 and no later than May
20 13, 2021.
21 IT ISSO ORDERED.
22 || Dated: May 3, 2021
23 6 Z-
24 é vat Magistrate Tudge
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