1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KHOUA VANG, et al., Case No. 2:19-cv-00374-JAM-JDP 12 Plaintiffs, ORDER DENYING MOTIONS TO

MAINTAIN CONFIDENTIALITY

13 v. ECF Nos. 41, 45 14 CITY OF SACRAMENTO, et al.,

ORDER DENYING REQUESTS TO FILE

15 Defendants. UNDER SEAL 16 ECF Nos. 48, 50 17 18 In multiple motions, defendants seek to establish the confidentiality of a disciplinary letter 19 in the personnel file of a former police officer who was involved in a deadly shooting while on 20 the force. The disciplinary letter, which defendants have multiple times disclosed publicly— 21 albeit, it seems, inadvertently—relates to an apparent incident that took place one year after the 22 shooting. Although defendants did not seek to maintain confidentiality as provided in the 23 stipulated and approved protective order, they ask that the court somehow re-establish 24 confidentiality, an action that they argue should be supported by a finding of excusable neglect. I 25 will deny defendants’ motions. 26 Background 27 A stipulated protective order was entered on November 13, 2020. ECF No. 24. The order 28 requires a party challenging a confidentiality designation to provide written notice of the basis for 1 the challenge. Id. at 6. The parties then meet and confer, and the party designating 2 confidentiality has an opportunity to reconsider. Id. If the parties cannot resolve the dispute, the 3 party asserting confidentiality must file a motion to retain confidentiality within either “21 days 4 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 5 process will not resolve their dispute, whichever is earlier.” Id. at 7. If no timely motion is made, 6 confidentiality is waived. Id. 7 At some point in early-to-mid-March 2021, day-to-day responsibility for this case shifted 8 from one defense counsel to another, although the prior lead counsel—who apparently had taken 9 an unexpected medical leave—remained as an attorney of record. ECF No. 41. The new addition 10 to the defense team did not immediately become aware of the protective order. See id. at 4. On 11 March 12, 2021, he emailed plaintiffs’ counsel, stating that he would take over the case. ECF No. 12 41-1 at 5. Later that day, plaintiffs’ counsel sent him a letter regarding the confidentiality of the 13 documents at issue. Id. at 2. In the first sentence of the letter, plaintiffs’ counsel directed defense 14 counsel to the protective order and advised him of plaintiffs’ challenge to the disciplinary letter’s 15 confidentiality designation. Id. at 7. Defense counsel responded on March 18, refusing to 16 stipulate to the disciplinary letter’s disclosure. Id. at 17-18. It appears, however, that defense 17 counsel may not have reviewed the contents of the protective order. 18 Under the protective order, defendants had 21 days from the March 12 notice of challenge 19 to file a motion to maintain confidentiality of the disciplinary letter. See ECF No. 24 at 7. 20 Defendants, however, did not file a timely motion. On August 16, 2021, plaintiffs’ counsel again 21 contacted defense counsel, asserting that confidentiality had been waived, given that five months 22 had passed without any motion from defendants. Id. at 23. On August 18, defendants filed their 23 first motion to maintain confidentiality. ECF No. 41. In an apparent error, they publicly filed the 24 disciplinary letter as an attachment. ECF No. 41-1 at 11-14. The following day, by minute order, 25 the court informed counsel that its filing, which had been submitted to the district judge, should 26 be resubmitted to the magistrate judge. On September 7, 2021, defendants submitted a second 27 motion to maintain confidentiality, this time to the magistrate judge. ECF No. 45. Like the first, 28 this second motion was not sealed and attached the disciplinary letter. Id. On September 21, 1 multiple news stories were published, citing the letter. ECF No. 47 at 6, n.2. That same day, in 2 what might not have been a coincidence, defense counsel informed the undersigned’s chambers 3 that portions of the second motion should have been filed under seal. The court, in response, 4 immediately and on its own motion temporarily sealed those portions. ECF 46. Defense counsel 5 did not alert the undersigned to any need to seal the first filing, however, and it remained—and to 6 this day remains—unsealed. ECF 41. 7 Discussion 8 There is no dispute that defendants failed to comply with the requirements of the 9 protective order when they did not timely file a motion to maintain confidentiality. At issue is 10 whether the court should somehow excuse defendants’ failure to comply with the parties’ agreed- 11 to protective order.1 Defendants encourage the court to look to Federal Rule of Civil Procedure 12 6(b)(1)(B), which permits the court, in some circumstances and for good cause, to relieve a party 13 of the penalty of a missed deadline—if “excusable neglect” is found. But even if this rule applies, 14 defendants have established neither good cause nor excusable neglect. 15 Although a key member of the defense team may initially have been unaware of the 16 protective order, it is not apparent why this would constitute excusable neglect, and the order was 17 soon called out for him in the first line of correspondence from plaintiffs. ECF No. 41-1 at 7. 18 Defense counsel penned a response to this correspondence six days later, but seemingly still did 19 not read the order, since he did not take the measures needed to preserve confidentiality. ECF 20 No. 41-1 at 17. 21 Separately, defendants themselves publicly filed multiple copies of the disciplinary letter, 22 destroying confidentiality. ECF No. 41-1 at 11-14; ECF No. 45-1 at 11-14. Two weeks after one 23 such mistaken filing, defendants made efforts to correct their error, but it was almost certainly too 24 late, considering that multiple news outlets had published articles discussing the disciplinary 25 letter. ECF No. 47 at 4. And the first erroneous disclosure remains unsealed to this day. The bell 26 that defense counsel asks the court to un-ring is still actively sounding. 27 1 The parties also dispute whether state law requires public disclosure of the disciplinary 28 letter, but I see no need to reach that issue. 1 Since the disciplinary letter’s confidentiality has been waived, there is no basis for 2 | maintaining either the letter or relevant briefing under seal. See ECF Nos. 48, 50. The public 3 | generally has a right to inspect court records. See Nixon v. Warner Commce’ns, Inc., 435 U.S. 4 | 589,597 & n.7 (1978); Kamakana vy. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 5 || 2006). There is a strong presumption in favor of public access to court records, and the party 6 | seeking to seal a record bears the burden of overcoming that presumption. See Kamakana, 447 7 | F.3d at 1178. Here, the presumption is not overcome. 8 Conclusion 9 Accordingly, it is hereby ordered that: 10 1. Defendants’ motions to maintain confidentiality, ECF Nos. 41, 45, are denied. 11 2. Plaintiffs’ motion to file under seal, ECF No. 48, and defendants’ motion to seal, ECF 12 || No. 50, are denied. 13 3. The court’s temporary sealing of documents, ECF No. 46, is lifted. 14 1s IT IS SO ORDERED. 16 | 1 Sty — Dated: _ March 31, 2022 q_-—_— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE

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