1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7

8

9 GABRIEL GONZALES, Case No. 19-cv-08195-NC 10 Plaintiff,

ORDER DENYING DEFENDANTS’

11 v. MOTION TO RETAIN 12 CONFIDENTIALITY CITY OF SAN JOSE and DAVID 13 LEZAMA, Re: Dkt. No. 42

14 Defendants. 15

16 Before the Court is Defendants the City of San Jose’s and San Jose Police 17 Department Officer David Lezama’s motion to maintain confidentiality over body-worn 18 camera footage pursuant to this case’s stipulated protective under Civil Local Rule 7-11. 19 Plaintiff argues that Defendants waived the confidentiality designation over the footage by 20 failing to meet the deadlines set by the protective order, and also argues that the 21 designation is inappropriate under Federal Rule of Civil Procedure 26(c). The Court finds 22 that no waiver occurred, but that Defendants have failed to show good cause for the 23 confidentiality designation. Therefore, the motion to retain confidentiality over the 24 footage is hereby DENIED. 25 I. Background 26 Plaintiff Gabriel Gonzales brought this case for violation of his civil rights under 42 27 U.S.C. § 1983 based on SJPD Officer David Lezama’s alleged use of excessive force 1 riding his bicycle along a sidewalk in San Jose, Officer Lezama U-turned his patrol vehicle 2 and accelerated over the curb and onto the sidewalk, striking Gonzales head-on. Id. at ¶¶ 3 24–51. The Court granted the defendants’ motion to dismiss Gonzales’s original 4 complaint on June 15, 2020, granting leave to amend, and Gonzales filed an amended 5 complaint on July 22, 2020. Dkt. Nos. 40 and 41. Defendants have filed a motion to 6 dismiss the amended complaint that is not yet fully briefed. Dkt. No. 43. 7 The instant motion concerns the defendants’ confidentiality designation over body- 8 worn camera (“BWC”) footage depicting the events alleged in the complaint. Dkt. No. 42. 9 Defendants designated the BWC footage as confidential under the parties’ stipulated 10 protective order. Plaintiff’s counsel challenged that designation. See Dkt. No. 44-1, Ex. 11 A; see also Dkt. No. 45-1, Ex. A. The parties met and conferred but did not resolve their 12 dispute. Id. Defendants brought a motion to retain confidentiality over the BWC footage 13 under Civil Local Rule 7, pursuant to the provisions of the protective order. See Dkt. No. 14 24 at ¶ 6.3. Plaintiff opposed the motion and Defendants replied. Dkt. Nos. 44, 45. 15 II. Legal Standard 16 The parties in this case entered into a stipulated protective order at Dkt. No. 24. 17 This order applies to material produced in discovery designated by either party as 18 “confidential.” Protective Order ¶ 2.13. To be designated as “confidential,” materials 19 must qualify for protection under Federal Rule of Civil Procedure 26(c). Id. ¶ 2.2. The 20 process for designation starts with a party marking material as “confidential” before 21 disclosure. Id. ¶ 5.2. If another party wishes to challenge that designation, they must do 22 so in writing with a description of the basis for their challenge. Id. ¶¶ 6.1–6.2. Then, the 23 parties must meet and confer over the challenge. Id. If the parties’ meet and confer is not 24 successful, they may bring a motion to the court under Civil Local Rule 7 to resolve the 25 issue. Id. ¶ 6.3. The party seeking the confidentiality designation must file their motion 26 with the court within 21 days of the initial notice of the challenge, or within 14 days of the 27 parties agreeing that the meet and confer process will not resolve their dispute, whichever 1 designation. Id. 2 The confidentiality of materials covered by protective orders is governed by Federal 3 Rule of Civil Procedure 26(c). That rule requires that the court “may, for good cause, 4 issue an order to protect a party or person from annoyance, embarrassment, oppression, or 5 undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The party seeking a confidentiality 6 designation over materials under a protective order bears the burden of showing good 7 cause for confidentiality; that burden remains when the confidentiality designation is 8 challenged by another party. In re Roman Catholic Archbishop of Portland Oregon, 661 9 F.3d 417, 424 (9th Cir. 2011). 10 The court’s analysis in deciding whether a party has shown good cause for a 11 confidentiality designation begins with asking whether disclosure of the material will 12 cause a “particularized harm.” Id. (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors 13 Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). The party seeking confidentiality must 14 “allege specific prejudice or harm” that will result from disclosure. Id. (quoting Beckman 15 Indus., Inc. v. Int’l Ins. Co., 966 F.3d 470, 476 (9th Cir. 1992). Broad allegations without 16 specific examples do not sufficiently constitute a showing of particularized harm. Id. 17 If the court determines that disclosure of the material will cause particularized 18 harm, it next proceeds to balance the public and private interests in confidentiality versus 19 disclosure. Id. Seven factors guide this balancing test:

20 (1) whether disclosure will violate any privacy interests;

21 (2) whether the information is being sought for a legitimate purpose or for an improper purpose; 22 (3) whether disclosure of the information will cause a party embarrassment; 23 (4) whether confidentiality is being sought over information important to public 24 health and safety;

25 (5) whether the sharing of information among litigants will promote fairness and efficiency; 26 (6) whether a party benefitting from the order of confidentiality is a public entity 27 or official; and 1 Glendale Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995); In re Roman Catholic 2 Archbishop of Portland, 661 F.3d at 424. 3 III. Discussion 4 A. Burden 5 As an initial matter, the Court is concerned that Defendants seem to misunderstand 6 where the burden lies here. They repeatedly criticize the plaintiff’s “only reason” “to 7 remove the confidentiality designation,” as if the plaintiff bears the burden of showing that 8 the designation should not apply. Dkt. No. 42 at 2; see also Dkt. No. 42 at 4 (“Plaintiff’s 9 general assertions about First Amendment interest and the public ‘right to know’ are 10 unavailing.”). Defendants even frame their motion by stating at the outset that “Plaintiff 11 here seeks to remove the confidentiality designation as to” the BWC footage. But the 12 burden here is on Defendants, who filed a motion to retain the confidentiality designation. 13 The plaintiff need not prove that the designation is inappropriate. Rather, the defendants 14 must show good cause for it to remain. They have not. 15 B. Waiver 16 Plaintiff argues that the defendants waived their confidentiality designation over the 17 BWC footage by failing to bring a motion before the Court within 21 days of their initial 18 challenge as required under the protective order. Protective Order at ¶ 6.3. To illustrate 19 the timeline of the plaintiff’s initial challenge and the parties’ proceeding meet and confer 20 process, the parties attached to their briefing on this motion various letters and emails 21 between counsel regarding the confidentiality designation. See Dkt. No. 44-1, Ex. A; see 22 also Dkt. No. 45-1, Ex. A. The Court has reviewed this correspondence and finds that no 23 waiver occurred. 24 Though Plaintiff’s counsel argues that he brought his challenge to the 25 confidentiality designation on June 8, 2020, and Defendants filed their motion on July 22, 26 2020—more than 21 days later—the Court finds that the 21-day deadline did not apply in 27 this situation for three reasons. First, Plaintiff’s original challenge to the confidentiality 1 because it did not clearly describe the basis for the challenge. Protective Order ¶ 6.2. 2 Second, the parties seem to have simply miscommunicated on multiple occasions 3 regarding scheduling phone calls with each other. Finally, the Court granted the 4 defendants’ motion to dismiss as to all claims in the original complaint on June 15, 2020, 5 which may have led the defendants to reasonably believe that the 21-day clock had tolled, 6 at least until Plaintiff filed an amended complaint. The Court therefore finds that 7 defendants did not waive their confidentiality designation under the protective order. 8 C. Good Cause 9 1. Particularized Harm 10 Next, the Court turns to the question of whether the defendants have shown good 11 cause that the BWC footage should be confidential under Federal Rule of Civil Procedure 12 26 and, by extension, under the protective order in this case. To make this showing, the 13 defendants must first allege a particularized harm that would result from disclosure of the 14 material. 15 Defendants’ motion to retain confidentiality over the BWC footage only describes 16 one harm that might result from public disclosure of the footage: biasing a future jury. See 17 Dkt. No. 42. Defendants describe this harm somewhat obtusely, arguing that “public 18 release of video footage also places it beyond the Court’s control and in the hands of 19 numerous third parties who may edit and use it for purposes that may not be consistent 20 with fairness.” Id. at 3. They also express worry that the video might be “edit[ed] and 21 manipulate[ed] by the media and others,” and that viewing a video that is “incomplete, 22 obstructed, missing context” would “present an inaccurate account of the case and bias 23 potential jurors.” Id. Defendants argue that disclosure of the video could result in “the 24 evils of prejudice and juror tainting.” Id. at 5. 25 Though they do not explicitly paint this picture, it seems that Defendants’ concern 26 (as described by the Plaintiff in his opposition brief) boils down to the “possibility that 27 some of the Body Worn Camera Footage will be released to the press, and that the press 1 video footage might then be released to the public to such an extent that it might prejudice 2 a jury in a potential trial in this matter.” Dkt. No. 44 at 5. But Defendants allege no 3 specific facts to suggest that any of those things will occur. 4 At the same time, Defendants undercut their own position by also arguing that the 5 public is not particularly interested in this case. They call this “not a high-profile matter 6 but rather a run-of-the-mill excessive force case,” and point out that there has been 7 “perhaps a single news story” about it while “[n]either the police chief nor any other City 8 of San Jose official has commented on the BWC footage at issue, and the case has not been 9 subject of any public city council meeting.” Id. at 4. So, Defendants vaguely allude to the 10 possibility that “the media and others” might edit the video, distribute it publicly, and taint 11 the potential jury pool thereby depriving them of a fair trial. But they also argue that the 12 media and the public are not concerned about this matter at all. 13 Defendants’ broad conjecture about what might happen if the BWC footage is 14 publicly disclosed does not constitute plausible allegation of “particularized harm.” See In 15 re Roman Catholic Archbishop of Portland Oregon, 661 F.3d at 424. Instead, their motion 16 is made up of vague allegations, with no specific examples, that fail to show good cause. 17 Id. The Court therefore FINDS that the defendants have not alleged any plausible 18 particularized harm that would result from the public disclosure of the BWC footage. 19 2. Balancing Test 20 Nonetheless, the Court discusses the balance of public and private interests at stake 21 here. The Court addresses the Glendale Trust Co. factors in its consideration. 56 F.3d at 22 483. 23 First, Defendants have not articulated privacy interests that will be violated by 24 disclosure of the BWC footage. Indeed, the events took place in public, are described as 25 allegations in the public complaint, and Officer Lezama’s job as a police officer means that 26 he is in the public eye every day. Second, the Court sees no evidence of impropriety in 27 Plaintiff’s request. Third, if the events alleged in the complaint took place as Plaintiff 1 or to Officer Lezama. If they did not, as Defendants argue, their embarrassment should be 2 minimal or nonexistent. Fourth, the Court finds that the information in the BWC footage 3 is important to the public’s health and safety. The public has a strong interest in knowing 4 whether members of their tax-funded police department who swear to protect and serve 5 them are using excessive force in violation of the United States Constitution, thereby 6 endangering the health and safety of the community. Fifth, the Court finds that the 7 fairness and efficiency between the parties is not primarily at issue here. Sixth, the Court 8 acknowledges that the parties benefitting from confidentiality are Officer Lezama and the 9 City of San Jose. As a municipality and a public employee, these defendants have a high 10 degree of responsibility to the public. And finally, as briefly discussed as to factor four, 11 the Court finds that the BWC footage could depict issues that are important to the public. 12 The Court finds that this factor is especially relevant to this dispute. 13 The parties analogize this case to the facts of Harmon v. City of Santa Clara, 323 14 F.R.D. 617 (N.D. Cal. 2018).1 There, this Court held that the BWC footage at issue should 15 not remain confidential. As distinct from this case, in Harmon the Court’s order followed 16 disclosure of the video in violation of the protective order after a publicly-approved 17 settlement concluding a highly publicized case. Id. at 623–25. Defendants argue that 18 those facts, in contrast to this case which is still in active litigation and which has received 19 minimal public attention, suggest that the Court should come to a different conclusion 20 here. However, the Court’s findings in Harmon about the public’s interest in BWC 21 footage hold just as true in this case. In Harmon, this Court stated that the public 22 “unquestionably holds a hefty interest in police force transparency, and especially so when 23 fundamental rights are at stake.” Id. at 624. Indeed, for this reason, cases involving claims 24 of civil rights violations against police departments “should be moderately pre-weighted in 25 1 In an email included as an attachment to Plaintiff’s opposition to the motion, counsel for 26 the City of San Jose states that “[i]t’s our office’s current policy to designate all bodyworn camera footage confidential during the pendency of active litigation. I take the point that 27 our policy is in some tension with the Harmon case, but there are bases for distinguishing 1 favor of disclosure from the outset.” Id. at 625 (citing Soto v. City of Concord, 162 F.R.D. 2 603, 613 (N.D. Cal. 1995)). 3 The public’s interest in alleged civil rights violations of its police department is, if 4 anything, even stronger today. The Minneapolis Police Department’s killing of George 5 Floyd on May 25 of this year catalyzed protests throughout the nation against police use of 6 excessive force that continue today. See “A Timeline of the George Floyd Protests,” The 7 New York Times, July 10, 2020 (available at https://www.nytimes.com/article/george- 8 floyd-protests-timeline.html) (last accessed July 29, 2020). At one such protest, San Jose’s 9 police department is alleged to have gravely injured a local community organizer who, 10 ironically, volunteered to train the department on bias. See “Community Organizer Who 11 Trains Police on Bias Injured by Rubber Bullet During Protest,” The Los Angeles Times, 12 June 6, 2020 (available at https://www.latimes.com/california/story/2020-06- 13 06/community-organizer-shot-by-rubber-bullet-during-protest) (last accessed July 29, 14 2020). Just yesterday, the San Jose Police Department made the local news for a video of 15 one of its officers kicking and dragging a woman in a parking lot. See “San Jose: Video of 16 Cop Kicking and Dragging Woman Prompts Fresh Calls for Police Reforms. But Some 17 Worry It Won’t Be Enough,” The Mercury News, July 28, 2020 (available at 18 https://www.mercurynews.com/2020/07/28/san-jose-video-of-cop-kicking-and-dragging- 19 woman-prompts-fresh-calls-for-police-reforms-but-some-worry-it-wont-be-enough/) (last 20 accessed July 29, 2020). These incidents—which represent only a small fraction of 21 complaints of excessive force against SJPD—and the community’s concern about them 22 illustrate the ever-increasing public interest in the constitutionality, or lack thereof, of the 23 Department’s behavior. 24 Accordingly, the Court FINDS that the balance of private and public interest tips in 25 favor of disclosure of the BWC footage. 26 IV. Conclusion 27 The Court FINDS that Defendants did not waive their confidentiality designation 1 || particularized harm that would occur if the designation was removed. Even if Defendants 2 || had alleged plausible particularized harm, the Court also FINDS that the public interest in 3 || disclosure of the video sharply outweighs SJPD’s and Officer Lezama’s private interest in 4 || keeping the footage confidential. As such, the motion to retain confidentiality over the 5 || BWC footage is hereby DENIED. 6 7 8 IT IS SO ORDERED. 9 10 Dated: July 31, 2020 hGhe =< —; _

NATHANAEL M. COUSINS

11 United States Magistrate Judge 12

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