1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA

4

5 NAACP OF SAN JOSE/ SILICON VALLEY, et al., Case No. 21-cv-01705-PJH 6 Plaintiffs, 7 ORDER RE DISCOVERY LETTER v. BRIEFS 8 CITY OF SAN JOSE, et al., Re: Dkt. No. 62, 63, 65 9 Defendants. 10

11 12 Before the court are two discovery letter briefs filed by the parties. 13 First discovery letter brief (Dkt. 62) 14 In the first discovery letter brief currently before the court (Dkt. 62), plaintiffs 15 explain that they seek to depose San Jose Mayor Sam Liccardo and Independent Police 16 Auditor Shivaun Nurre, while defendants object to producing both witnesses because 17 they are “high-ranking officials.” See Dkt. 62. 18 When a party seeks the deposition of a high-level official (also referred to as an 19 “apex” deposition), courts seek to prevent the risk of abuse or harassment by limiting 20 such depositions where the discovery sought “can be obtained from some other source 21 that is more convenient, less burdensome, or less expensive.” See, e.g., Apple Inc. v. 22 Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012). 23 “In determining whether to allow an apex deposition, courts consider (1) whether 24 the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the 25 case and (2) whether the party seeking the deposition has exhausted other less intrusive 26 discovery methods.” Apple, 282 F.R.D. at 263 (citing In re Google Litig., 2011 WL 27 4985279, at *2, (N.D. Cal. Oct. 19, 2011)). However, “a party seeking to prevent a 1 F.R.D. at 263 (citing Celerity, Inc. v. Ultra Clean Holding, Inc., 2007 WL 205067, at *3 2 (N.D. Cal. Jan. 25, 2007)). Thus, it is very unusual “for a court to prohibit the taking of a 3 deposition altogether absent extraordinary circumstances.” Apple, 282 F.R.D. at 263. 4 As to Mayor Liccardo, plaintiffs argue that he is named as a defendant in his 5 individual capacity and has had an opportunity to seek dismissal of the claim, arguing 6 those factors should weigh in favor of allowing the deposition to go forward. 7 Defendants also argue that the mayor was not involved in enacting the curfew at 8 issue in this lawsuit, asserting that he “has no role in any emergency response.” See 9 Dkt. 62 at 3-4. However, plaintiffs allege that the mayor was indeed involved in 10 emergency response, arguing that “[s]hortly after the events at issue in this case, he was 11 involved in city hearings on the use of force at the demonstrations, and introduced 12 measures calling for the Police Chief and IPA to account for the aggressive measures 13 used at the demonstrations,” and that “Liccardo was involved in passing and publicizing 14 of the curfew, and made statements about who would be allowed on the streets after the 15 curfew hour.” See id. at 2. 16 While plaintiffs have shown that defendant Liccardo may have relevant information 17 that is properly discoverable, they have not yet shown that they have attempted to seek 18 the evidence through less burdensome or alternative sources, such as through written 19 discovery or depositions of other officials. Defendants have also cited relevant case law 20 showing that the “normal rule” is to not permit depositions of mayors unless the 21 information cannot be obtained from another source. See Harmston v. City and County 22 of San Francisco, 2007 WL 3306526 at *3 (N.D. Cal. Nov. 6, 2007). Thus, based on the 23 current record, plaintiffs’ request to depose defendant Liccardo is DENIED. 24 As to independent police auditor Nuree, defendants similarly argue that she is a 25 high-ranking official who should not be subject to deposition, but defendants have not 26 cited any case law reaching that conclusion on similar facts. Defendants assert that the 27 IPA position is “sufficiently close, one level, below the highest peak” of the “corporate 1 correctly point out that city police chiefs have been required to sit for depositions in 2 numerous cases, which weakens the defendants’ argument that the IPA is sufficiently 3 high-ranking as to be given the same treatment as the mayor. Thus, the court does not 4 accept defendants’ argument that the IPA falls within the narrow category of “apex” 5 officials such as the mayor. 6 However, as to the IPA, defendants separately argue that her testimony would be 7 subject to the deliberative process privilege or the mental process privilege, and argues 8 that her deposition should be precluded on the basis of those privileges. See Dkt. 62 at 9 3-4. Defendants also reference officer privacy and the qualified privilege for official 10 information as reasons to preclude the deposition of the IPA. Id. at 5. 11 As a threshold matter, it is necessary to clarify the nature of the privilege at issue. 12 First, “in a civil rights case brought under federal statutes, questions of privilege are 13 resolved by federal law,” and “state privilege doctrine, whether derived from statutes or 14 court decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of 15 San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987). Second, “the ‘deliberative process’ 16 privilege, closely related to the self-critical analysis privilege, is also inappropriate for use 17 in civil rights cases against police departments.” Soto v. City of Concord, 162 F.R.D. 18 603, 612 (N.D. Cal. 1995). Because the “mental process” privilege is related to the 19 deliberative process privilege, the court finds it equally inapplicable to civil rights cases 20 such as the present case. 21 Instead, Kelly and Soto (and their progeny) make clear that the relevant privilege 22 for evaluating the discoverability of police records and testimony is the “official 23 information privilege,” which is a qualified privilege that requires balancing the “interests 24 of law enforcement, privacy interests of police officers or citizens who provide information 25 to or file complaints against police officers, interests of civil rights plaintiffs, the policies 26 that inform the national civil rights laws, and the needs of the judicial process.” Kelly, 114 27 F.R.D. at 660. The test adopted by Kelly, and followed by courts throughout this district 1 disclosure.” Id. at 661; see also DeArmand E. v. City of Antioch, 2009 WL 1704686, at *3 2 (N.D. Cal. June 17, 2009); Sanchez v. City of San Jose, 250 F.R.D. 468 (N.D. Cal. 2008); 3 Dowell v. Griffin, 275 F.R.D. 613 (S.D. Cal. 2011). 4 Under Kelly, the party seeking to prevent disclosure must submit an affidavit or 5 declaration from a relevant agency official, which must include:

6 (1) an affirmation that the agency generated or collected the material in 7 issue and has in fact maintained its confidentiality (if the agency has shared some or all of the material with other governmental agencies it 8 must disclose their identity and describe the circumstances surrounding the disclosure, including steps taken to assure preservation of the 9 confidentiality of the material), (2) a statement that the official has personally reviewed the material in 10 question, 11 (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his 12 lawyer, (4) a description of how disclosure subject to a carefully crafted protective 13 order would create a substantial risk of harm to significant governmental or privacy interests, and 14 (5) a projection of how much harm would be done to the threatened 15 interests if the disclosure were made.

16 Kelly, 114 F.R.D. at 670. 17 While defendants did not submit an affidavit or declaration according to the 18 procedure set forth in Kelly for this dispute, the court will consider the substance of the 19 arguments against disclosure made in the joint letter brief. In particular, defendants cite 20 officer privacy as the primary reason for invoking the official information privilege. See 21 Dkt. 62 at 5. Defendants argue that “by deposing the IPA, plaintiffs may circumvent state 22 and federal privileges by seeking the content of interviews conducted during the IPA’s 23 investigation.” Id. 24 First, as discussed above, state privileges are not binding here. Second, 25 regarding the official information privilege, both the Kelly and Soto courts specifically 26 addressed the question of whether officer privacy should preclude discovery into 27 complaints made against officers, including non-defendant officers. Both courts 1 for the information is great because “in civil rights cases against police departments, 2 plaintiffs cannot usually obtain information of comparable quality from any other source.” 3 See Kelly, 114 F.R.D. at 660; Soto, 162 F.R.D. at 616-17. 4 While neither party cites cases involving the specific scenario of the deposition of 5 an independent police auditor, the privacy considerations at issue in this case are 6 substantially similar to those raised in Soto, in which the court concluded that “the internal 7 affairs histories and statements of any police officers on the scene are relevant, 8 regardless of whether or not those officers are named parties to the action.” 162 F.R.D. 9 at 611 (emphasis in original). If the entire internal affairs histories of the officers are 10 relevant and unprotected by the official information privilege, it follows that the IPA’s 11 testimony on those matters would be equally discoverable. 12 Moreover, defendants have not shown why designating the IPA’s testimony as 13 confidential under the protective order would not adequately address any concerns of 14 officer privacy. The Soto court emphasized that the use of a protective order 15 “substantially reduces the confidentiality interests asserted by defendants.” 162 F.R.D. at 16 614 (granting request to compel “police internal affairs investigations relating to the 17 incident” and “statements or interviews of witnesses, informants, plaintiff, and any police 18 officers who had any role or contact with the case”); see also DeArmand, 2009 WL 19 1704686, at *5 (granting request to compel “all records of internal affairs investigations 20 concerning the [subject] incident” because “the public interests in favor of disclosure, 21 such as civil rights and justice in individual cases, clearly outweigh the public interests in 22 favor of secrecy, such as the privacy rights of officers”). 23 In short, defendants have not met their burden to show that the testimony of the 24 independent police auditor would be protected by the official information privilege, such 25 that the deposition should be barred entirely. Instead, as in Soto, the court concludes 26 that the use of a protective order will minimize any possible concerns about officer 27 privacy. And any concerns that defendants have identified regarding questions that go 1 on the record. 2 Thus, as to the parties’ first joint discovery letter brief (Dkt. 62), plaintiffs’ request 3 to order the deposition of Mayor Sam Liccardo is DENIED, and plaintiffs’ request to order 4 the deposition of independent police auditor Shivaun Nuree is GRANTED. The parties 5 are directed to meet and confer regarding the timing of the IPA’s deposition. 6 Second discovery letter brief (Dkt. 63, 65) 7 In the second discovery letter brief before the court, the parties raise five disputes. 8 See Dkt. 63, 65 (amended version of discovery letter brief)1. The court will address each 9 dispute in turn. 10 1. Dispute 1 11 The first dispute centers on plaintiffs’ request for “all complaints, investigation files, 12 interviews, reports, findings by or to the SJPD Internal Affairs Unit (IA), and Office of the 13 Independent Police Auditor (“IPA”), and all other use of force investigations concerning 14 the 2020 protests; and past complaints against the named defendants for excessive force 15 or dishonesty.” Dkt. 65 at 1. 16 Defendants raise four objections to plaintiffs’ request: (1) unnamed officers’ 17 privacy rights, (2) class and Monell discovery should be limited to the complaint’s 18 allegations, (3) documents regarding uncompleted investigations and internal opinions 19 are privileged, and (4) disclosure would taint a pending investigation. First, as a matter of 20 organization, the court’s view is that objections (1), (3), and (4) all raise issues that are 21 implicated by the official information privilege, so the court will address all three 22 objections together. To the extent that defendants also attempt to invoke the deliberative 23 process privilege, the court refers to the earlier discussion from Soto and Kelly that the 24 deliberative process privilege is “inappropriate for use in civil rights cases against police 25 departments.” See Soto, 162 F.R.D. at 612; Kelly, 114 F.R.D. at 653. 26 As discussed above, application of the official information privilege requires the 27 1 party invoking the privilege to submit an affidavit or declaration meeting five 2 requirements, including “a specific identification of the governmental or privacy interests 3 that would be threatened by disclosure,” and “a description of how disclosure subject to a 4 carefully crafted protective order would create a substantial risk of harm to significant 5 governmental or privacy interests.” Kelly, 114 F.R.D. at 670. 6 Defendants have submitted an “official information privilege declaration” from 7 Lieutenant Jaime Jimenez regarding the documents at issue in Dispute 1. The 8 declaration identifies the relevant government and privacy interests as (1) complainants’ 9 identities and contact information in tolled investigations, (2) documents collected and 10 investigative report drafts in tolled investigations, and (3) names of non-defendant officers 11 in completed investigations as to defendants. See Dkt. 65-2. These categories roughly 12 correlate with the objections made in the body of the discovery letter brief regarding 13 unnamed officers’ privacy rights and the pendency of uncompleted investigations. See 14 Dkt. 65 at 2-3. 15 Regarding the privacy interests of non-defendant officers, the court refers to the 16 discussion earlier in this order regarding the privacy interests of non-defendant officers, 17 which, while “not inconsequential,” must be balanced with plaintiffs’ interest and the 18 public interest in allowing full discovery of civil rights claims. In particular, as in Soto, 19 defendants do not adequately address why any privacy concerns would not be 20 addressed through the use of a protective order. Defendants’ declaration offers only the 21 conclusory assertion that “even if the documents at issue were made available only to the 22 attorneys in this case, it is still an invasion of privacy rights for an investigation into the 23 use of force by a non-defendant officer to be disclosed.” Dkt. 65-2, ¶ 12. Defendants’ 24 assertion directly contradicts the holding of Soto, which has been followed by numerous 25 courts in this district and circuit. See Soto, 162 F.R.D. at 617 (“In cases with similar 26 factual situations as the case at bar, district courts in the Ninth Circuit have found that the 27 privacy interests police officers have in their personnel files do not outweigh the civil 1 1704686, at *3 (“the public interests in favor of disclosure, such as civil rights and justice 2 in individual cases, clearly outweigh the public interests in favor of secrecy, such as the 3 privacy rights of officers”); Jaramillo v. City of San Mateo, 2013 WL 5692425 (N.D. Cal. 4 Oct. 16, 2013) (the “qualified privilege is outweighed by the interests of civil rights 5 plaintiffs, the policies that inform the national civil rights laws, and the societal need for 6 transparency of the judicial process.”); Doe v. Gill, 2012 WL 1038655 (N.D. Cal. Mar. 27, 7 2012) (“[c]urrent case law suggests the privacy interests police have in their records do 8 not outweigh a plaintiff’s interests in civil rights cases”) 9 Overall, defendants have not met their burden to show, under the “balancing test 10 moderately pre-weighted in favor of disclosure” set forth in Kelly, that disclosure under a 11 protective order would create a substantial risk of harm to significant privacy interests, 12 and thus, the court finds that the privacy interests of non-defendant officers are not 13 sufficient to warrant protection of these documents under the official information privilege. 14 The other two bases set forth in the Jimenez declaration are both based on the 15 premise that disclosure of the documents in tolled investigations could result in witnesses 16 having “their memories of the event inadvertently affected by information they did not 17 have at the time” or “information that may be inaccurate or incomplete.” Dkt. 65-2, ¶¶ 7, 18 10. Defendants do not cite any authority for their argument, and indeed, to accept 19 defendants’ argument would be to effectively shield the internal affairs records from all 20 disclosure. Defendants tolled the investigations in favor of this lawsuit (and others in this 21 district), and in order for these suits to be resolved on the merits, the parties must have 22 the benefit of a full evidentiary record. Moreover, any concern about witnesses being 23 given false information that taints their memories is highly speculative. Given that each 24 of Kelly, Soto, and DeArmand, among other cases, ordered the release of a broader 25 scope of internal affairs files than is being requested here, the court concludes that 26 defendants have not met their burden under the Kelly test to show that the official 27 information privilege should prevent disclosure of the requested records. 1 limited to the complaint’s allegations. Defendants rely on a single case here, Jenkins v. 2 Humboldt County, 2010 WL 1267113 (N.D. Cal. Mar. 29, 2010). Jenkins does not 3 support defendants’ argument, as it addressed Monell claims in an entirely different 4 context. Jenkins involved the court’s pre-screening review of an in forma pauperis 5 complaint to determine whether the complaint adequately stated a claim under the Rule 6 12(b)(6) standard. Jenkins does not say anything about the proper scope of discovery for 7 police records in lawsuits against police departments. Moreover, defendants’ arguments 8 do not make clear that plaintiffs’ requested discovery actually does go beyond the scope 9 of the complaint’s allegations. Defendants have not identified any specific portion of the 10 requests that reaches too far. Thus, the court concludes that defendants’ arguments 11 regarding the scope of discovery do not provide a basis for preventing disclosure of the 12 documents referenced in dispute 1. 13 Thus, having previously concluded that the official information privilege and/or 14 officer privacy concerns do not preclude discovery of the documents referenced in 15 dispute 1, the court GRANTS plaintiffs’ request as to dispute 1. Specifically, defendants 16 are ordered to produce “all complaints, investigation files, interviews, reports, findings by 17 or to the SJPD Internal Affairs Unit (IA), and Office of the Independent Police Auditor 18 (“IPA”), and all other use of force investigations concerning the 2020 protests,” and 19 defendants are further ordered to produce “past complaints against the named 20 defendants for excessive force or dishonesty” for a time period of five (5) years preceding 21 the 2020 protests, with the documents being protected as designated under the 22 protective order. 23 2. Dispute 2 24 The second dispute relates to “privilege claims as to redacted and withheld police 25 documents.” Specifically, defendant has redacted and withheld a number of policy and 26 training documents, which are listed on an attached privilege log. See Dkt. 65-3. 27 For this dispute, defendants acknowledge that the official information privilege 1 See Dkt. 65-1. The Tassio declaration states that “the sensitive information in these 2 materials includes (1) skirmish line formations and movements, (2) baton positions, 3 strikes, and retention techniques, (3) less lethal weapons tactics for use, (4) diversionary 4 device tactics for use, (5) tactics and strategies to utilize during unlawful assemblies to 5 disperse crowds, identify, separate and arrest agitators.” Id., ¶ 5. The Tassio declaration 6 further states that the sensitive information also includes information unrelated to crowd 7 control, such as hostage rescue and barricaded suspects. Id. The Tassio declaration 8 further states that “SJPD does not disclose this information to the public” and that 9 “disclosure of this information to anyone outside of law enforcement could reduce the 10 effectiveness of these tactics and endanger officers.” Id., ¶ 6. 11 Defendants’ declaration fails to meet the fourth element of the Kelly test, that 12 disclosure under a protective order would still “create a substantial risk of harm to 13 significant governmental or privacy interests.” The declaration offers only that “attorneys 14 are also citizens who have a First Amendment right to protest,” using the fact that 15 attorneys have First Amendment rights as a reason to prevent them from viewing the 16 documents. See Dkt. 65-1, ¶ 8. This court knows of no authority for the argument that 17 anyone with First Amendment rights should be barred from viewing police department 18 documents, and indeed, such a rule would bar even judges from viewing the documents 19 in camera. Defendants’ argument is squarely rejected, and plaintiffs’ request for the 20 documents that are the subject of dispute 2 is GRANTED in large part. Specifically, 21 defendants are ordered to produce the documents listed in the privilege log submitted 22 with the letter brief (Dkt. 63-3). The documents are to be produced unredacted, with the 23 only exceptions being that defendants may redact information on the limited subjects 24 identified in the Tassio declaration, namely (1) hostage rescue situations, (2) barricaded 25 suspects, and (3) covert surveillance techniques. See Dkt. 63-1, ¶ 5. The documents 26 shall otherwise be unredacted, and protected as designated under the protective order. 27 3. Dispute 3 1 communications.” Dkt. 65 at 3-4. Plaintiffs argue that “other police communications 2 recordings that plaintiffs’ counsel are familiar with from many other agencies state the 3 date and time at regular intervals, but these do not.” Id. at 3. Plaintiffs argue that 4 defendants “presumably have a way to find the right communications recording for a 5 particular time period and should be ordered to provide that to plaintiffs.” Id. 6 Defendants rely on a declaration from Jessica Jones, a SJPD dispatcher. Dkt. 7 65-4. Her declaration provides details about the audio recording system used by the 8 police, and how the files are not labeled with the date and time, but rather are organized 9 within the internal system by date and time. Id., ¶ 5. The Jones declaration also 10 provides more details regarding the use of event numbers and other information in the 11 dispatch logs. See id. at ¶¶ 6-10. 12 Plaintiffs’ request is not clear in setting forth specifically what they are asking for. 13 Defendants’ declaration describes the type of data that is generated by the audio 14 recording system, and plaintiffs have not identified any specific type of data that they 15 have requested but not received. Based on the current record, the court concludes that 16 plaintiffs’ request must be DENIED as to dispute 3. 17 4. Dispute 4 18 The fourth dispute is about topic 7 on plaintiffs’ Rule 30(b)(6) deposition notice, 19 which covers “the identities of the officers who made the decisions to arrest plaintiffs 20 Mahmoudreza Naemeh, Megan Swift, Alex Lee, and Shaunn Cartwright, and approved 21 such arrests, and the basis for each of these arrests.” Defendant produced the arresting 22 officer for these four plaintiffs, but plaintiffs request a designee “who is prepared to testify 23 about the higher level decision(s) to make arrests for curfew violations and other offenses 24 at the demonstrations, and the instructions given to the officers for those arrests.” Dkt. 25 65 at 4. 26 The court concludes that defendants have adequately produced a witness on topic 27 7. To the extent that plaintiffs seek testimony on the broader, higher-level question of 1 topic for a different Rule 30(b)(6) designee than the topic of who made the decisions to 2 arrest the four identified plaintiffs. Accordingly, plaintiffs’ request is DENIED as to dispute 3 4. 4 5. Dispute 5 5 The fifth dispute stems from topic 10 of plaintiffs’ Rule 30(b)(6) deposition notice, 6 which covers “all police warnings and orders issued to any and each of the named 7 individual plaintiffs during the incident, including specifics as to each order, time of 8 communication, duration of communication, and method of communication used to 9 convey each warning or order to any and each of the plaintiffs.” Dkt. 65 at 5. Defendant 10 has objected to the topic as “unduly burdensome to the point of impossibility” and has not 11 designated a witness on this topic. 12 The court concludes that plaintiffs’ request is indeed unduly burdensome to the 13 extent that it seeks specifics of every single “warning and order” issued to the plaintiffs 14 over the course of the protests. That said, while it would be impossible for defendants to 15 provide a witness (or witnesses) who can furnish that level of detail, it is reasonable to 16 expect defendants to have a witness who can provide some details on the warnings 17 given to crowds during the protests. Defendants may preserve their objection to the topic 18 as drafted, and may provide testimony only to the extent reasonably practicable, but they 19 provide no authority for the proposition that they may simply refuse to produce a witness 20 on the topic entirely. Accordingly, plaintiffs’ request as to dispute 5 is GRANTED in part 21 and DENIED in part. 22 Thus, in sum, as to the second discovery letter brief currently before the court 23 (Dkt. 65), plaintiffs’ request is GRANTED as to dispute 1 and dispute 2, DENIED as to 24 dispute 3 and dispute 4, and GRANTED in part and DENIED in part as to dispute 5. 25 IT IS SO ORDERED. 26 Dated: September 28, 2022 27 /s/ Phyllis J. Hamilton