Perez v. City Of Fresno ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ANTHONY PEREZ, et al., CASE NO. 1:18-CV-0127 AWI EPG 9 Plaintiffs ORDER ON DEFENDANTS’ MOTION 10 v. FOR RECONSIDERATION AND ORDER FOR ADDITIONAL BRIEFING 11 CITY OF FRESNO, et al., 12 Defendants (Doc. No. 85) 13 14 15 This case stems from a fatal encounter between decedent Joseph Perez and members of the 16 City of Fresno Police Department, the County of Fresno Sheriff’s Department, and American 17 Ambulance. Currently before the Court is Defendants’ American Ambulance (“AA”) and AA 18 paramedic Morgan Anderson (“Anderson”)’s (collectively “AA Defendants”) request for 19 reconsideration of a ruling by the Magistrate Judge that removed a “confidential” designation of 20 bodycam video footage that had been produced by the City of Fresno. 21 22 RECONSIDERATION FRAMEWORK 23 A district court may refer pretrial issues to a magistrate judge to either hear and decide or 24 issue findings and recommendations. See 28 U.S.C. § 636(b)(1); Khrapunov v. Prosyankin, 931 25 F.3d 922, 930-31 (9th Cir. 2019); Bhan v.NME Hosps., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). 26 If a party objects to a non-dispositive pretrial ruling by a magistrate judge, the district court will 27 review or reconsider the ruling under the “clearly erroneous or contrary to law” standard. 28 28 U.S.C. § 626(b)(1)(A); Fed. R. Civ. P. 72(a); Khrapunov, 931 F.3d at 931; Grimes v. City of San 1 Francisco, 951 F.2d 236, 240-41 (9th Cir. 1991). A magistrate judge’s factual findings or 2 discretionary decisions are “clearly erroneous” when the district court is left with the definite and 3 firm conviction that a mistake has been committed. Security Farms v. International Bhd. of 4 Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997); Avalos v. Foster Poultry Farms, 798 F.Supp.2d 5 1156, 1160 (E.D. Cal. 2011). This standard is significantly deferential. Security Farms, 124 F.3d 6 at 1014; Avalos, 798 F.Supp.2d at 1160. The district court “may not simply substitute its 7 judgment for that of the deciding court.” Grimes, 951 F.2d at 241; Avalos, 798 F.Supp.2d at 8 1160. The “contrary to law” standard allows independent, plenary review of purely legal 9 determinations by the magistrate judge. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (5th 10 Cir. 2010); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992); Avalos, 798 F.Supp.2d at 11 1160; Jadwin v. County of Kern, 767 F.Supp.2d 1069, 1110-11 (E.D. Cal. 2011). “An order is 12 contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of 13 procedure.” Calderon v. Experian Info. Solutions, Inc., 290 F.R.D. 508, 511 (D. Idaho 2013); 14 Jadwin, 767 F.Supp.2d at 1111. 15 16 MAGISTRATE JUDGE’S ORDER 17 The City of Fresno designated bodycam video footage from one of its officers as 18 “confidential” and then disclosed the video to all parties as part of the discovery process. The 19 designation of the video as “confidential” was done pursuant to a joint stipulation by the parties 20 and resulting order from the Magistrate Judge. The AA Defendants did not sign the stipulation 21 because they were not yet parties to this case. Plaintiffs later requested that the “confidential” 22 designation be removed. Although initially opposed to Plaintiffs’ request, the City and County of 23 Fresno eventually dropped their objections. However, the AA Defendants continued to object to 24 removing the “confidential” designation from the video. The dispute was resolved by the 25 Magistrate Judge in a written order (“Discovery Order”). See Doc. No. 83. 26 The Discovery Order made a number of key findings. See id. First, the Discovery Order 27 concluded that the AA Defendants did not own the video, and there was no aspect of the stipulated 28 protective order between the parties that would permit a non-producing party to object when the 1 producing party decides to withdraw a confidential designation. See id. at p.4. Therefore, the 2 legal basis for the AA Defendants’ objection was unclear. See id. Nevertheless, because there is 3 case authority that supports recognizing certain third parties’ privacy interests when considering 4 public disclosure of evidence, the Discovery Order assumed without deciding that the AA 5 Defendants were entitled to object. See id. 6 Second, the Discovery Order concluded that AA had failed to show particularized harm to 7 itself, but that Anderson and two other AA employees did demonstrate particularized harm. See 8 id. at p.6. Specifically, although Decedent’s death had been covered by local media, releasing the 9 video could draw additional public attention to the case and result in more definite and adverse 10 views of the AA employees in the video. See id. The AA employees in the video could suffer 11 embarrassment and have fewer future employment opportunities. See id. 12 Third, the Discovery Order balanced the so-called Glenmede factors1 and found that the 13 factors favored disclosure. Specifically, the Discovery Order found: (1) the three AA employees’ 14 privacy interests were “not particularly strong” because their names and identifying information 15 are not portrayed in the video, the incident occurred in public, the docket is public (including the 16 complaint which names Anderson as a defendant and describes his conduct), and the employees 17 were acting in support of public functions being carried out by police officers; (2) Plaintiffs’ stated 18 purpose of bringing police violence issues to the attention of the public is a legitimate purpose; (3) 19 while the employees will suffer some embarrassment, the embarrassment arises from a fuller 20 understanding of the employees’ role in the incident; the basic facts of the case, as well as 21 Anderson’s name, are already in the public domain; (4) the video depicts the use of restrains that 22 resulted in death during an encounter with police and ambulance personnel, which strongly relates 23 to public health and safety; (5) there are no fairness and efficiency issues because all parties have 24 access to the video; (6) although there are private entities involved, the fact that public officials are 25 involved in the incident weighs in favor of disclosure; and (7) the video is important because it 26 27 1 The Glenmeded factors were developed in Glenmede Trust Co. v. Thompson, 56 F.3d 483 (3d Cir. 1995). The Ninth Circuit has directed that courts are to follow the Glenmede factors. See In re Roman Catholic Archbishop of Portland 28 in Or., 661 F.3d 417, 426 n.5 (9th Cir. 2011). 1 furthers policy discussions about law enforcement’s use of restraints and involves AA, which is 2 the only contracted ambulance service in Fresno County. 3 Fourth, neither the First Amendment nor the Supreme Court’s analysis in Seattle Times Co. 4 v. Rhineheart, 467 U.S. 20 (1984) controlled the dispute. At issue is whether a video should 5 remain under a protective order, not whether Plaintiffs have a First Amendment right to 6 disseminate the video to the public. 7 Fifth, the California Public Records Act is not dispositive because the Glenmede factors 8 determine the result of this case, and the AA did not argue that this state law independently 9 prohibits disclosure. 10 Finally, redaction by blurring the AA employees faces from the video was not appropriate. 11 Case law did not appear to approve redaction and the AA employees were active participants by 12 virtue of an exclusive contract with the County. In light of these considerations and the Glenmede 13 factors, blurring the faces was unwarranted. 14 15 AA DEFENDANTS’ MOTION 16 Defendants’ Argument 17 The AA Defendants argue that the Discovery Order is clearly erroneous and contrary to 18 law. The AA Defendants argue inter alia that the Discovery Order ignored Seattle Times, which 19 is case determinative. Seattle Times upheld restrictions on disseminating discovery information, 20 despite public interest, and held that there was no First Amendment right to disseminate 21 information disclosed during discovery. 22 The AA Defendants argue that significant harm that will result. The AA employees will 23 bear a substantial risk of ridicule, scorn, and possibly worse. On a nationwide basis, individuals 24 who are tangentially or directly involved in social issues face protest marches and acts of violence, 25 such as the New Jersey federal judge’s family who were shot. Further, release of the video would 26 undoubtedly lead to a loss of future employment opportunity for all AA Defendants. 27 The AA Defendants argue that application of the Glenmede factors leads to the conclusion 28 that the video should remain confidential: (1) the privacy interests for AA employees are strong 1 because they are private individuals, some have identifying features like a tattoo, the video was on 2 a police bodycam and it was not recording a public activity, there has been no finding that any AA 3 Defendant acted under color of law, and reading about the events on the docket or a newspaper is 4 a far cry from watching the video; (2) while there may be a legitimate purpose for releasing the 5 video, it is completely overshadowed by the AA employees’ privacy rights; (3) there is a real 6 danger that release of the video will lead to embarrassment and scorn; (4) while law enforcement’s 7 treatment of minorities is important, the AA Defendants are not law enforcement; (5) the video has 8 been produced to all parties; (6) the AA Defendants are private entities and entitled to protection 9 irrespective of their involvement with law enforcement officers; and (7) the privacy and safety 10 rights of the AA Defendants outweigh any benefit to releasing the video pre-trial. 11 The AA Defendants also argue that the video is protected by the California Public Records 12 Act from disclosure. Specifically, Cal. Gov. Code § 6254(b) operates to exclude the video from 13 release. 14 Finally, the AA Defendants argue that, if the Court denies reconsideration, then the Court 15 should stay the release of the video until all avenues of appellate relief have been exhausted. 16 Plaintiff’s Response 17 Plaintiffs argue that reconsideration is not warranted. Plaintiffs contend that, pursuant to 18 ¶ 2.6 of the protective order, because the AA Defendants were not the producing parties, they have 19 no standing to object to removing the confidential designation of the video. Additionally, contrary 20 to Defendants’ arguments, § 6154(f)(4) of the California Public Records Act would permit 21 disclosure of the video. Further, Plaintiffs argue that Seattle Times is not dispositive because, 22 unlike Seattle Times, there is no argument that there exists a First Amendment right to disclose the 23 bodycam video. Rather, the contention is that the protective order should be lifted in accordance 24 with the Glenmede factors. With respect to the Glenmede factors, Plaintiffs emphasize that the 25 AA Defendants are being sued under § 1983 and were working hand in hand with the police 26 officers in their official duties. Otherwise, Plaintiffs essentially reiterate and support the findings 27 in the Discovery Order. Finally, Plaintiffs object to the stay requested by the AA Defendants as 28 unsupported in law. 1 Legal Standard 2 The “fruits of pre-trial discovery” are presumptively public. Phillips v. GMC, 307 F.3d 3 1206, 1210 (9th Cir. 2002). However, through either a stipulation between the parties or a 4 showing of “good cause,” a court may issue a protective order that limits or prohibits the 5 disclosure of discovery documents/information to the public. Fed. R. Civ. P. 26(c); In re Roman 6 Catholic Archbishop, 661 F.3d 417, 424 (9th Cir. 2011); Phillips, 307 F.3d at 1211 n.1. If a party 7 moves to release documents that are subject to a stipulated order, the party opposing disclosure 8 bears the burden of establishing good cause to continue protecting the discovery material. In re 9 Roman Catholic Archbishop, 661 F.3d at 424. In determining whether to continue to protect 10 discovery materials from public disclosure, courts must consider: (1) whether the party seeking 11 protection has shown particularized harm; (2) the balance between public and private interests; 12 and (3) where appropriate the possibility of redacting sensitive materials. Id. With respect to 13 particularized harm, the proponent of the protective order must allege specific prejudice or harm, 14 broad allegations of harm or prejudice that are unsubstantiated by specific examples or articulated 15 reasoning are insufficient. Id.; Phillips, 307 F.3d at 1210-11; Beckman Indus., Inc. v. 16 International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). If particularized harm is shown, courts 17 balance the private interests and public interests through consideration of the seven Glenmede 18 factors. In re Catholic Archbishop, 661 F.3d at 424; Phillips, 307 F.3d at 1211. Those factors are: 19 (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) 20 whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health 21 and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of 22 confidentiality is a public entity or official; and (7) whether the case involves issues important to the public. 23 In re Catholic Archbishop, 661 F.3d at 424 n.5 (citing Glenmede Trust, 56 F.3d at 483). Even if 24 the Glenmede factors favor maintaining a protective order, courts must consider whether 25 disclosure can be accomplished through redaction. Id. at 425; Foltz v. State Farm Mut. Auto. Ins. 26 Co., 331 F.3d 1122, 1130 (9th Cir. 2003). Courts enjoy broad discretion in fashioning protective 27 order under Rule 26(c), including determining the degree of protection that is appropriate. See 28 1 Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); Osband v. Woodford, 290 F.3d 1036, 2 1042 (9th Cir. 2002); McDowell v. Calderon, 197 F.3d 1253, 1256 (9th Cir. 1999). 3 Discussion 4 1. Standing 5 The Court agrees that nothing in the stipulated protective order expressly gives the AA 6 Defendants the right to designate the video as confidential, remove a confidential designation, or 7 make any objections about a producing party’s withdrawal of a confidential designation. See Doc. 8 No. 31. Further, the AA Defendants reliance on § 2.6 the protective order, which defines a 9 “designating party,” is misplaced. A “designating party” under the protective order is a party that 10 designates information “that it produces in disclosure or in responses to discovery as 11 ‘CONFIDENTIAL.’” Doc. No. 30 (emphasis added).2 The bodycam video is the property of the 12 City of Fresno and was produced by the City of Fresno. There is nothing to indicate that any AA 13 Defendant had custody, control, or some kind ownership interest in the video such that an AA 14 Defendant could produce the video during discovery. Since the AA Defendants could not produce 15 the video, they cannot designate it as “confidential,” per the terms of the protective order. See id. 16 Nevertheless, § 10.2 states in part that “no Party waives any right it otherwise would have 17 to object to disclosing or producing any information or item on any ground not addressed in the 18 parties’ Stipulation or this Order.” Doc. No. 31. Neither the stipulation nor the protective order 19 itself forbid or address the ability of third parties or non-designating parties to object to the 20 intended withdrawal of a confidential designation. The Supreme Court has recognized that Rule 21 26(c) can be used to protect the privacy interests of both litigants and third parties. Seattle Times, 22 467 U.S. at 35; see also In re Catholic Archbishop, 661 F.3d at 426; Foltz, 331 F.3d at 1138; 23 Poindexter v. W. Va. Reg'l Jail Auth., 2020 U.S. Dist. LEXIS 169976, *12-*13 (S.D. W. Va. Sep. 24 17, 2020); Estate of Sanchez v. County of Stanislaus, 2019 U.S. Dist. LEXIS 74538, *13 (E.D. 25 Cal. May 1, 2019); Dominguez v. City of L.A., 2018 U.S. Dist. LEXIS 228278, *11 (C.D. Cal. 26 Apr. 23, 2018); Sampson v. City of El Centro, 2015 U.S. Dist. LEXIS 188854, *22-*23 (S.D. Cal. 27 2 The Protective Order signed by the Magistrate Judge incorporates by reference Section 2 of the submitted 28 stipulation. Thus, while § 2.6 is not actually printed in the Protective Order, § 2.6 is nevertheless part of the 1 Aug. 31, 2015). Considering that the video shows the death of an individual due to asphyxiation 2 and depicts the actions and words of the AA Defendants and two other AA employees, the AA 3 Defendants and AA employees have a privacy interest in the bodycam video. Under Seattle Times 4 and similar cases, those privacy interests are sufficient to be considered by the Court. While 5 technically not a party to the stipulation or the negotiations that led to the stipulation, the AA 6 Defendants and AA employees’ interests were ultimately protected by the designation of the 7 bodycam video as “confidential.” Removal of that designation now threatens those privacy 8 interests. Given these considerations, and the arguments made against standing (which rely only 9 on the language of § 2.6 of the protective order), the Court cannot hold that the AA Defendants 10 lack standing to object to the removal of the video’s confidential designation. 11 2. California Public Records Act – Cal. Gov. Code § 6254 (“§ 6254”) 12 Assuming without deciding that § 6254 by itself would be a sufficient basis to impose or 13 maintain a protective order, the Court finds that the AA Defendants’ reliance on § 6254 to be 14 misplaced. The AA Defendants contend that the bodycam video could not be produced in 15 response to a public records request pursuant to § 6254(b). That section reads in pertinent part: 16 “[T]his chapter does not require the disclosure of any of the following records: . . . (b) Records 17 pertaining to pending litigation to which the public agency is a party . . . until the pending 18 litigation or claim has been finally adjudicated or otherwise settled.” Cal. Gov. Code § 6254(b). 19 As the City of Fresno is a party to this case, the bodycam video fits within the literal terms 20 of § 6254(b). However, the exemptions to disclosure in § 6254 are construed narrowly. See 21 ACLU Foundation v. Superior Ct., 3 Cal.5th 1032, 1042 (2017); County of L.A. v. Superior Ct., 22 211 Cal.App.4th 57, 63-64 (2012). Because the exemptions in § 6254 are construed narrowly, the 23 pending litigation exemption of § 6254(b) has been interpreted to protect documents from 24 disclosure “only if the document was specifically prepared for use in litigation.” County of L.A., 25 211 Cal.App.4th at 64; Board of Trustees of Cal. St. Univ. v. Superior Ct., 132 Cal.App.4t h 889, 26 897 (2005); County of Los Angeles v. Superior Ct., 82 Cal.App.4th 819, 830 (2000); Fairley v. 27 Superior Ct., 66 Cal.App.4th 1414, 1420-21 (1998); City of Hemet v. Superior Ct., 37 Cal.App.4th 28 1411, 1419-20 (1995). A document or report that was prepared for both a litigation and non- 1 litigation purpose, i.e. for a dual purpose, is protected from disclosure under § 6254(b) depending 2 on the “dominant purpose” behind the document’s preparation. County of L.A., 211 Cal.App.4th 3 at 65; Fairley, 66 Cal.App.4th at 1420; City of Hemet, 37 Cal.App.4th at 1419. 4 Here, the bodycam video was likely made for a variety of reasons. However, there is no 5 argument or indication that the bodycam video was made specifically for this litigation or that the 6 dominant purpose of the bodycam video was for litigation. The AA Defendants’ mere reliance on 7 the plain language of § 6254(b), unsupported by citation to any relevant authority that actually 8 interprets or applies that section, fails to demonstrate any potential application to this case. 9 Therefore, the Court concludes that § 6254(b) does not aid the AA Defendants. 10 3. Seattle Times/First Amendment 11 Plaintiffs argue that the Seattle Times is outcome determinative of this discovery dispute. 12 After review, the Court disagrees. The issue in Seattle Times was whether a protective order 13 interfered with a First Amendment right to disseminate information (donor lists) gained through 14 discovery in advance of trial. See Seattle Times, 467 U.S. at 22-29. The key question was: 15 “[W]hether a litigant’s freedom comprehends the right to disseminate information that he has 16 obtained pursuant to a court order that both granted him access to that information and placed 17 restraints on the way in the information might be used.” Id. at 32. With respect to the First 18 Amendment, the Supreme Court concluded that “judicial limitations on a party’s ability to 19 disseminate information discovered in advance of trial implicates the First Amendment rights of 20 the restricted party to a far lesser extent than would restrains on dissemination of information in a 21 different context.” Id. at 34 (emphasis added). The Supreme Court then noted the substantial 22 government interest in Rule 26(c) that was unrelated to suppressing expression: 23 Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial 24 discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from 25 experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and 26 expense; discovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. 27 Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery. 28 1 purposefully -- information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial 2 interest in preventing this sort of abuse of its processes. As stated by Judge Friendly “[whether] or not the Rule itself authorizes [a particular protective order] . . . we 3 have no question as to the court's jurisdiction to do this under the inherent 'equitable powers of courts of law over their own process, to prevent abuses, 4 oppression, and injustices.’” The prevention of the abuse that can attend the coerced production of information under a State's discovery rule is sufficient 5 justification for the authorization of protective orders. 6 Id. at 34-36 (citations omitted) (emphasis added). Given these considerations, the Supreme Court 7 affirmed the protective order. See id. at 37. “[W]here, as in this case, a protective order is entered 8 on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil 9 discovery, and does not restrict the dissemination of the information if gained from other sources, 10 it does not offend the First Amendment.” Id. 11 From the above, Seattle Times was not discussing a party’s constitutional interests in 12 maintaining a protective order. Rather, the question concerned the constitutionality of a protective 13 order issued as part of a civil discovery process. A party that was restrained by the protective 14 order asserted that the protective order violated its First Amendment rights. In other words, 15 Seattle Times was dealing with a constitutional attack on a protective order. In this case, there is 16 no constitutional attack involved. No party is contending that the protective order at issue in this 17 case violates any First Amendment rights. Instead, the issue is whether there are sufficient 18 considerations under Rule 26(c) that justifies maintaining the protective order in light of a request 19 to withdraw a “confidential” designation by a party and acquiescence to that request by the 20 producing/designating party. While Seattle Times’s observations concerning the legitimate 21 purposes served by Rule 26(c) are germane to the Rule 26(c) analysis, Seattle Times answered a 22 different legal question than the one involved here. Seattle Times is not outcome determinative. 23 4. Particularized Harm 24 There is no challenge to the Discovery Order’s conclusion that Anderson and two other 25 AA employees appear in the bodycam video and that all three of the AA employees had 26 demonstrated particularized harm. Specifically, all depicted AA employees would suffer 27 embarrassment and have fewer employment opportunities if the bodycam video was released. The 28 Court agrees that there is particularized harm to the AA employees. 1 The Discovery Order also held that AA had not established particularized harm because it 2 was not an individual and its employment opportunities would not be limited like that of its 3 individual employees. AA argues that this is incorrect because as a business entity, its ability to 4 land other contracts would be adversely affected. The Court agrees with AA. 5 There is no dispute that AA is currently under contract with the County of Fresno to 6 provide ambulance service for 911 calls. AA is the sole contracted ambulance provider for this 7 service. It is not uncommon to judge a company or the services it provides through the actions of 8 its employees. An employees’ actions demonstrate the company’s service in a specific instance 9 and sometimes can be viewed as a reflection of services in general. An employee’s actions can 10 also reflect on the nature of an employer’s supervision, which again reflects on the nature of 11 services provided in general. If the future employment opportunities of AA’s employees are 12 implicated by the bodycam video, then it would seem that AA’s ability to land future contracts is 13 similarly implicated. To be sure, there are differences between an employer like AA and an 14 employee in terms of future employment and contracting prospects. The interests are not fully 15 identical. Nevertheless, simply because AA is not an individual does not mean that its future 16 employment/contract opportunities could not be impacted in a way similar to its employees. 17 Therefore, the Court is left with the definite and firm conviction that the finding that AA faces no 18 particularized harm because it is an entity and not a natural person is mistaken. Respectfully, the 19 Court instead concludes that AA faces a particularized harm from the release of the bodycam 20 video in that AA’s ability to land future contracts is implicated. 21 5. Public and Private Interests 22 The Discovery Order concluded that the public interests were sufficient to outweigh the 23 privacy interests. The Discovery Order found that the public interests were substantial essentially 24 because there were significant public safety interests (the bodycam depicts an encounter with an 25 individual who died in the restraining process), such police encounters have high public 26 importance, the video depicts public officials, AA’s provision of important services on an 27 exclusive basis is an issue of significant public importance, and the Plaintiffs’ purpose for 28 disclosure is legitimate. The Discovery Order further noted that this was a public encounter that 1 was visible to any passerby, the AA Defendants and AA employees were aiding government 2 officials as part of performing a public contract for services, the key parts of the video have been 3 described in public filings, any embarrassment results from a fuller understanding of an 4 individual’s role in the encounter, and any concerns regarding a tainted jury pool can be addressed 5 and remedied through the voir dire/ jury pool process. 6 After review, the Court is in general agreement with the Discovery Order’s analysis.3 The 7 Court finds particularly compelling the observations that this incident occurred in public, there has 8 been media coverage of this case, the allegations in the complaint are on the public docket, and 9 there is public interest in police encounters of this type. Further, the AA Defendants do not 10 discuss or address the portion of the Discovery Order that found that the public had a significant 11 interest because AA is under an exclusive contract with a municipal entity (Fresno County) to 12 provide 911 emergency medical service. It seems clear to the Court that the Fresno County public 13 would have a strong interest in evaluating how the sole contracted entity is providing emergency 14 medical services for 911 calls. Therefore, the Court does not find that the Discovery Order’s 15 conclusion that the public interests outweigh the private interests is clearly erroneous or contrary 16 to law. 17 3. Redaction 18 As part of the Discovery Order process, the AA Defendants argued in the alternative that 19 the AA employees’ name tags, faces, and identifying marks (e.g. tattoos) be blurred from the 20 video. As part of reconsideration, the AA Defendants did not reassert their alternative request to 21 blur this “identifying information” from the video. Despite this failure, the Court has the authority 22 to reconsider any aspect of a Magistrate Judge’s pre-trial orders. See Schur v. L.A. Weight Loss 23 Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009); Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 24 25 3 The Court does not find that the fact that the AA Defendants are being sued under § 1983 to be a significant consideration. While a successful § 1983 claim would mean that the AA Defendants were acting under color of state 26 law, the AA Defendants have not conceded that they were state actors. Depending on the outcome of further proceedings, it may be determined that the AA Defendants were not acting under color of state law (which would 27 defeat all § 1983 claims against them). The disputed nature of the § 1983 claim would seem to counsel against disclosure of the video until the relevant § 1983 issues are resolved. However, even if the nature of the § 1983 claim 28 weighs in favor of the AA Defendants, public interests would still outweigh the private interests. 1 2006); Cole v. United States Dist. Court for the Dist. of Idaho, 366 F.3d 813, 823 n.14 (9th Cir. 2 2004); Local Rule 303(g). 3 Here, the Court has questions about blurring the AA employees’ identifying information. 4 The AA employees are paramedics, they are not law enforcement personnel. Police officers 5 respond to myriad types of emergency requests to protect the public and restore order, sometimes 6 through the use of force. Police officers are highly visible to the public, many now are required to 7 wear body cameras, and they know that their actions in restraining or using force against an 8 individual will be scrutinized. In contrast, paramedics generally respond to one type of emergency 9 request – to provide medical assistance to those who are suffering an acute medical distress. 10 Paramedics do not restore order or use force to arrest individuals, nor are they required to wear 11 body cameras (to the Court’s knowledge). Paramedics are subject to oversight and review, but 12 clearly not in the same way or in a similar public manner as law enforcement. While both law 13 enforcement and paramedics provide critical and necessary services to the public, there is a 14 significant difference. As a result, the potential for embarrassment and the privacy interests at 15 stake are not necessarily identical between law enforcement and paramedics. 16 Within this dynamic is the uncertainty regarding how the public will view and react to the 17 bodycam video. There is nothing before the Court to suggest that a release of the video would 18 result in physical danger to AA employees or to AA property. Further, the law enforcement 19 personnel and their municipal employers apparently have no reservations or concerns about 20 releasing the video. However, the Court agrees with AA that a video is not necessarily the same 21 as a written account of an event. Seeing what happened is generally more vivid and impactful 22 than reading about an event. The Court also agrees that once the video is released, it could forever 23 be in the public domain through the internet and social media apps. 24 Finally, other courts examining videos of police encounters have recognized the significant 25 privacy interests that non-parties may have in a video of a police encounter. In the course of 26 conducting a protective order review and ultimately permitting release of a video, some courts 27 have ordered the faces of non-parties be blurred. See Dominguez, 2018 U.S. Dist. LEXIS 228278 28 at *11; Sampson, 2015 U.S. Dist. LEXIS 188854 at *22. Even though the Glenmede factors may 1 weigh in favor of disclosure of the video as a whole, it is unclear why the Court cannot take 2 additional measures to address and safeguard the privacy interests of third-parties and parties to a 3 lawsuit, while also permitting disclosure of the material aspects of video. Cf. Foltz, 331 F.3d at 4 1136; Dominguez, 2018 U.S. Dist. LEXIS 228278 at *11; Sampson, 2015 U.S. Dist. LEXIS 5 188854 at *22. Particularly since the Court has wide discretion in fashioning orders under Rule 6 26(c). See Seattle Times, 467 U.S. at 36; Osband, 290 F.3d at 1042. Additional measures like 7 blurring identifying information would address legitimate privacy concerns and ultimately tip the 8 scale more decidedly towards disclosure. 9 Given these considerations, the Court finds it advisable to re-examine the issue of whether 10 any or all of the AA employees’ “identifying information” should be blurred from the bodycam 11 video prior to removal of the video’s “confidential” status. The parties will be ordered to meet and 12 confer regarding the issue of “blurring” and to submit simultaneous briefing if the meet and confer 13 efforts are fruitless.4 The bodycam video will remain confidential under the protective order until 14 the supplemental briefing has been received and the issue has been resolved.5 15 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Defendants’ motion for reconsideration (Doc. No. 85) is DENIED at this time; 19 2. After the parties have met and conferred on the matter, within fourteen (14) days of service 20 of this order, the parties shall submit simultaneous briefing with respect to the issue of 21 whether the “identifying information” of any AA employee depicted in the video should be 22 blurred prior to releasing the video to the public; 23 24 4 The parties shall meet and confer in good faith to determine whether any acceptable stipulation may be reached with respect to blurring the identifying information of AA employees. Any stipulation that can be reached shall be 25 submitted to the Court for review and approval. If the parties cannot resolve the issue of blurring identifying information of AA’s employees from the video, then the parties will submit simultaneous briefing regarding the 26 appropriateness of blurring the identifying information of the three AA employees. 27 5 Given this course, it is unnecessary to issue a stay as requested by the AA Defendants to exhaust all appellate efforts. The Court notes, however, that Plaintiffs’ observation that the AA Defendants failed to cite any authority that would 28 authorize such a stay is an accurate observation. nen nnn OI II EOI EES IIE EE ee 1 Within seven (7) days of service of the initial briefing, the parties shall submit 2 simultaneous replies;° 3 Upon receipt of the full supplemental briefing, the Court will issue further appropriate 4 orders (including setting a hearing if the Court determines that hearing would be 5 beneficial); and 6 |5. The bodycam video shall not be disclosed and shall remain confidential until further order 7 from the Court. 8 9 IT IS SO ORDERED. 19 | Dated: __February 11, 2021 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6 The Court realizes that there are difficulties that have been created by Covid 19 and its corresponding restrictions. If 2g | the parties require additional time to file either the initial briefing or the replies, the parties may file a stipulation for additional time. 15