Opinion
21-CV-224-MMA(WVG)
10-18-2021
MANDY LIEN et al., Plaintiffs, v. CITY OF SAN DIEGO, Defendant.
ORDER FOLLOWING DISCOVERY CONFERENCE
HON. WILLIAM V. GALLO UNITED STATES MAGISTRATE JUDGE
The Court held a discovery conference on October 4, 2021 and ordered briefing on a pending discovery dispute. In responding to one of Plaintiffs' requests for production of documents, the City produced a twelve-page group of documents that contained emails between law enforcement personnel, an outside agency's “Special Bulletin” regarding a named suspect who threw a burning munition grenade at anti-Trump protestors at a January 9, 2021 rally/protest in Pacific Beach, a news release, photographs and video screenshots, and identifying information and photographs of two suspected “antifa” members who are subjects of ongoing criminal investigations. The City redacted portions of four of the twelve pages it produced, and Plaintiffs now seek unredacted copies of the documents.
The briefing is attached hereto as Appendix A.
At this time, the Court declines to rule on Plaintiffs' contention that they are entitled to the video referenced on page COSD000219 given that Plaintiffs did not raise this issue at any point before briefly mentioning it for the first time in their discovery brief. It is thus unclear whether, as the Court's Civil Chambers Rules require, the parties have met and conferred on this issue at all. Moreover, given that Plaintiffs mentioned this issue for the first time in their brief, which they submitted after the City submitted its brief, the City has had no opportunity to address this at any point in these proceedings. Finally, it is unclear whether this possible dispute has been brought to the Court's attention within the required 30-day period and pursuant to the procedures set forth in the Court's Civil Chambers Rules. In short, this possible dispute is not ripe for adjudication at this time.
The City made its redactions in two groups. The first group involves redactions of the name of a suspect who threw a burning munition cannister at anti-Trump protestors. He was the subject of a criminal investigation, and detectives have since forwarded a prosecution package to the District Attorney for consideration of criminal charges. As of this time, the District Attorney has not made a charging decision either way. These redactions appear on pages COSD 000219 and COSD000220, and the only information redacted is the suspect's name.
The second group of redactions appear primarily on page COSD000229 with two small redactions on page COSD000230. The City redacted the full names, dates of birth, photographs, and prior arrest history of two suspected antifa members who were present at the January 9 event. The document is dated January 12, 2021-three days after the event- and reflects an ongoing effort “to identify subjects involved in criminal behavior” at the event.
Defendant made the redactions in both groups based on the official information privilege, the law enforcement privilege, and third-party privacy rights. As an initial matter, the Court declines to find the City waived the law enforcement privilege objection by not raising it in its response to Plaintiffs' RFP. While Defendant did not initially expressly assert the “law enforcement privilege” in its response to the RFP at issue, Defendant did invoke the “official information privilege, ” which is another term that has been used for the law enforcement privilege. Scalia v. Int'l Longshore & Warehouse Union, 336 F.R.D. 603, 617 (N.D. Cal. 2020) (“[The government investigatory] privilege has been variously referred to as the ‘investigatory privilege,' the ‘law enforcement privilege,' the “federal investigatory privilege, ” and the “official information privilege.'”) (citing NLRB v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir. 1980)) (emphasis added).
In any event, even if the law enforcement and official information privileges are distinct, the failure to initially object to written discovery requests is not always fatal, and the Court-pursuant to its authority to regulate discovery-has discretion to consider the merits of the objection and the dispute. See Tillman v. Larpenter, No. 15-4588, 2018 U.S. Dist. LEXIS 19718, at *5 (E.D. La. Feb. 7, 2018) (“Even if plaintiffs had failed to object [at all], . . . the court retains discretion to decline to compel production . . . when the request far exceeds the bounds of fair discovery, even if a timely objection has not been made.”) (cleaned up; citation omitted) (collecting cases). Were the Court to exalt form over substance here, such unyielding rigidity could have dire downstream consequences given the potential impact on a pending criminal referral and ongoing criminal investigations by the Joint Terrorism Task Force. Given these circumstances, the Court does not find the City waived its law enforcement privilege objection.
Plaintiffs' contention that they “would be prejudiced if the Court were to rely on this privilege without further briefing” is meritless. Although the City did not raise this objection in its initial discovery response, Plaintiffs were fully aware the City would rely on it after that point. The City's counsel raised this privilege during the initial telephone call with chambers staff and again raised it during the discovery conference before the Court. The City again raised the privilege in its briefing here, and Plaintiffs were aware of that fact, as it appears they reviewed the City's brief before submitting their own brief, in which they could have fully addressed this issue. [Plaintiffs' brief at 5 (“Even under the authorities cited by the City in its brief . . .”).] Plaintiff have not and will not be prejudiced, and additional briefing is not warranted given Plaintiffs were fully aware of the City's reliance on this privilege and their ability to include any counter in their later filed brief.
The law enforcement investigatory privilege “serves to prevent disclosure of law enforcement techniques and procedures, preserve the confidentiality of sources, protect witnesses and law enforcement personnel, safeguard the privacy of individuals involved in an investigation, and otherwise prevent interference with the investigation.” Moore v. Garnand, No. CV19-0290-TUC-RM(LAB), 2020 U.S. Dist. LEXIS 120496, at *6-7 (D. Ariz. July 9, 2020) (internal quotation and citation omitted) (emphasis added); see also In re Dep't of Investigation, 856 F.2d 481, 484 (2d Cir. 1988); Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998), affd, 203 F.3d 53, 340 U.S.App.D.C. 183 (D.C. Cir. 1999) (“The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement.”). “In order to assert the privilege, the following requirements must be met: (1) there must be a formal claim of privilege by the head of the department having control over the requested information, (2) assertion of the privilege must be based on actual personal consideration by that official, and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.” Roman v. Wolf, No. EDCV20-0768-TJH(PVC), 2020 U.S. Dist. LEXIS 213025, at *5 (CD. Cal. July 16, 2020) (citing Landry v. F.D.I.C, 204 F.3d 1125, 1135 (D.C. Cir. 2000)).
Although the Ninth Circuit has not expressly recognized the law enforcement privilege, Shah v. DOJ, 714 Fed.Appx. 657, 660 n.1 (9th Cir. 2017), district courts within the Circuit have applied it, Roman v. Wolf, No. EDCV20-0768-TJH(PVC), 2020 U.S. Dist. LEXIS 213025, at *5 (CD. Cal. July 16, 2020).
Here, Defendant has met its burden. The City submitted a signed declaration from SDPD Captain Novak, who avers that he personally reviewed the redacted documents and explains the need for the privilege and redactions: an ongoing, pending criminal prosecution against the male shown holding what appears to be an incendiary grenade and ongoing active criminal investigations by the Joint Terrorism Task Force against the other two individuals. Safeguarding this information under these circumstances is precisely the purpose of the law enforcement investigation privilege.
The Court would also deny the request based on the three individuals' rights to privacy, given that the redactions include dates of birth and past arrest histories of third parties and outweigh Plaintiffs' need for the information that they can, as explained below, readily procure from numerous other sources. A. Farber & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006).
Plaintiffs claim they “are entitled to discovery into the identity of these [two] “subjects, ” [on page COSD000229] which could reveal that they were agitators attempting to create a pretense for action being taken against the anti-Trump side . . . .” (Plaintiffs' brief at 2.) Interestingly, in the aftermath of the grotesque events of January 6, 2021, this same strained argument was used by some Trump supporters who claimed antifa had infiltrated their ranks, and it was the infiltrators-not Trump supporters-who breached the U.S. Capitol and murdered a police officer-the same event that Plaintiffs and fellow counter-Trump protestors were countering on January 9. Now on the other side, Plaintiffs-without any reasonable basis-engage in the same baseless and strained speculation. Moreover, Plaintiffs do not explain how this would be relevant to their case even if by some chance it was true. How are the police to distinguish “real” antifa throwing objects from supposed “agitators” dressed as protestors or in all black antifa garb throwing objects from the crowd of protestors that the police dispersed? Not only is this speculative reason baseless, but it would also have no relevance to this case because the police cannot possibly be charged with making such impossibly difficult distinctions (i.e., “real” protestors versus pro-Trump “agitators” dressed as protestors) between individual members of a crowd in real time in the midst of the chaos of civil unrest. Any argument that police should not have dispersed the anti-Trump crowd because some of them secretly were “agitators” completely lacks credibility.
According to the Center for Strategic and International Studies (CSIS)-a bipartisan, nonprofit policy research organization founded in 1962-antifa supporters “sometimes organize in black blocs-ad hoc gatherings of individuals who wear black clothing, ski masks, scarves, sunglasses, and other material to conceal their faces . . . .” Catrina Doxsee & Seth G. Jones, Examining Extremism: Antifa, Center for Strategic & International Studies (June 24, 2021), available at https://www.csis.org/blogs/examiningextremism/examining-extremism-antifa (last visited Oct. 15, 2021). “Antifa has also adopted anti-fascist symbols on their clothing, flags, and other paraphernalia, such as the two flags of the Antifaschistische Aktion and the three arrows of the Iron Front.” Id. In reviewing photographs and videos from the January 9 event, all of this was evident. It appears a large number of the anti-Trump protestors were dressed as the CSIS describes and multiple individuals in the group carried large antifa stylized black and red flags that identified themselves as participating in an “antifascist action.”
The Court also finds Plaintiffs would not be prejudiced by the City's redactions, as hundreds of people were present at the January 9 event. These amount to hundreds of other possible witnesses and alternate sources of information. Moreover, every aspect of the event, the time period before the event began, and its aftermath were heavily documented on video from every angle by a police helicopter, at least one media helicopter, numerous police body cameras, media cameras on the ground, and numerous participants themselves recorded using both video cameras and cell phones. The notion that Plaintiffs would somehow be prejudiced if they do not learn the identity of these three specific individuals is ludicrous given the hundreds of other individuals who were present that day and the many hours of video recorded by all sources. Accordingly, any evidence these three individuals may have is readily obtainable from a multitude of other sources without compromising active criminal investigations or pending prosecutions.
Finally, even if Plaintiffs learned the identity of the male on page COSD000220, it strains credulity that he would do anything other than invoke his Fifth Amendment rights at deposition when asked about his throwing an incendiary device at counter protesters or anything else he did that that could subject him to criminal liability. The result would be compromising a criminal investigation and prosecution without any value to this case, and such a result is untenable.
Based on the foregoing, the Court DENIES Plaintiffs' request to compel production of the unredacted versions of documents at issue.
IT IS SO ORDERED.