Sernoffsky v. Novak

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SUSAN SERNOFFSKY; LAUREN GAW; Case No.: 3:23-cv-00039-MMA-VET DANIELLE RICHARDSON; and INDIGO [12] CURTIS, [13] Plaintiffs, ORDER REGARDING [14] v. DISCOVERY DISPUTE [15] SAN DIEGO POLICE CAPTAIN MATT 16 NOVAK; SAN DIEGO POLICE LIEUTENANT RICK AGUILAR; SAN [17] DIEGO POLICE LIEUTENANT SCOTT; 18 and DOES 1–15, 19 Defendants. [20] 21 Before the Court is the parties’ second discovery dispute concerning documents 22 bates stamped COSD000369–529 (the “Subject Documents”). The current dispute relates 23 to Defendants’ confidentiality designations and certain remaining redactions within the 24 Subject Documents. Based on a review of the parties’ submissions and in camera review 25 of the Subject Documents, the Court SUSTAINS IN PART Plaintiffs’ objections to certain 26 confidentiality designations and redactions and ORDERS the production of the Subject 27 Documents as set forth below. [28] 1 I. BACKGROUND 2 A. Plaintiffs’ Claims 3 On January 9, 2021, Plaintiffs participated in a “counter-protest” to a “pro-Trump” 4 protest march in San Diego, California (the “Protests”). Doc. No. 1. Plaintiffs allege that 5 Defendants made an “unlawful assembly” announcement directed only at the “anti-Trump 6 group,” including Plaintiffs, and ordered them to disperse. Id. at ¶¶ 7–9. In contrast, 7 Defendants purportedly allowed the “pro-Trump” group to continue marching for two 8 hours, including allowing the group to chase and harass Plaintiffs. Id. at ¶¶ 14–15. In 9 addition to a claim for Supervisory Liability under 42 U.S.C. § 1983 , Plaintiffs assert First, 10 Fourth, and Fourteenth Amendment claims for disparate policies and treatment of the 11 “Anti-Trump” protestors (including Plaintiffs) compared to the “Pro-Trump” protestors. [12] Id. at ¶¶ 94–104. 13 B. Limited Scope of Discovery 14 On June 16, 2023, the Court ordered limited discovery “pertaining to Defendant 15 Novak’s decision to declare unlawful assembly” during the Protests. Doc. No. 19. The 16 Court stayed any remaining discovery, pending a ruling on any motion for summary 17 judgment. Id. The Court limited discovery due to the substantial overlaps in discovery with 18 Lien, et al. v. City of San Diego, et al., Case No. 21-cv-224-MMA-WVG, a related case 19 that resolved via summary judgment. Doc. No. 33 at 2. 20 C. Protective Order 21 On July 24, 2023, the Court entered a stipulated Protective Order. Doc. No. 21 22 (“PO”). The PO allows the parties to designate materials produced in response to discovery 23 as either “Confidential” or “Restricted Confidential—Attorneys’ Eyes Only” (“AEO”). Id. 24 at 2. “Confidential” refers to: (i) any information contained within a peace officer personnel 25 file; (ii) the name, address, phone, license number, photo or likeness of any witness or other 26 person interviewed by the San Diego Police Department; (iii) the private financial 27 information, including the social security number of any party or witness; (iv) the private 28 medical information, including psychiatric or psychological information, of any party or 1 witness; (v) any other information deemed privileged or confidential pursuant to any State 2 or Federal statute or regulation, or any court order; and (vi) anything that a party designates 3 as such. Id. Information designated as “Confidential” may be disclosed only to certain 4 categories of people, including, for example, the Court, counsel, parties, experts, 5 individuals supporting the litigation such as court reporters and vendors, and mediators. 6 See id. at 3–4 (listing each category). “Restricted Confidential—Attorneys’ Eyes Only” 7 refers to information that qualifies for protection under Federal Rule of Civil Procedure 8 26(c) and as “Confidential,” but is “so sensitive that its dissemination deserves even further 9 limitation.” See id. at 2 . Accordingly, access and disclosure of AEO information is limited 10 to the same groups as “Confidential” information, except it may not be disclosed to “the 11 individual parties and officers, directors and employees of any party.” Id. at 4 . 12 Those portions of a document containing confidential or AEO information may be 13 redacted and/or designated as “Confidential” or “Restricted Confidential—Attorneys’ Eyes 14 Only” by stamping, typing, or designating the document(s) as such. Id. at 2 . A party may 15 object to a confidentiality designation and apply to the Court for an order re-designating 16 such information. Id. at 6 . The designating party has the burden of sustaining any 17 confidentiality designation. Id. 18 D. Prior Discovery Dispute 19 1. Initial Discovery Dispute–Redactions and Withheld Documents 20 On August 3, 2023, the parties raised a discovery dispute with the assigned 21 Magistrate Judge regarding Defendants’ July 2023 document production. Doc. No. 22 at 22 1. The production had numerous redactions, including on documents designated as AEO, 23 and Defendants also withheld attachments to responsive emails. Doc. No. 35 at 4–6. 24 Defendants relied on the law enforcement/official information privilege and the right to 25 privacy to support the redactions and withholding of documents. Defs.’ Aug. 2023 Br. at 26 Ex. A. Given Defendants use of the AEO designation and the safeguards provided by the 27 PO, Plaintiffs argued that Defendants should produce documents unredacted and in their 28 native format. Pls.’ Aug. 2023 Br. at 2–3. Plaintiffs did not object to Defendants’ 1 confidentiality designation on any specific document, and thus confidentiality designations 2 were not before the Court as part of this initial discovery dispute. See generally id. at 2–3. 3 On September 29, 2023, following briefing and in camera review of the relevant 4 documents, the assigned Magistrate Judge ordered Defendants to produce certain withheld 5 documents and remove some, but not all, redactions. Doc. No. 33 (“Initial Discovery 6 Order”). The Court concluded that the law enforcement privilege applied to the 7 “Contingency Plan for Patriot March and Counter Protest January 9, 2021” 8 (COSD000481–489), including prior drafts of the plan (see, e.g., COSD000380, 415, 420, 9 441, and 444–445), (collectively, the “Contingency Plan”) and the “Partriot March, January 10 9, 2021, After Action Report” (COSD000475–480) (hereinafter “After Action Report”). [11] Id. at 6 . The Court allowed certain redactions to remain in both the Contingency Plan and 12 After Action Report. Id. at 6–7. 13 2. Rule 72 Objection and Order 14 On October 13, 2023, Plaintiffs objected to the Initial Discovery Order pursuant to 15 Federal Rule of Civil Procedure 72. Doc. No. 35 (“Rule 72 Objection”). Plaintiffs argued, 16 inter alia, that given the protections afforded by the AEO designations, Defendants could 17 not also redact AEO-designated documents and withhold documents. Id. at 2 . Plaintiffs 18 took issue with specific redactions in the Contingency Plan (COSD000481–489), the After 19 Action Report (COSD000475–480), witness information (COSD000371, 372, 400, 403, 20 404, 408, 409, and 411–412), and COSD000410. Id. at 4–6. Plaintiffs also objected to 21 Defendants withholding email attachments titled “Patriot March 1-9-2021.docx.” Id. at 5 . 22 Plaintiffs asked the District Judge to overrule the Initial Discovery Order and order 23 production of all documents in “unredacted, native format, with all attachments.” Id. at 6 . 24 On December 4, 2023, the District Judge sustained Plaintiffs’ Rule 72 objection “in 25 its entirety.” Doc. No. 42 at 5 (“Rule 72 Order”). The Court found that the correct legal 26 standard for withholding information based on the law enforcement/official information 27 privilege was a balancing test “moderately pre-weighted in favor of disclosure” and 28 included considering whether a protective order could ameliorate harms from disclosure. [1] Id. at 4 (citing Kelly v. City of San Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987)). The Court 2 did not issue findings regarding specific documents and instead directed the parties to meet 3 and confer and schedule a discovery conference with the assigned Magistrate Judge. See 4 generally id. [5] E. Current Discovery Dispute Regarding Redactions and Confidentiality 6 Designations 7 The parties’ current discovery dispute concerns remaining redactions and 8 Defendants’ confidentiality designations in the Subject Documents. In response to the Rule 9 72 Order, Defendants reproduced documents bates stamped COSD000369–529, including 10 previously withheld attachments. See Defs.’ Resp. Br., dated Feb. 26, 2024 (“Defs.’ Br.”) 11 at Ex. A. In this updated production, Defendants removed some, but not all, redactions. 12 Defendants also designated the Subject Documents as AEO except for the following: 13 (i) documents COSD000371.001–.016 designated as “Confidential” and (ii) documents 14 COSD000490–501, produced without any confidentiality designation. 15 On February 7, 2024, the Court held a Status Conference regarding the status of any 16 remaining discovery disputes and any anticipated motion for summary judgment. Doc. No. 17 46. Plaintiffs indicated that discovery disputes still existed concerning remaining 18 redactions in the Subject Documents and generally objected to Defendants’ confidentiality 19 designations. See Doc. No. 48. The Court ordered the parties to meet and confer and set a 20 briefing schedule to address the remaining discovery disputes. Id. The parties timely lodged 21 with the Court the required briefing.1 In addition, organized as Exhibits 1–6, Plaintiffs 22 lodged the Subject Documents for the Court’s in camera review. At the Court’s request, 23 Defendants subsequently lodged unredacted versions of documents bates stamped 24 COSD000380, 415–420, 441, 444, 445, 459–462 (with attachments). [27] 1 Following consultation with the parties, the Court ordered that briefing be lodged rather [28] 1 II. LEGAL STANDARD 2 A. Confidentiality Designation Under Protective Order 3 “[I]t is well-established that the fruits of pretrial discovery are, in the absence of a 4 court order to the contrary, presumptively public.” Phillips ex rel. Estates of Byrd v. Gen. 5 Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). As such, “the public is permitted access 6 to litigation documents and information produced during discovery.” In re Roman Catholic 7 Archbishop of Portland, 661 F.3d 417, 423 (9th Cir. 2011) (quoting Phillips ex rel. Estates 8 of Byrd, 307 F.3d at 1210 ). However, under Federal Rule of Civil Procedure 26, “[t]he 9 court may, for good cause, issue an order to protect a party or person from annoyance, 10 embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1); see also 11 Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (“Because of the liberality of pretrial 12 discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority 13 to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial 14 discovery . . . has a significant potential for abuse.”). Thus, “Rule 26(c) authorizes a district 15 court to override this presumption [of access to discovery] where ‘good cause’ is shown.” 16 Phillips ex rel. Estates of Byrd, 307 F.3d at 1210 . 17 “While courts generally make a finding of good cause before issuing a protective 18 order, a court need not do so where (as here) the parties stipulate to such an order.” In re 19 Roman Catholic Archbishop of Portland, 661 F.3d at 417 ; see also PO. Blanket protective 20 orders, such as the protective order in this case, “are inherently subject to challenge and 21 modification, as the party resisting disclosure generally has not made a particularized 22 showing of good cause with respect to any individual document.” San Jose Mercury News, 23 Inc. v. U.S. Dist. Ct.--N. Dist. (San Jose), 187 F.3d 1096 , 1103 (9th Cir. 1999) (citing 24 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). “Ninth Circuit 25 precedent strongly favors disclosure to meet the needs of parties in pending litigation.” 26 Verizon Cal. Inc. v. Ronald A. Katz Tech. Licensing, L.P., 214 F.R.D. 583, 586 (C.D. Cal. 27 2003) (quoting Beckman Indus., Inc., 966 F.2d at 475 ). [28] 1 When a party challenges a confidentiality designation, the court conducts a two-step 2 analysis. Harmon v. City of Santa Clara, 323 F.R.D. 617 , 623 (N.D. Cal. 2018); see also 3 Todd v. Tempur-Sealy Int’l, Inc., No. 13-cv-04984, 2015 U.S. Dist. LEXIS 27803 , at *6 4 (N.D. Cal. Mar. 6, 2015). “First, it must determine whether particularized harm will result 5 from disclosure of the information to the public.” Todd, 2015 U.S. Dist. LEXIS 27803 , at 6 *6 (quoting In re Roman Catholic Archbishop of Portland, 661 F.3d at 424 ). The party 7 asserting good cause bears the burden, for each document it seeks to protect, of showing 8 that specific prejudice or harm will result if the designation is removed. See Foltz v. State 9 Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). The party “cannot meet 10 [its] burden with [b]road allegations of harm, unsubstantiated by specific examples or 11 articulated reasoning.” Harmon, 323 F.R.D. at 623 (internal quotations omitted). 12 “Second, if the court concludes that such harm will result from the disclosure of the 13 discovery documents, then it must proceed to balance the public and private interest to 14 decide whether maintaining” the confidentiality designation is appropriate. Todd, 2015 15 U.S. Dist. LEXIS 27803 , at *6–7; see also Phillips ex rel. Estates of Byrd, 307 F.3d at 16 1211. This balancing test considers the following factors: 17 (1) whether disclosure will violate any privacy interests; (2) whether the 18 information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party 19 embarrassment; (4) whether confidentiality is being sought over information 20 important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party 21 benefitting from the order of confidentiality is a public entity or official; and 22 (7) whether the case involves issues important to the public. 23 In re Roman Catholic Archbishop of Portland, 661 F.3d at 424 (“We have directed courts 24 doing this balancing to consider the factors identified by the Third Circuit in Glenmede 25 Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995).”). “However, these factors are 26 neither mandatory nor exhaustive,” and, as such “the district court is best situated to 27 determine what factors are relevant to the dispute.” Harmon, 323 F.R.D. at 623 (quoting 28 Glenmede Trust Co., 56 F.3d at 483 ). 1 “Importantly, in a challenge to a confidentiality designation under a protective order, 2 the burden of proof remains with the party seeking protection.” Id. (internal quotations 3 omitted) (quoting In re Roman Catholic Archbishop of Portland, 661 F.3d at 424 ). 4 B. Law Enforcement/Official Information Privilege 5 Pursuant to Federal Rule of Civil Procedure 26(b)(1), “the scope of discovery 6 includes ‘any nonprivileged matter that is relevant to any party’s claim or defense and 7 proportional to the needs of the case.’” Skyline Wesleyan Church v. Cal. Dep’t of Managed 8 Health Care, 322 F.R.D. 571, 583 (S.D. Cal. 2017) (quoting Fed. R. Civ. P. 26(b)(1)). “A 9 party may withhold ‘information otherwise discoverable by claiming that the information 10 is privileged.’” Id. (quoting Fed. R. Civ. P. 26(b)(5)). 11 “The federal law enforcement privilege is a qualified privilege designed to prevent 12 disclosure of information that would be contrary to the public interest in the effective 13 functioning of law enforcement.” Al Otro Lado, Inc. v. Wolf, No. 17-cv-2366, 2020 U.S. 14 Dist. LEXIS 112345, at *8 (S.D. Cal. June 26, 2020) (quoting Chinn v. Blankenship, No. 15 09-5119, 2010 U.S. Dist. LEXIS 163836 , at *17 (W.D. Wash. Feb. 26, 2010)); see also 16 Dousa v. United States Dep’t of Homeland Sec., No. 19-cv-1255, 2019 U.S. Dist. LEXIS 17 204449, at *5 (S.D. Cal. Nov. 22, 2019). As such, “the law enforcement privilege aims to 18 prevent disclosure of law enforcement techniques and procedures, to preserve the 19 confidentiality of sources, to protect witness and law enforcement personnel, to safeguard 20 the privacy of individuals involved in an investigation, and otherwise to prevent 21 interference with an investigation.” Al Otro Lado, Inc., 2020 U.S. Dist. LEXIS 112345 , at 22 *8–9 (internal quotations omitted); see also Perez v. United States, No. 13-cv-1417, 2016 23 U.S. Dist. LEXIS 11036 , at *6–7 (S.D. Cal. Jan 29, 2016). The “official information 24 privilege” is another term used for the “law enforcement privilege.” Lien v. City of San 25 Diego, No. 21-cv-224, 2021 U.S. Dist. LEXIS 200221 , at *3 (S.D. Cal. Oct. 18, 2021). 26 “In determining what level of protection should be afforded by this privilege, courts 27 conduct a case-by-case balancing analysis, in which the interests of the party seeking 28 discovery are weighed against the interests of the governmental entity asserting the 1 privilege.” Perez, 2016 U.S. Dist. LEXIS 11036 , at *7 (citing Kelly, 114 F.R.D. at 2 660); Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992). The balancing test 3 considers numerous factors, including whether the existence of a protective order could 4 ameliorate the asserted harm. See Kelly, 114 F.R.D. at 662–664, 666. “It is appropriate to 5 conduct the balancing test for determining whether the law enforcement privilege applies 6 with an eye towards disclosure.” Hemstreet v. Duncan, No. CV-07-732, 2007 U.S. Dist. 7 LEXIS 89702 , at *4 (D. Or. Dec. 4, 2007). “When the records are both relevant and 8 essential to the presentation of the case on the merits, the need for disclosure outweighs the 9 need for secrecy, and the privilege is overcome.” Id. (internal quotations omitted). 10 Moreover, in the context of civil rights cases, “the balancing test is ‘moderately pre11 weighted in favor of disclosure,’ but ‘the interests of law enforcement . . . and how much 12 weight to ascribe to them can vary with both the kind of information in question and the 13 situation in which it is being sought.’” Dousa, 2019 U.S. Dist. LEXIS 204449 , at *5–6 14 (quoting Kelly, 114 F.R.D. at 661–662). “For example, law enforcement usually will have 15 a much greater interest in preserving the confidentiality of names of citizen informants in 16 on-going criminal investigations than in keeping secret the factual information provided 17 by percipient witnesses to events that are long since past and about which there will be no 18 prosecution or internal affairs follow-up.” Id. (quoting Kelly, 114 F.R.D. at 662 ). 19 Before the Court conducts any balancing of interests, “the party asserting the 20 privilege . . . must properly invoke the privilege by making a substantial threshold showing 21 by submission of a declaration.” J.A.M. v. United States, No. 22-cv-380, 2023 U.S. Dist. 22 LEXIS 75412 , at *9 (S.D. Cal. Apr. 28, 2023) (internal quotations omitted). Because 23 Defendants have the burden of establishing that the privilege applies, they must put forth 24 “competent evidence about how the specific requested disclosure would harm 25 governmental interests.” Al Otro Lado, Inc., 2020 U.S. Dist. LEXIS 112345 , at *9. This 26 evidence should include a “‘formal claim of privilege’ by a responsible official, based on 27 that official’s personal consideration of the information, that describes with specificity both [28] 1 the information to be protected and the harm that would ensue from its disclosure.” Id. 2 (citing Wagafe v. Trump, 334 F.R.D. 619 , 623 (W.D. Wash. 2020)). 3 III. DISCUSSION 4 Plaintiffs challenge certain remaining redactions and Defendants’ confidentiality 5 designations in the Subject Documents. See Pls.’ Disc. Conf. Br., dated Feb. 14, 2024 6 (“Pls.’ Br.”) at 3–5. In addition to arguing that the Subject Documents do not contain 7 confidential information, Plaintiffs complain of the “additional procedural challenges and 8 time constraints” associated with having to file such information under seal if the 9 designations stand. Id. at 3, 5 . Plaintiffs ask the Court to order Defendants to remove all 10 AEO designations in the Subject Documents, excluding personal information that can be 11 considered confidential, and remove all redactions pursuant to the Court’s Rule 72 Order. 12 See id. at 5 . However, the Court notes that in discussing the Subject Documents, Plaintiffs 13 do not, in fact, expressly challenge all the remaining redactions. See, e.g., id. at 3–4 14 (discussing Exhibit 1 but making no reference to any redactions therein). In another 15 instance, Plaintiffs challenge a confidentiality designation, but also indicate that redacted 16 information might be highly confidential, but still, redactions are improper. Id. at 4 17 (discussing Exs. 3–5). In short, Plaintiffs are unclear concerning the relief they seek 18 regarding each document at issue. 19 In response, Defendants lodged a response brief with supporting declarations, a chart 20 outlining documents produced in response to the Rule 72 Order (“Defs.’ Ex. A”), and a 21 chart outlining their confidentiality designations and the bases for the designations (“Defs.’ 22 Ex. D”). See generally Defs.’ Br. Defendants contend that they fully complied with the 23 Rule 72 Order. Id. Furthermore, Defendants argue that the law enforcement and official 24 information privileges support the confidentiality designations attached to the Subject 25 Documents and rely on the right of privacy as a basis for many remaining redactions. Id. 26 at 4–9. The supporting declaration of Captain Matt Novak, an employee of the San Diego 27 Police Department (“SDPD”), explains that he personally reviewed all documents 28 referenced therein and describes why he believes confidentiality designations/redactions 1 are necessary and/or appropriate. See generally Decl. of Matt Novak ISO Defs.’ Br., dated 2 Feb. 26, 2024 (“Novak Decl.”). 3 For ease of reference, the Court addresses the designations and redactions at issue 4 with respect to each Exhibit submitted for in camera review. 5 A. Exhibit 1 – COSD000369–379 6 Exhibit 1 consists of internal SDPD email communications, screenshots of public 7 social media postings, and SDPD email communications with members of the public. 8 Plaintiffs do not expressly challenge any of the redactions remaining in Exhibit 1. Pls.’ Br. 9 at 3–4. Instead, Plaintiffs challenge Defendants’ AEO and Confidential designations and 10 seek production of Exhibit 1 without any confidentiality designations. 11 1. COSD000369–370: This is an internal SDPD email communication 12 concerning preparations for the Protests. Defendants designated the email AEO because it 13 purportedly contains sensitive information regarding government investigations, including 14 protest planning, and identifies a police detective within the Criminal Intelligence Unit 15 (“CIU”). Novak Decl. at ¶¶ 11–12. Per Defendants, public disclosure, including to 16 Plaintiffs, would undermine SDPD’s investigatory techniques and ability to plan for future 17 events, endangering the safety of law enforcement and the public. Id.; Defs.’ Ex. D at 1. 18 Defendants redacted the detective’s cell phone number for officer safety. Plaintiffs argue 19 that given the redaction, no confidential designation is necessary. Pls.’ Br. at 3. 20 SDPD’s discussion of preparations for the Protests and intelligence collected relating 21 to same constitutes sensitive law enforcement information, and thus the Court agrees that 22 public disclosure risks undermining SDPD’s investigatory techniques and the safety of law 23 enforcement personnel. Accordingly, Defendants’ interest in maintaining investigation 24 preparations confidential outweighs Plaintiffs’ requests for convenience and efficiency. 25 However, with one exception, a “Confidential” designation will adequately protect the 26 information. No good cause exists for the restrictive AEO designation as the Protests 27 occurred over three years ago and the email includes only a generalized discussion of the 28 planned Protests, without specific details concerning SDPD preparations for same. 1 The exception noted above relates to the identity of a referenced CIU officer. The 2 Court agrees with Defendants that protecting the identity of certain law enforcement 3 personnel working within the CIU, including officers working undercover both during and 4 after the Protests, is necessary for officer safety and to protect the integrity of SDPD’s 5 undercover operations. See Novak Decl. at ¶¶ 6 (describing purpose and activities of CIU 6 and detailing undercover work by CIU officers), 12. 7 Accordingly, Defendants shall remove the AEO designation and produce 8 COSD000369–370 with a “Confidential” designation, with the existing, unchallenged 9 redaction of the detective’s cell phone number on COSD000370. To the extent the 10 information appears in COSD000369–370, Defendants may redact the name, email 11 address, and signature block of the officer expressly identified as a CIU officer. 12 2. COSD000371–374: This is an internal SDPD email communication regarding 13 information provided by a private witness concerning the Protests. Defendants attach the 14 AEO designation to protect the identity of an officer in the CIU and the privacy rights of 15 the witness and other citizens. Defs.’ Ex. D at 1–2. On COSD000373, Defendants redact 16 the name and contact information of the witness. Plaintiffs argue that “[w]hile the names 17 could perhaps be considered confidential, the rest of the content of the emails should not 18 be.” Pls.’ Br. at 3–4. Defendants agree to remove any confidentiality designation, subject 19 to redactions of witness names, contact information, other identifying information, and a 20 sentence identifying a CIU officer. Defs.’ Ex. D at 1–2. 21 “Federal courts ordinarily recognize a constitutionally-based right of privacy that 22 can be raised in response to discovery requests.” Stuart v. Cnty. of Riverside, No. 22-cv23 701, 2023 U.S. Dist. LEXIS 132737 , at *5 (C.D. Cal June 15, 2023) (quoting Keith H. v. 24 Long Beach Unified School Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005)). “[R]esolution of 25 a privacy objection . . . requires a balancing of the need for the information sought against 26 the privacy right asserted.” Id. “[P]rivacy objections can be appropriately addressed by: 27 (1) redacting any personal identifying information from the documents produced; and [28] 1 (2) producing documents under a protective order to minimize any invasion into the 2 individuals [sic] privacy rights.” Id. at 5–6 (citing Foltz, 331 F.3d at 1137 ). 3 The Court finds that Plaintiffs’ interest and the public’s interest in allowing full 4 discovery in civil rights claims outweighs a witness’ privacy interest. “[P]rivacy interests 5 must be balanced against the great weight afforded to federal law in civil rights cases 6 against police departments.” Lua v. McNett, No. 23-cv-32, 2024 U.S. Dist. LEXIS 58338 , 7 at *13 (S.D. Cal. Mar. 29, 2024) (citing Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. 8 Cal. 1995 )). Further, “[c]ourts should be less solicitous of finding a significant privacy 9 interest in keeping secret the names of witnesses providing factual information about 10 events which are no longer the subject of investigation or prosecution.” Soto, 162 F.R.D. 11 at 621 . 12 Here, the privacy interests of a witness concerning events from 2021 that are not part 13 of any ongoing investigation are low. Nor is there any evidence that the witness’ safety is 14 at risk if anonymity is lost or that the witness took any steps to maintain any anonymity. 15 See id. (“a citizen who makes a complaint is not analogous to a confidential informant 16 whose safety may be at risk if anonymity is lost”). In contrast, Plaintiffs have substantial 17 need for the identity of witnesses, who would provide relevant information concerning the 18 events that form the basis for Plaintiffs’ claims and would allow Plaintiffs to develop 19 declarants and trial witnesses with potentially admissible evidence. Therefore, the Court 20 finds that redaction of the witness’ name is not warranted and shall be produced with a 21 “Confidential” designation to address privacy concerns. However, Plaintiffs have no need 22 for sensitive personal identifying information that may be found in the document, including 23 date of birth, social security number, address, phone number, email address, etc., as such 24 information is not relevant to Plaintiffs’ claims and does not otherwise impact the substance 25 of the documents. See, e.g., Robinson v. Adams, No. 08-cv-01380, 2012 U.S. Dist. LEXIS 26 36028, at *7 (E.D. Cal. Mar. 15, 2012) (“personal identifying information, such as Social 27 Security Numbers, date of birth, address, etc. of individuals, is not relevant to Plaintiff’s [28] 1 claims in this action, and this information can be redacted without affecting the substance 2 of the information included in the documents”). 3 Concerning the AEO designation, the Court disagrees that the entirety of this 4 communication merits such a designation. As indicated previously, any privacy interest is 5 low, and Defendants concede that much of this email may be de-designated. Defs’ Ex. D 6 at 1–2. Still, the Court agrees with Defendants that protecting the identity of certain law 7 enforcement personnel working within the CIU, including officers working undercover 8 both during and after the Protests, is necessary for officer safety and to protect the integrity 9 of SDPD’s undercover operations. See Novak Decl. at ¶ 6 (describing purpose and 10 activities of CIU and detailing undercover work by CIU officers). 11 Accordingly, Defendants shall remove all remaining redactions from 12 COSD000371–374, except Defendants shall redact (i) the following personal identifying 13 information of witnesses: date of birth, social security number, address, phone number, and 14 email address; and (ii) the clause identifying a CIU officer on COSD000372. In addition, 15 Defendants shall remove the AEO designation and produce COSD000371–374 with a 16 “Confidential” designation to protect the privacy interests of any witness identified therein. 17 3. COSD000371.001–.016: The document contains no redactions. Defendants 18 agree to remove all confidentiality designations. Defs.’ Ex. D at 2. Accordingly, 19 Defendants shall produce COSD000371.001–.016 without any confidentiality 20 designations or redactions. 21 4. COSD000375–377: This is an SDPD internal email communication regarding 22 arrests at the Protests with an “arrest log” attached (hereinafter “Arrest Log”). The Arrest 23 Log includes the names of arrestees with dates of birth and does not appear to be a formal 24 arrest record. The document is not redacted and is designated AEO. Defendants argue the 25 email must remain AEO, or alternatively, redaction of names and dates of birth on the 26 Arrest Log is necessary to protect the privacy rights of the arrested individuals. 27 The Court agrees that public disclosure would violate the privacy interests of 28 unrelated third parties, who have an interest in limiting disclosure of an arrest log which is 1 not publicly available and may cause embarrassment or humiliation. However, this privacy 2 interest supports a “Confidential” designation. The Court does not find good cause for the 3 more restrictive AEO designation as no evidence is offered suggesting that disclosure of 4 this information to the parties will result in any particularized harm to the third parties or 5 anyone else. See Novak Decl. at ¶ 14 (discussing only general privacy rights). In contrast, 6 Plaintiffs have substantial need for the identity of witnesses with relevant information 7 concerning the events that form the basis for Plaintiffs’ claims and would allow Plaintiffs 8 to develop declarants and trial witnesses with potentially admissible evidence. Therefore, 9 the Court finds that redaction of the arrestees’ name is not warranted and the email with 10 the Arrest Log shall be produced with a “Confidential” designation to address privacy 11 concerns. See, e.g., Perrin v. Cnty. of Riverside, No. EDCV 08-595, 2010 U.S. Dist. LEXIS 12 153728, at *6 (C.D. Cal. July 22, 2010) (ordering disclosure of crime and arrest reports 13 where articulated need for this information outweighed the privacy right asserted and 14 privacy concerns could be addressed in a properly crafted protective order). Further, 15 Plaintiffs have no need for dates of birth, which are sensitive personal identifying 16 information not relevant to Plaintiffs’ claims and do not otherwise impact the substance of 17 the Arrest Log. 18 Accordingly, Defendants shall remove the AEO designation, redact dates of birth on 19 the Arrest Log, and produce COSD000375–377 with a “Confidential” designation. 20 5. COSD000378–379: The document contains no redactions. Defendants agree 21 to remove all confidentiality designations. Defs.’ Ex. D at 2. Accordingly, Defendants shall 22 produce COSD000378–379 without any confidentiality designations or redactions. 23 B. Exhibit 2 – COSD000380–414 24 Exhibit 2 consists of internal SDPD emails regarding preparations for the Protests, 25 SDPD planning documents for the Protests, internal SDPD emails after the Protests, and 26 email communications from private citizens regarding the Protests. All documents are 27 designated AEO with certain information redacted. [28] 1 Plaintiffs challenge all the confidentiality designations in Exhibit 2, arguing that 2 public disclosure is warranted because “Plaintiffs will have to go through the process of 3 conditionally filing under seal their opposition to the City’s summary judgment motion, 4 just to discuss this non-confidential information.” Pls.’ Br. at 4. Plaintiffs also argue that 5 “[t]here may be information that is redacted that could be considered highly confidential, 6 attorneys’ eyes only, but the redactions are improper.” Id. Defendants respond that the 7 AEO designations and redactions are proper due to law enforcement privilege and privacy 8 rights but agree to de-designate some documents. Defs.’ Ex. D at 2–3. 9 1. COSD000380; COSD380.001–.009: This is an internal SDPD email 10 attaching a draft of the Contingency Plan. Defendants attach the AEO designation to the 11 email and Contingency Plan based on privacy concerns and the law enforcement privilege. 12 a. AEO designation is proper for attachments COSD000380.001–.009 13 Based on the declaration of Captain Novak, the Court concludes that Defendants 14 demonstrate the particularized harm that will result from disclosure of the Contingency 15 Plan, including drafts, and as such, the AEO designation on the Contingency Plan is 16 warranted. In re Roman Catholic Archbishop of Portland, 661 F.3d at 424 . Defendants 17 articulate institutional concerns and risks that indiscriminate public disclosure poses to 18 police department operations and investigation efforts and officer safety. See Novak Decl. 19 at ¶¶ 5–7. Specifically, based on an in camera review, the Contingency Plan consists of 20 highly sensitive law enforcement techniques and procedures such as the number and 21 locations of officers, including undercover officers, monitoring tasks, identities of officers, 22 and deployment schedule and techniques. As such, the Court agrees that disclosure “would 23 undermine important SDPD investigatory procedures and techniques and seriously impair 24 SDPD’s ability to conduct future investigations and plan for events, thereby endangering 25 the safety of law enforcement personnel as well as San Diego residents.” Defs.’ Br. at 7. 26 Furthermore, Defendants demonstrate why disclosure should be limited further to 27 Plaintiffs’ counsel. Defs.’ Br. at 4–5. Defendants submitted evidence showing that, 28 unrelated to the present case, certain named plaintiffs had interactions with police officers 1 in the past that resulted in criminal charges, including willful resistance of public/executive 2 officers, and, in one instance, involved threats or violence. Id. at 4. One court issued a stay3 away order as to Imperial Beach sheriffs and their station against one named plaintiff, and 4 a second court issued a protective order, prohibiting that a copy of body-worn footage be 5 provided to another named plaintiff. See id.; see also Defs.’ Exs. B, C. Based thereon, 6 Defendants argue that providing information regarding highly sensitive law enforcement 7 techniques and procedures to Plaintiffs could endanger the safety of officers and 8 compromise planning and safe execution of police presence at future protests. Id. at 4–5. 9 Given the record before it, the Court agrees. Further, other than generally arguing that no 10 confidentiality designation should attach, Plaintiffs do not argue that an AEO designation 11 frustrates the ability of Plaintiffs’ counsel to communicate with Plaintiffs or otherwise 12 investigate the case. Nor do Plaintiffs argue that they each require access to the 13 Contingency Plan specifically to prosecute their case. 14 On balance, Defendants’ substantial interests in maintaining the AEO designation 15 on the Contingency Plan outweighs Plaintiffs’ inconvenience in pursuing an action using 16 confidential documents. Therefore, the Court finds that the AEO designation on the 17 Contingency Plan is appropriate. 18 Lastly, separate from the attached Contingency Plan, the body of the email contains 19 no substantive content and as such does not warrant any confidentiality designation. 20 Defendants seem to agree given their agreement to de-designate an email that similarly has 21 no substantive content but attaches copies of otherwise sensitive information. See Defs.’ 22 Ex. D at 6 (agreeing to de-designate email itself, bates stamped COSD000473). 23 b. An AEO Designation Diminishes the Need for Redactions 24 The parties’ submissions concerning remaining redactions on COSD000380.001– 25 .009 differ. The version of COSD000380.001–.009 submitted by Plaintiffs for in camera 26 review shows extensive redactions relating to the area of responsibility, staging areas, 27 schedule, etc. as well redactions of identifying information for certain police officers. In [28] 1 contrast, Defendants represent that the only remaining redactions relate to the names of 2 CIU officers and officers’ cell phone numbers. Defs.’ Ex. A at 1–2. 3 The Court finds that the AEO designation mitigates Defendants’ need to redact 4 information based on privacy concerns or the law enforcement privilege. To the extent any 5 redactions remain in COSD000380.001–.009, Defendants shall remove all remaining 6 redactions with two exceptions. First, Plaintiffs have no need for personal identifying 7 information such as officers’ cell phone numbers. And because redacting cell phone 8 numbers does not affect the substance of the information in the Contingency Plan, 9 Defendants may redact this information. 10 Second, the Court finds that Defendants’ have a compelling need to protect the 11 identity of law enforcement personnel working undercover within the CIU during the 12 Protests. See Novak Decl. at ¶ 6 (describing purpose of CIU and detailing undercover work 13 by CIU officers). Therefore, to the extent officers listed as part of the CIU on 14 COSD000380-004 were working undercover during the Protests, Defendants may redact 15 their names to protect their safety. 16 Accordingly, based on the foregoing, Defendants (i) shall produce COSD000380 17 without any confidentiality designation; (ii) shall produce COSD380.001–.009 with an 18 AEO designation; and (iii) shall remove all remaining redactions in COSD380.001–.009, 19 except Defendants may redact the names of undercover CIU officers and officers’ cell 20 phone numbers. 21 2. COSD000381–385: These documents contain no redactions. Defendants 22 agree to remove all confidentiality designations. Defs.’ Ex. D at 3. Accordingly, 23 Defendants shall produce COSD000381–385 without any confidentiality designations or 24 redactions. 25 3. COSD000386–393: This is part of the same email chain as COSD000369– 26 370. Accordingly, for the same reasons, Defendants shall remove the AEO designation and 27 produce COSD000386–393 with a “Confidential” designation. However, because officers’ 28 cell phone numbers are neither relevant to Plaintiffs’ claims nor affect the substance of the 1 document, Defendants may redact the officers’ cell phone numbers on COSD000388–390. 2 To the extent the information appears in COSD000387-393, Defendants may redact the 3 name, email address, and signature block of the officer expressly identified as a CIU 4 officer. 5 4. COSD000394–395: This is part of the same email chain as COSD000375 and 6 Defendants agree to remove all confidentiality designations. Defs.’ Ex. D at 3. Hence, 7 Defendants shall produce COSD000394–395 without any confidentiality designations. 8 5. COSD000396: This is an internal SDPD email communication about the 9 protests. This is designated AEO, with a private citizen’s identifying information redacted. 10 Plaintiffs argue that the document is not confidential, and redactions are improper. 11 Defendants agree to de-designate the document with a redaction of the private citizen’s 12 identifying information to preserve the citizen’s privacy rights. Defs.’ Ex. D at 3. For the 13 same reasons discussed in connection with COSD000371–374, the Court orders as follows: 14 Defendants (i) shall remove all remaining redactions from COSD000396, except 15 Defendants shall redact the witness’ phone number and address; and (ii) shall remove the 16 AEO designation and produce COSD000396 with a “Confidential” designation to protect 17 the privacy interests of any witness identified therein. 18 6. COSD000397–406: This is an email chain that includes COSD000371–374 19 and conveys the same type of information. Accordingly, for the same reasons set forth 20 regarding COSD000371–374, Defendants shall remove all remaining redactions from 21 COSD000397–406, except Defendants shall redact (i) the following personal identifying 22 information of witnesses: date of birth, social security number, address, phone number, and 23 email address; and (ii) the clause identifying a CIU officer on COSD000399. In addition, 24 Defendants shall remove the AEO designation and produce COSD000397–406 with a 25 “Confidential” designation. 26 7. COSD000407: This is an email communication from a private citizen to 27 SDPD regarding the Protests. This is designated AEO with the name and email address of 28 a private witness redacted. Plaintiffs argue that nothing in this document as presented 1 should be considered confidential. Pls.’ Br. at 4. Other than a general privacy interest, 2 Defendants fail to identify any particularized harm or safety risk that may result from 3 disclosing to Plaintiffs the names of witnesses and citizens involved, participating, or 4 otherwise reporting on the Protests and thus offer no basis to support the restrictive AEO 5 designation. Defs.’ Ex. D at 1–2, 3. Further, Plaintiffs have substantial need for the identity 6 of witnesses, who would provide relevant information concerning the events that form the 7 basis for Plaintiffs’ claims. The Court therefore finds that Plaintiffs’ need for this 8 information and the public interest in disclosure outweighs the privacy rights asserted. 9 Accordingly, Defendants shall remove all remaining redactions from COSD000407, 10 except Defendants shall redact the witness’ phone number and email address as such 11 personal identifying information is not relevant to Plaintiffs’ claims. In addition, 12 Defendants shall remove the AEO designation and produce COSD000407 with a 13 “Confidential” designation to protect the privacy interests of any witness identified therein. 14 8. COSD000408–413: This is a series of SDPD email communications 15 forwarding emails from a private citizen to SDPD regarding another private individual’s 16 actions at the Protests; the private citizen is not identified by name as he or she wishes to 17 remain anonymous. The document is designated AEO with names and an email address 18 redacted. While the private citizen wishes to remain anonymous, the privacy interests of a 19 witness concerning events from 2021 that are not part of any ongoing investigation and 20 who is not identified by name are low. Further, Plaintiffs have substantial need for the 21 identity of witnesses, who would provide relevant information concerning the events that 22 form the basis for Plaintiffs’ claims. And other than a general privacy interest, Defendants 23 fail to identify any particularized harm or safety risk that may result from disclosing to 24 Plaintiffs the names of witnesses and citizens involved, participating, or otherwise 25 reporting on the Protests and thus offer no basis to support the restrictive AEO designation. 26 Accordingly, the Court finds that any purported privacy interest does not outweigh the 27 public interest in disclosure and Plaintiffs’ need for this information. Defendants shall 28 remove all remaining redactions from COSD000408–413, except Defendants shall redact 1 any witness’ phone number and email address as such personal identifying information is 2 not relevant to Plaintiffs’ claims. In addition, Defendants shall remove the AEO 3 designation and produce COSD000408–413 with a “Confidential” designation to protect 4 the privacy interests of any witness identified therein. 5 9. COSD000414: COSD000414 is an email regarding police preparations for 6 the Protests. Defendants agree to remove any confidentiality designation if the existing 7 redactions remain. Based on an in camera of the document, the existing redactions are 8 appropriate. The redacted information concerns residential information for members of 9 Congress, which is both private and irrelevant to Plaintiffs’ claims. Further, the Court 10 agrees with Defendants that disclosure of such information “would endanger these political 11 figures as well as the officers protecting them.” Novak Decl. at ¶ 20. Here, redacting 12 personal identifying information of Congressmembers would protect privacy concerns 13 while allowing public disclosure of the document. Accordingly, Defendants shall produce 14 COSD000414 with the current redactions and remove all confidentiality designations. 15 C. Exhibit 3 – COSD000415–439 16 Exhibit 3 consists of draft versions of the Contingency Plan, “Call for Service” logs, 17 dated January 9, 2021, and an SDPD monthly update for January 2021. The documents are 18 all designated AEO and redactions remain on the Contingency Plan drafts. Plaintiffs 19 challenge the confidentiality designations and argue any redactions are improper. Pls.’ Br. 20 at 4. 21 1. COSD000415–420 (including attachments 415.001–.009, 416.001–.009, 22 417.001–.009, 418.001–.010, 419.001–.010, and 420.001–.009): These are emails with 23 draft versions of the Contingency Plan attached. The body of the emails have no substantive 24 content. For the same reasons articulated above regarding an internal SDPD email 25 communication with an attached Contingency Plan, see supra Section III.B.1., the Court 26 orders as follows: Defendants (i) shall produce the emails (excluding attachments) at 27 COSD000415–420 without any confidentiality designation; (ii) shall produce the attached 28 Contingency Plans at COSD000415.001–.009, 416.001–.009, 417.001–.009, 418.001– 1 .010, 419.001–.010, and 420.001–.009 with an AEO designation; and (iii) shall remove all 2 remaining redactions in COSD000415.001–.009, 416.001–.009, 417.001–.009, 418.001– 3 .010, 419.001–.010, and 420.001–.009, except Defendants may redact the names of 4 undercover CIU officers and officers’ cell phone numbers. 5 2. COSD000421–435: These documents are the “Call for Service” logs, dated 6 January 9, 2021, produced unredacted with an AEO designation. Because the logs include 7 the names of private citizen callers, Defendants argue that the AEO designation is 8 necessary based on the citizens’ privacy rights. Novak Decl. at ¶ 15; Defs.’ Ex. D at 5. 9 The Court disagrees. The privacy interests of citizen callers concerning events from 10 2021 is low. And while privacy concerns may support a confidential designation, 11 Defendants do not show that this information is so sensitive that its dissemination deserves 12 even further limitation, particularly in the absence of any showing of a particularized harm 13 or safety risk resulting from disclosing the names of citizen callers to Plaintiffs. Further, 14 Plaintiffs have substantial need for the identity of witnesses, who would provide relevant 15 information concerning the events that form the basis for Plaintiffs’ claims. The Court 16 therefore finds that any purported privacy interest does not outweigh the public interest in 17 disclosure and Plaintiffs’ need for this information. Defendants shall remove the AEO 18 designation and all redactions and produce COSD000421–435 with a “Confidential” 19 designation to protect the privacy interests of citizen callers identified therein. 20 3. COSD000436–439: These documents are unredacted and Defendants agree 21 to remove all confidentiality designations. Defs.’ Ex. D at 5. Accordingly, Defendants shall 22 produce COSD000436–439 without any confidentiality designations or redactions. 23 D. Exhibit 4 – COSD000440–472 24 Exhibit 4 consists of Contingency Plan drafts, internal SDPD emails, and email 25 communications between SDPD and members of the public. The documents are all 26 designated AEO, and redactions remain on the Contingency Plans and one internal SDPD 27 email. Plaintiffs challenge the confidentiality designations and argue any redactions are 28 improper. Pls.’ Br. at 4. 1 1. COSD000440, 442–443, 446–449, 450–458, 463, 465–472: These documents 2 are unredacted and Defendants agree to remove all confidentiality designations. Defs.’ Ex. 3 D at 5–6. Accordingly, Defendants shall produce COSD000440, 442–443, 446–449, 450– 4 458, 463, and 465–472 without any confidentiality designations. 5 2. COSD000441, 444, 445, 459–462, including attachments 441.001–.009, 6 444.001–.009, 445.001–.009, 459.001–.009, 460.001–.009, 461.001–.009, and 462.001– 7 .009: These are emails with drafts of the Contingency Plan attached. Separate from their 8 attachments, the body of the emails contain little to no substantive content. The single email 9 with some content, COSD000441, includes no sensitive information, such as law 10 enforcement techniques, operations, or preparations for the Protests. Accordingly, for the 11 same reasons articulated above regarding an email with a Contingency Plan attached, see 12 supra Section III.B.1, the Court orders as follows: Defendants (i) shall produce the emails 13 (excluding attachments) at COSD000441, 444, 445, 459–462 without any confidentiality 14 designation; (ii) shall produce the attached Contingency Plans at COSD000441.001–.009, 15 444.001–.009, 445.001–.009, 459.001–.009, 460.001–.009, 461.001–.009, and 462.001– 16 .009 with an AEO designation; and (iii) shall remove all remaining redactions in 17 COSD000441.001–.009, 444.001–.009, 445.001–.009, 459.001–.009, 460.001–.009, 18 461.001–.009, and 462.001–.009, except Defendants may redact the names of undercover 19 CIU officers and officers’ cell phone numbers. 20 3. COSD000464: This is an internal SDPD email seeking an update concerning 21 an individual police officer, with a reference to work he was doing regarding the Protests. 22 Defendants attach an AEO designation and redact unrelated and private information 23 concerning two referenced police officers. Defendants agree to de-designate the email if 24 existing redactions regarding the officers’ private information remain. Defs.’ Ex. D at 6. 25 Based on an in camera review, the Court agrees that the redactions concerning the 26 private and personal information of the referenced police officers are appropriate. The 27 information redacted is irrelevant to Plaintiffs’ claims and disclosure would constitute an 28 unnecessary invasion of the officers’ privacy. Accordingly, Defendants shall remove the 1 AEO designation and produce COSD000464 without any confidentiality designation or 2 redactions, except Defendant may keep redactions relating to the private and personal 3 information of the referenced police officers. 4 E. Exhibit 5 – COSD000473–489 5 Exhibit 5 includes internal SDPD email communications, the After Action Report, 6 and a final version of the Contingency Plan. Plaintiff challenges all confidentiality 7 designations and redactions. Pls.’ Br. at 4. 8 1. COSD000473–474: These are unredacted emails (without attachments) and 9 Defendants agree to remove the confidentiality designation as to the emails themselves. 10 The Court addresses any attachments below. Accordingly, Defendants shall produce 11 COSD000473–474 without any confidentiality designations. 12 2. COSD000475–480: This is a redacted version of the After Action Report, 13 with certain information highlighted. Based on the law enforcement privilege, Defendants 14 designated all pages AEO, with redactions remaining on COSD000475 and 479. Defs.’ Br. 15 at 6. 16 a. Confidential Designation on After Action Report is Appropriate 17 Defendants argue that the After Action Report consists of “highly sensitive law 18 enforcement techniques and procedures, the disclosure of which would undermine 19 important SDPD investigatory procedures and techniques and seriously impair SDPD’s 20 ability to conduct future investigations and plan for events, thereby endangering the safety 21 of law enforcement personnel as well as San Diego residents.” Defs.’ Br. at 7. Captain 22 Novak echoes these concerns and further states that disclosure to civil litigants would 23 discourage law enforcement personnel from keeping these records. See Novak Decl. at 24 ¶¶ 8–10. The Court finds that while such concerns and risks may support designating the 25 After Action Report as “Confidential,” they fall short of supporting the restrictive AEO 26 designation given the information actually contained in the After Action Report. 27 Based on an in camera review, the After Action Report is in essence an account of 28 the events that unfolded during the Protests. It describes the conduct of protestors and 1 police, the movement of police units in response to the unfolding events, arrests made, 2 certain intelligence collected by CIU concerning the Protests, and identifies officers by 3 name, including injuries experienced by certain officers. Thus, in sharp contrast to the 4 Contingency Plan, which laid out law enforcement techniques/planned operations and how 5 SDPD prepares in response to an upcoming political event/protest, the After Action Report 6 describes events and conduct that already occurred in the public realm. Further, it is not 7 apparent why access to the After Action Report should be limited to Plaintiffs’ counsel. 8 While Plaintiffs may have had “contentious” interactions with police, there is no apparent 9 risk is disclosing to Plaintiffs a document that describes events that occurred in public over 10 three years ago. Moreover, such information is critical to prosecuting Plaintiffs’ claims. 11 Still, the Court recognizes that the After Action Report does contain information 12 collected by the CIU regarding the Protests and identifies officers by name and the names 13 of particular police units. Therefore, in balancing Plaintiffs’ need for this information, the 14 public’s interest in disclosure, witness/arrestees’ privacy interests, and the need to protect 15 the identity of officers and the names of specific police units, the Court finds that a 16 “Confidential” designation is warranted. 17 b. Confidential Designation Reduces Need for Certain Redactions 18 Based on Plaintiffs’ submission, it appears that redactions remain on COSD000475 19 and COSD000479 in the After Action Report. COSD000475 contains redactions of (a) the 20 name of a private citizen, (b) the radio frequencies used by officers, and (c) a meeting 21 location for certain deployment teams. COSD000479 has redactions of case numbers. 22 Other than radio frequencies, the information redacted is relevant to Plaintiffs’ claims and 23 should be disclosed. Moreover, Defendants fail to explain how the disclosure of case 24 numbers, which are not associated with any individual identified by name, physical 25 description (besides a reference to “juvenile”), or other personal identifying information, 26 constitutes an invasion of privacy that requires redaction. Thus, the Court finds that the 27 “Confidential” designation adequately protects the privacy interests of any individuals [28] 1 named or referenced in the After Action Report and adequately protects any potentially 2 sensitive law enforcement information, i.e., the meeting location of a police unit. 3 Accordingly, Defendants (i) shall remove the AEO designation and all remaining 4 redactions in COSD000475–480, except Defendants may redact the radio frequencies 5 reflected on COSD000475, and (ii) shall produce COSD000475–480 with a 6 “Confidential” designation. 7 3. COSD000481–489: This is the final version of the Contingency Plan. For the 8 same reasons articulated above regarding the Contingency Plan, see supra Section III.B.1., 9 the Court orders as follows: Defendants shall produce COSD000481–489 with an AEO 10 designation and remove all remaining redactions, except Defendants may redact the names 11 of undercover CIU officers and officers’ cell phone numbers. 12 F. Exhibit 6 – COSD000490–529 13 Exhibit 6 includes news articles, arrest reports, officer reports, and Vice Unit 14 Investigator reports. Plaintiff challenges all confidentiality designations. Pls.’ Br. at 5. 15 1. COSD000490–501: Defendants represent that they already produced 16 unredacted, non-confidential versions of these documents to Plaintiffs. Defs.’ Ex. D at 8. 17 Accordingly, these documents are not at issue. 18 2. COSD000502–529: These are arrest reports and Vice Unit Investigator 19 reports from January 9, 2021, documenting the arrests during the Protests and interviews 20 of three individuals (collectively, the “Arrest Records”). Defendants attach the AEO 21 designation because these reports purportedly contain confidential information that 22 includes law enforcement techniques and procedure. Novak Decl. at ¶ 18. According to 23 Captain Novak, disclosure would endanger law enforcement personnel, impair their ability 24 to conduct investigations, and undermine the privacy of the suspects and violate their 25 privacy rights. Id. Additionally, Defendants redact certain personal identifying 26 information, including the names of arrestees/suspects, addresses, dates of birth, etc. 27 Plaintiffs argue that because the names and identifying information are redacted, the 28 documents should not be considered confidential. Pls.’ Br. at 5. 1 The Court agrees that public disclosure would violate the privacy interests of third 2 parties, who have an interest in limiting disclosure of their arrest records, the disclosure of 3 which may cause embarrassment or humiliation. However, based on an in camera review, 4 the Court is not persuaded that the documents disclose law enforcement 5 techniques/procedures or other information, i.e., an ongoing investigation or prosecution, 6 so sensitive that the restrictive AEO designation is warranted. At most, the Arrest Records 7 reflect how SDPD processes an individual following arrest, which is evident to any person 8 that is arrested. 9 The Arrest Records do document the circumstances leading to and surrounding the 10 individuals’ arrests during the Protests and information conveyed by the arrestees in 11 interviews. Plaintiffs have substantial need for this information, as the Arrest Records not 12 only identify witnesses, but provide information that enables them to investigate the events 13 at issue. Therefore, in balancing Plaintiffs’ need for this information, the privacy rights of 14 the third parties, and any sensitivity concerning SDPD’s arresting procedures (to the extent 15 reflected in the Arrest Records), the Court finds that a “Confidential” designation is 16 appropriate. See, e.g., Perrin, 2010 U.S. Dist. LEXIS 153728 , at *6. Still, Plaintiffs have 17 no need for personal identifying information that is not relevant to Plaintiffs’ claims and 18 does not otherwise impact the substance of the Arrest Records. 19 Accordingly, the Court orders as follows: Defendants (i) shall remove the AEO 20 designation and all remaining redactions in COSD000502–529, except Defendants shall 21 redact the following personal identifying information: date of birth, social security number, 22 address, phone number, email address, driver’s license number, and place of birth; and 23 (ii) shall produce COSD000502–529 with a “Confidential” designation. 24 IV. CONCLUSION 25 Based on the foregoing, the Court ORDERS the following: 26 1. Defendant shall PRODUCE the Subject Documents by no later than July 5, 2024 27 as follows: [28] 1 a. COSD000369–370: Defendants shall remove the AEO designation and 2 produce COSD000369–370 with a “Confidential” designation, with the existing, 3 unchallenged redaction of the detective’s cell phone number on COSD000370. To the 4 extent the information appears in COSD000369–370, Defendants may redact the name, 5 email address, and signature block of the officer expressly identified as a CIU officer. 6 b. COSD000371–374: Defendants shall remove all remaining redactions from 7 COSD000371–374, except Defendants shall redact (i) the following personal identifying 8 information of witnesses: date of birth, social security number, address, phone number, and 9 email address; and (ii) the clause identifying a CIU officer on COSD000372. In addition, 10 Defendants shall remove the AEO designation and produce COSD000371–374 with a 11 “Confidential” designation. 12 c. COSD000371.001–.016: Defendants shall produce COSD000371.001–0.16 13 without any confidentiality designations or redactions. 14 d. COSD000375–377: Defendants shall remove the AEO designation, redact 15 dates of birth on the Arrest Log, and produce COSD000375–377 with a “Confidential” 16 designation. 17 e. COSD000378–379: Defendants shall produce COSD000378–379 without 18 any confidentiality designations or redactions. 19 f. COSD000380; COSD380.001–.009: Defendants (i) shall produce 20 COSD000380 without any confidentiality designation; (ii) shall produce COSD380.001– 21 .009 with an AEO designation; and (iii) shall remove all remaining redactions in 22 COSD380.001–.009, except Defendants may redact the names of undercover CIU officers 23 and officers’ cell phone numbers. 24 g. COSD000381–385: Defendants shall produce COSD000381–385 without 25 any confidentiality designations or redactions. 26 h. COSD000386–393: Defendants shall remove the AEO designation and 27 produce COSD000386–393 with a “Confidential” designation. Defendants may redact the 28 officers’ cell phone numbers on COSD000388–390. To the extent the information appears 1 in COSD000387-393, Defendants may redact the name, email address, and signature block 2 of the officer expressly identified as a CIU officer. 3 i. COSD000394–395: Defendants shall produce COSD000394–395 without 4 any confidentiality designations. 5 j. COSD000396: Defendants (i) shall remove all remaining redactions from 6 COSD000396, except Defendants shall redact the witness’ phone number and address; 7 and (ii) shall remove the AEO designation and produce COSD000396 with a 8 “Confidential” designation. 9 k. COSD000397–406: Defendants shall remove all remaining redactions from 10 COSD000397–406, except Defendants shall redact (i) the following personal identifying 11 information of witnesses: date of birth, social security number, address, phone number, and 12 email address and (ii) the clause identifying a CIU officer on COSD000399. In addition, 13 Defendants shall remove the AEO designation and produce COSD000397–406 with a 14 “Confidential” designation. 15 l. COSD000407: Defendants shall remove all remaining redactions from 16 COSD000407, except Defendants shall redact the witness’ phone number and email 17 address. In addition, Defendants shall remove the AEO designation and produce 18 COSD000407 with a “Confidential” designation. 19 m. COSD000408–413: Defendants shall remove all remaining redactions from 20 COSD000408–413, except Defendants shall redact any witness’ phone number and email 21 address. In addition, Defendants shall remove the AEO designation and produce 22 COSD000408–413 with a “Confidential” designation. 23 n. COSD000414: Defendants shall produce COSD000414 with the current 24 redactions and remove all confidentiality designations. 25 o. COSD000415–420 (including attachments 415.001–.009, 416.001–.009, 26 417.001–.009, 418.001–.010, 419.001–.010, and 420.001–.009): Defendants (i) shall 27 produce the emails (excluding attachments) at COSD000415–420 without any 28 confidentiality designation; (ii) shall produce the attached Contingency Plans at 1 COSD000415.001–.009, 416.001–.009, 417.001–.009, 418.001–.010, 419.001–.010, and 2 420.001–.009 with an AEO designation; and (iii) shall remove all remaining redactions in 3 COSD000415.001–.009, 416.001–.009, 417.001–.009, 418.001–.010, 419.001–.010, and 4 420.001–.009, except Defendants may redact the names of undercover CIU officers and 5 officers’ cell phone numbers. 6 p. COSD000421–435: Defendants shall remove the AEO designation and all 7 redactions and produce COSD000421–435 with a “Confidential” designation. 8 q. COSD000436–439: Defendants shall produce COSD000436–439 without 9 any confidentiality designations or redactions. 10 r. COSD000440, 442–443, 446–449, 450–458, 463, 465–472: Defendants shall 11 produce COSD000440, 442–443, 446–449, 450–458, 463, and 465–472 without any 12 confidentiality designations. 13 s. COSD000441, 444, 445, 459–462, including attachments 441.001–.009, 14 444.001–.009, 445.001–.009, 459.001–.009, 460.001–.009, 461.001–.009, and 462.001– 15 .009: Defendants (i) shall produce the emails (excluding attachments) at COSD000441, 16 444, 445, 459–462 without any confidentiality designation; (ii) shall produce the attached 17 Contingency Plans at COSD000441.001–.009, 444.001–.009, 445.001–.009, 459.001– 18 .009, 460.001–.009, 461.001–.009, and 462.001–.009 with an AEO designation; and 19 (iii) shall remove all remaining redactions in COSD000441.001–.009, 444.001–.009, 20 445.001–.009, 459.001–.009, 460.001–.009, 461.001–.009, and 462.001–.009, except 21 Defendants may redact the names of undercover CIU officers and officers’ cell phone 22 numbers. 23 t. COSD000464: Defendants shall remove the AEO designation and produce 24 COSD000464 without any confidentiality designation or redactions, except Defendant 25 may keep redactions relating to the private and personal information of the referenced 26 police officers. 27 u. COSD000473–474: Defendants shall produce COSD000473–474 without 28 any confidentiality designations. V. COSD000475—480: Defendants (1) shall remove the AEO designation and all 2 ||remaining redactions in COSD000475—-480, except Defendants may redact the radio 3 || frequencies reflected on COSD000475, and (ii) shall produce COSD000475—480 with a 4 ||““Confidential” designation. 5 w. COSD000481—489: Defendants shall produce COSD000481—489 with an 6 || AEO designation and remove all remaining redactions, except Defendants may redact the 7 ||names of undercover CIU officers and officers’ cell phone numbers. 8 xX. COSD000490—-501: These documents are not at issue. 9 y. COSD000502—529: Defendants (1) shall remove the AEO designation and all 10 || remaining redactions in COSD000502-529, except Defendants shall redact the following 11 personal identifying information: date of birth, social security number, address, phone 12 ||number, email address, driver’s license number, and place of birth; and (ii) shall produce 13 |} COSD000502—529 with a “Confidential” designation. 14 2. The Court SETS a telephonic Status Conference on July 8, 2024 at 10:30 a.m. 15 regarding the status of Defendants’ discovery production in compliance with this Order. 16 || Teleconference information will be provided two days prior to the Status Conference. 17 3. Defendants shall file any renewed Motion for Summary Judgment by no later 18 July 12, 2024. 19 IT IS SO ORDERED. [20] 21 ||Dated: June 21, 2024 [ r= che 22 Honorable Valerie E. Torres 3 United States Magistrate Judge