Liu v. City of Reno

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 FRANK LIU, Case No. 3:22-CV-00551-CLB 5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER 6 v. AND DENYING PLAINTIFF’S MOTION FOR STAY OF DISCOVERY 7 CITY OF RENO and SCOTT GAUTHIER, [ECF No. 24, 25] 8 Defendants. [9] 10 This case involves a civil rights action filed by Plaintiff Frank Liu (“Liu”) against 11 Defendants City of Reno (“Reno”) and Scott Gauthier (“Gauthier”) (collectively referred to 12 as “Defendants”). Currently pending before the Court are two separate but related 13 motions. The first motion is Defendants’ motion for protective order which seeks to 14 prevent the dissemination of information produced or exchanged in the course of this 15 case for purposes other than the litigation. (ECF Nos. 24, 24-5.) Liu responded, (ECF No. 16 27), and Defendants replied. (ECF No. 30.) The second motion is Liu’s motion to stay 17 discovery pending the disposition of the motion for protective order (referred to hereafter 18 as the “stay motion.”). (ECF No. 25.) Defendants responded, (ECF No. 29), and Liu 19 replied. (ECF No. 31.) For the reasons stated below, the Court grants Defendants’ motion 20 for a protective order and denies Liu’s stay motion as moot. 21 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 22 A. Factual Summary 23 On December 13, 2022, Liu initiated this action by filing an application to proceed 24 in forma pauperis and along with a pro se civil rights complaint. (ECF Nos. 1, 1-1.) On 25 December 22, 2022, the Court issued a screening order pursuant to 28 U.S.C. § 1915A 26 and granted Liu an opportunity to either amend his complaint or proceed as outlined in 27 the order. (ECF No. 3.) Liu filed a first amended complaint (“FAC”) on January 27, 2023. 1 Gauthier on the following claims: (1) violation of the Fourth Amendment as it relates to 2 Terry v. Ohio, 392 U.S. 1, 19 (1968); and (2) violation of the Fourteenth Amendment as it 3 relates to “racial profiling… without due process.” (ECF No. 10 at 2.) 4 Liu’s FAC alleges the following: On December 3, 2022, Gauthier, an officer with 5 the Reno Police Department, initiated contact with Liu, while he was parked in his car in 6 the parking lot of a Planet Fitness. (ECF No. 9 at 6.) Liu, who is homeless and an Asian 7 American, was video editing in his vehicle at the time Gauthier approached him. (Id.) 8 Gauthier required Liu to provide proof of identification and ran Liu for warrants, which Liu 9 asserts was an “unlawful Terry1 Stop” used as pretext to run Liu’s information for 10 warrants. (Id. at 7.) Liu alleges he was targeted for being homeless, discriminated against 11 based on his race, and Gauthier violated his constitutional rights by unlawfully detaining 12 him. (Id. at 9.) 13 B. Motion for Protective Order 14 On July 3, 2023, Defendants filed a motion for protective order to preclude Liu from 15 posting materials produced during discovery on YouTube. (ECF No. 24.) To this end, 16 Defendants provide a proposed protective order which states that “[a]ll information 17 produced or exchanged in the course of this case (other than information that is publicly 18 available) shall be used by the party or parties to whom the information is produced solely 19 for the purpose of this case.” (ECF No. 24-5 at 3 (emphasis added).) The proposed order 20 also provides for the designation of some information as “confidential” which, unless 21 otherwise permitted by statute, rule or prior court order, would require the party utilizing 22 the item in a court filing to follow the proper procedure for filing the item under seal. (Id. 23 at 4.) 24 In the motion, Defendants describe Liu’s activities as a “YouTuber,” including 25 “publicly posted videos on YouTube concerning the subject of this case as well as his 26 separate case against Lyon County, both of which include images of the involved peace [27] 1 Terry v. Ohio, 392 U.S. 1, 19 (1968). 1 officers, despite Nevada law which makes such images confidential. See Nev. Rev. Stat. 2 289.025.” (Id. at 2.) Generally, Defendants request a protective order because the case 3 involves subject matter which is confidential and/or otherwise protected from public 4 dissemination and Liu’s conduct has caused concern that he may abuse the discovery 5 process. (ECF No. 24 at 5-6.) 6 To support the need for a protective order, Defendants cite Liu’s “(1) request to 7 record depositions for use on YouTube, (2) previous postings made on YouTube 8 regarding the subjects of all three of his pending lawsuits, and (3) refusal to discuss 9 compromise with regard to restricting the use of information obtained in discovery, [as] 10 caus[ing] great concern that he will probably abuse the discovery process to obtain 11 information for the purpose of dissemination, rather than a legitimate purpose in litigation.” 12 (Id.) Defendants also list the additional concerns of Liu “(1) revealing confidential 13 information, (2) inhibiting witnesses concerned their discovery responses may be 14 publicized, (3) influencing witnesses who saw what other witnesses said, (4) adversely 15 influencing the proceedings, (5) posting information compelled through discovery just for 16 ‘clicks’, and (6) ignoring consent requirements, among other things.” (Id. at 6.) Defendants 17 also specifically reference an email from Liu to defense counsel where Liu writes that he 18 “would like to use a screen recorder to record the depositions and use those depositions 19 later on as content for [his] YouTube channel.” (ECF No. 24-1 at 2.) 20 On July 18, 2023, Liu responded to Defendants’ motion for a protective order. (ECF 21 No. 27.) Liu argues a protective order is improper “[b]ecause one of the Defendants is a 22 public entity and the other Defendant is a police officer working for the public entity, a 23 protective order would hinder the public interest when Defendants have shown no good 24 cause nor has provided any specific evidence that Liu has abused the discovery process.” 25 (Id. at 4.) Liu opposes the protective order “because Liu does not want to be accused of 26 breaking a Court order and turn a civil case into a criminal case.” (Id.) Liu argues that 27 “Defendants’ entire argument is built on speculation and unrelated things that have 1 that because he informed Defendants he would not be doing depositions of any 2 Defendants, their concern over depositions and YouTube is moot. (Id.) Liu argues “[w]hile 3 Liu did ask to do video depositions and wanted the ability to record it without having to 4 hire people, and although he thought that once the case is over, it may be something 5 interesting to put on YouTube for educational purposes, it was just an idea and Liu was 6 running it by Hughs first by bringing it up.” (Id. at 7.) Liu also states he “would rather not 7 receive discovery documents instead of having a protective order forced upon him” and 8 he “would rather limit the scope of discovery and be prevented from discovery things so 9 he can’t break a court order.” (Id. at 4, 9.) Finally, Liu disputes Defendants’ 10 characterization of him as a “YouTuber” and denies making money from YouTube as of 11 that filing.2 (Id. at 19.) 12 Defendants filed their reply on July 24, 2023. (ECF No. 30.) Defendants assert that 13 Liu’s arguments in response to the motion for protective order and in his stay motion, 14 (ECF No. 25) (discussed below), indicate that, without a protective order, Liu may use 15 discovery for non-case-related purposes. (Id. at 2-3.) Defendants also argue that Liu does 16 not acknowledge any constraints on what he can do with any materials and information 17 acquired through compelled discovery. (Id. at 2.) 18 C. Motion to Stay Discovery 19 In response to the motion for protective order, on July 10, 2023, Liu filed a motion 20 to stay discovery pending a ruling on the motion for protective order. (ECF No. 25.) In the 21 stay motion, Liu claims that he does not plan to request any discovery materials from 22 Defendants should a protective order be granted because he doesn’t want to turn a civil 23 trial into a criminal trial and be accused of violating a protective order. (Id. at 5-6; 8.) Liu 24 2 To monetize YouTube videos, the channel must be a member of the “YouTube Partner Program” (“YPP”). To be eligible for the YPP, the channel must “(1) Get 1,000 [25] subscribers with 4,000 valid public watch hours in the last 12 months, or (2) Get 1,000 26 subscribers with 10 million valid public Shorts views in the last 90 days.” YouTube Partner Program overview & eligibility, YouTube.com (August 9, 2023, 2:21 PM), 27 https://support.google.com/youtube/answer/72851?hl=en. Liu’s emphasis that he is not making money from YouTube as of this filing belies the possibility that increased 1 further states he “is fine with getting redacted discovery materials but if that isn’t allowed 2 either without a protective order, then Liu is fine with not receiving any more discovery 3 material.” (Id. at 6.) 4 In response, Defendants argue the stay motion should be denied because: “(1) 5 [Liu’s] Motion does not comply with court rules, (2) he has conducted no discovery at all, 6 (3) he is not participating in discovery in good faith, (4) he mischaracterizes relevant 7 circumstances, and (5) he cannot demonstrate good cause for a stay.” (ECF No. 29 at 2.) 8 Defendants’ response also takes issue with many characterizations and statements in 9 Liu’s stay motion. (Id. at 3-5.) Defendants again argue that Liu’s “real reason for fearing 10 a protective order is that he wants to publicly disseminate what he receives in discovery, 11 and, to him, there is no reason for even conducting discovery if a protective order 12 preventing such dissemination is in place.” (Id. at 5.) Defendants also point out that it 13 seems Liu is requesting an extension of discovery rather than a stay, but regardless Liu 14 does not address the standards necessary for either request.3 (Id. at 6-8.) 15 In reply, Liu reiterates that because “Defendants want ALL discovery to be 16 protected, than [sic] that means ALL discovery should be stayed until the Court rules” on 17 the motion for protective order. (ECF No. 31 at 3.) Liu characterizes the request for 18 protective order as “asking this Court to grant a blanket protective order in a lawsuit about 19 police misconduct and violation of constitutional rights which would include the removal 20 of YouTube videos about the incident.” (Id.) Liu brings up previous incidents in which he 21 chose to redact or otherwise conceal private information when posting his YouTube 22 videos. (Id. at 7-8.) As examples, Liu mentions redacting phone numbers, personal 23 information of civilians’ personal information on the bodycam video released to Liu, and 24 obscuring a notepad in a video which showed other personal information without being [25] 3 To determine if a stay is appropriate pending the ruling on a motion to dismiss, the 26 court considers the following factors: (1) whether the pending motion is potentially dispositive of the case; (2) whether the motion can be decided without additional 27 discovery; and (3) whether the court is convinced that the plaintiff cannot state a claim for relief. Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013). A motion or 1 directed to by a protective order. (Id.) 2 D. Liu’s Activity on YouTube 3 Relevant to the pending motions is the fact that Liu runs a YouTube channel. In 4 fact, Liu’s FAC includes a section entitled “Proof of Encounter” where Liu describes 5 uploading two “YouTube Shorts” videos that “sum up the encounter” at issue in this case 6 and provides links to both videos. (ECF No. 9 at 29.) The first video entitled, “#reno911 7 Unlawful Detention (Scott Gauthier) #police #crime #homeless #audittheaudit #shorts 8 #law” (“Video 1”), was posted on December 5, 2022, and as of August 8, 2023, was 9 viewed 28,371 times.4 The second video entitled, “Reno911! Detained for being homeless 10 #reno911 #police #shorts #homeless #crime #audittheaudit” (“Video 2”), was posted on 11 December 5, 2022, and was viewed 156,400 as of August 8, 2023.5 Video 1 identifies 12 Gauthier by name and both videos show the interaction between Liu and Gauthier on 13 December 3, 2022. These videos are posted by a channel named “Reno Misconduct,” 14 which has multiple other videos of a similar nature. Videos 1 and 2 were both uploaded 15 prior to the filing of this lawsuit. 16 The motions currently pending before the Court concern Liu’s YouTube activities 17 beyond the two videos identified in the FAC. For example, Defendants’ motion for 18 protective order includes references to the videos Liu posted concerning the instant case 19 and his lawsuit against Lyon County. (ECF No. 24 at 2.) Defendants specifically reference 20 “a number of videos in which the participants do not appear to know they are being 21 recorded and or disseminated, such as a hand held camera recording of a video 22 conference with a manager, an audio recording of a call with managers regarding his 23 termination and screenshots of texts from other employees.” (Id. (footnotes omitted).) The [24] 25 4 Reno Misconduct (@RenoMisconduct), #reno911 Unlawful Detention (Scott Gauthier) #police #crime #homeless #audittheaudit #shorts #law, YouTube (Dec. 5, 26 2022), [hereinafter “Video 1”] https://www.youtube.com/shorts/4uDHrel3OUs\. 27 5 Reno Misconduct (@RenoMisconduct), Reno911! Detained for being homeless #reno911 #police #shorts #homeless #crime #audittheaudit, YouTube (Dec. 5, 2022), 1 motion also points out that Liu often refers to his YouTube videos as “authority” in 2 correspondence and pleadings. (Id.) While Liu disputes the use of the term “authority,” it 3 is undisputed that Liu consistently references his YouTube videos in filings with the Court. 4 In response to the motion for protective order, Liu provides links to other YouTube videos 5 to dispute Defendants’ contention that Liu violated a Nevada statute making non-public 6 images of peace officer confidential. (ECF No. 27 at 20-21.) The same motion also 7 contains a section titled “ ‘TV Ratings Guy’ YouTube Channel was originally created for 8 EEOC purposes,” which describes how Liu created the channel to provide the Equal 9 Employment Opportunity Commission (“EEOC”) with videos during their investigation of 10 an unrelated matter. (Id. at 22-23.) In another filing, as discussed above, Liu references 11 and provides links to previous YouTube videos where he removed or blurred potentially 12 sensitive information. (ECF No. 31 at 7-8.) 13 Therefore, as the record before the Court is replete with references to Liu’s 14 YouTube activities – including in the operative complaint – and the importance of the 15 content of the videos themselves to the determination of the pending motions, the Court 16 reviewed Liu’s “Reno Misconduct” YouTube channel. Since filing this lawsuit, Liu has 17 continued posting videos of the incident, including in a video entitled “Suing the cop who 18 detained me #police #homeless #shorts” (“Video 3”) which was posted on June 4, 2023.6 19 Based on the timestamp that appears in the video, it appears to be the bodycam footage 20 of the alleged stop which forms the basis of the lawsuit. All videos posted to the “Reno 21 Misconduct” channel appear to have been edited. Therefore, the timing of events 22 occurring during the videos are unclear. 23 On June 3, 2023, Liu also posted a video titled “Reno cop requires ID in ‘high crime 24 area,’” (“Video 4”) which shows bodycam footage from December 3, 2022, as can be [26] 27 6 Reno Misconduct (@RenoMisconduct), Suing the cop who detained me #police #homeless #shorts, YouTube (Jun. 4, 2023), [hereinafter “Video 3”] 1 discerned from the timestamp in the video.7 At certain points during the video, Liu inserts 2 his own footage from the incident. Ten days later, Liu posted “part 2” of Video 4 titled 3 “What happens after you file a complaint against Reno police?” (“Video 5”).8 In the caption 4 for Video 5, Liu writes “for more context, please watch the video about the Gauthier 5 detainment” and directs viewers to Video 4. Video 5 includes the bodycam footage from 6 December 4, 2022, Liu’s own footage of the incident, and footage of other interactions 7 between Liu and the Reno Police Department. 8 Liu admits that he received three redacted bodycam videos from Defendants 9 during discovery in this case. (ECF No. 27 at 10.) The time stamps on the bodycam videos 10 in Videos 3, 4, and 5 start at 10:48 P.M. on December 3, 2022, (see Video 3 at 0:00 11 seconds; see Video 4 at 0:00 seconds), and continues into the early morning hours of 12 December 4, 2022 (see Video 5 at 0:00 seconds). In Liu’s FAC, he lists the time of the 13 first interaction with Gauthier as 10:48 P.M. on December 3, 2022. (ECF No. 9 at 6.) 14 II. LEGAL STANDARD 15 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett 16 v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 17 574, 598 (1998). “The discovery process in theory should be cooperative and largely 18 unsupervised by the district court.” Sali v. Corona Reg. Med. Ctr., 884 F.3d 1218 , 1219 19 (9th Cir. 2018). Nonetheless, a party from whom discovery is sought may move for a 20 protective order to prevent annoyance, embarrassment, oppression, or undue burden or 21 expense. Fed. R. Civ. P. 26(c)(1). A “protective order prevents a party from disseminating 22 only that information obtained through use of the discovery process.” Seattle Times Co. 23 v. Rhinehart, 467 U.S. 20, 34 (1984). [24] 25 7 Reno Misconduct (@RenoMisconduct), Reno cop requires ID in "high crime area," YouTube (Jun. 14, 2023), [hereinafter “Video 4”] https://youtu.be/ocDjlztz8Vk. [26] 27 8 Reno Misconduct (@RenoMisconduct), What happens after you file a complaint against Reno police?, YouTube (Jun. 17, 2023), [hereinafter “Video 5”] 1 The party seeking issuance of a protective order bears the burden of persuasion. 2 U.S. E.E.O.C. v. Caesars Entm’t, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) (citing 3 Cipollone v. Liggett Grp., 784 F.2d 1108, 1121 (3d Cir. 1986)). Such a burden is carried 4 by demonstrating a particular need for protection supported by specific facts. Id. To that 5 end, courts “insist[] on a particular and specific demonstration of fact, as distinguished 6 from conclusory statements,” to issue a protective order. Twin City Fire Ins. Co. v. 7 Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989). Broad allegations of 8 harm, unsubstantiated by specific examples or articulated reasoning, are insufficient. 9 Caesars Entertainment, 237 F.R.D. at 432 . A showing that discovery may involve some 10 inconvenience or expense is likewise insufficient to obtain a protective order. Turner 11 Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). Courts are more 12 likely to prohibit the public dissemination of audiovisual recordings of depositions than 13 written transcripts because “videos can more easily be abused as they ‘can be cut and 14 spliced and used as ‘soundbites’ on the evening news or sports shows.’ ” Katz v. Steyn, [15] 2019 WL 3211070 , at *4 (D. Nev. Mar. 25, 2019) (citing Stern v. Cosby, 529 F.Supp.2d 16 417, 422 (S.D.N.Y. 2007)) (internal citations omitted). 17 District courts possess “wide discretion to determine what constitutes a showing 18 of good cause and to fashion a protective order that provides the appropriate degree of 19 protection.” Swenson v. GEICO Cas. Co., 336 F.R.D. 206 , 209 (D. Nev. Aug. 19, 2020) 20 (quoting Grano v. Sodexo Mgmt., Inc., 335 F.R.D. 411 , 414 (S.D. Cal. Apr. 24, 2020)). 21 The Supreme Court has found “broad discretion on the trial court to decide when a 22 protective order is appropriate and what degree of protection is required,” as the “trial 23 court is in the best position to weigh the fairly competing needs and interests of the parties 24 affected by discovery. The unique character of the discovery process requires that the 25 trial court have substantial latitude to fashion protective orders.” Seattle Times, 467 U.S. 26 at 32 (1984) (citing Zemel v. Rusk, 381 U.S. 1, 36 (1965)). Where grounds for a protective 27 order have been established, courts have a variety of options to rectify the situation, 1 including preventing the discovery or specifying the terms on which the discovery will be 2 conducted. Fed. R. Civ. P. 26(c)(1)(A), (B). 3 III. DISCUSSION 4 First, it is important to note that “[a] litigant has no First Amendment right of access 5 to information made available only for purposes of trying his suit.” Seattle Times Co. v. 6 Rhinehart, 467 U.S. 20, 32 (1984) (citing Zemel v. Rusk, 381 U.S. 1 , 16–17 (1965) (“The 7 right to speak and publish does not carry with it the unrestrained right to gather 8 information”)). Specifically, “pretrial depositions and interrogatories are not public 9 components of a civil trial.” Id. at 33 . Therefore, restraints placed on discovered, but not 10 yet admitted, information are not a restriction on a traditionally public source of 11 information. Id. 12 When evaluating whether to grant a protective order in cases such as the one 13 at bar, the mere possibility that the online posting of a videotaped deposition will be 14 misused is insufficient grounds for the issuance of a protective order. Katz, 2019 WL 15 13211070 at *6 (citing Stern, 529 F.Supp.2d at 422 ; Burgess v. Town of Wallingford, [16] 2012 WL 4344194 , at *8 (D. Conn. Sept. 21, 2012)). However, a “clear and specific 17 threat that a party or person will use discovery materials in an abusive manner may 18 also constitute good cause for a protective order.” Id. 19 Here, there is a clear and specific threat that a party will use discovery materials 20 in an abusive manner. Liu explicitly stated in an email to Defendants that he “would 21 like to use a screen recorder to record the depositions and use those depositions later on 22 as content for [his] YouTube channel.” (ECF No. 24-1 at 2.) To enforce this point, Liu 23 included a reference to a YouTube link that purportedly shows a deposition of former New 24 York Governor Cuomo. (Id.) Liu later attempts to clarify this request by stating “he would 25 like to use the depositions later after the lawsuit is finished as he has an educational 26 background.” (ECF No. 27 at 9.) However, regardless of the purpose for which Liu would 27 use the deposition videos, Liu does not deny that he intends to use the deposition videos 1 In fact, from the Court’s review of Liu’s “Reno Misconduct” YouTube channel, it is 2 clear Liu is already using the instant lawsuit as content for his channel. For example, in 3 Video 3, Liu includes his own cell phone footage of Gauthier with the text “Defendant” 4 above his head and the Court’s electronic filing system’s notice of summons issued as to 5 Reno and Gauthier. This video not only shows that Liu is suing Gauthier and the City of 6 Reno and identifies Gauthier as a Defendant, but Liu also actually uses documentation 7 from the litigation itself in the form of the summons docket entry. 8 In another portion of Video 3, Liu writes “Please Subscribe” on the top of the video. 9 As previously mentioned, to monetize one’s YouTube channel, the channel must “(1) Get 10 1,000 subscribers with 4,000 valid public watch hours in the last 12 months, or (2) Get 11 1,000 subscribers with 10 million valid public Shorts views in the last 90 days.” YouTube 12 Partner Program overview & eligibility, YouTube.com (August 9, 2023, 2:21 PM), 13 https://support.google.com/youtube/answer/72851?hl=en. From the “Please Subscribe” 14 text, it appears that Liu is trying to increase engagement on his channel by using the 15 instant lawsuit as content. This, in connection with the statement that Liu’s channel is not 16 yet monetized, strengthens the inference that Liu intends to use this suit as content for 17 his channel to increase viewership. 18 Finally, as discussed above, Liu uses actual bodycam footage from the incident 19 which precipitated this lawsuit in his videos in Videos 3, 4, and 5. Liu’s use of the bodycam 20 footage on his YouTube channel is more than a “clear and specific threat that a party or 21 person will use discovery materials in an abusive manner,” the video crosses the line 22 into actual use of the materials in an abusive manner. Katz, 2019 WL 13211070 at *6. 23 Therefore, based on the above, the Court finds Defendants have sufficiently 24 demonstrated good cause for the entering of a protective order. Caesars Entm’t, Inc., [25] 237 F.R.D. at 432 (citations omitted). The Court will adopt the proposed protective order, 26 (ECF No. 24-5), in a separate order. 27 /// 1| IV. CONCLUSION 2 IT IS THEREFORE ORDERED that Defendants’ motion for protective order, (ECF No. 24), is GRANTED; 4 IT IS FURTHER ORDERED that Liu’s motion to stay discovery pending 5 | determination of the motion for protective order, (ECF No. 25), is DENIED as moot. 6 DATED: August 17, 2023. . [7] 8 UNITED STATES\MAGISTRATE JUDGE