NAACP of San Jose/ Silicon Valley v. City Of San Jose

Background

The court considered two discovery letter briefs involving requests by the plaintiffs in a civil-rights lawsuit concerning the 2020 protests. The first dispute concerned whether plaintiffs could depose Mayor Sam Liccardo and Independent Police Auditor Shivaun Nuree. The defendants argued that both were high-ranking officials and that the depositions should not proceed.

For depositions of high-level officials, the court considered whether the official had unique, firsthand, non-repetitive knowledge and whether the requesting party had first tried less burdensome discovery methods. The court found that plaintiffs had shown Mayor Liccardo might have relevant information, but had not shown that they had pursued alternative sources. The court therefore denied plaintiffs’ request to depose Mayor Liccardo.

The court rejected defendants’ argument that the independent police auditor belonged to the narrow category of protected high-level officials. Defendants also invoked several privileges, including the official-information privilege, a qualified privilege requiring courts to balance law-enforcement and privacy interests against the interests of civil-rights plaintiffs and the judicial process. The court found that defendants had not shown that the auditor’s testimony should be barred, particularly because a protective order could address privacy concerns. The court therefore granted plaintiffs’ request to depose the independent police auditor and directed the parties to meet and confer about the timing.

Discovery Disputes 1 Through 5

Dispute 1 — Internal-affairs and use-of-force records. Plaintiffs requested complaints, investigation files, interviews, reports, findings, and other use-of-force investigations concerning the 2020 protests, as well as five years of earlier complaints against named defendants involving excessive force or dishonesty. Defendants objected based on privacy, privilege, the scope of the pleadings, and the possibility that disclosure would affect pending investigations.

The court found that defendants had not met their burden under the official-information privilege. It also found that protective-order protections addressed the asserted privacy concerns and that defendants’ concerns about affecting witnesses’ memories were speculative. The court granted plaintiffs’ request as to dispute 1. Defendants were ordered to produce the requested materials, with production protected under the protective order.

Dispute 2 — Redacted and withheld police documents. Defendants had withheld or redacted policy and training materials based on sensitive information about police tactics. The court found that defendants’ declaration did not show that disclosure subject to a protective order would create a substantial risk of harm. The court granted in large part plaintiffs’ request. Defendants were ordered to produce the documents unredacted, except that they could redact information about hostage-rescue situations, barricaded suspects, and covert-surveillance techniques. The documents were to remain protected under the protective order.

Dispute 3 — Police communication recordings. Plaintiffs sought additional information concerning the dates and times of police communication recordings. The court found that plaintiffs’ request was unclear and that they had not identified specific data they had requested but had not received. The court denied the request as to dispute 3.

Dispute 4 — Testimony about arrest decisions. Plaintiffs sought a Rule 30(b)(6) witness prepared to testify about higher-level decisions to arrest four identified plaintiffs for curfew violations and other offenses, and about instructions given to officers. The court found that defendants had adequately produced a witness on the noticed topic concerning who decided to arrest those four plaintiffs. To the extent plaintiffs sought testimony on a broader topic from a different witness, the court denied the request as to dispute 4.

Dispute 5 — Warnings and orders during the protests. Plaintiffs sought detailed testimony about every warning and order issued to each named plaintiff, including the timing, duration, and method of communication. The court found that requiring testimony about every such warning and order would be unduly burdensome, but concluded that defendants should provide a witness able to give some reasonably practicable details about warnings given to crowds. The court therefore granted in part and denied in part plaintiffs’ request as to dispute 5. Defendants could preserve their objection to the topic as drafted but could not refuse entirely to produce a witness.

Overall Disposition

For the first discovery letter brief, plaintiffs’ request to depose Mayor Sam Liccardo was denied, and their request to depose the independent police auditor was granted. For the second discovery letter brief, plaintiffs’ request was granted as to disputes 1 and 2, denied as to disputes 3 and 4, and granted in part and denied in part as to dispute 5. The order did not resolve the merits of the underlying civil-rights claims.