Greer v. County of San Diego et al, No. 3:2019cv00378 - Document 379 (S.D. Cal. 2023)
Court Description: ORDER Granting 359 Media Intervenors' Motion to Intervene and Unseal; Denies 361 the County's Request to Stay the Order Pending Appeal. Signed by Judge Jinsook Ohta on 7/11/2023. (exs)
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Greer v. County of San Diego et al Doc. 379 Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8062 Page 1 of 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Greer, Case No.: 19cv378-JO-DEB Plaintiff, 12 13 v. 14 County of San Diego et al., ORDER GRANTING MEDIA INTERVENORS’ MOTION TO INTERVENE AND UNSEAL Defendants. 15 16 17 18 19 20 Plaintiff Frankie Greer brought this 42 U.S.C. § 1983 action because he suffered 21 severe injuries while detained in San Diego Central Jail. After he settled his claims against 22 the County of San Diego (the “County”) and various jail officials, several media 23 organizations filed a motion to intervene for the limited purpose of unsealing documents 24 regarding inmate deaths and serious injuries which occurred in County jails. On May 31, 25 2023, the Court held oral argument on the motion brought by The San Diego Union 26 Tribune, LLC, Prison Legal News, and Voice of San Diego (collectively, “Media 27 Intervenors”). For the reasons stated below, the Court grants their motion to intervene and 28 unseal documents. 1 19cv378-JO-DEB Dockets.Justia.com Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8063 Page 2 of 14 1 I. BACKGROUND 2 A. Sheriff’s Department Critical Incident Review Board 3 The Sheriff’s Department Critical Incident Review Board (“CIRB”) is an internal 4 oversight board that reviews and investigates inmate deaths and serious injuries in San 5 Diego County jails. Dkt. 148-4 at 118–19. When such “critical incidents” arise, the CIRB 6 conducts a mandatory internal review process to determine whether the employees 7 involved in the incident acted consistently with existing policies and training. Id. The 8 CIRB also reviews all critical incidents “with the goal of identifying problem areas [in 9 training and policies] and recommending remedial actions” to prevent future occurrences. 10 Id. at 83–84. The Sheriff’s Department Policy and Procedures Manual details the multiple 11 purposes of the CIRB: (1) to “assess the department’s civil exposure as a result of a given 12 incident and to improve service delivery”; (2) to “determine as to whether or not a policy 13 violation may exist”; (3) to make “recommendations for training based upon the analysis 14 of critical incidents”; (4) to identify “policy issues of concern”; and (5) to “debrief [the 15 employee] as to the results of the CIRB.” Id. at 78–80. In addition to performing a crucial 16 internal review function, the Sheriff’s Department promotes the CIRB as an oversight 17 board designed to build trust with the community and increase its accountability to the 18 public. In a presentation entitled “A Glimpse Into Our Policies,” the Sheriff’s Department 19 described the CIRB as an oversight body committed to (1) “building a culture of trust with 20 our communities,” (2) identifying opportunities for “change in its policies, procedure, and 21 training to affect consistent positive outcomes . . .”; and (3) ensuring the “impartial and 22 compassionate enforcement of the law.” Id. at 81. 23 The CIRB review process involves the creation of several documents including 24 memoranda, records, and reports containing specific findings on the inmate death or 25 injury—the documents at the heart of these disputes. These CIRB documents detail the 26 CIRB members’ discussion on issues such as the facts surrounding the critical incident; 27 policy considerations triggered by the incident; follow-up actions taken by the Sheriff’s 28 Department; and remedial training measures. Id. at 8. These reports also include charts, 2 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8064 Page 3 of 14 1 photographs, and PowerPoint presentations that document the factual background of the 2 incident. Dkt. 152-1 at ¶ 8. 3 Despite growing public interest in these CIRB documents, the County and the 4 Sheriff’s Department have consistently opposed their disclosure. Because of a high 5 number of inmate deaths in San Diego County jails, the public has increasingly demanded 6 access to the CIRB memoranda and reports. See Dkt. 359-2 (Decl. of Jeff Light), ¶ 3. For 7 example, during her election campaign, San Diego Sheriff Kelly Martinez pledged to 8 publicly release CIRB reports, although she later reversed her position once in office. Id., 9 ¶ 4. The fact that transparency into the CIRB process became the subject of campaign 10 promises evidences the level of public interest in this information. Notwithstanding the 11 public’s demonstrated interest, the County has resisted public disclosure of these 12 documents, and, for litigation purposes, consistently asserted attorney-client and work 13 product privileges to oppose their production in discovery. 14 B. The Parties’ Underlying Litigation Over CIRB Discovery 15 This case was no exception: throughout this litigation, the County maintained the 16 position that CIRB documents were privileged. During discovery, Plaintiff sought the 17 production of relevant CIRB memoranda, records, and reports to prove his claims (the 18 “CIRB Discovery”). On the grounds that its Chief Legal Advisor attends these CIRB 19 meetings, the County asserted attorney-client and work product privileges over the CIRB 20 Discovery and sought to withhold it in litigation.1 Dkt. 148-4 at 88. 21 The Court disagreed with the County’s position on the privileged nature of these 22 documents. On October 7, 2022, Judge Butcher granted Plaintiff’s motion to compel the 23 CIRB Discovery on the grounds that the CIRB’s primary purpose was not to obtain legal 24 advice and attorney-client privilege, therefore, did not protect the documents. Dkt. 226. 25 26 1 The CIRB policies state that the department’s legal advisor “should be a member of the CIRB 27 board” to “potentially provide[] the ability to protect the confidentiality of the discussion under the cloak 28 of the attorney-client privilege.” 3 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8065 Page 4 of 14 1 He also ruled that the CIRB Discovery was not privileged work product because the CIRB 2 did not create these documents during or in anticipation of litigation. See id. When the 3 County objected to Judge Butcher’s ruling before this Court, this Court overruled the 4 objections on the same grounds. Dkt. 267. The Court ruled that the attorney-client 5 privilege did not apply because the CIRB’s primary purpose was not for seeking or 6 obtaining legal advice. See id. However, because legal advice was one of the purposes— 7 albeit not the primary one—of the CIRB review process, the Court ordered the parties to 8 meet and confer to submit tailored redactions excising privileged attorney-client material 9 from the CIRB Discovery. See id. While the parties reached stipulations on a few limited 10 redactions during this meet and confer process, the County asserted that the entirety of the 11 CIRB memoranda and reports was attorney-client privileged contrary to the Court’s 12 express ruling. In doing so, it effectively waived its opportunity to perform tailored 13 redactions of the CIRB Discovery. 14 After this redaction process, the Court ordered production of the CIRB Discovery 15 but under provisional sealing. On December 21, 2022, the Court ordered the County to 16 produce the CIRB Discovery with the limited stipulated redactions. Dkt. 276. On 17 December 28, 2022, the County moved to stay the production of the CIRB Discovery citing 18 irreparable harm from disclosure of privileged materials. Dkt. 277. On January 4, 2023, 19 the Court ordered the County to produce the CIRB Discovery by January 9, 2023, under 20 strict protective measures to curtail any potential irreparable harm while the County 21 pursued immediate appellate relief. Dkt. 280. On January 6, 2023, the County petitioned 22 the Ninth Circuit Court of Appeals seeking a writ of mandamus for relief from producing 23 the CIRB Discovery. Dkt. 286. The Ninth Circuit denied the petition that same day. Dkt. 24 287. The County finally produced the CIRB Discovery under the protective measures 25 ordered by the Court. 26 Documents in hand, Plaintiff filed the CIRB Discovery as part of its opposition to 27 Defendants’ summary judgment motions. Plaintiff initially filed these documents under 28 conditional seal but while the motions for summary judgment were pending, he filed a 4 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8066 Page 5 of 14 1 motion to unseal the CIRB Discovery, except for two pages which would remain redacted 2 for inmate privacy reasons. Dkt. 337. On March 1, 2023, the Court denied the Defendants’ 3 motions for summary judgment. Dkt. 355. The day after the Court denied the motions, 4 Plaintiff filed a notice of settlement. Dkt. 356. The Court thus vacated all pending motions, 5 including Plaintiff’s motion to unseal, as moot. Dkt. 357. Two weeks later, on April 11, 6 2023, the parties filed a joint motion to dismiss the County Defendants with prejudice, 7 which the Court granted on April 12, 2023. Dkts. 360, 362. 8 C. The Media Intervenors 9 While the parties were working to finalize the settlement, the Media Intervenors 10 moved to intervene and unseal the CIRB Discovery, asserting the public’s right of access 11 to these documents. Dkt. 359. Media Intervenors are news organizations that have 12 reported on the San Diego County Sheriff’s Department, including the deaths and injuries 13 of inmates in San Diego County jails. Specifically, Prison Legal News is a project of the 14 Human Rights Defense Center, a non-profit organization that advocates on behalf of 15 prisoner rights. Dkt. 359 (Ex. 1, Decl. of Paul Wright), ¶ 1. The organization publishes a 16 monthly newspaper and maintains a website, which both report on issues relating to 17 prisoners’ rights and other prison-related news. Id., ¶ 2. Prison Legal News has extensively 18 covered the alleged constitutional abuses in the San Diego County jails. Id., ¶ 4. Similarly, 19 Voice of San Diego is a non-profit news organization that pursues investigative journalism 20 in the San Diego area. Dkt. 359 (Ex. 2, Decl. of Scott Lewis), ¶¶ 1–2. The organization 21 reports on government functions and related issues. Id., ¶ 3. Finally, the San Diego Union 22 Tribune, LLC (“Union-Tribune”) maintains a daily newspaper and website that regularly 23 publishes articles on law enforcement and criminal justice issues. Decl. of Jeff Light, ¶ 2. 24 Specifically, the Union-Tribune extensively covered the problems at the San Diego County 25 jails where 185 individuals have died in custody between 2006 and 2020, another eighteen 26 in 2021, and twenty in 2022. Id., ¶ 3. 27 /// 28 /// 5 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8067 Page 6 of 14 1 2 II. MOTION TO INTERVENE Media Intervenors seek to intervene in this action for the limited purpose of 3 unsealing the CIRB Discovery filed in the underlying litigation. Rule 24(b)(1) permits a 4 third party to intervene in an action for the purpose of accessing a judicial record. Fed. R. 5 Civ. P. 24(b)(1); San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th 6 Cir. 1999). Ordinarily, a prospective intervenor must show “(1) independent grounds for 7 jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main 8 action, have a question of law or a question of fact in common.” San Jose Mercury News, 9 187 F.3d at 1100 (citing League of United Latin Amer. Citizens v. Wilson, 131 F.3d 1297, 10 1308 (9th Cir. 1997)). However, a party who seeks to intervene solely to unseal filed 11 documents only needs to show timeliness; it does not need to demonstrate independent 12 jurisdiction or a common question of law or fact. See Beckman Industries, Inc., v. 13 International Ins. Co., 966 F.2d 470, 473–74 (9th Cir. 1999); see also Cosgrove v. Nat’l 14 Fire & Marine Ins. Co., 770 F. App’x 793, 795 (9th Cir. 2019). This “generous 15 interpretation[] of Rule 24(b)” arises from the longstanding tradition of public access to 16 court records—that is, “because of the need for an effective mechanism for third-party 17 claims of access to information generated through judicial proceedings.” E.E.O.C. v. 18 National Children’s Center, Inc., 146 F.3d 1042, 1045 (D.D.C. 1998) (cleaned up) (finding 19 “every circuit court” has concluded a third party may permissively intervene under Rule 20 24(b) for the limited purpose of seeking access to sealed materials). Permissive 21 intervention is committed to the “broad discretion” of the district court. Orange Cnty. v. 22 Air Cal., 799 F.2d 535, 539 (9th Cir. 1986). In exercising its discretion, the district court 23 “must consider whether the intervention will unduly delay or prejudice the adjudication of 24 the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). 25 The Court first examines whether the Media Intervenors’ motion is timely. In 26 determining timeliness, a court considers three factors: “(1) the stage of the proceedings at 27 which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason 28 for and length of the delay.” San Jose Mercury News, 187 F.3d at 1100–01 (citing League 6 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8068 Page 7 of 14 1 of United Latin Amer. Citizens, 131 F.3d at 1302). In considering delay, the court looks to 2 “when the intervenor first became aware that its interests would no longer be adequately 3 protected by the parties.” Id. at 1101. Courts have allowed years-long delays in instances 4 where an intervenor “is pressing the public’s right of access to judicial records.” Id. 5 Here, the Court finds that Media Intervenors did not delay in filing their motion to 6 intervene. Media Intervenors filed their motion just seventeen days after first becoming 7 aware that Plaintiff would no longer pursue unsealing of the CIRB Discovery. Specifically, 8 on March 3, 2023, following Plaintiff’s notice of settlement, the Court vacated the pending 9 motion to unseal the CIRB Discovery. Media Intervenors filed their motion on March 20, 10 2023, only a few weeks after the March 3 notice of settlement that informed Media 11 Intervenors that Plaintiff would no longer pursue the unsealing of these CIRB documents. 12 On these facts, the Court finds no untimely delay. See Beckman, 966 F.2d at 471, 473 13 (allowing permissive intervention two years after settlement of action); Pub. Citizen v. 14 Liggett Grp., Inc., 858 F.2d 775, 785 (1st Cir. 1988) (collecting cases finding timely 15 intervention even with “delays measured in years rather than weeks”). 16 The Court also finds that the requested intervention for the limited purpose of 17 unsealing documents would not unduly prejudice the original parties in the underlying 18 litigation. In this case, the Court dismissed the County Defendants from the action with 19 prejudice on April 12, 2023. The case is now closed and all litigation activity between the 20 parties has ceased. Accordingly, permissive intervention poses no prejudice in terms of 21 delaying the proceedings or impacting the substance of the litigation. See San Jose 22 Mercury News, 187 F.3d at 1101; see United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 23 1424, 1427 (10th Cir. 1990) (“Rule 24(b)’s timeliness requirement is to prevent prejudice 24 in the adjudication of the rights of the existing parties, a concern not present when the 25 existing parties have settled their dispute and intervention is for a collateral purpose.”). 26 The County argues it will suffer undue prejudice from this intervention because the 27 sealing of the CIRB Discovery was a bargained-for expectation of the parties and one of 28 the key benefits of settlement for the County. The County argues that, as a result, it did 7 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8069 Page 8 of 14 1 not appeal the order compelling production of the CIRB Discovery or otherwise challenge 2 the release of these materials—actions that it must now pursue if this motion is granted. 3 Def. Opp’n at 17. The Ninth Circuit rejected a similar argument in San Jose Mercury 4 News. 187 F.3d at 1101. There, defendants opposed a third-party newspaper’s motion to 5 intervene and unseal on the grounds of prejudicial delay; namely, they argued that they 6 forewent other litigation strategies relying on the fact that the documents in question would 7 remain sealed. The court rejected their argument as unreasonable, concluding that “[t]he 8 right of access to court documents belongs to the public, and the [parties are] in no position 9 to bargain that right away.” Id. Similarly, here, any purported reliance by the County on 10 the continued sealing of the CIRB Discovery is unreasonable given well-established 11 principles of open access to the court. While the County may have reasonably expected 12 that Plaintiff would no longer pursue unsealing, it should have been aware that, even after 13 settlement, a third party may seek to intervene to unseal litigation documents. See, e.g., 14 Beckman, 966 F.2d at 470 (affirming order permitting intervention two years after 15 settlement); Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353–54 16 (9th Cir. 2013) (finding timeliness requirement satisfied years after litigation concluded). 17 The County’s argument that it relied on these documents remaining sealed is further 18 weakened by the fact that the Media Intervenors filed their motion to intervene three weeks 19 before the parties ultimately finalized their settlement on April 11, 2023. The Court 20 therefore exercises its discretion to find that Media Intervenors’ motion to intervene to seek 21 public access to court filings is timely and will not prejudice the proceedings. Accordingly, 22 the Court grants Media Intervenors’ motion to intervene under Rule 24(b). The Court will 23 proceed to analyze the merits of their request to unseal the CIRB Discovery below. 24 25 III. MOTION TO UNSEAL CIRB DISCOVERY Media Intervenors seek to unseal the CIRB Discovery based on the public’s right of 26 access to judicial records. Open access to the courts is a fundamental tenet of the United 27 States legal system. See Phoenix Newspapers Inc. v. U.S. Dis. Ct., 156 F.3d 940, 946 (9th 28 Cir. 1998). In the spirit of open access, courts have long recognized the public’s “general 8 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8070 Page 9 of 14 1 right to inspect and copy . . . judicial records and documents.” Nixon v. Warner Commc’ns, 2 Inc., 435 U.S. 589, 597 (1978). This right extends to pretrial documents filed in civil cases, 3 including materials submitted in connection with motions for summary judgment. Foltz v. 4 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). “Unless a particular 5 court record is one traditionally kept secret,” such as grand jury transcripts and warrant 6 materials, “a strong presumption [weighs] in favor of access.” Kamakana v. City and Cnty. 7 of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (cleaned up). A party seeking to seal a 8 judicial record bears the burden to overcome this strong presumption by articulating 9 “compelling reasons” that outweigh the public policies favoring disclosure. Id. at 1178– 10 79. 11 Sealing records is justifiable only under limited and compelling circumstances. 12 Generally, “compelling reasons” sufficient to outweigh the public’s interest in disclosure 13 exist when the court filings “might have become a vehicle for improper purposes, such as 14 the use of records to gratify private spite, promote public scandal, circulate libelous 15 statements, or release trade secrets.” Id. at 1179 (internal quotation marks omitted). 16 However, the possible “embarrassment, incrimination, or exposure to further litigation” 17 attendant upon disclosure do not, without more, constitute compelling reasons. Id. In 18 making its determination, the court must balance the competing interests of the public and 19 the party seeking to seal the judicial records. Id. “What constitutes a compelling reason 20 to seal documents is a determination best left to the sound discretion of the trial court.” 21 Ctr. For Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (cleaned 22 up). Notably, “[t]he judge need not document compelling reasons to unseal; rather the 23 proponent of sealing bears the burden with respect to sealing.” Kamakana, 447 F.3d at 24 1182. “A failure to meet that burden means that the default posture of public access 25 prevails.” Id. 26 Here, the County has failed to meet its burden of demonstrating compelling reasons 27 why the CIRB Discovery should remain sealed. The County argues that these documents 28 should remain under seal for the following three reasons: (1) the County entered into the 9 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8071 Page 10 of 14 1 settlement with Plaintiff expecting that settlement to effect a permanent sealing of the 2 CIRB Discovery; (2) the Sheriff’s Department spoke freely during these CIRB meetings 3 in reliance on the supposed privileged nature of these communications; and (3) these 4 documents contain private third-party information, including confidential medical 5 information. The Court will examine each of these reasons in turn to determine whether 6 they are sufficiently compelling to outweigh the public’s interest in this information. 7 At the outset, the Court finds that the public has a legitimate interest in the contents 8 of the CIRB Discovery. The public unquestionably holds an interest in the operations of 9 the County and County jails which are both supported by tax dollars—especially when they 10 have resulted in the numerous deaths and injuries of San Diego residents detained in 11 custody. See Kamakana, 447 F.3d at 1178 (the public’s right to judicial documents “is 12 justified by the interest of citizens in keeping a watchful eye on the workings of public 13 agencies”) (cleaned up). The underlying action involved an epileptic Plaintiff who suffered 14 severe injury after the County denied him his seizure medication and a bottom bunk despite 15 its knowledge of Plaintiff’s condition. While prosecuting his case, he attached CIRB 16 documents containing other instances of inmate death and serious injury to prove that the 17 wrongs he suffered was part of the County’s pervasive and longstanding custom of 18 deliberate indifference to the needs of its inmates. Information about the County’s possible 19 mistreatment of its inmates is inherently a matter of significant public interest: County 20 residents not only support these operations with their taxpayer dollars but may be subject 21 to such treatment if detained. That the County presumably spent public funds to settle this 22 underlying case further implicates a public interest in the CIRB Discovery. See, e.g., 23 Mendez v. City of Gardena, 222 F. Supp. 3d 782, 792 (C.D. Cal. 2015). Moreover, the 24 high numbers of inmate deaths in San Diego County jails during the past three years have 25 thrust the CIRB review process into the spotlight. See Decl. of Jeff Light, ¶ 3. The public 26 interest in these documents reached the level where transparency into the CIRB process 27 became the subject of election campaign promises: the current County Sheriff publicly 28 announced she would release CIRB reports if elected, but then reneged on her campaign 10 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8072 Page 11 of 14 1 promises. See id., ¶ 4. Given both the facts of this particular case and the history of County 2 residents suffering death and serious injury while detained in County jails, there can be no 3 question that the public has an interest in the disclosure of the CIRB documents. 4 Having determined that the public has a legitimate interest in the sealed materials, 5 the Court examines whether the County has articulated a harm that outweighs this interest. 6 First, the Court does not find compelling the County’s assertion that it expected the CIRB 7 Discovery would remain sealed as a result of its settlement with Plaintiff. As stated above, 8 parties to a litigation do not have the right to bargain away the public’s right of access to 9 court filings. San Jose Mercury News, 187 F.3d at 1101. Because this right of access 10 belongs to the public (and the County should have known as much), its purported 11 bargained-for expectation is not a compelling reason to keep the documents under seal. 12 Second, the County’s assertion that the Sheriff’s Department relied on the 13 expectation of attorney-client privilege2 to speak candidly in the CIRB meetings does not 14 qualify as a compelling reason to seal documents. Compelling reasons to seal documents 15 include, for example, the use of records to “gratify private spite, promote public scandal, 16 circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179. 17 “[E]mbarrassment, incrimination, or exposure to further litigation” alone, however, are 18 insufficient reasons to overcome the strong presumption in favor of access. Id. The County 19 does not assert that its misplaced reliance on attorney-client privilege will give rise to 20 disclosure of trade secrets, libel, or otherwise promote unwarranted scandal from the 21 discussions reflected in the CIRB Discovery. To the extent the County fears that its frank 22 communications, made with the expectation of privacy, might give rise to embarrassment, 23 public concern, or other lawsuits, it is clear under Kamakana that such exposure does not 24 constitute a compelling reason. See id. 25 26 2 The Court does not address the attorney-client or work product privilege concerns in this order. 27 As set forth above, Judge Butcher ruled that the CIRB Discovery was not entitled to attorney-client or 28 work product privilege, this Court overruled the County’s objections to his ruling, and the Ninth Circuit rejected a petition for mandamus seeking review of the privilege issue. 11 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8073 Page 12 of 14 1 Finally, the Court does not agree that the CIRB Discovery must be sealed in order 2 to protect the privacy rights of third parties. The County correctly notes the concern that 3 the CIRB Discovery contains medical and mental health records, criminal histories, graphic 4 photographs, and other sensitive information which may violate privacy rights of third 5 parties. Where significant privacy concerns are present, a court must consider whether 6 redacting confidential information would mitigate the harm and permit disclosure. See 7 Foltz, 331 F.3d at 1137 (finding redactions of third-party medical and personnel records 8 sufficient to protect privacy interests and declining to find compelling reasons to seal all 9 records). Here, the Court finds that tailored redactions of third-party medical information, 10 graphic photographs, and other sensitive information will be sufficient to avoid 11 particularized harm to third parties and protect their privacy interests. Wholesale sealing 12 of the CIRB Discovery is not warranted here, where tailored redactions of sensitive third13 party information is sufficient to mitigate the harm. For the reasons set forth above, the 14 Court finds that the public’s interest in disclosure outweighs the County’s interests in 15 maintaining the CIRB Discovery under seal. 16 The Court grants the Intervenors’ motion to unseal and will file a redacted version 17 of the documents at issue. Pursuant to the Court’s order, the County and Media Intervenors 18 met and conferred regarding the appropriate redactions of sensitive third-party information 19 from the CIRB Discovery. The Court approves their stipulated redactions. Although not 20 stipulated, the Court further grants the County’s request to redact the names of seven 21 inmates who witnessed some of the serious incidents described in the CIRB documents. 22 The Court finds that these inmates’ privacy interests outweigh any cognizable public 23 interest in their names. Kamakana, 447 F.3d at 1179. The CIRB documents will, therefore, 24 be redacted as stipulated by the parties and as further requested by the County prior to 25 public filing. 26 /// 27 /// 28 /// 12 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8074 Page 13 of 14 1 2 IV. REQUEST TO STAY The County requests that the Court stay enforcement of this order pending the 3 outcome of an appeal. Def.’s Opp’n at 28. A party seeking a stay pending appeal bears 4 the burden of showing that a stay is justified based on four factors: “(1) whether the stay 5 applicant has made a strong showing that he is likely to succeed on the merits; (2) whether 6 the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will 7 substantially injure the other parties interested in the proceeding; and (4) where the public 8 interest lies.” Nken v. Holder, 556 U.S. 418, 433 (2009)). For the reasons stated above, 9 the Court does not find that the County is likely to succeed on the merits based on the 10 “compelling reasons” standard set forth in Kamakana. The County’s briefing does not 11 address its likelihood of success on any other grounds and makes no effort to address the 12 other three prongs aside from simply asserting that they will suffer irreparable injury. The 13 County bears the burden to justify a stay and its meager showing does not suffice to satisfy 14 this burden. Nken, 556 U.S. at 433 (“A stay is not a matter of right, even if irreparable 15 injury might otherwise result.”); Al Otro Lado v. Wolf, 952 F.3d 999, 1006 (9th Cir. 2020). 16 Accordingly, the Court denies the County’s motion to stay. 17 /// 18 /// 19 /// 20 21 22 23 24 25 26 27 28 13 19cv378-JO-DEB Case 3:19-cv-00378-JO-DEB Document 379 Filed 07/10/23 PageID.8075 Page 14 of 14 1 2 V. CONCLUSION For the reasons discussed above, the Court GRANTS the Media Intervenors’ motion 3 to intervene and unseal [Dkt. 359]. The Court DENIES the County’s request to stay this 4 Order pending appeal [Dkt. 361]. The Court GRANTS the County’s ex parte request to 5 defer the public filing of the CIRB Discovery for at least 24 hours after the date of this 6 Order. After forty-eight (48) hours from the date of this Order, the Court will file a redacted 7 version of the CIRB Discovery that will be publicly available. 8 IT IS SO ORDERED. 9 Dated: July 11, 2023 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 19cv378-JO-DEB
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