July 18, 1994, following a hearing, Magistrate Judge F. Steele Langford found that defendants had failed to carry their burden of showing good cause for a protective order that would restrict public access to the tapes and transcripts. On July 29, 1994, defendants filed a motion for reconsideration of Magistrate Judge Langford's Order. Plaintiff timely filed an opposition. Brief of amicus curiae of San Francisco Examiner and brief of amici curiae National Organization for Women, The San Francisco Bay Guardian and SF Weekly in opposition to defendants' motion were also filed. Defendants filed a timely reply. Upon consideration of the submissions, the Court grants in part defendants' motion for reconsideration and hereby issues a protective order to prevent public disclosure of only the tapes.
Plaintiff Joanne Welsh is a San Francisco police officer. On February 11, 1993, plaintiff's charges of sexual harassment against the Chief of Police, Anthony Ribera, were made public by the San Francisco Examiner. The San Francisco Police Commission then conducted an investigation of these charges against Chief Ribera. In the course of the investigation, the Police Commission conducted taped interviews of numerous civilians and police officers concerning plaintiff's allegations. The Police Commission reviewed all the information gathered and determined that there was insufficient evidence to support the claim that Chief Ribera engaged in any misconduct.
On October 14, 1993, plaintiff filed a federal complaint alleging sexual harassment and sex discrimination under Title VII of the Civil Rights Act, as well as retaliation in employment. Plaintiff alleges pendent jurisdiction under the California Fair Employment & Housing Act with respect to three causes of action relating to sexual harassment, retaliation, and defamation. Plaintiff also alleges a violation of 42 U.S.C. § 1985 against Ribera and other unnamed co-conspirators relating to inappropriate treatment and sex discrimination. Defendant Ribera then filed a counterclaim alleging defamation by plaintiff Welsh.
Plaintiff alleges in her complaint that she was the subject of sexual harassment by Chief Ribera. Plaintiff alleges that from September 1989 to January 1990, and then in 1992 and 1993, plaintiff had a working relationship with Chief Ribera and that Ribera made numerous sexual advances toward plaintiff. The complaint alleges that as a result of plaintiff's refusal to respond to Ribera's advances, and after the Police Commission's dismissal of her charges, plaintiff was removed from her position as the Public Affairs Officer under Chief Ribera and relocated to the Taraval Station.
Plaintiff has requested that defendants produce in discovery the tapes and transcripts which constituted the Police Commission's investigation into plaintiff's complaint. Defendants have refused to produce the tapes and transcripts, unless plaintiff agrees to a protective order against public disclosure. This Court, pursuant to stipulation of the parties, ordered a stay of deposition discovery until the resolution of the issue of whether a protective order should issue. The Court referred the matter to Magistrate Judge F. Steele Langford for resolution of the issue.
On July 18, 1994, following a hearing, Magistrate Judge Langford issued a written Memorandum and Order directing that the tapes and/or transcripts be produced as requested and denying defendants' motion for a protective order. On July 29, 1994, defendants filed the current motion for reconsideration of that Order.
A. Legal Standards
1. Standard for Reconsideration
Local Rule 410-2(a) provides that district court judges may reconsider any nondispositive pretrial order made by a magistrate only if the Court finds that the order of the magistrate is "clearly erroneous or contrary to law." Rule 410-2(a), Local Rules of Practice for the United States District Court for the Northern District of California; see also 28 U.S.C. § 636(b)(1)(A) (1994).
2. Protective Order
Protective orders as to information disclosed pursuant to Federal Rule of Civil Procedure 26(c) should be granted only upon a showing of good cause. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). "A showing of Rule 26(c) good cause requires a balancing of the interests of the parties competing to open or close the civil discovery process to the public." Hawley v. Hall, 131 F.R.D. 578, 584 (D. Nev. 1990). "Access is particularly appropriate when the subject matter of the litigation is of especial public interest . . . ." In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir.), cert. denied sub nom., Dow Chem. v. Ryan, 484 U.S. 953, 98 L. Ed. 2d 370, 108 S. Ct. 344 (1987).
The moving party must present a factual showing of a particular and specific need for the protective order. Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) (citations omitted); see General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162, 39 L. Ed. 2d 116, 94 S. Ct. 926 (1974). "A demonstration of good cause embodies a showing (1) that the documents in question truly are confidential and (2) that disclosure of the documents would cause a 'clearly defined and very serious injury.'" Traveler's Ins. Co. v. Allied-Signal Inc. Master Pension Trust, 145 F.R.D. 17, 18 (D. Conn. 1992). "The harm must be significant, not a mere trifle." Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) (citation omitted). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Id. (citations omitted). Mere embarrassment by the release of information is insufficient to constitute serious harm. "An applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious." Id.; Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 301 (N.D. Ill. 1993) ("A claim that public disclosure of information will be harmful to a defendant's reputation is not 'good cause' for a protective order.")
B. Analysis of Defendants' Motion for Reconsideration
Defendants challenged the validity of the Order on five separate grounds: (1) the Order misreads General Order No. 34; (2) the Order misapplies Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987); (3) the Order contravenes Jackson v. City and County of San Francisco, United States District Court No. C93-0086 DLJ (Dec. 20, 1993); (4) the Order establishes a new and different standard for issuing protective orders; and (5) the Order misapplies the good cause requirement.
1. General Order No. 34
Defendants contend that the Order of the Magistrate Judge misreads General Order No. 34 of the Northern District of California as being discretionary because General Order No. 34 specifically mandates protective orders where, as here, materials sought to be produced are confidential personnel records under state law. General Order No. 34 provides
If one or more parties desires protection of documents or other information disclosed under paragraph B of this section, the parties shall enter a reasonable protective order to govern the disclosed documents or information until further order of the court.
General Order No. 34, Section VII.D (emphasis added). Defendants argue that the word "shall" conveys a mandatory obligation, and that plaintiff bears a heavy burden to show that a protective order is improper.
Defendants' argument is unavailing. Rather, the relevant portion of General Order No. 34 envisions a situation where disputed discoverable material is provided to the opposing party prior to the court's having had an opportunity to address the issue. In a situation such as the present one, where the Court referred the is sue to a Magistrate Judge before any disputed discoverable materials were disclosed, there is no need for a protective order prior to order of the court. Even in a situation where an interim protective order is agreed upon by the parties, the Court is free to retain it, modify it, or dispense with the protective order entirely. Therefore, defendants' first argument must fail.
2. The Kelly Decision
Defendants next argue that the Langford Order misapplies Kelly, 114 F.R.D. 653 because Kelly presumes that a protective order will be issued when disclosure of confidential police files is made to a plaintiff in the context of litigation.
Defendants' reliance on Kelly is misplaced. The issue in Kelly was not whether there should be a protective order, but whether there should be disclosure to the party requesting discovery. As Magistrate Judge Langford properly stated, Kelly "involved a city seeking to prevent all production of its personnel records." Langford Order, at 4. The court in Kelly had previously concluded that a protective order was appropriate because the defendants' interests would be seriously threatened by the "disclosure of training manuals and material pertaining to the use of force in making an arrest [to the general public that] would endanger their officers and the public." Kelly, 114 F.R.D. at 671. The court saw no reason why disclosure to the parties in the suit should be prevented because the court had already imposed a protective order that would prevent disclosure to the public. Id. at 671.
In short, the Kelly court did not presume a protective order would be issued because a protective order already existed. The issue of when a protective order should be issued was not before the court; nor did the court promulgate a rule that presumes the issuance of a protective order.
Magistrate Judge Langford cited Kelly for the proposition that "courts are required to conduct case-by-case, situation specific analyses of competing interests (balancing) to determine whether to order disclosure of material that falls within the definitional reach of (the official information) privilege," Langford Order, at 4 (citation omitted); and concluded that "it is the court, and not the holder of the documents, that has the ultimate power to decide whether there will be disclosure." Id. at 7-8 (citation omitted). These conclusions are neither erroneous nor contrary to law. Thus, the Order of Magistrate Judge Langford does not misapply Kelly.
3. The Jackson Order
Defendants' third argument is that the Order conflicts with the standard practice in the Northern District of California as well as this Court's own previous Order. Defendants cite Jackson v. City and County of San Francisco, United States District Court No. C-93-0086 DLJ (N.D. Cal. Dec. 20, 1993) ("Jackson Order") for the proposition that police personnel files are routinely produced subject to a protective order without court intervention.
Defendants' contention overstates the conclusion in the Jackson Order. The passage cited by defendants merely provides for a mechanism by which parties can attempt to avoid the motion process under circumstances where disclosure with a protective order is required. The court distinguished that scenario from the Kelly scenario where defense counsel "conduct the kind of analysis described in [Kelly] and conclude in good faith that they can legitimately ask the court to adjudicate fully an invocation of the official information privilege." Jackson Order, at 3 (emphasis in original). There is, however, at least one more scenario where there should be disclosure without a protective order. Nowhere in the Jackson Order is the assertion that protective orders are always required or presumed. Accordingly, the Order of Magistrate Judge Langford does not conflict with any settled law in the Northern District.
4. Creation of a New and Different Standard
Defendants argue that King v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1988) is contrary to the established law of the Northern District (of routinely issuing protective orders) and that the Order of Magistrate Judge Langford adopting the analysis in King constitutes clear error. Defendants overstate the application of King in the Order. The passage relied upon by Magistrate Judge Langford is as follows:
Lawfulness of police operations is a matter of great concern to citizens in a democracy and protective orders must not be granted without that public interest in mind. The parties and the court should consider carefully the benefits and costs of a properly designed protective order.
King, 121 F.R.D. at 190.
Accounting for the public's interest in deciding whether to is sue a protective order is not contrary to any established law of the Northern District. Although California Penal Code prohibits disclosure of peace officer personnel records, Cal. Penal Code §§ 832.7, 832.8 (1994), the federal judiciary has an unquestionable obligation to ensure that cases are decided fairly in Federal proceedings based upon all relevant, nonprivileged documents. See Kerr v. United States Dist. Court for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), aff'd, 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976). State law is not binding on federal courts in these kinds of cases. Kelly, 114 F.R.D. at 655-56.
Predicating their reasoning on the assertion that protective orders are routinely issued without court interference in the Northern District, defendants fault Magistrate Judge Langford for taking into account the public's interest "in the validity and thoroughness of the investigation, and in the integrity or lack [of] integrity of those who serve them in public office." See Langford Order, at 8. Because defendants' presumption that this matter cannot be considered by the Magistrate Judge is incorrect, their fourth argument must also fail.
5. Good Cause Requirement
Defendants contend that good cause for a protective order may be found in (1) concerns for the privacy of Chief Ribera and witnesses who testified during the Police Commission's investigation; (2) the state's legislative judgment that the confidentiality of police personnel records be maintained; and (3) the need to ensure a fair trial. Plaintiff argues that defendants' assertions lack merit, and that there is a substantial public interest in reviewing charges of sexual harassment made in public lawsuits and in reviewing whether or not the Police Commission properly conducted its investigation into those allegations.
a. Privacy Interests
Defendants argue that Chief Ribera and individual witnesses have privacy rights that preclude disclosure of the tapes and transcripts because (1) California statutes protect their privacy interests; (2) the witnesses relied on assurances of confidentiality; (3) disclosure of the material would have a chilling effect on witnesses in future Police Commission investigations; and (4) Chief Ribera still has legitimate privacy interests even though he is a public person.
Defendants' arguments are unpersuasive. First, the California statutes governing the release of police personnel files, Cal. Evid. Code § 1043 (1994); Cal. Penal Code §§ 832.7, 832.8 (1994), do not create privacy interests on the part of individual witnesses or officers because they were not enacted to protect such interests. In Bradshaw v. City of Los Angeles, 221 Cal. App. 3d 908, 270 Cal. Rptr. 711 (1990), the police chief, on the same day as the suspension of a police officer, provided news media representatives with a portion of the transcript of the disciplinary hearing and other information regarding the investigation of the incident, the hearing, and the suspension order. Id. at 913-14. The information disseminated had been obtained during a "confidential internal investigation," but was released to "placate the sheriff's department and humiliate plaintiff." Id. at 914.
The court in Bradshaw concluded that the officer had no statutory right of confidentiality or constitutional right of privacy in the results of the disciplinary hearing. Id. at 912. Under California Penal Code § 832.7(a),
peace officer personnel records are confidential only in the sense that, as stated in the ensuing statutory language, such records, "shall not be disclosed in any criminal or civil proceeding except by [appropriate judicial] discovery . . . ." Since the statute specifically refers only to restrictions on disclosure in "criminal or civil proceedings," the statute thus does not prohibit a public agency from disclosing the records to the public.