UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
September 29, 2011
COREY JAMES PLAINTIFF,
CITY AND COUNTY OF SAN FRANCISCO, A MUNICIPAL CORPORATION; AND, SAN FRANCISCO POLICE OFFICERS DOES 1-25, INCLUSIVE,
The opinion of the court was delivered by: Honorable Phyllis J. Hamilton United States District Judge
JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, California 94621 Telephone: (510) 839-5200 Facsimile: (510) 839-3882 Email: email@example.com firstname.lastname@example.org Attorneys for Plaintiff
STIPULATION AND [PROPOSED] ORDER RELEASING CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT.
1. Plaintiff COREY JAMES was arrested by San Francisco Police Department officers on February 11, 2010 and this lawsuit arises out of that incident.
2. The San Francisco Police Department also arrested Amir Hussayn during the subject- incident. The arrests of Plaintiff and Mr. Hussayn are referenced in the same incident report as San Francisco Police Department Incident No. 100140861.
3. San Francisco Police Department Officers recovered a cellular phone with video recording capacity from Amir Hussayn following his arrest. It is the understanding of Plaintiff and the San Francisco Police Department that Mr. Hussayn may have videotaped some of the incident on his phone.
4. The San Francisco Police Department placed the cellular phone seized from Amir Hussayn in evidence storage following the subject-incident.
6. If Mr. Hussayn's phone contains video footage of the subject-incident, such is relevant discovery in the instant litigation.
7. Defendant City and County of San Francisco believes that Mr. Hussayn may have privacy rights with regard to the contents of his phone.
8. Plaintiff's counsel has attempted to locate Mr. Hussayn, but has been unsuccessful thus
9. Plaintiff seeks an order from this court allowing the parties to
copy and view the video
footage, if any, on Mr. Hussayn's phone.
Plaintiff has previously requested through a Request for
Production of Documents served on Defendant CITY
the video footage of the incident on Mr.
Hussayn's cellular phone, to which Defendants
objected and refused to produce on the basis that it
called for documents protected by the right of
privacy of third parties, and documents not within the
control of the City and County of San Francisco.
Plaintiff seeks this order of the court allowing
release of the cellular phone data. Plaintiff's
position is that the California Supreme Court recently
ruled in People v. Gray, 51
Cal.4th 84, 244 P.3d 501, 502, Cal., January,
2011, that warrantless data
searches of a suspect's cellular phone seized
from the suspect incident to a lawful custodial arrest,
such as the cellular phone seized from Mr.
Hussayn, are valid. The cellular phone in question has
been in the possession of Defendant CITY since
Mr. Hussayn's arrest. Plaintiff believes that Gray
supports an order from the court permitting
release of the phone.
10. The City does not oppose Plaintiff's request for release of the
cellular phone data, but
does not stipulate to the order, as it does not
believe that its stipulation is pertinent to any
determination that the Court must make to issue
an order of release. However, the City requests that
if the Court orders release, the Court shall
authorize release of the phone to a third party mutually
agreed upon by the plaintiff and defendant, who
has the knowledge and expertise to extract and copy
video from the phone. The third party shall then
provide copies of the video to all counsel and the
court. Per the Court's discussion at the Case
Management, the parties can coordinate with the Court
a time for joint viewing of the video footage.
For good cause appearing, the Court hereby orders the San Francisco
Police Department to
release the phone seized from Amir Hussayn on
February 11, 2010, referenced in San Francisco
Police Department Incident No. 100140861, to a
third party mutually agreed upon by plaintiff and
defendant, who shall have expertise in copying
video from such phone. The third party shall make
three copies of the video from the phone, and
provide one copy each to counsel for plaintiff, counsel
for defendant, and to the Court. The third party
shall then return the phone to the San Francisco
Police Department, who shall return it to the
evidence room. The parties shall contact the Court to
arrange a mutually agreeable time and date for
viewing of the video footage.
IT IS SO ORDERED
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