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Doe v. City of San Diego

United States District Court, Ninth Circuit

May 28, 2013

JANE DOE, Plaintiff,
THE CITY OF SAN DIEGO, et al., Defendants.


DAVID H. BARTICK, Magistrate Judge.

On April 24, 2013, the parties filed a Joint Motion for Determination of Discovery Dispute ("Joint Motion") regarding Defendant City of San Diego's[1] subpoena to non-party Cellco Partnership dba Verizon Wireless (hereinafter, "Verizon"). (ECF No. 99.) After a thorough review of the parties' arguments and evidence, the Court issues the following Order to resolve the issues in dispute.


Plaintiff's allegations in this case are well-known to the Court and the parties. Therefore, they will not be summarized at length in this Order. Suffice it to say that Plaintiff seeks to recover compensatory and punitive damages from the City of San Diego, its police department and several current and former police officers based on a March 8, 2011 sexual assault committed by one of the former officers, Defendant Anthony Arevalos. In November 2011, Defendant Arevalos was convicted of multiple felony and misdemeanor counts arising out of on-duty sexual assaults of various female victims, including Plaintiff. Defendant Arevalos was sentenced to more than eight years in state prison, and he is currently incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California. Defendant Arevalos has appealed his criminal convictions and the appeal remains pending before the California Court of Appeal.


The dispute presently before the Court concerns the City's April 9, 2013 subpoena to Verizon. The subpoena requested "any and all records" for Plaintiff's cellular phone number, and stated: "We need whole account history, from start to present, including texts, content of texts and Blackberry Instant Messages: BBIMs." (ECF No. 99-4 at 6.)[2]

A. Parties' Arguments

Plaintiff objects to the subpoena on several grounds. Plaintiff argues that she "clearly needs protection against Defendants' overbroad subpoena. The subpoena is in violation of her right of privacy under the First Amendment, as well as the privacy rights of individuals who communicate with her via wireless phone, text or instant message." (ECF No. 99 at 3:12-15.) Plaintiff further argues that "[t]he subpoena also seeks privileged and protected communications, and is geared to burden and oppress Plaintiff and the third parties with whom she communicates." ( Id. at 3:15-17.) Plaintiff further argues that the confidentiality of her customer information is protected by 47 U.S.C. § 222 and California Public Utility Code §§ 2891-2894.1, statutes that "forbid the release of customer information except by consent of the customer or as required by law." ( Id. at 3:17-22.) Regarding consent, Plaintiff argues that although she agreed to disclose her wireless, text and instant message communications she sent and received in the days immediately following Defendant Arevalos' sexual assault of Plaintiff, her cooperation with law enforcement's investigation of the assault was limited and should not open the door for Defendants to obtain communications beyond the several days during which Plaintiff cooperated with law enforcement. ( Id. at 3:23-4:14.) Further, Plaintiff argues that any relevant information contained within her phone records were already provided to the City of San Diego in connection with her cooperation. Thus, the City already has possession of the relevant records. ( Id. at 4:14-20.) Finally, Plaintiff argues that the City is "unable to establish the direct relevance of the information sought and unable to justify the disregard of not only [Plaintiff's] privacy rights, but the privacy rights of any third parties from whom she has received or to whom she has sent a wireless communication. These privacy rights would extend to Plaintiff's attorneys, with whom she has the additional protection of privilege." ( Id. at 5:6-11.) Plaintiff requests that the "subpoena be quashed, or in the alternative, a protective order be issued limiting the subpoena to phone, text and BBIM messages from March 8, 2011 to March 10, 2011 only." ( Id. at 5:21-23.)

The City opposes Plaintiff's request that the subpoena be quashed or that a protective order be issued. The City argues that it is entitled to Plaintiff's cell phone records pursuant to 47 U.S.C. § 222 and California Public Utilities Code §§ 2891-2894.10. ( Id. at 5:25-27.) The City also contends the cell phone records it seeks are "highly relevant and not protected by a legitimate privacy interest." ( Id. at 6:10-11.) As to relevance, the City asserts: "Plaintiff concedes that she spoke with several individuals via phone and text message after the subject incident, including many people with whom she discussed the facts of the incident and whether or not she could still be prosecuted for violating Vehicle Code section 23152(a)/(b). The City is entitled to obtain that information as part of its defense." ( Id. at 6:17-21.) Finally, the City argues Plaintiff "has waived much of her privacy protections and placed her potentially private' communications directly at issue" by filing this lawsuit. ( Id. at 6:22-28.)

B. Analysis

1. Standing

Although the parties' do not include any discussion regarding whether Plaintiff has standing to move to quash the City's subpoena to a non-party, the Court believes a brief discussion is warranted. "As a general proposition, a party lacks standing under Federal Rules of Civil Procedure Rule 45(c)(3) to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents requested in the subpoena." In re REMAC, Inc. Sec. Litig., No. 04cv1948 JLS (AJB), 2008 U.S. Dist. LEXIS 47412, at *1 (S.D. Cal. May 30, 2008) (citing Nova Prods., Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 241 (S.D.N.Y. 2004); In re Cree, Inc. Sec. Litig., 220 F.R.D. 443 (M.D. N.C. 2004)); see also Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 973 (C.D. 2010) ("Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.") (citations omitted); Televisa, S.A. de C.V. v. Univision Commc'ns, Inc., No. CV 05-3444 PSG (MANx), 2008 U.S. Dist. LEXIS 106382, at *3 (C.D. Cal. Nov. 17, 2008) ("[A] party has standing to move to quash a subpoena only if it alleges that the information sought is privileged or the subpoena subjects the moving party to undue burden.") (citations omitted). Here, as stated above, Plaintiff has asserted a privacy interest in the records sought by the City's subpoena. Accordingly, the Court concludes that Plaintiff has standing to move to quash the subpoena.[3]

2. The Stored Communications Act

Neither Plaintiff nor the City address the federal statute that governs disclosure of text message content. The Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2712, which comprises part of the Electronic Communications Privacy Act of 1986, generally prohibits "providers' of communication services from divulging private communications to certain entities and/or individuals." Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev'd on other grounds by City of Ontario, Cal. v. Quon, ___ U.S. ___, 130 S.Ct. 2619 (2010) (reversing on Fourth Amendment grounds only). "The SCA provides different prohibitions depending on whether the communications provider is classified as an electronic communication service' or a remote computing service.'" Mintz v. Mark Bartelstein & Assocs., Inc., 885 F.Supp.2d 987, 991 (C.D. Cal. 2012) (quoting 18 U.S.C. § 2702(a)). ...

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