Soler v. County of San Diego

          ORDER DENYING PLAINTIFF'S MOTION FOR ORDER COMPELLING DEFENDANTS TO ALLOW AUDIO/VIDEO RECORDING DURING SITE INSPECTION AT SAN DIEGO JAIL [ECF NO. 75]

          Hon. Ruben B. Brooks United States Magistrate Judge

         On April 18, 2016, Plaintiff James Soler ("Plaintiff) filed "Plaintiffs Notice of Motion and Motion for Order Compelling Defendants to Allow Audio/Video Recording During Site Inspection at San Diego Jail" (the "Motion to Compel") with a declaration of Todd W. Burns [ECF No. 75]. Defendants County of San Diego, Banuelos, Germain, Medina, Milton, Smith, Tarantino, and Turvey ("Defendants") filed a "Memorandum of Points and Authorities in Support of Opposition to Plaintiff's Motion for an Order Compelling Defendants to Allow Audio/Video Recording During Site Inspection at San Diego Jail" (the "Opposition") with a declaration of Captain Dennis Flynn on April 21, 2016 [ECF No. 85]. Following a telephonic attorneys-only discovery conference, (see Mins. 1, Apr. 22, 2016, ECF No. 87), Plaintiff filed a Reply on April 29, 2016 [ECF No. 90]. For the reasons discussed below, Soler's Motion to Compel [ECF No. 75] is DENIED.

         I. BACKGROUND

         Plaintiff is currently engaged in litigation against several Defendants arising from his alleged wrongful arrest and detention in January of 2014. (See Third Am. Compl. 8-22, ECF No. 60.)^[1] As part of the ongoing discovery process, Soler submitted a Rule 34 request to San Diego County and the San Diego Sheriff's Department that Plaintiff, his attorney(s), and a videographer be permitted entry into the areas of San Diego Central Jail where he was detained to inspect, measure, survey, photograph, and make audio and video recordings of those areas. (Mot. Compel 1-2, ECF No. 75.) Defendants agreed to the inspection and to allow Plaintiff to take still photography, but they objected to Soler's request to make audio and video recordings. (Id. at 2.) After unsuccessful meet-and-confer efforts, Plaintiff brought the Motion to Compel. (Id.)

         II. DISCUSSION

         In the Motion to Compel, Soler argues that "[t]here is no question that audio/video recording during a site inspection is encompassed within the broad language of Rule 34(a)(1)." (Id. at 3.) He cites Martin v. Reynolds Metals, 297 F.2d 49, 56-57 (9th Cir. 1961), as an example where the Ninth Circuit liberally construed the word "inspection" in Rule 34 and permitted the plaintiff to take samples from the defendant's land. (Id. (citing Martin, 297 F.2d at 56-57).) Plaintiff states that "[a]udio/video recording is far less intrusive than carrying away samples of a defendant's property[]" and asserts that Defendants have conceded that a site inspection is relevant. (Id.)

         Soler additionally addresses Defendants' arguments that audio and video recordings would pose an undue burden, impinge on privacy interests of inmates, and cause inmates to misbehave, thus creating an inaccurate portrayal of Plaintiff's experience. (Id. at 3-5.) Soler contends that the claim of undue burden "should be given little weight because allowing audio/video recording will not meaningfully increase the burden of the site visit itself, particularly given that the Defendants don't object to still photography." (Id. at 3.) Addressing privacy concerns, Plaintiff states, "[I]t is hard not to think of the many programs on television that show audio/video recordings made inside jails, recordings that show countless people in perhaps the most private and embarrassing moments of their lives." (Id. at 3-4.) Soler points to an episode of a program called "Jail" that featured the San Diego Central Jail and also notes that the San Diego Sheriff's Department has released its own videos taken inside of the jail showing "people in ‘private' and embarrassing situations." (Id. at 4.) In light of these videos, he does not give much weight to Defendants' privacy concerns. (Id.) Nevertheless, Plaintiff agrees not to video record images of any inmates, or in the alternative, to blur captured images of inmates. (Id. (citing De Abadia-Peixoto v. U.S. Dep't of Homeland Sec., Case No.: CV 11-04001 RS (KAW), 2013 WL 3555668, at *3 & n.1 (N.D. Cal. July 12, 2013).)

         Last, addressing concerns that videotaping would cause inmates to act up, which would not accurately portray Soler's experiences, Plaintiff argues he "was housed in solitary confinement for nine days, and nothing will truly convey to the jury what that was like, short of spending a substantial amount of time in the jail." (Id. at 4-5.) Soler maintains that the sounds of the jail are important for the jury to understand his experience, explaining that he suffered greatly from these sounds. (Id. at 5.) He argues that "sounds" are relevant and witnesses can address them at trial:

It is only fair that [Plaintiff] be able to capture some of those sounds and present that evidence to the jury, and then: (1) he can testify as to the degree the sounds captured on the audio/video recordings were the same, similar, or different from what he experienced; and (2) the Defendants can introduce their own evidence on this topic.

(Id.)

         In the Opposition, Defendants respond that Plaintiff's request is not relevant or proportional to the needs of the case, would cause a heavy burden on jail operations, and could put the safety of the facility and the privacy rights of inmates in jeopardy. (Opp'n 1-2, ECF No. 85.) Regarding relevance, they contend that a limited tour and still photographs are sufficient because the "claims in this lawsuit concern whether [Soler] was wrongfully arrested, " (id. at 2); the jail itself is not at issue. (Id.) Defendants simultaneously argue, however, that they "do not agree or admit that an inspection of the jail is relevant." (Id.) Because Soler's claims do not concern his treatment while in the jail nor the physical nature of the jail, "there is no direct relevance to inspecting every area where Plaintiff went in the jail." (Id.)

         Addressing security, the Defendants note that the jail "is the primary booking facility for the County of San Diego." (Id. at 3.) They explain that "[a]t any given time there are approximately 900 inmates housed at the jail and approximately 120 are processed through the booking areas each day." (Id. (citing id. Attach. #1 Decl. Flynn 2).) Defendants contend that "[j]ust having visitors touring the facility and taking still photographs is a significant impact on the operations, causes interruptions and poses risks." (Id.) They maintain that video and audio recordings would be more of an interference with operations. (Id.) Defendants explain that recordings could reveal confidential information that could lead to security breaches. (Id. (citing id. Attach. #1 Decl. Flynn 3).) Regarding privacy, they assert that it is the jail's policy to not film inmates without their permission. (Id.) Consequently, to allow audio and video recordings as part of the Plaintiff's inspection would require shutting down portions of the jail. (Id.) Defendants complain that this would be an expensive burden, and they note that if videotaping were allowed, it would cause inmates to act up, which would be dangerous to all and would not accurately portray Plaintiff's experiences. (See id. at 3-4.)

         Defendants additionally argue that Soler's references to television shows and a publically-available video of jails "are insufficient to demand that he should be allowed to do his own video." (Id. at 4.) They contend that the video of San Diego Central Jail created by the Sheriff's Department was carefully filmed under a controlled environment and has little or no sound. (Id.) Defendants state, "Plaintiff's reason to want to audio/video the jail is to create an exhibit for the jury to show how horrible it was to be in jail to support a claim for emotional distress damages. This is not a proper reason to grant this motion." (Id.) They moreover assert that this evidence would likely not be admissible at trial because it would play to the sympathies of the jury, (id. (citing Fed.R.Evid. 403)), and could also be excluded on foundational grounds, (id.)

         In the Reply, Soler disputes Flynn's declaration that still photography would be easier for the jail to manage than audio or video recordings. (Reply 2-3, ECF No. 90.) Plaintiff explains that the frame area encompassed by a video camera is not appreciably different from that of a still camera, but concedes that "if there is something, or someone, that for some reason should not be photographed, jail officials can indicate that during the inspection, and it will not be photographed, either with still or video photography." (Id. at 2.) Soler also contests that audio or video recordings would take longer than still photography. (Id ...