1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

9

10 WILLIE M. FLANIGAN, 11 Plaintiff, No. C 16-00066 WHA

12 v.

13 OFFICER JARED HARRIS, OFFICER OMNIBUS ORDER RE REMAINING BRIAN HICKLIN, and SERGEANT SEALING MOTIONS 14 CONROY TAM, 15 Defendants.

16 17 This omnibus order addresses all remaining administrative motions to seal (Dkt. 18 Nos. 268, 295, 297, 335, 346, 349). 19 There is a strong public policy in favor of openness in our court system and the public is 20 entitled to know to whom we are providing relief (or not) and why. See Kamakana v. City & 21 Cnty. of Honolulu,

, 1178–80 (9th Cir. 2006). Consequently, access to motions 22 and their attachments that are “more than tangentially related to the merits of a case” may be 23 sealed only upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. 24 Chrysler Grp., LLC,

, 1101–02 (9th Cir. 2016). Filings that are only tangentially 25 related to the merits may be sealed upon a lesser showing of “good cause.”

. The 26 compelling reasons standard applies to most judicial records. Evidentiary motions, such as 27 motions in limine and Daubert motions, can be strongly correlative to the merits of a case.

1 In addition, sealing motions filed in this district must contain a specific statement that 2 explains: (1) the legitimate private or public interests that warrant sealing; (2) the injury that 3 will result should sealing be denied; and (3) why a less restrictive alternative to sealing is not 4 sufficient. The material requested to be sealed must be “narrowly tailored to seal only the 5 sealable material.” Civ. L.R. 79-5(c). For example, “[t]he publication of materials that could 6 result in infringement upon trade secrets has long been considered a factor that would 7 overcome [the] strong presumption” in favor of access and provide compelling reasons for 8 sealing. Apple Inc. v. Psystar Corp.,

(9th Cir. 2011). Compelling reasons 9 may also warrant sealing for “sources of business information that might harm a litigant’s 10 competitive standing,” especially where the public has “minimal interest” in the information. 11 See Nixon v. Warner Comms., Inc.,

(1978). 12 Finally, “[s]upporting declarations may not rely on vague boilerplate language or 13 nebulous assertions of potential harm but must explain with particularity why any document or 14 portion thereof remains sealable under the applicable legal standard.” Bronson v. Samsung 15 Elecs. Am., Inc.,

, at *1 (N.D. Cal. May 28, 2019) (citing Civ. L.R. 79-5). 16 “Reference to a stipulation or protective order that allows a party to designate certain 17 documents as confidential is not sufficient to establish that a document, or portions thereof, are 18 sealable.” Civ. L.R. 79-5(c). 19 1. DKT. NO. 268: INITIAL MOTIONS IN LIMINE. 20 Before plaintiff was appointed pro bono counsel, proceedings were stayed, and trial was 21 reset for October 2023 (Dkt. Nos. 280, 283), defendants filed a first set of motions in limine 22 with a motion to seal seven exhibits in support of their first and second motions (Dkt. No. 268). 23 Because this set of motions in limine was never taken up by the Court and was superseded by a 24 subsequent set of motions in limine filed in advance of our October 2023 trial, the public 25 interest in this material is de minimis. The motion to seal is GRANTED. 26 27 2. DKT. NOS. 295 & 297: MOTIONS TO REOPEN DISCOVERY AND FOR LEAVE TO 1 FILE MOTION FOR RECONSIDERATION. 2 In September 2023, plaintiff submitted motions to reopen discovery and for leave to file a 3 motion for reconsideration (Dkt. Nos. 294, 296), along with associated motions to seal (Dkt. 4 Nos. 295, 297). Specifically, plaintiff moved to seal (1) a transcript of an audio recording that 5 defendants had designated as confidential (Dkt. Nos. 295-2, 297-3), and (2) highlighted 6 portions of his motion for leave to file a motion for reconsideration that referred to the contents 7 of that transcript (Dkt. No. 297-2). Because the contents of that transcript went to the heart of 8 this motion practice, there is a strong public interest in disclosure. What’s more, no one made 9 any showing of harm that disclosure of this material could cause (including defendants, who 10 had originally designated the transcript as confidential). Accordingly, these motions to seal are 11 DENIED. 12 3. DKT. NOS. 335, 346, & 349: FINAL MOTIONS IN LIMINE. 13 Before trial, defendants filed a motion to seal material submitted with their first motion in 14 limine (Dkt. No. 335), and plaintiff filed motions to seal material submitted with his third and 15 fifth motions in limine (Dkt. Nos. 346, 349). With respect to those motions and associated 16 exhibits, this order rules as follows: 17

18 Dkt. Document to be Result Reasoning No. Sealed 19 335-3 San Francisco GRANTED. Defendants filed this material that 20 Police Department plaintiff had marked as confidential Chronical of conditionally under seal. As plaintiff 21 Investigation, 2017 observes, this detailed report from an investigation that occurred years after the 22 events at issue — submitted to show 23 plaintiff’s prior conduct and convictions — was not even on either party’s exhibit 24 list (Dkt. No. 350). Accordingly, the public interest in this material is de 25 minimis. Moreover, the report contains private information regarding witnesses, 26 disclosure of which could cause harm. 27 346-3 Probation Order, GRANTED Plaintiff filed this material conditionally 1 2014 AS under seal with defendants’ redactions, 2 AMENDED. but defendants now only seek to redact plaintiff’s CII number pursuant to 3 Federal Rule of Civil Procedure 5-2 (Dkt. No. 352). This request is narrowly 4 tailored to avoid harm to plaintiff and balances the public interest in court 5 records. 6 346-4 San Francisco GRANTED Plaintiff filed this material conditionally 7 Police Department AS under seal with defendants’ redactions, Computer Aided AMENDED. but defendants now only seek to redact 8 Dispatch the phone number of a non-party (Dkt. No. 352). This request is narrowly 9 tailored to avoid harm to the non-party 10 and balances the public interest in court records. 11 346-5 Toxicology Report DENIED. Plaintiff filed this material conditionally 12 under seal, but defendants do not seek to keep it confidential (Dkt. No. 352). With 13 no justification, the motion as to this 14 material is denied.

15 346-6 Traffic Collision DENIED. See entry for Dkt. No. 346-5. Report No. 16 140922986, 17 Supplemental Report 18 346-7 Traffic Collision DENIED. See entry for Dkt. No. 346-5. Report No. 19 140922986, DMV Statement 20 346-8 Traffic Collision DENIED. See entry for Dkt. No. 346-5. 21 Report No. 140922986, DUI 22 Forms 349-3 Plaintiff’s Fifth DENIED. The redacted portions of this brief relate 23 Motion in Limine to the transcript that this order has 24 already declined to seal (see Dkt. Nos. 295, 297). Defendants do not seek 25 to keep this material confidential (Dkt. No. 351). With no justification, the 26 motion as to this material is denied.

27 I 349-4 Lampkin DENIED. This is the same transcript that this order Transcript has already declined to seal (see Dkt. 2 Nos. 295, 297). In this instance, however, defendants have provided a 3 statement objecting to disclosure because the transcript contains information 4 protected by the officer’s right to privacy 5 and because there is no confirmation that the third-party in the transcript consented 6 to his statements being made public (Dkt. No. 351). But that third-party, William 7 Lampkin, ended up testifying on the relevant details at trial, and defendants 8 have not identified any specific information in this transcript that could 9 . cause an officer harm and overcome the 10 public interest in this material, as set out above. 11 12 All documents that must be refiled shall be refiled in full compliance with this order no later 13 = than APRIL 2, 2024, at 12:00 P.M. Although appointed pro bono counsel for plaintiff have 14 formally withdrawn for the purposes of dissociating themselves from plaintiffs appeal, the 15 Court kindly requests that they take care of these filings for plaintiff.

16 IT IS SO ORDERED. = 17

Z 18 Dated: February 13, 2024. 19 20 21 lac ALSUP UNITED STATES DISTRICT JUDGE

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