Perry et al v. Schwarzenegger et al

Filing 798

ORDER denying motion for order compelling return of trial recordings 771 USCA Order. Signed by Judge James Ware on June 14, 2011. (jwlc2, COURT STAFF) (Filed on 6/14/2011)

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION NO. C 09-02292 JW Kristin M. Perry, et al., 11 ORDER DENYING MOTION FOR ORDER COMPELLING RETURN OF TRIAL RECORDINGS Plaintiffs, v. For the Northern District of California United States District Court 10 12 Arnold Schwarzenegger, et al., 13 Defendants. 14 / 15 Presently before the Court is Defendant-Intervenors’ Motion for Order Compelling Return of 16 Trial Recordings.1 The Court conducted a hearing on June 13, 2011. Based on the papers submitted 17 to date and oral argument, the Court DENIES Defendant-Intervenors’ Motion for Order Compelling 18 Return of Trial Recordings. 19 A. 20 21 Background This Motion is related to the trial held by Chief Judge Vaughn Walker (retired) in this case. A detailed summary of the background to the case and its procedural history can be found in the 22 23 24 25 26 27 28 1 (Appellants’ Motion for Order Compelling Return of Trial Recordings, hereafter, “Motion,” Docket Item No. 771-1.) This Motion was originally brought before the Ninth Circuit, which currently has appellate jurisdiction over the merits of the underlying decision in this case, including the judgment. (See Order at 2, Docket Item No. 771.) On April 27, 2011, the Ninth Circuit transferred the Motion to this Court, on the ground that this Court still has jurisdiction over “ancillary matters” associated with this case, such as the protective order regarding the trial recordings at issue in this Motion. (Id. at 2-3.) 1 Order issued by Judge Walker on August 4, 2010.2 The Court reviews the procedural history 2 relevant to the present Motion. 3 On December 21, 2009, a coalition of media companies requested the Court’s permission to 4 televise the trial.3 (See Docket Item No. 313.) On January 6, 2010, the Court held a hearing 5 regarding the recording and broadcasting of the trial at which the Court announced that an audio and 6 video feed of the trial would be streamed to several courthouses in other cities, and that the trial 7 would be recorded for broadcast over the Internet. Hollingsworth, 130 S. Ct. at 708-09. On January 8 7, 2010, the Court notified the parties that it had made a formal request to Chief Judge Kozinski that 9 the trial be included in the Ninth Circuit’s pilot project on audio-video recording and transmission. (See Docket Item No. 358.) On January 8, 2010, Chief Judge Kozinski issued an order approving of 11 For the Northern District of California United States District Court 10 real-time streaming of the trial to certain courthouses, pending the resolution of technical 12 difficulties. Hollingsworth, 130 S. Ct. at 709. On January 9, 2010, Defendant-Intervenors applied 13 to the Supreme Court for a stay of the Court’s order broadcasting the trial, which the Supreme Court 14 granted on January 13, 2010. See id. at 709-10 (staying the broadcast because the Northern District 15 of California’s amendment of its Local Rules to permit broadcast of the trial “likely did not” comply 16 with federal law). On January 15, 2010, the Court notified the parties that, in compliance with the 17 Supreme Court’s January 13, 2010 Order, it had formally requested Chief Judge Kozinski to 18 withdraw the case from the pilot project on transmitting trial court proceedings to remote federal 19 courthouse locations or for broadcast or webcast. (See Docket Item No. 463 at 2.) However, the 20 Court notified the parties that it would continue recording the trial “for use in chambers.” (Id.) 21 On May 31, 2010, the Court notified the parties that “[i]n the event any party wishes to use 22 portions of the trial recording during closing arguments, a copy of the video can be made available 23 to the party.” (Docket Item No. 672 at 2.) The Court stated that the parties “will of course be 24 2 25 26 (See Pretrial Proceedings and Trial Evidence; Credibility Determinations; Findings of Fact; Conclusions of Law; Order, hereafter, “August 4 Order,” Docket Item No. 708.) 3 27 A detailed discussion of the factual background of the Court’s consideration of whether the trial should be recorded or broadcast may be found in the Supreme Court’s opinion staying the broadcast of the trial. See Hollingsworth v. Perry, 130 S. Ct. 705 (2010). 28 2 1 obligated to maintain as strictly confidential any copy of the video pursuant to paragraph 7.3 of the 2 protective order.”4 (Id.) On June 2, 2010, both Plaintiffs and Plaintiff-Intervenor City and County 3 of San Francisco requested a copy of the video, pursuant to the Court’s May 31, 2010 Order.5 In its 4 August 4 Order, the Court noted that the “trial proceedings were recorded and used by [the Court] in 5 preparing the findings of fact and conclusions of law,” and directed the Clerk to “file the trial 6 recording under seal as part of the record.” (August 4 Order at 4.) The Court stated that the “parties 7 may retain their copies of the trial recording pursuant to the terms of the protective order.” (Id.) 8 B. 9 Discussion Defendant-Intervenors move for an order as follows: (1) directing Judge Walker to cease disclosures of the video recordings of the trial proceedings in this case, or any portion thereof, and 11 For the Northern District of California United States District Court 10 that all copies of the trial recordings in the possession, custody or control of Judge Walker be 12 returned to the Court;6 and (2) directing that all copies of the trial recordings in the possession, 13 14 15 16 17 18 19 20 21 22 23 24 4 On January 12, 2010, the parties entered into an Amended Protective Order. (hereafter, “Protective Order,” Docket Item No. 425.) The Protective Order was entered because disclosure and discovery activity in the case would be “likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted.” (Id. at 1.) Paragraph 7.3 of the Amended Protective Order addresses items that are designated as “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” and states that such items may only be disclosed to the parties’ counsel of record, certain experts, the Court and its personnel, “court reporters, their staffs, and professional vendors” who have signed an agreement to be bound by the Protective Order, and the author of the item. (Id. at 8-9.) The Protective Order specifies that “[e]ven after the termination of this litigation, the confidentiality obligations imposed by [the Order] shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs.” (Id. at 2.) 5 (See Notice to Court Clerk from Plaintiff-Intervenor City and County of San Francisco Re Use of Video, Docket Item No. 674 (stating that Plaintiff-Intervenor “wishes to obtain a copy of [certain portions] of the trial video to review for possible use at closing argument”); Notice to Court Clerk Re Plaintiffs’ Request for a Copy of the Trial Recording, Docket Item No. 675 (stating that Plaintiffs “respectfully request a copy of the trial recording for possible use during closing arguments”).) 6 27 In its April 28, 2011 Order, the Court ordered “[a]ll participants in the trial,” including Judge Walker, “who are in possession of a recording of the trial proceedings” to appear at the June 13, 2011 hearing “to show cause as to why the recordings should not be returned to the Court’s possession.” (Order Setting Hearing on Motion at 2, hereafter, “April 28 Order,” Docket Item No. 772.) On May 12, 2011, Judge Walker voluntarily lodged his chambers copy of the video recording with the Court, which filed the copy under seal. (See Docket Item Nos. 777, 781.) Accordingly, 28 3 25 26 1 custody or control of any party to this case be returned to the Court and held under seal, because, 2 now that the trial is over, there is “no legitimate reason” for the parties to continue to have a copy of 3 the recording. (Motion at 1, 20.) Plaintiffs respond as follows: (1) because no “prior orders or local 4 rules barred” Judge Walker from disclosing portions of the video, and because Judge Walker’s use 5 of the video was “harmless,” the Court should not order him to stop disclosing portions of the video 6 or to return his copy to the Court; and (2) because “use of the trial video would aid the parties in 7 connection with any additional proceedings,” and because the parties “have dutifully complied with 8 the protective order,” the Court should not order the parties to return their copies of the video.7 of the video recordings of the trial to the Court. As discussed previously, the Court made copies of 11 For the Northern District of California Upon review, the Court does not find good cause to require the parties to return their copies 10 United States District Court 9 the video available to the parties, pursuant to the Protective Order, for use during the trial. 12 Defendant-Intervenors’ Motion does not contend that the parties have violated the terms of the 13 Protective Order by disclosing the video recordings of the trial. Because there is no indication that 14 the parties have violated the Protective Order, and because appellate proceedings in this case are still 15 ongoing, the parties may retain their copies of the trial recordings.8 16 Accordingly, the Court DENIES Defendant-Intervenors’ Motion for Order Compelling 17 Return of Trial Recordings and discharges its Order to Show Cause regarding the return of the trial 18 recordings. 19 20 21 Defendant-Intervenors’ Motion, insofar as it requests an order requiring Judge Walker to return his copy of the video recording, is DENIED as moot. The Court does not reach any issue with respect to Judge Walker’s use of the trial recordings. 7 22 23 24 25 26 (Plaintiffs-Appellees’ Opposition to Appellants’ Motion Regarding Trial Recordings and Plaintiffs-Appellees’ Motion to Unseal at 6-11, Docket Item No. 771-4.) In addition, the Opposition contends that the recordings of the trial should be unsealed. (Id. at 9-10.) However, in its April 28 Order, the Court stated that it would “bifurcate Plaintiffs’ Cross-Motion to lift the protective order [on the video recordings] until it has the opportunity to resolve the underlying Motion.” (April 28 Order at 1.) Accordingly, the Court does not consider at this time Plaintiffs’ contention that the recordings should be unsealed. The Court, in conjunction with Plaintiffs’ Cross-Motion to lift the Protective Order, will consider any request by Judge Walker for the return of the copy of the video recording that Judge Walker voluntarily returned to the Court. 8 27 The video recordings of the trial continue to be subject to the Protective Order, pending the Court’s resolution of the Cross-Motion to lift the Protective Order. 28 4 1 2 3 4 C. Conclusion The Court DENIES Defendant-Intervenors’ Motion for Order Compelling Return of Trial Recordings, and orders as follows: (1) 5 6 The Court sets August 29, 2011 at 9 a.m. for a hearing on Plaintiffs’ Cross-Motion to lift the Protective Order on the video recording of the trial. (2) Although it appears that Plaintiffs’ Cross-Motion has been fully briefed at the circuit 7 level, the Court invites anyone who wishes to file further responses to the Cross- 8 Motion to do so in compliance with the following briefing schedule: 9 (a) 11 For the Northern District of California United States District Court 10 On or before July 15, 2011, any party desiring to do so shall file their Opposition; (b) 12 On or before August 1, 2011, any party desiring to do so shall file their Reply. 13 The Court hereby gives notice that it intends to return the trial recordings to Judge Walker as 14 part of his judicial papers. Any party who objects shall articulate its opposition in the supplemental 15 briefing in accordance with the schedule outlined above. 16 17 18 Dated: June 14, 2011 JAMES WARE United States District Chief Judge 19 20 21 22 23 24 25 26 27 28 5 1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: 2 Alan Lawrence Schlosser aschlosser@aclunc.org Amir Cameron Tayrani Atayrani@gibsondunn.com Andrew Perry Pugno andrew@pugnolaw.com Andrew Walter Stroud stroud@mgslaw.com Angela Christine Thompson angelathompsonesq@gmail.com Austin R. Nimocks animocks@telladf.org Brian Ricardo Chavez-Ochoa chavezochoa@yahoo.com Brian W Raum braum@telladf.org Charles J. Cooper ccooper@cooperkirk.com Charles Salvatore LiMandri cslimandri@limandri.com Christine Van Aken christine.van.aken@sfgov.org Christopher Dean Dusseault cdusseault@gibsondunn.com Christopher Francis Stoll cstoll@nclrights.org Christopher James Schweickert cjs@wcjuris.com Claude Franklin Kolm claude.kolm@acgov.org Daniel J. Powell Daniel.Powell@doj.ca.gov Danny Yeh Chou danny.chou@sfgov.org David Boies dboies@bsfllp.com David E. Bunim Dbunim@haasnaja.com David H. Thompson dthompson@cooperkirk.com David L. Llewellyn Dllewellyn@LS4law.com Diana E Richmond drichmond@sideman.com Elizabeth O. Gill egill@aclunc.org Enrique Antonio Monagas emonagas@gibsondunn.com Ephraim Margolin ephraim_margolin@yahoo.com Eric Grant grant@hicks-thomas.com Eric Alan Isaacson erici@rgrdlaw.com Erin Brianna Bernstein Erin.Bernstein@sfgov.org Ethan D. Dettmer edettmer@gibsondunn.com Gordon Bruce Burns Gordon.Burns@doj.ca.gov Herma Hill Kay hkay@law.berkeley.edu Holly L Carmichael holly.l.carmichael@gmail.com Howard C. Nielson hnielson@cooperkirk.com Ilona Margaret Turner iturner@nclrights.org James Bopp jboppjr@bopplaw.com James A Campbell jcampbell@telladf.org James C. Harrison jharrison@rjp.com James Dixon Esseks jesseks@aclu.org James J. Brosnahan jbrosnahan@mofo.com Jennifer Carol Pizer jpizer@lambdalegal.org Jennifer Lynn Monk jmonk@faith-freedom.com Jennifer Lynn Monk jmonk@faith-freedom.com Jeremy Michael Goldman jgoldman@bsfllp.com Jerome Cary Roth Jerome.Roth@mto.com Jesse Michael Panuccio jpanuccio@cooperkirk.com John Douglas Freed jfreed@cov.com Jon Warren Davidson jdavidson@lambdalegal.org Jordan W. Lorence jlorence@telladf.org Jose Hector Moreno jhmoreno@jhmlaw.com Josh Schiller jischiller@bsfllp.com Josh Schiller jischiller@bsfllp.com 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 Judy Whitehurst Jwhitehurst@counsel.lacounty.gov Kari Lynn Krogseng krogseng@rjp.com Kelly Wayne Kay oakkelly@yahoo.com Kevin Trent Snider kevinsnider@pacificjustice.org Lauren Estelle Whittemore lwhittemore@fenwick.com Leslie A Kramer lkramer@fenwick.com Louis P. Feuchtbaum lfeuchtbaum@sideman.com Manuel Francisco Martinez manuel.martinez@acgov.org Mark Russell Conrad Mark.Conrad@mto.com Mary Elizabeth McAlister court@lc.org Matthew Albert Coles mcoles@aclu.org Matthew Dempsey McGill mmcgill@gibsondunn.com Michael Wolf mwolf@nethere.com Michael James McDermott mjm1usa@aol.com Michael Stuart Wald mwald@stanford.edu Patrick John Gorman pgorman@wctlaw.com Peter Obstler peter.obstler@bingham.com Peter A. Patterson ppatterson@cooperkirk.com Peter C Renn prenn@lambdalegal.org Richard J. Bettan rbettan@bsfllp.com Robert Henry Tyler rtyler@faith-freedom.com Ronald P. Flynn ronald.flynn@sfgov.org Rosanne C. Baxter rbaxter@bsfllp.com Sarah Elizabeth Piepmeier spiepmeier@gibsondunn.com Shannon Minter sminter@nclrights.org Stephen V. Bomse sbomse@orrick.com Steven Edward Mitchel mitchelsteve@yahoo.com Susan Marie Popik spopik@chapop.com Tamar Pachter Tamar.Pachter@doj.ca.gov Tara Lynn Borelli tborelli@lambdalegal.org Terry Lee Thompson tl_thompson@earthlink.net Theane Evangelis Kapur tkapur@gibsondunn.com Theodore B Olson tolson@gibsondunn.com Theodore Hideyuki Uno tuno@bsfllp.com Theodore J. Boutrous tboutrous@gibsondunn.com Thomas R. Burke thomasburke@dwt.com Timothy D Chandler tchandler@telladf.org 20 21 Dated: June 14, 2011 Richard W. Wieking, Clerk 22 23 24 25 26 27 28 By: /s/ JW Chambers Susan Imbriani Courtroom Deputy