Cooley v. City of Vallejo et al

Filing 31

ORDER signed by Magistrate Judge Allison Claire on 3/4/2013 DENYING 30 Motion for Temporary Restraining Order/preliminary injunction construed as a Motion for protective order. Counsel for defendants, Deputy City Attorney Kelly Trujillo, is DIRECTED to provide plaintiff with a copy of this order prior to commencing plaintiff's deposition, scheduled in this matter for 3/5/2013. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK MARC COOLEY,
Plaintiffs,

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No. 2:12-cv-0591 LKK AC P

vs.
CITY OF VALLEJO, et al.,

ORDER

Defendants.

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/

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Plaintiff filed this action pursuant to 42 U.S.C. § 1983 as a Solano County jail

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inmate proceeding pro se. In this action, plaintiff proceeds on a first amended complaint against

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defendants City of Vallejo and Vallejo Police Officers Sean Kenny and Eric Jensen on plaintiff’s

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allegations of excessive force subsequent to his arrest on November 5, 2011. ECF No. 7.1

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Plaintiff filed a motion for a temporary restraining order/preliminary injunction (ECF No. 30)

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regarding his upcoming deposition to be taken by defendant City of Vallejo in this action on

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March 5, 2013. Plaintiff is concerned that testimony he provides in his deposition in this federal

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civil proceeding may be communicated to the Solano County District Attorney or agents thereof.

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Plaintiff’s motion for leave to proceed on a second amended complaint is pending.
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Plaintiff states that there is a criminal matter now pending against him in Solano County Superior

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Court which involves the same circumstances at issue in this case.

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The court construes plaintiff’s motion as a motion for a protective order pursuant

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to Fed. R. Civ. P. 26(c), because the relief he seeks is protection of deposition testimony from

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disclosure. Protective orders safeguard the parties and other persons in light of the otherwise

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broad reach of discovery. United States v. CBS, Inc., 666 F.2d 364, 368-69 (9th Cir. 1982). The

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court has great discretion to issue protective orders if discovery causes annoyance,

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embarrassment, oppression, undue burden, or expense. B.R.S. Land Investors v. United States,

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596 F.2d 353, 356 (9th Cir. 1979). Good cause, however, is required to obtain a protective order.

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Fed. R. Civ. P. 26(c); Foltz v State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir.

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2003); Phillips v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (“Generally, the

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public can gain access to litigation documents and information produced during discovery unless

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the party opposing disclosure shows ‘good cause’ why a protective order is necessary”).

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“Good cause” to bar non-parties from access to litigation documents must be more

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than mere desire. The party seeking protection must show specific prejudice or harm, including,

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with respect to individual documents, particular and specific need. Id.; San Jose Mercury News,

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Inc., 187 F.3d at 1102; W.W. Schwarzer, A.W. Tashima & J. Wagstaffe, Federal Civil Procedure

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Before Trial § 11:88. “If a court finds particularized harm will result from disclosure of

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information to the public, then it balances the public and private interests to decide whether a

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protective order is necessary.” Phillips, 307 F.3d at 1211 (citing Glenmade Trust Co. v.

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Thompson, 56 F.3d 476, 483 (3d Cir.1995) (factors)).

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Plaintiff has not provided the specific showing of prejudice or harm that is

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required. He suggests in vague terms that the deposition will likely inquire into matters that may

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be subject to protection as work-product or otherwise, and that the District Attorney should not

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be permitted a preview of his defenses to the criminal case. The undersigned cannot discern

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what specific matters petitioner seeks to prevent from disclosure. A blanket protective order will
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not be issued on the basis of a generalized claim of need. Because plaintiff has failed to establish

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good cause for a protective order within the meaning of Rule 2(c), the motion will be denied. If

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during the deposition plaintiff is asked questions that call for information he believes is

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privileged under the Fifth Amendment or otherwise, he may assert the applicable privilege(s) in

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response to particular questions.

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Because service of this order by mail will be ineffective to provide notice to

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plaintiff before the scheduled deposition, counsel for defendants is hereby directed to provide a

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copy of this order to plaintiff prior to commencing the deposition of plaintiff in this matter on

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Tuesday, March 5, 2013.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s motion for a temporary restraining order/preliminary injunction

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(ECF No. 30) is construed as motion for a protective order and as such is denied; and
2. Counsel for defendants, Deputy City Attorney Kelly Trujillo, is directed to

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provide plaintiff with a copy of this order prior to commencing plaintiff’s deposition, scheduled

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in this matter for March 5, 2013.

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DATED: March 4, 2013

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