Jackson et al v. City Of Pittsburg et al

Filing 246

ORDER DENYING PLAINTIFFS' MOTION TO FILE UNDER SEAL TESTIMONY OF ROGER CLARK by Judge Alsup denying 242 Administrative Motion to File Under Seal (whalc2, COURT STAFF) (Filed on 9/14/2010)

Jackson et al v. City Of Pittsburg et al

Doc. 246

1 2 3 4 5 6 7 8 9 10 FREDERICK JACKSON, ASHLEY NICOLE JACKSON, a minor, BRIANA FREDRANIQUE ANNETTE JACKSON, a minor, and SHAWNA YVETTE MARTIN, Plaintiffs, v. CITY OF PITTSBURG, AARON L. BAKER, individually and in his official capacity as Chief of Police of the City of Pittsburg Police Department, G. LOMBARDI, individually and as an officer of the City of Pittsburg Police Department (Badge # 275), C. SMITH, individually and as an officer of the City of Pittsburg Police Department (Badge # 285), P. DUMPA, individually and as an officer of the City of Pittsburg Police Department (Badge # 291), WILLIAM BLAKE HATCHER, individually and as an officer of the City of Pittsburg Police Department (Badge # 274), SARA SPIRES, individually and as an officer of the City of Pittsburg Police Department, and DOES 1­100, inclusive, Defendants. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 09-01016 WHA

United States District Court

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For the Northern District of California

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ORDER DENYING PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL TESTIMONY OF ROGER CLARK AND VACATING HEARING

Plaintiffs' renewed motion to seal the trial testimony of expert witness Roger Clark is DENIED. True, Expert Clark has a privacy right in his personnel record from his employment long ago with the Los Angeles Sheriff's Department. But, as a threshold matter, it is unclear that the personnel record itself is at issue. In their original motion to seal, plaintiffs asserted that defense counsel "presented" the personnel record to Expert Clark and "used" it in the trial (see Dkt. No. 211). But, plaintiffs now cast doubt on

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whether defense counsel read portions or merely "pretended to read" (Br. 2). What is clear is that the personnel record was not admitted into evidence, marked as an exhibit, or shown to the jury. It is tenuous to claim that the personnel record has entered the public record. As the previous order denying plaintiffs' motion to seal indicated (see Dkt. No. 238), plaintiffs must present "compelling reasons" to justify sealing court records. Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Plaintiffs contend that Expert Clark has an overriding privacy interest in his personnel record and that defense counsel's purpose in questioning Clark -- to preclude him from again testifying effectively as a police practices expert -- was improper. Even assuming arguendo that some contents of the personnel record have bled into the public record, plaintiffs have failed to meet their burden of showing how these interests outweigh the public interest in access. Holding himself out as an expert witness, Expert Clark has no privacy right not to be asked pointed questions during cross examination. Yes, it is possible that in the future Expert Clark will be impeached in some other litigation with the answers given in our trial. This, however, goes with the territory of being an expert witness for hire. The particular answers given here were not so far afield to warrant the extreme relief sought by this motion. In future trials, the trial judge therein can rule on motions in limine to restrict any counsel from referencing the testimony given in our trial. That judge will be in a much better position to see the potential role of the testimony. The hearing set for October 7, 2010, at 8:00 a.m. is hereby VACATED. Two motions now having been made, plaintiffs may make no further motions to seal this testimony. IT IS SO ORDERED.

United States District Court

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For the Northern District of California

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Dated: September 14, 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
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