De Abadia-Peixoto et al v. United States Department of Homeland Security et al

Filing 157

Order by Magistrate Judge Kandis A. Westmore regarding 138 Discovery Letter Brief.(kawlc1, COURT STAFF) (Filed on 7/12/2013)

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United States District Court
Northern District of California

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UELIAN DE ABADIA-PEIXOTO, et al.,

ORDER REGARDING 4/24/13 JOINT
DISCOVERY LETTER

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Plaintiffs,

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v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,

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Case No.: CV 11-04001 RS (KAW)

(Dkt. No. 138)

Defendants.

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United States District Court
Northern District of California

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Before the Court is a joint discovery letter filed on April 24, 2013. (Dkt. No. 138). The

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letter concerns three disputes pertaining to Plaintiffs’ Rule 34 Notice for Request for Inspection of

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the Immigration Court. Id. Upon review of the letter, the Court orders Defendants to make the

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premises available for inspection as set forth below.

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I.

LEGAL STANDARD

Subject to the limitations imposed by subsection (b)(2)(C), under Rule 26, “[p]arties may

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obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or

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defense....” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at the trial if

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the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

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However, “[o]n motion or on its own, the court must limit the frequency or extent of

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discovery otherwise allowed by these rules or by local rule if it determines that: (1) the discovery

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sought is unreasonably cumulative or duplicative, or can be obtained from some other source that

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is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had

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ample opportunity to obtain the information by discovery in the action; or (3) the burden or

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expense of the proposed discovery outweighs its likely benefit, considering the needs of the case,

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the amount in controversy, the parties’ resources, the importance of the issues at stake in the

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action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C).

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Rule 34(a) permits a party to “serve on any other party a request within the scope of Rule

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26(b)... (2) to permit entry onto designated land or other property possessed or controlled by the

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responding party, so that the requesting party may inspect, measure, survey, photograph, test, or

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sample the property or any designated object or operation on it.”
II.

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DISCUSSION

The joint letter identifies three disputes: (1) the definition of “Immigration Court”; (2) the

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use of photography, videography, or audio devices; and (3) the inspection of security features of

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630 Sansome and Immigration Courtrooms.

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A. The Definition of Immigration Court
The parties disagree as to the definition of “Immigration Court.” Plaintiffs seek a broad

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United States District Court
Northern District of California

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definition that includes “federal building at 630 Sansome Street,” “including, but not limited to,

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any public and nonpublic areas, the fourth floor, the sixth floor, the monitoring control room(s),

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vehicle sally ports, exterior parking areas used for vehicles transporting Detainees, hallways,

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corridors, doorways, stairways, elevators, and any area where Immigration Detainees appear, are

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held, or are escorted.” (Joint Letter, at 2.)

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At issue in this class action is whether Defendants’ alleged blanket policy and practice of

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shackling detainees during immigration court proceedings in San Francisco constitutes a

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deprivation of due process. (Compl., Dkt. No. 1, ¶ 1.) This limits what is relevant under Rule 26

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of the Federal Rules of Civil Procedure. Further, Rule 34 limits inspection to those premises

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“possessed or controlled by” Immigration and Customs Enforcement (“ICE”) or Executive Office

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for Immigration Review (“EOIR”). See Fed. R. Civ. P 34(a)(2).

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As a result of the parties’ meet and confer, Defendants are willing to allow Plaintiffs to

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inspect the “path of the detainee,” for those general areas under ICE or EOIR control, which

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consists of:

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(a) the area on the first floor where detainees disembark upon arrival; (b) the
elevator that transfers detainees from the first floor to the fourth and sixth floors;
(c) the sixth floor secured area where restraints are applied; (d) the sixth floor
secured area where detainees are processed; (e) the sixth floor secured area
hallway where detainees walk; (f) sixth floor secured area attorney consultation
rooms; (g) sixth floor secured area holding cells; (h) sixth floor secured area

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interview rooms; and (i) the fourth floor secured area where detainees disembark
from or enter the elevator.

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(Joint Letter, at 4.) Defendants assert that “[d]etainees do not appear anywhere else in the

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building under ICE or EOIR custody.” Id. As a result, Defendants object to any definition of

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“Immigration Court” that includes other areas of the building, as they do not “relate in any way to

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the application of restraints to detainees in immigration court”. Id.

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Defendant’s proposal for inspection of the “path of the detainee” is more than sufficient.

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Plaintiffs have not shown that the other areas sought to be inspected at 630 Sansome are relevant

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to the litigation. As discussed in more detail below, Plaintiffs have not demonstrated the

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heightened showing of relevance required to enter secure premises or to inspect “areas or
equipment within Defendants’ control that are used for security purposes,” including the control

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United States District Court
Northern District of California

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room when the relevant information may be obtained through less intrusive means. See discussion

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infra Part II.C.

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B. Use of Photography, Videography, or Audio Devices
In their Rule 34 inspection request, Plaintiffs seek “to record by photograph or video the

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tangible things and places subject to inspection as part of the immigration court.” (Joint Letter, at

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4.) When Defendants objected, “Plaintiffs offered to forego photographs and video during the

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Rule 34 Inspection of areas under ICE’s control if ICE would stipulate to allowing Plaintiffs to

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obtain photographic or videographic evidence through a mutually-agreed upon photographer or

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videographer at a later date and allow Plaintiffs’ security expert to use an audio recorder to record

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his own thoughts and observations during the inspection.” (Joint Letter, at 4-5.) ICE “object[s] to

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any photography, videography, or use of an audio recording device for notetaking during business

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hours, as ICE believes such recording creates a burden on law enforcement prerogatives and

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raises the risk of security incidents during business hours.” Id. Instead, as an alternative, ICE has

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offered an inspection outside of business hours during which “Plaintiffs’ expert may use an audio

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device for recording his observations, as well as targeted interrogatories or depositions concerning

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specific information regarding activities during business hours, which would be in lieu of any

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inspection during business hours, but would present fewer security issues.” Id. Separately, EOIR

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has agreed to allow the photography of the immigration courtrooms before business hours,

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provided Plaintiffs’ photographer submits background information in advance. Id.
Generally, photography is not allowed in most federal courtrooms for a variety of reasons,

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including security concerns. Defendants have offered to make the courtrooms available for

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inspection, photographing, and measuring outside of business hours, and to simultaneously allow

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Plaintiffs’ expert to record his observations on an audio device. This is reasonable, as any other

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information may be obtained by less obtrusive means, including, but not limited to, Plaintiffs’

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expert observing public immigration proceedings, during which he may take notes. Plaintiffs’

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contend that they need photography and videographic evidence because “Defendants’ entire
argument in favor of their shackling practice is that it is necessary given safety considerations” so

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United States District Court
Northern District of California

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“inspection during business hours—i.e. when Detainees are present and participating in

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immigration proceedings—is vital for Plaintiffs to understand the security and flight risks

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presented and to come up with any potential alternatives to seek at trial (or other resolution of this

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case).” (Joint Letter, at 5.) In light of Plaintiffs’ need to demonstrate that Defendants’ security

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concerns do not warrant the shackling of all detainees, or that alternatives to shackling exist, the

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parties are ordered to meet and confer to determine a less intrusive means for Plaintiffs to obtain

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demonstrative evidence of how the courtroom appears on a typical day, including the possibility

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of obtaining security camera footage or allowing an agreed upon photographer to take

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photographs of the courtroom between hearings when the public and other detainees are present.

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The Court trusts that this can be accomplished in such a way as to protect the privacy and/or

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identity of the detainees who are not a party to this action.1

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The safety concerns expressed by Defendants are not valid as they pertain to the

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photography and videotaping of a public, court proceeding. The safety of a photographer is no

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more at risk during a court proceeding than is that of a visiting member of the public.

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Technological advances provide many methods to conceal identities, such as obscuring faces or
camera angles.
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C. Inspection of Security Features of 630 Sansome Street and Immigration Courtrooms
“Plaintiffs seek access to inspect all security features that are relevant to any escape risk or

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public safety risk posed by immigration detainees who are appearing for their court hearings,

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including inspection on how immigration detainees are transported into, out of, and through the

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building.” (Joint Letter, at 8.) This includes the inspection of the ICE Enforcement and Removal

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Operations (ERO) control room, surveillance systems, offices and property room, building

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surveillance systems and alarms, and weapons and storage lockers for weapons.

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Plaintiffs claim that courts have permitted far more extensive inspections, and that detailed
site inspections are routinely conducted in cases relating to prison conditions. (Joint Letter, at 9.)
There is a stark difference, however, between inspecting prison conditions and demonstrating

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United States District Court
Northern District of California

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hidden security features in a federal courthouse. Litigation involving prison conditions

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necessitates at least some real-time observation to ascertain the conditions in which prisoners

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reside, and even then they are often limited, especially when other discovery devices are less

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intrusive. United States v. Territory of the Virgin Islands, 280 F.R.D. 232, 236 (D.V.I. 2012)

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(plaintiffs were not permitted to interview prison staff during inspection). Likewise, the

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information sought by Plaintiffs, such as response times from the control room, can be obtained

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through less intrusive means, including interrogatory responses and deposition testimony. To

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allow otherwise would jeopardize the safety of ICE personnel and other detainees, and Plaintiffs

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have not articulated how actual demonstrations of security features are relevant to the litigation.

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For example, the exact location of panic buttons in the courtrooms is not relevant to the

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proceeding, but the amount of time it takes an immigration judge or employee to activate the

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panic button and the amount it takes security personnel to respond would be relevant.

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In lieu of inspecting security features, Plaintiffs may propound interrogatories, documents

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requests, and depose witnesses to ascertain whether such safety concerns exist to warrant

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restraining all immigration detainees without an individualized determination. These discovery

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devices, combined with the ability to photograph the courtrooms themselves outside of business

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hours and observe immigration proceedings in open court, should allow Plaintiffs’ counsel and

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expert to obtain the information needed to present their case.
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III.

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CONCLUSION

For the foregoing reasons, the inspection is limited to those premises possessed or

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controlled by ICE. Therefore, Defendants shall make the “path of the detainee” available for

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inspection, photographing, and measuring outside of business hours and to allow Plaintiffs’ expert

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to record his observations on an audio device. While Plaintiffs’ expert may attend hearings that

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are open to the public, the parties shall meet and confer to determine the least intrusive means for

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Plaintiffs to obtain demonstrative evidence of how the courtroom appears during a typical

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hearing. Plaintiffs’ request to inspect the security features of the immigration court is DENIED.

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The parties shall meet and confer as to which discovery, if any, is governed by the

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United States District Court
Northern District of California

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protective order currently in effect.
IT IS SO ORDERED.
DATE: July 12, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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