James v. City & County of San Francisco

Filing 16

STIPULATION AND ORDER RELEASING CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT re 15 Stipulation filed by Corey James. Signed by Judge Phyllis J. Hamilton on 9/29/11. (nah, COURT STAFF) (Filed on 9/29/2011)

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1 2 3 4 5 JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, California 94621 Telephone: (510) 839-5200 Facsimile: (510) 839-3882 Email: john.burris@johnburrislaw.com bnisenbaum@gmail.com 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 COREY JAMES 12 13 14 15 Case No. C 11 01303 PJH STIPULATION AND [PROPOSED] ORDER RELEASING CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT. Plaintiff, vs. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation; and, San Francisco police officers DOES 1-25, inclusive, 16 Defendants. 17 18 STIPULATION 19 20 21 22 1. Plaintiff COREY JAMES was arrested by San Francisco Police Department officers on February 11, 2010 and this lawsuit arises out of that incident. 2. The San Francisco Police Department also arrested Amir Hussayn during the subject- 23 incident. The arrests of Plaintiff and Mr. Hussayn are referenced in the same incident report as San 24 Francisco Police Department Incident No. 100140861. 25 3. San Francisco Police Department Officers recovered a cellular phone with video 26 recording capacity from Amir Hussayn following his arrest. It is the understanding of Plaintiff and 27 the San Francisco Police Department that Mr. Hussayn may have videotaped some of the incident on 28 his phone. STIPULATION AND ORDER RE: CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT Case No. C 11-01303 PJH 1 1 2 4. Hussayn in evidence storage following the subject-incident. 3 4 6. 7. 9 Defendant City and County of San Francisco believes that Mr. Hussayn may have privacy rights with regard to the contents of his phone. 7 8 If Mr. Hussayn's phone contains video footage of the subject-incident, such is relevant discovery in the instant litigation. 5 6 The San Francisco Police Department placed the cellular phone seized from Amir 8. Plaintiff's counsel has attempted to locate Mr. Hussayn, but has been unsuccessful thus 9. Plaintiff seeks an order from this court allowing the parties to copy and view the video far. 10 footage, if any, on Mr. Hussayn's phone. Plaintiff has previously requested through a Request for 11 Production of Documents served on Defendant CITY the video footage of the incident on Mr. 12 Hussayn’s cellular phone, to which Defendants objected and refused to produce on the basis that it 13 called for documents protected by the right of privacy of third parties, and documents not within the 14 control of the City and County of San Francisco. Plaintiff seeks this order of the court allowing 15 release of the cellular phone data. Plaintiff's position is that the California Supreme Court recently 16 ruled in People v. Gray, 51 Cal.4th 84, 244 P.3d 501, 502, Cal., January, 2011, that warrantless data 17 searches of a suspect’s cellular phone seized from the suspect incident to a lawful custodial arrest, 18 such as the cellular phone seized from Mr. Hussayn, are valid. The cellular phone in question has 19 been in the possession of Defendant CITY since Mr. Hussayn’s arrest. Plaintiff believes that Gray 20 supports an order from the court permitting release of the phone. 21 10. The City does not oppose Plaintiff's request for release of the cellular phone data, but 22 does not stipulate to the order, as it does not believe that its stipulation is pertinent to any 23 determination that the Court must make to issue an order of release. However, the City requests that 24 if the Court orders release, the Court shall authorize release of the phone to a third party mutually 25 agreed upon by the plaintiff and defendant, who has the knowledge and expertise to extract and copy 26 video from the phone. The third party shall then provide copies of the video to all counsel and the 27 court. Per the Court’s discussion at the Case Management, the parties can coordinate with the Court 28 a time for joint viewing of the video footage. STIPULATION AND ORDER RE: CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT Case No. C 11-01303 PJH 2 1 Respectfully Submitted, 2 3 THE LAW OFFICES OF JOHN L. BURRIS 4 5 Dated: September 27, 2011 /s/ Benjamin Nisenbaum Benjamin Nisenbaum Attorney for Plaintiff 6 7 8 9 DENNIS J. HERRERA, City Attorney JOANNE HOEPER, Chief Trial Deputy MARGARET M. BAUMGARTNER, Deputy City Attorney 10 11 12 13 14 Dated: September 27, 2011 /s/ Margaret W. Baumgartner Margaret W. Baumgartner, Deputy City Attorney Attorney for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND ORDER RE: CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT Case No. C 11-01303 PJH 3 1 2 3 4 5 6 7 8 9 [PROPOSED] ORDER For good cause appearing, the Court hereby orders the San Francisco Police Department to release the phone seized from Amir Hussayn on February 11, 2010, referenced in San Francisco Police Department Incident No. 100140861, to a third party mutually agreed upon by plaintiff and defendant, who shall have expertise in copying video from such phone. The third party shall make three copies of the video from the phone, and provide one copy each to counsel for plaintiff, counsel for defendant, and to the Court. The third party shall then return the phone to the San Francisco Police Department, who shall return it to the evidence room. The parties shall contact the Court to arrange a mutually agreeable time and date for viewing of the video footage. 10 19 ER R NIA lton J. Hami FO hyllis Judge P H 18 RT 17 NO 16 RDER OO IT IS S LI 15 HONORABLE PHYLLIS J. HAMILTON United States District Judge ED A 14 RT U O 13 DATED: 9/29/11 S DISTRICT TE C ________________________________ TA UNIT ED 12 S 11 N F D IS T IC T O R C 20 21 22 23 24 25 26 27 28 STIPULATION AND ORDER RE: CELLULAR PHONE DATA IN POSSESSION OF SAN FRANCISCO POLICE DEPARTMENT Case No. C 11-01303 PJH 4

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