2016-00204753-CU-PO

AV Doe vs. Joshua Rolando Vasquez

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: George, Jr., Joseph C.

Plaintiff AV Doe’s (“Plaintiff”) motion to compel defendant City of Sacramento (“City” or “Defendant”) to serve further responses to Plaintiff’s request for production of documents (with notice of taking deposition) and produce the “video,” “audio,” and “audio and non-pornographic video” in the City’s possession is GRANTED, as set forth below.

This case involves allegations regarding childhood sexual abuse that occurred in the Mark Twain Elementary School. Plaintiff and other minor students were sexually abused by Sacramento City Unified School District (the “School District”) employee Joshua Rolando Vasquez (“Vasquez”). Vasquez video recorded his childhood sexual abuse of Plaintiff and other minor students. In essential part, these videos are at the heart of the motion.

The Sacramento Police Department seized 22 videos recorded by Vasquez. In connection with the criminal investigation of Vasquez, Detective Wirtz watched all 22 videos and the City allowed defendant Roasrio Guillen-Jovel (“Jovel”), principal of the school, to view at least one of the videos, in order to identify the victims.

Trial in this action is currently set for March 11, 2019.

On January 25, 2019, Plaintiff served requests for production of documents (with notice of taking deposition) to City employee Detective Eugene Shim. Therein, Plaintiff requested “the video” in the City’s possession watched by Jovel (RFPD 56), “the audio” in the City’s possession listened to by Detective Wirtz (RFPDs 57-78), “the audio and non-pornographic video” in City’s possession and watched by Detective Wirtz (RFPDs 79-100), and to make available for viewing all of the Vasquez videos in the City’s possession watched by Detective Wirtz (RFPDs 101-122).

The City served its objections and responses on January 31, 2019.

In response to number 56, the City objected on the grounds that the request is “vague and ambiguous”, all videos containing illegal child pornographic materials are protected by the Confidential Protective Order (filed on August 18, 2017), and the request “assumes facts not in evidence”. The City did not provide a substantive response.

In response to numbers 57-78 the City objected on various grounds, but also responded that it has “conducted a diligent search and made a reasonable inquiry and is unable to comply with this request, because the requested recorded audio file form the recorded video has never existed.”

In response to numbers 79-100, the City objected on various grounds, but also responded that it has “conducted a diligent search and made a reasonable inquiry and is unable to comply with this request, because the requested recorded audio and non child pornographic recorded video with an entirely blacked out screen during certain periods (seconds or minutes) where child pornography is visible to the view have never existed.”

In response to numbers 101-122, the City objected that the requests seek information protected by the Confidential Protective Order (filed August 18, 2017) and nothing will be produced for viewing.

Plaintiff now moves to compel further responses and production of the requested videos and audio files. Plaintiff contends the information is relevant and that Plaintiff is “entitled to know, first-hand, the extent of Plaintiff’s abuse by Vasquez in order to fully prepare for trial … and to educate trial counsel, Plaintiff’s experts, and Plaintiff’s mental health providers on the extent of Plaintiff’s childhood sexual abuse … .” (Memo. at 3:8-13.) Plaintiff contends Defendant’s objections are without merit. Specifically, Plaintiff contends the boilerplate vague and ambiguous objections are meritless and the Confidential Protective Order does not prohibit the production of the video and audio files. Plaintiff also argues the information cannot be obtained through any other alternative means and, as a result, good cause exists for the production of further responses and the requested audio and video files.

The City, as well as the School District and Jovel, have opposed the motion.

First, as to the “audio” and “non-pornographic videos,” the City contends it is unable to comply because these items never existed. Indeed, as to request numbers 57-100, the City responded that it “conducted a diligent search and made a reasonable inquiry and is unable to comply with this request, because the requested recorded audio file form the recorded video has never existed” and a “non child pornographic recorded video with an entirely blacked out screen during certain periods (seconds or minutes) where child pornography is visible to the view have never existed.” Plaintiff’s argues this response is “absurd” because Plaintiff did not request the “audio file,” but requested “all of the requested audio for a specifically identified video number.” Plaintiff also argues the City must produce a redacted recorded video because they produced other redacted documents. The Court finds that as to these requests (numbers 57-100), the City has sufficiently responded that it has conducted a diligent search and reasonable inquiry and the requested items do not exist. This response is proper under the Code. Further, Plaintiff has not presented any evidence that the requested items do, in fact, exist, but they are being improperly withheld by Defendants. No further response is therefore required as to request numbers 57-100.

As to the remaining requests (numbers 56 and 101-122), the Court orders a further response and production of the requested items.

The City’s “vague and ambiguous” objections are overruled. The City does not defend these objections in opposition and the requests are not so vague or ambiguous that they are unintelligible such that the City’s refusal to respond is justified. The City is under a good faith duty to interpret the requests to the best of its ability and provide a response.

The City’s objections on the grounds that the requested items are protected by the Confidential Protective Order (filed on August 18, 2017) are overruled. The Confidential Protective Order does not specifically prohibit the production of the requested items. Indeed, if the protective order actually covered the requested items, then that would appear to lend greater support to the argument that the items should be produced. However, the Court notes the Confidential Protective Order specifically excludes from its terms “ALL illegal child pornographic materials, that were (then) in the possession of JOSHUA ROLANDO VASQUEZ and were seized by Law Enforcement)” … . (George Decl. Exh. 1.) Accordingly, prior to the production of any videos, the parties shall enter into a separate additional protective order that the videos will be subject to at least the same protections outlined in the Confidential Protective Order already executed by the parties, and including a provision for the return of the videos at the conclusion of this action.

Where the City objected on the ground the request “assumes facts not in evidence,” the objection is overruled. This is not a proper objection in the context of written discovery.

Accordingly, all of the objections raised by the City in response to request numbers 56 and 101-122 are overruled.

For the first time, in opposition to this motion (this objection was not raised in response to the requests), Defendants contend they are prohibited under Penal Code § 311.1(a) from producing the videos. Section 311.1(a) states: “Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or to exhibit to, or to exchange with, others, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, shall be punished either by imprisonment in the county jail for up to one year, by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not to exceed ten thousand dollars ($10,000), or by the fine and imprisonment.”

Defendants contend the only exception is with respect to the criminal prosecution of potential violators, but there is no exception for civil attorneys to be in the possession or, or to distribute, child pornographic material, which is why the videos remain in the custody of the Sacramento Police Department as evidence in the criminal case. This argument is rejected. First, this objection was not raised in response to the requests. Second, no legal authority has been presented that section 311.1(a) applies to a public entity that would be producing materials in compliance with an authorizing court order regarding discovery in a civil matter where the victim’s attorney seeks the material for use related to trial, and the requested information is deemed relevant, such as this order.

Defendants also argue the videos Plaintiff has requested show other minors and they

will not invade the privacy rights of other minors by producing videos which include their likeness and what happened to them. It is unclear to the Court whether the videos at issue contain recordings of Vasquez sexually abusing multiple children in the same room at the same time or if they are, instead, recordings of Vasquez and only a single child at a time. To the extent the videos at issue depict Plaintiff and Vasquez alone, then such videos shall be produced.

However, to the extent the videos at issue depict Plaintiff, Vasquez, and others minor victims together in the room at the same time, Plaintiff’s counsel shall provide written consent to the Sheriff executed by the third party victim’s parents or guardians, indicating that they consent to the dissemination of these materials for use in this instant civil action. Without any such written consent, the Court agrees that privacy concerns would prevent the production of a video depicting Plaintiff and other third parties being sexually abused by Vasquez at the same time, unless it was somehow possible to redact the third party from the video.

Defendants finally argue Plaintiff has inexcusably delayed in seeking production of the videos and granting the motion will unnecessarily increase costs and delay the trial until experts could view the videos and be deposed. This argument does not warrant denial of relevant material. Hypothetically, Plaintiff reasonably could have issued a subpoena for the videos at trial. Defendants could have reasonably contemplated that plaintiff would be seeking to obtain the videotapes. While it would appear that plaintiff may have acted sooner, the Court does not find inexcusable delay. If the parties determine a continuance of the trial date is necessary to protect their interests and ensure fairness, they may seek one by submitting a proper motion to the presiding judge.

To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) (Glenfed Develop.

Corp. v. Sup. Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 Cal.App.4th 1113, 1117.) The Court finds Plaintiff has met this burden.

Based on the foregoing, the motion to compel is GRANTED.

The City shall provide further verified responses, without objections, execute a confidential protective order, and produce the requested items, as outlined in this order, on or before March 7, 2019.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.