govinfo:USCOURTS-cand-4_09-cv-05796-139

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United States District Court 
Northern District of California 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
 
TODD ASHKER, et al., 
Plaintiffs, 
v. 
 
GAVIN NEWSOM, et al.,  
 
Defendants. 
 
 
Case No. 09-cv-05796 CW 
 
ORDER ON MOTION FOR DE NOVO 
REVIEW OF MAGISTRATE JUDGE’S 
ORDER REGARDING PROPOSED 
MODIFICATIONS TO DEFENDANTS’ 
PRODUCTION PRACTICES 
(Re: Dkt. No. 1630-2) 
 
 
Now before the Court is Plaintiffs’ motion for de novo review of the magistrate judge’s 
order denying Plaintiffs’ proposed changes to Defendants’ document production practices during 
the second twelve-month extension of the Settlement Agreement.  Docket No. 1630-2.  
Defendants oppose the motion.  For the reasons set forth below, the Court reviews the magistrate 
judge’s decision de novo and concludes that Plaintiffs have met their burden to show that 
Defendants’ document production obligations under paragraph 37 should be interpreted to require 
Defendants to alter their redaction practices.  
I. BACKGROUND 
The procedural history of this class action is set forth in detail in the Court’s order of 
February 2, 2022.  See Docket No. 1579.  The parties entered into a Settlement Agreement (SA) in 
August 2015.  See Docket No. 424-2.  Paragraph 41 permits Plaintiffs to seek extensions of the 
Settlement Agreement of not more than twelve months.  Id. ¶ 41.  On February 2, 2022, the Court 
found and concluded that Plaintiffs had met their burden under paragraph 41 to show that a second 
twelve-month extension of the Settlement Agreement was warranted.  Docket No. 1579.  
Paragraph 44 provides that Defendants’ document and data production obligations shall continue 
during any extension of the Settlement Agreement.  Id. ¶ 44.   
Defendants’ production obligations are governed by paragraphs 37 through 39 of the 
Settlement Agreement.  Paragraph 37 provides, in relevant part, that Defendants shall provide 
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documents to be agreed upon, that their production obligations shall be based on an “agreement” 
regarding the “details of the data and documentation to be produced,” and that this “agreement” 
and “any disputes regarding data and document production, including modification of the 
agreement, shall be submitted to [the magistrate judge] in accordance with the dispute resolution 
and enforcement procedures set forth in Paragraphs 52 and 53[.]”  Id. ¶ 37.  Paragraph 38 
provides, “Any and all confidential information provided shall be produced in redacted form 
where necessary, be designated as ‘Attorneys’ Eyes Only’ as defined in the protective order in this 
case, and shall be subject to the protective order.  CDCR shall provide [the magistrate judge], 
upon request, unredacted copies for in camera review in order to resolve any disputes in 
accordance with Paragraphs 52 and 53, below.”  Id. ¶ 38 (emphasis added).  Paragraph 39 
provides, in relevant part, “Any disputes regarding data and document production shall be 
submitted to [the magistrate judge] in accordance with the dispute resolution and enforcement 
procedures set forth in Paragraphs 52 and 53 below.”  Id. ¶ 39. 
Paragraph 53 provides, in relevant part, that if Plaintiffs contend that “CDCR has not 
substantially complied” with terms of the Settlement Agreement, Plaintiffs may seek enforcement 
of the Settlement Agreement by filing a motion before the magistrate judge.  Id. ¶ 53.  If Plaintiffs 
demonstrate substantial noncompliance by a preponderance of the evidence, then the magistrate 
judge may issue an order to achieve substantial compliance, which shall be subject to de novo 
review under 28 U.S.C. § 636(b)(1)(B).  Id.  
On April 5, 2022, the parties filed a joint letter brief regarding a dispute about the extent to 
which Defendants can redact documents during the second extension period.  See Docket No. 
1617-3.  Plaintiffs requested that the magistrate judge order that Defendants’ redaction protocol be 
as follows: 
Plaintiffs propose that CDCR may continue to produce redacted 
versions of confidential documents, however, within relevant 
pages redactions shall only be made for source-identifying 
information, not for the purpose of excluding other prisoner names 
or irrelevant information.  (If an entire page is irrelevant, Plaintiffs 
agree it may be redacted.).  
Plaintiffs will review this redacted material and may request that a 
subset of the material be produced without any redactions.  Upon 
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United States District Court 
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this request, Defendants will produce the pages in question, 
designated Attorneys’ Eyes Only, without redactions.  Plaintiffs 
will only request unredacted documents upon a good-faith belief 
that it is necessary for an adequate review of the material.  
Id. at 1-3.  Defendants opposed the request and proposed their own redaction protocol, namely: 
1. CDCR will continue to make redactions for wholly irrelevant 
information, and for the safety and security of the confidential 
source, third-party inmates, their families, staff, the institution, 
and the community at large. 
2. During the meet-and-confer process, either of the specially 
designated Attorneys’ Eyes’ Only counsel (Ms. Meeropol or 
Ms. Bremer) can access the challenged redacted material the 
parties are at an impasse on. 
3. The rest of Plaintiffs’ legal team may have access to briefing 
developed from the documents, with the expectation that the 
briefing regarding challenged redactions should not explicitly 
or verbatim relay the particular content under any redactions. 
4. Defendants will take the burden of lodging unredacted copies 
of challenged documents for in camera review, as proscribed in 
Paragraph 38 of the Settlement Agreement. 
See id. at 5-6.  On May 7, 2022, the magistrate judge denied Plaintiffs’ request on the ground that 
adopting Plaintiffs’ proposed protocol would result in a modification to the Settlement Agreement.  
See Docket No. 1620.  Plaintiffs now seek de novo review of that decision.   
II. LEGAL STANDARD 
Where a party seeks de novo review of a magistrate judge’s findings and recommendations 
under 28 U.S.C. § 636(b)(1)(B), the district court  
shall make a de novo determination of those portions of the report 
or specified proposed findings or recommendations to which 
objection is made.  A judge of the court may accept, reject, or 
modify, in whole or in part, the findings or recommendations made 
by the magistrate judge.  The judge may also receive further 
evidence or recommit the matter to the magistrate judge with 
instructions. 
28 U.S.C. § 636(b)(1)(B).   
III. DISCUSSION 
The parties’ dispute turns on the meaning of the term “where necessary” in paragraph 38.  
This term is not defined in the Settlement Agreement.  The Court must interpret this term for the 
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purpose of resolving the parties’ dispute, which impacts Defendants’ production obligations under 
paragraph 37.   
The parties are in accord that the redaction of information that would reveal the identity of 
a source is “necessary” within the meaning of paragraph 38.  The parties disagree, however, as to 
whether the redaction of other information that would not reveal the identity of a source may also 
be “necessary” under paragraph 38. 
Plaintiffs contend that Defendants’ redaction protocol has resulted, and is likely to 
continue to result, in redactions of non-source-identifying information that are not “necessary,” 
meaning redactions that withhold information for reasons other than legitimate security needs.  
Plaintiffs point to examples of redactions in previous productions that were inconsistently applied 
or were overbroad because they were not based on security needs.  Plaintiffs argue that these 
redactions made inaccessible to Plaintiffs’ counsel information that was relevant to their 
monitoring of Defendants’ compliance with the Settlement Agreement.   
Defendants argue that paragraph 38 grants them “broad discretion” to redact information 
based on their correctional experience; they further argue that paragraph 38 contains “no . . . 
limiting terms” that cabin that “broad discretion.”  See Docket No. 1635-3 at 2.  Based on this 
interpretation of paragraph 38, Defendants contend that the Court should allow them to continue to 
redact non-source-identifying information for “safety” and “security” as they deem appropriate, 
without defining in advance the types of information that could be subject to redaction on those 
grounds.   
While it is possible that redaction of some non-source-identifying information could be 
deemed necessary, the Court declines to adopt Defendants’ proposed interpretation of paragraph 
38 as providing them with unfettered discretion to redact non-source-identifying information, 
because that would fail to give effect to the term “where necessary” in paragraph 38.  In the 
absence of any meaningful guidance in the Settlement Agreement as to non-source-identifying 
information that should be deemed “necessary” to redact for security or safety reasons, the Court 
interprets Defendants’ production obligations under paragraph 37 as follows: 
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1. Defendants may continue to redact information within relevant 
pages that could be source-identifying (this information is not 
limited to names and monikers and may include other information 
that could identify the source).  In light of Plaintiffs’ concession 
that this practice is appropriate, Defendants may also continue to 
redact entire pages if such pages contain irrelevant information. 
2. To the extent that Defendants apply redactions, within relevant 
pages, on information that is not source-identifying, and Plaintiffs 
question such redactions, Defendants shall explain to Plaintiffs 
why they believe it is necessary to redact the information in 
question. 
3. If a good-faith dispute as to the redactions continues to exist, 
Defendant shall make accessible to Carmen Bremer and Rachel 
Meeropol, counsel for Plaintiffs, unredacted versions of the pages 
containing the redactions in question.  These attorneys shall not 
reveal the redacted information to their co-counsel, clients, or 
anyone else. 
4. If a good-faith dispute as to the redactions continues to exist, 
Plaintiffs may bring the dispute to the magistrate judge under the 
procedures set forth in paragraphs 37, 38, and 53.   
Plaintiffs have shown that Defendants’ current protocols have resulted in redactions that 
were overbroad and inconsistently applied, and that have hampered Plaintiffs’ ability to effectively 
monitor Defendants’ compliance with the Settlement Agreement.  See Docket No. 1630-2 at 3-6.  
The Court itself had difficulty ruling on a prior motion in this case due to the extensive redactions 
in the relevant documents, and found it necessary to call for unredacted versions which in turn 
disclosed irregularities in some of the information presented.  See Order of February 2, 2022, at 
47, 51-53, Docket No. 1579. 
Defendants have not meaningfully disputed Plaintiffs’ showing.  Defendants admit that 
their redaction protocols have resulted in redactions that were applied inconsistently on the same 
documents that were produced at different times, see Docket No. 1635-2 at 6; and in redactions 
that withheld information that was not source-identifying or necessary for safety or security, id. at 
5.  Defendants attempt to justify these overbroad redactions by arguing that they were the result of 
“human error” or “an imperfect process,” see id.; Defendants, however, provide no information 
from which the Court could reasonably infer that Defendants’ protocols will not result in similar 
“errors” in the future.  Defendants also do not dispute that one of the redactions to which Plaintiffs 
point as being unnecessary would have revealed to Plaintiffs that a confidential memorandum 
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dated February 14, 2020, incorrectly identified an inmate as being owed money by an assault 
victim.  The unredacted transcript of the interview of the confidential source, whose statements 
were the basis of the memorandum in question, identified a different inmate as being owed money.  
Defendants attempt to justify the challenged redaction by arguing that the discrepancy between 
what the source said during his interview and what the confidential memorandum reported “is 
immaterial” to the disciplinary charge brought against the inmate who was incorrectly identified in 
the memorandum as being owed money.  See Docket No. 1632-2 at 5.  The Court is not persuaded 
that the discrepancy was immaterial and finds that redactions that result in hiding inaccuracies in 
confidential documents, such as the one in question1, impair Plaintiffs’ ability to monitor 
Defendants’ compliance with the Settlement Agreement.  Such redactions do not fall within the 
scope of “necessary” under paragraph 38.  The fact that a hearing officer may not have relied on 
certain information to make a guilty finding does not necessarily mean that the information was 
irrelevant or necessary to be redacted. 
The Court finds that the unnecessary redactions to which Plaintiffs point are the result of 
Defendants’ systemic practices and are likely to be found in documents produced during the 
second extension period if Defendants continue their practices without review of the necessity of 
their redactions by opposing counsel, as set forth above. 
Defendants argue that, if they are required to produce to Plaintiffs confidential documents 
with fewer or no redactions, such documents could be filed on the docket and, even if filed under 
seal and for attorneys’ eyes only, could be made available to the public in unsealed form in the 
future if anyone files a motion to unseal them.  The Court finds that this concern is unfounded.  
The unsealing of material is not automatic even if a motion to unseal is filed.  See Civil L.R. 79-
5(f)(2) (providing that a sealed document will remain under seal until further order of the court).  
Further, at the time that a motion to seal is filed, Defendants may include in the proposed Court 
order a caution that the material should not be unsealed in the future even if a motion to unseal is 
filed and regardless of whether a presumption to unseal applies.  See Civil L.R. 79-5(f)(4) 
 
1 Defendants’ argument that the redaction was applied to protect the identity of the source 
is unconvincing, because the inmate identified under the redaction was not the source.  
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(providing that a strong presumption that the document will be unsealed will apply where a motion 
to unseal is filed more than three years after a case is closed). 
In light of the foregoing, the Court finds that the procedures set forth above for 
Defendants’ production obligations under paragraph 37 are required. 
IT IS SO ORDERED. 
Dated: May 26, 2022   
CLAUDIA WILKEN 
United States District Judge 
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