Transcript Dec 27 2019 NY V SRVH

Case 3:17-cv-03906-MMC Document 157 Filed 12/27/19 Page 1 of 26
Pages 1-26
1 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
2 SAN FRANCISCO DIVISION
4 N.Y., through his guardians ) Case No. 17-cv-03906-MMC

David and Leilanie Yu, )
5 ) McKinleyville, California
Plaintiff, ) Thursday, December 5, 2019
6 )
vs. )
7 )
SAN RAMON VALLEY UNIFIED )
8 SCHOOL DISTRICT, et al., )
)
9 Defendants. )
_____________________________)
10
11
TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
12 BEFORE THE HONORABLE ROBERT M. ILLMAN
UNITED STATES MAGISTRATE JUDGE
13
14 APPEARANCES:
15 For Plaintiff: JAMES C. McFALL, ESQ.

Jackson Walker LLP
16 2323 Ross Avenue, Suite 600
Dallas, Texas 75201
17 (214) 953-6000
18 For Defendants: PATRICK C. MALLOY, ESQ.

Davis & Young, APLC
19 1960 The Alameda, Suite 210
San Jose, California 95126
20 (408) 261-4260
21 Transcription Service: Peggy Schuerger

Ad Hoc Reporting
22 2220 Otay Lakes Road, Suite 502-85
Chula Vista, California 91915
23 (619) 236-9325
24
25 Proceedings recorded by electronic sound recording; transcript

produced by transcription service.
1 McKINLEYVILLE, CA THURSDAY, DECEMBER 5, 2019 11:33 A.M.
2 --oOo--
3 THE CLERK: The Court calls Civil Case Number 17-cv-
4 3906-MMC, N.Y. v. San Ramon Valley Unified School District, et al.
5 Parties, state your appearances for the record.
6 MR. McFALL: James McFall, Jackson Walker LLP in Dallas
7 on behalf of the Plaintiff, N.Y.
8 MR. MALLOY: Hello, everyone. This is Patrick Malloy on
9 behalf of the District Defendants calling on CourtCall.
10 THE COURT: All right. This is Judge Illman and we are
11 here on the discovery letter brief that the parties submitted. I
12 appreciate the fact that the parties were able to narrow down the
13 issues here through your meet-and-confer.
14 Let’s get into it. The first issue is the additional
15 documents evidencing efforts by District personnel to disclose
16 Plaintiff’s confidential and personally identifiable information.
17 Can you describe what those -- the efforts to disclose the
18 confidential and personally identifiable information were that
19 you’re talking about?
20 MR. McFALL: Yes. There was a campaign following N.Y.’s
21 reinstatement as the Junior Class President and his reinstatement
22 back into the Leadership Class in which a number of school
23 officials, including Heidi Stepp, Ann Katzburg, and Ms. Willford
24 engaged in communications that either listed N.Y.’s name, his
25 grade, his -- any disciplinary measures and investigations taken

1 by the District into his alleged misconduct relating to a parody
2 that was disclosed to a third party, to a not school official.
3 That information is confidential, as testified to by multiple
4 witnesses in this case and should not have been disclosed.
5 We’ve requested that information in an effort to determine
6 the full extent to which his information was being disclosed to
7 third parties, but what we’ve received to date is -- appears to be
8 basically a cherry-picked set of documents that do not fully
9 detail the extent to which the Defendants and other District
10 officials employed by the District were engaging in that
11 misconduct.
12 THE COURT: And why do you think -- first of all, who
13 are the -- who are the third parties and why do you think that
14 what was produced isn’t -- is cherry-picking as opposed to
15 containing the universe of all those disclosures?
16 MR. McFALL: Well, the third parties to whom the
17 information of N.Y. was disclosed are parents, members of the
18 community, local Islamic leaders, as well as members of the media.
19 They were provided information as part of what we contend was a
20 campaign to inflict distress upon N.Y. as a result of Defendants
21 subjected this case for a parody video that he created.
22 We contend that that information or the documents we’ve
23 received to date are cherry-picked because we have received via
24 third party production documents that were in the custody and
25 control of Defendants, meaning that they were sent from email

1 directives of various school officials out to the public, out to
2 third parties, and those underlying documents have not been
3 produced by the District Defendants themselves.
4 So our contention is based on the fact that production from
5 third parties has provided us with some communication clearly
6 indicating that District officials were disseminating N.Y.’s
7 information out to third parties. But we have not received many
8 of those underlying documents from the District themselves.
9 THE COURT: All right. And so let me hear from the
10 District on that. Why is what you have produced sufficient if
11 there are underlying documents that they can point to that must
12 exist based on what was produced to them from -- from others?
13 MR. MALLOY: Yes. Thank you, Your Honor. And first I’d
14 just like to thank both the Court and counsel briefly for allowing
15 us to have this hearing today to accommodate my schedule. I
16 really appreciate it.
17 And in terms of the substantive nature of the hearing itself
18 on this first issue, first, I think that some of the emails
19 referenced by counsel are some private emails obtained by third
20 parties, meaning gmail accounts as opposed to any District email
21 accounts, as one of the witnesses that was produced for
22 deposition. We produced those emails in response to deposition
23 notices. And to the extent there were any remaining emails that
24 were not produced by the District Defendants but were produced by
25 the District in (indiscernible) from a District email server, I

1 think that the release of maybe one or two of those emails slipped
2 through the cracks with that. They did not specifically contain
3 the Plaintiff’s name or any other information that would have been
4 readily identifiable in an email search that we performed.
5 So our position is that we have provided sufficient documents
6 responsive to Plaintiff’s request. And any further search would
7 just be cumulative and unnecessary.
8 THE COURT: Well, if you were able to -- if some of them
9 slipped through the cracks before, then it seems like a second
10 search might be appropriate. With regard to the terms that --
11 that were proposed by N.Y., if you’ve done the search for N.Y.’s
12 full name and N.Y. but you haven’t done a search for "parody,"
13 "James Bond," "terrorist," "Muslim," "racist," "stereotype,"
14 "election video," are there certain of those terms that would be
15 objectionable to doing a second search under -- because they might
16 be too broad, or are all those terms going to be properly included
17 in the second search?
18 MR. MALLOY: So looking at them again right here, Your
19 Honor, I think that some of them may be too broad. But if the
20 Court would prefer that we do another search that included
21 "parody," "James Bond," "terrorist," "Muslim," "racist,"
22 "stereotype" -- I mean, looking through them, I would hope that
23 they would be narrow and not too many out there.
24 THE COURT: Correct.
25 MR. MALLOY: But, yes, if Your Honor would like us to do

1 that search, we’d be happy to do it.
2 THE COURT: I think that’s appropriate. I think that’s
3 appropriate. Let’s do that. All right.
4 MR. MALLOY: Will do, Your Honor.
5 THE COURT: Okay. Then let’s look at Issue Number B.
6 That’s the documents detailing Defendants’ reporting of
7 attendance, oversight, and academic instruction N.Y. received
8 during the suspension must be produced. It says no dispute.
9 Oh, that’s the one that you guys were able to resolve.
10 Correct?
11 MR. MALLOY: Yes, Your Honor.
12 THE COURT: Okay. All right.
13 MR. McFALL: Yes, Your Honor.
14 THE COURT: So then we go to Section C, and that is the
15 video was created by students in the school’s Video Production
16 Class must be produced.
17 Okay. So if I understand this correctly, Plaintiff’s
18 argument is that there was a determination that the video made by
19 N.Y. and I think it was with some friends, too; right? I mean,
20 are other students involved in the production of the video, I
21 assume, unless he played all roles?
23 THE COURT: Okay.
24 MR. McFALL: There were four other students involved.
25 THE COURT: Okay. So there’s a determination made at

1 some point by Mr. Cochran that the -- the video is not
2 appropriate; right?
3 MR. McFALL: That’s correct, Your Honor.
4 THE COURT: Okay. All right. So then -- and it doesn’t
5 meet the standards of the ASB Campaign Rules and Guidelines.
6 And then -- so my guess is what your claim is essentially,
7 that you have to -- because your -- your allegations include
8 allegations of unfair targeting against N.Y. by the School
9 District, you want to be able to view the other videos to
10 essentially look for or comb through other violations of ASB
11 Campaign Rules and Guidelines that you can then point to and say,
12 Well, these six other videos that made it through, they had
13 violations but they weren’t selected by Mr. Cochran for removal.
14 Is that -- is that essentially what you’re trying to do with
15 this?
16 MR. McFALL: It’s largely that argument, Your Honor. A
17 few points I would just like to add some clarity on, though.
18 THE COURT: Please.
19 MR. McFALL: Mr. Cochran was the first person who
20 received an actual copy of the parody -- who was employed by the
21 District. He and one of the Defendants involved in this case
22 viewed the parody and made the initial determination that it was
23 "inappropriate."
24 The student editor, who actually edited the raw footage and
25 posted the video at issue to his personal YouTube page, which is

1 the only place that this video was ever seen, that student was
2 enrolled in Mr. Cochran’s Video Production Class at the time. And
3 that student was not punished at all for his conduct.
4 And so we contend that the only way to determine for purposes
5 of the First Amendment and Equal Protection claim whether
6 Defendant’s conduct was consistent with the law and whether [name
7 redacted] was treated equally to other students is to accept what
8 the school’s Video Production teacher had allowed other students
9 to make, including the actual student who edited the raw footage
10 and posted the final version of the parody at issue to his
11 personal YouTube page, and that’s why we contend, Your Honor, that
12 those videos themselves are relevant because, among other things
13 -- among other things, Mr. Cochran testified that some of the
14 videos contained the exact same images and content that Defendants
15 are complaining about here, which is being -- relating to
16 potential violence or stereotyping or potential sexual innuendo
17 and, as Mr. Cochran testified, that the only penalty that any
18 student who would have made a video of that nature would face
19 would be a ten to 20 percentage deduction in their individual
20 assignment grade, whereas our student was kicked out of the class
21 for three and a half months because he was suspended.
22 So we think it is completely disparate treatment, a standard
23 that has not been upheld, is not defined, and the only way we can
24 truly test the truth and viability of the defense is to understand
25 what other videos were being allowed and deemed appropriate by

1 school officials.
2 THE COURT: So let me ask the School District. So with
3 regard to this, I understand your argument with regard to the
4 similarly-situated students. But the problem I have with it is
5 when we look at these similarly-situated parties and plaintiffs,
6 we don’t look at those who are maybe disciplined in conduct. So,
7 in other words, if -- if an employee says that they were
8 disciplined improperly based on their -- their race, we don’t
9 limit the Court’s review of that to only people of that race who
10 are disciplined. We would look at, you know, the entirety to see
11 if there was some of the employees who might be from a different
12 race who acted in a similar manner but didn’t get disciplined. In
13 other words, they’d have to sort of show the contrast to show that
14 they were not -- that they were singled out for whatever reason
15 that they’re claiming.
16 That’s sort of the catch that I’m having with this, although
17 I agree with you with regard to the production of these videos to
18 -- or, I’m sorry -- you as producing them to the other side with
19 regard to protecting the students. I understand that maybe there
20 is a -- is there a proper protective order in place that would
21 allow this to be an AEO or something along those lines that would
22 -- that would keep it from disseminating out into the public?
23 MR. MALLOY: Your Honor, if I may briefly respond. I
24 think just to clarify the issue a little bit --
25 THE COURT: Sure.

10
1 MR. MALLOY: -- and I appreciate the Court’s comments
2 regarding the issue of whether or not, you know, you wouldn’t
3 limit it to a certain race of students involved. I think to
4 throttle back, --
5 THE COURT: Okay.
6 MR. MALLOY: -- our position on the issue is more so
7 this is about the Defendants involved in the lawsuit. So Mr.
8 Cochran is not a Defendant in the lawsuit.
9 THE COURT: Right.
10 MR. MALLOY: And, frankly, our position is any -- any
11 determination he has about the appropriateness of the video is
12 completely irrelevant to the case itself. The District is not a
13 Defendant in either the first amended cause of action or the Equal
14 Protection cause of action.
15 THE COURT: Okay.
16 MR. MALLOY: So our position is if the videos are only
17 for Mr. Cochran’s class, Mr. Cochran is the only one who sees them
18 and he has no bearing on any of the determination of the outcome
19 of the punishment or of consequences rendered to Plaintiff, these
20 videos are completely irrelevant to the case itself and would just
21 kind of be an unnecessary burden and not reasonably calculated to
22 the discovery of admissible evidence in this case.
23 So, again, kind of jumping back to the Court’s analogy of
24 race, it wouldn’t be that we’re saying this should be limited to
25 a certain particular class of students but, rather, it should be

11
1 limited to like a group that is analyzed or affected by a certain
2 group of defendants. And none of the Defendants in this case had
3 any interest or effect on the video production at issue in this
4 case.
5 So that’s more of our position as opposed to --
6 THE COURT: I understand.
7 MR. MALLOY: -- the Court’s analogy.
8 THE COURT: Okay. That makes sense. All right. So --
9 so then what -- what claims against the District Defendants
10 survive? What is still left against you guys?
11 MR. MALLOY: Against us, Your Honor? There are --
12 there’s the (indiscernible) claims that are still viable against
13 us.
14 THE COURT: Okay.
15 MR. MALLOY: However, the District themselves are not a
16 party to the 1983 claims involving the First Amendment or the
17 Equal Protection clause so, again, if Mr. Cochran is not a
18 Defendant, the other Defendants are not knowledgeable of the
19 videos that are produced. Our position is there’s just no -- like
20 there’s just no relevance to these videos to this point.
21 THE COURT: So -- so let me hear from Plaintiff on that.
22 Why would there be relevance to these videos? Regarding which
23 claims against which Defendant?
24 MR. McFALL: Your Honor, I think they’re specifically
25 relevant to the First Amendment claims that are again the

12
1 Defendants who made the determination in terms of N.Y.’s
2 punishment for the parody video. That basically includes all of
3 the individuals who were administrators at the school. That is
4 Ruth Steele, Jamie Keith, Bernie Phelan, and Dearborn Ramos, as
5 well as Jason Reimann and Superintendent Rick Schmitt who signed
6 off in support of the determination that the video was
7 inappropriate and should result in N.Y. being disciplined to the
8 extent that he was.
9 And the reason Mr. Cochran’s inappropriate determination is
10 relevant to all of the Defendants’ culpability is because the
11 testimony to date from essentially everyone is that they relied on
12 certain statements that were provided to the file in conjunction
13 with the disciplinary punishment sanctions that were issued.
14 And Mr. Cochran was the person who Defendant Willford viewed
15 the parody video with, and she testified that she relied on him,
16 being an expert in -- not a legal expert, but just the most
17 knowledgeable person at the school in terms of what is and what is
18 not appropriate for students to make in terms of videos, that she
19 relied on that as part of her initial assessment that the video
20 was inappropriate and that’s why she took it to the administrators
21 of the school who also relied on Mr. Cochran’s determination in
22 Ms. Willford’s initial assessment.
23 So basically everything that happened to the Plaintiff in
24 this case arises as a result of Mr. Cochran’s initial
25 determination, with Mrs. Willford, that the video itself was

13
1 inappropriate. And that’s why the videos themselves go.
2 THE COURT: So -- but if they rely on his -- but if they
3 rely on his determination, then what does it matter what the other
4 videos show I guess is my question? And so if -- are you trying
5 to then say that his information was improper and they shouldn’t
6 have relied on it? But if they didn’t view the videos and instead
7 they just relied on his -- what he put in the file or what his --
8 what his determination was, why does it matter what the other
9 videos show? How would that show that those Defendants treated
10 him -- treated N.Y. differently than someone else?
11 MR. McFALL: Well, I would contend, Your Honor, that the
12 initial determination that Mr. Cochran made, we -- we would need
13 to be able to test that as to whether he -- his determination is
14 consistent with his historic practices and his historic assessment
15 of what is and what is not appropriate for students at the school
16 to engage in in terms of speech and expression activities
17 connected to a -- a video.
18 Everything basically arises out of his initial assessment.
19 The term "appropriate" that is set forth in the rule pursuant to
20 which anyone is punished is not defined anywhere in any school
21 rule. No student was provided instruction in terms of what is and
22 what is not appropriate. So if the student editor at issue here
23 who posted this video was in Mr. Cochran’s class and, you know,
24 being informed by what other types of videos were being allowed at
25 the school in the same way our student would have, you know,
14
1 somehow learned about that standard, we think there’s no other way
2 to determine the extent to which a standard actually exists and
3 whether our student was being treated consistent with that without
4 these additional videos.
5 THE COURT: So for the -- for the -- I guess the
6 Defendants, if they have to show that -- that the initial
7 determination by Cochran was improper or wasn’t consistent, how
8 can they do that without the other videos?
9 MR. MALLOY: Your Honor, is that question directed
10 towards me?
11 THE COURT: Yes. I’m sorry. Mr. Malloy, yeah.
12 MR. MALLOY: Yeah. So I’ll respond to that briefly by
13 saying that Mr. Cochran was deposed for seven hours on the record.
14 He was shown numerous videos, both created by students and
15 actually created by himself and posted to -- online, so we
16 actually did engage in a significant course of discussion with Mr.
17 Cochran on the record regarding what he deems appropriate and,
18 again, other students’ videos and videos that Mr. Cochran himself
19 has created.
20 But at the end of the day, he was not the person that
21 actually rendered any consequences toward Plaintiff, and I would
22 respectfully dispute the characterization that the District
23 Administration Defendants relied upon Mr. Cochran’s determination
24 in whatever consequences they rendered towards Plaintiff.
25 And I think, again, it goes to the Court’s point of whether

15
1 or not there were any other videos in Mr. Cochran’s possession, as
2 long as those videos were not previously viewed by any of the
3 other District Defendants -- which we contend they weren’t, and I
4 think the testimony bears that out -- there is no relevance to the
5 further production of the videos in this case.
6 And I will apologize because I forgot Your Honor’s question
7 in getting my point across, so if you could please repeat your
8 question, I’ll be happy to answer it.
9 THE COURT: Well, no. I mean, that’s where -- where I’m
10 stuck right now is if they made that determination without having
11 viewed other -- the other videos and they’re relying on Mr.
12 Cochran and then they make a determination that it’s their
13 responsibility -- and I’m having trouble with -- and I’m directing
14 this towards Plaintiff’s counsel -- I’m having trouble determining
15 what the relevance would be.
16 Because you’re not showing what their -- what’s in their mind
17 or anything by -- by viewing the other videos if they’re making a
18 determination that this is a violation of the ASB or it’s --
19 whatever it is, that they’ve determined that these shouldn’t go
20 forward, that this video shouldn’t go forward and that there
21 should be punishment and whatever else they decided to do along
22 the way.
23 I’m having trouble as to why the disputed videos should be
24 released based on that. It seems like the relevance to that is,
25 light, if any, and considering the privacy of the students, I’m

16
1 not sure that I’m willing to require them to produce them at this
2 point.
3 MR. McFALL: Understandable, Your Honor, and I would
4 just like to clarify for the record, as Mr. Malloy pointed out, I
5 misspoke when I said the District Defendants relied on the initial
6 determination. What I should have said and what I meant to say is
7 that Defendant Willford, who’s represented by separate counsel in
8 this case, relied on Mr. Cochran’s initial determination that the
9 video itself was inappropriate when she watched it with him.
10 And the -- the factual background, Your Honor, and
11 Defendants’ contentions as to why the video itself was
12 inappropriate, is essentially why you need to see Mr. Cochran’s
13 videos because -- or the videos at issue here -- is because the
14 main contentions that Defendants have in terms of why the parody
15 video issue here is inappropriate is that there were Nerfs and
16 pellet guns used in the parody video. There was extenuated scenes
17 of violence. There was sexual innuendo and potential stereotyping
18 involved.
19 The public videos that we currently know about, that students
20 in Mr. Cochran’s class make, have a lot of that content. Mr.
21 Cochran testified during his deposition that, among other things,
22 students in his class submitted videos with weapons and simulated
23 killings and, for that, the only punishment was a slight reduction
24 in grade for an individual assignment. No student had been
25 removed from the class.

17
1 And so for our case and for our ability to test Defendants’
2 contention that N.Y. was treated equally, we need to be able to
3 assess the distinction between that content and the content in
4 N.Y.’s parody.
5 THE COURT: Well, so in other words, it’s relevant not
6 to -- not only to the -- to the multiple Defendants, not
7 necessarily just the School District themselves?
8 MR. McFALL: That’s correct. And in terms of reliance,
9 which Mr. Malloy -- who, again, has been a consummate professional
10 throughout this case -- noted, the initial reliance was on
11 Defendant Willford who watched the video first with Mr. --
12 THE COURT: And Willford theoretically would have seen
13 the videos that were approved after, and I assume that there would
14 have been a timeline whereby some of the videos would have been
15 approved and then some of the discipline would have come down onto
16 N.Y. as well, like the timeline would have broke down that way?
17 MR. McFALL: I believe that’s correct, Your Honor.
18 THE COURT: So that gets me back to where I sort of
19 started, which is -- I mean, it’s -- I understand, Counsel Malloy,
20 your arguments with regard to your client there, but I -- it still
21 seems to me like in order for Plaintiff to be able to prove the
22 allegations, they’d have to be able to see the other videos to
23 know that there was a suspension or discipline that was
24 inappropriately targeted towards N.Y. for whatever -- what’s the
25 basis for your allegation of -- of discrimination against N.Y.?

18
1 MR. McFALL: The basis for the discrimination prior to
2 our filing of the latest consent, Your Honor, was based on
3 viewpoints and content discrimination as well as race and
4 religion. We have dropped the race and religion component of the
5 Equal Protection claim and are proceeding solely now, Your Honor,
6 on discrimination on viewpoint and content analysis.
7 THE COURT: And what’s the viewpoint?
8 MR. McFALL: The viewpoint is Defendants subjected this
9 case for the parody itself. The -- you know, the central
10 contention I think originally for why Defendants argued the parody
11 video was inappropriate, because two of N.Y.’s friends -- who
12 happen to be of Muslim descent -- played the terrorist or
13 kidnappers in the film.
14 And Defendant Ramos testified that any depiction of a Muslin
15 or Islamic terrorist is in and of itself racist, despite the fact
16 that TV shows, PG movies, PG-13 movies that people see all around
17 the world, you know, depict terrorists from every corner of the
18 planet.
19 And so what -- you know, what we need to be able to assess is
20 what similar scenes could arguably be offensive or inappropriate
21 that had similar images of the nature --
22 THE COURT: Yeah. I understand that. I understand
23 that. And those arguments are well-taken. I mean, that’s why I
24 can’t -- I can’t get past that, Mr. Malloy. So how do we make
25 sure that these are produced in a manner that are protective of

19
1 the student, the individual student?
2 MR. MALLOY: Your Honor, if I could just make one more
3 quick point.
4 THE COURT: Please.
5 MR. MALLOY: I would just like to kind of put forth a
6 scenario where we’d get if we produce these videos.
7 THE COURT: Okay.
8 MR. MALLOY: So we produce the videos. They are only to
9 this point seen by Mr. Cochran; okay? So we produce the videos
10 and then I -- this is where I get stuck. I just don’t know where
11 this gets us. Because it’s not as if any of the other Defendants
12 have seen any of these videos previously. These are videos that
13 have been submitted for a graded assignment for Mr. Cochran’s
14 class.
15 Again, Mr. Cochran is not a Defendant in this case. We also
16 may have --
17 THE COURT: Wait. So none of the Defendants have seen
18 any of the other videos?
19 MR. MALLOY: That’s correct, Your Honor. These are
20 videos for a graded assignment solely for Mr. Cochran’s class. So
21 that’s what I’m saying in terms of where do we get with the
22 production of these videos?
23 It’s just that Mr. Cochran saw these videos before, but none
24 of the District Administration Defendants, for instance, have seen
25 these videos before. I can only assume that Ms. Willford, who
20
1 again has separate counsel, has never seen these videos before.
2 This is the same as an English paper -- an essay for an assignment
3 in a class. This is not as if these videos were produced for mass
4 dissemination in terms of the school itself. These are graded
5 assignments for Mr. Cochran’s class and only for Mr. Cochran’s
6 class.
7 THE COURT: Okay. So Mr. McFall, if none of the other
8 Defendants have seen the other videos, then what in the world
9 would the relevance be?
10 MR. McFALL: Well, the point, Your Honor, was that the
11 student editor who created the video with N.Y. was in Mr.
12 Cochran’s class. And it essentially became the standard for what
13 is and what is not appropriate at the school in terms of video
14 content has been on a (indiscernible) basis -- been affected by
15 Defendant Willford and Mr. Cochran, that they have -- they have
16 set the standard based largely on what material has been
17 considered appropriate in Mr. Cochran’s class.
18 Mr. Cochran --
19 THE COURT: Right, but if the other Defendants haven’t
20 seen it, then what does the comparative class do if Mr. Cochran’s
21 not a Defendant and what does that comparative class do for you?
22 MR. McFALL: Well, it helps us assess what the standard
23 is, Your Honor.
24 THE COURT: But you have Mr. Cochran to be able to
25 testify about that and you have others within the class to be able
21
1 to testify and provide testimony and depositions and such as to
2 other things that were contained inside the -- other videos, for
3 example, you know, Nerf bullets or whatever, then you have that
4 comparative class; right? I mean, you have similar information
5 that you’re able to find out from the other videos to be able to
6 say, Well, this one got rejected, but this other one had the same
7 thing, or it had a -- you know, a sexually suggestive scene in it
8 or something like that. You can get that without looking at the
9 exact videos that were made by the students that none of the other
10 Defendants looked at. Right?
11 MR. McFALL: Your Honor, I’d respectfully suggest that
12 we can’t. There’s no other way for us to determine what exactly
13 was allowed and what exactly was deemed appropriate. I mean,
14 there’s a very specific factual scenario in terms of the parody
15 video that our student made that the Defendants have assessed as
16 inappropriate.
17 But what we have from Mr. Cochran is basically, Yes, similar
18 videos with content and images of the very nature that the
19 Defendants are complaining about in terms of being like parody --
20 THE COURT: Well, what does that get you against those
21 -- what does it get you against -- like tell me which Defendant
22 that gets you information that’s good for you in this case.
23 MR. McFALL: Defendant Willford primarily and I would
24 suggest, Your Honor, that each of the administrators on site at
25 the school, as well as Mr. Schmitt, the superintendent, and Mr.

22
1 Reimann, who supported the determination that the video was
2 "inappropriate," all of that arises out of what appropriate
3 standard has been set essentially by Mr. Cochran as the go-to
4 person that Mrs. Willford testified in terms of what is okay for
5 a student to make in terms of videos at the school.
6 THE COURT: Well, do those -- but did those -- let me
7 ask you this -- let me ask you this: Did those Defendants that
8 you’re talking about see those other videos and this video during
9 the time that the alleged conduct that you’re complaining about
10 occurred --
11 MR. McFALL: Your Honor, --
12 THE COURT: -- or prior to or during?
13 MR. McFALL: -- I do not know. I do not know.
14 THE COURT: Well, then I’m going to say that you haven’t
15 established a basis for relevance on this. Now, if you’re able to
16 find out through deposition testimony at some other point that
17 that was part of their decisionmaking process, then my
18 determination may change. But at this point, I’m going to find
19 that you haven’t established the relevancy for those videos. In
20 addition, the -- the concern about the videos is well-taken that
21 Defendants have -- have expressed.
22 All right. So let’s move to the next issue, and that’s going
23 to be -- actually D was no dispute as well; correct?
24 MR. MALLOY: That’s correct, Your Honor.
25 MR. McFALL: That’s correct.

23
1 THE COURT: Okay. All right. So then we get -- we have
2 a split decision. It looks like -- it looks like with regard to
3 the first issue, you guys will do that search. How long will it
4 take you to undertake that search?
5 MR. MALLOY: Big question, Your Honor. Given the
6 upcoming holiday, I would say I will send an email out right after
7 this phone call and tell them that it’s an urgent matter that
8 we’ve got to get done. I don’t know exactly how long it will
9 take, but I’ll certainly get on it immediately after this call.
10 THE COURT: Do you think it will take 30 days?
11 MR. MALLOY: I would say that’s a fair estimate.
12 THE COURT: All right. And so I’ll order that the
13 search be done within 30 days to include the search terms listed
14 in the brief as requested by Plaintiff, and that would be "N.Y.,"
15 N.Y.’s full name, "parody," "James Bond," "terrorist," "Muslim,"
16 "racist," "stereotype," "election video." And like you said,
17 hopefully there won’t be too many of those that show up.
18 And then with regard to Issue Number 4, I’m ruling in
19 Defendants’ favor and finding that Plaintiff is unable to show
20 relevancy for the release of those videos at this time.
21 All right. Any other matters?
22 MR. McFALL: No, Your Honor. I would just like to note
23 that we are currently set on kind of an expedited briefing
24 schedule for summary judgment. The upcoming deadline is December
25 20th. I’m happy to work with Mr. Malloy on, you know -- if we
24
1 could do an expedited production to maybe comply with that and
2 have everybody in a position to move forward.
3 THE COURT: That’s well-taken. No. I understand that
4 perfectly. So your initial brief is due on December 20th?
6 THE COURT: All right. So then -- gosh, you guys are
7 going to have to do that search before Christmas then. You guys
8 are just going to have -- you’re going to have to go back and tell
9 them that they’re under a court order to get that done. I’ll give
10 you guys until the 16th to turn over what you find from those
11 documents because I don’t want to then have Plaintiffs try to file
12 something with Judge Chesney saying that they didn’t get the
13 documents yet and we have to resolve some sort of dispute on an
14 emergency basis prior to the 20th. Okay?
15 MR. MALLOY: Understood, Your Honor.
16 THE COURT: Okay. All right. All right. So let’s see
17 here -- that -- I’m making my notes here. All right. So will my
18 oral orders suffice? I can drop in a text order on this. Do you
19 guys need a full-blown written order? What do you -- what’s your
20 guys’ flavor pick?
21 MR. McFALL: I think an oral or, you know, short text
22 order --
23 THE COURT: Text order.
24 MR. McFALL: -- is completely fine with Plaintiffs, Your
25 Honor.
25
1 THE COURT: All right. For Defendants as well?
2 MR. MALLOY: Same -- sorry, Your Honor. Same for
3 Defendants as well.
4 THE COURT: All right. So I’ll get a text order out on
5 the docket hopefully later on this afternoon.
6 All right. Thank you, gentlemen. Have a great day.
7 MR. McFALL: Thank you, Your Honor.
8 MR. MALLOY: Thank you, Your Honor. You, too.
9 THE COURT: Oh, and let me say this: I’ve been having
10 back-to-back-to-back-to-back-to-back-to-back discovery disputes.
11 It’s like that time of year or something leading up to the
12 holidays. And I have to tell you both I appreciate your
13 professionalism with regard to the way in which you conduct
14 yourselves in your letter brief as well as over the telephone, and
15 I do appreciate the fact that there are some times when the Court
16 has to be involved to make those -- those decisions. But I do
17 appreciate the efforts of counsel to work it down to this level
18 prior to getting me on the phone.
19 So thank you very much and have great holidays. Okay?
20 MR. McFALL: Thank you, Your Honor. Same to you.
21 MR. MALLOY: Thank you, Your Honor. And just for the
22 record, the feeling is mutual on our end as well. Thank you.
23 THE COURT: All right. Thank you.
24 //
25 //

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Case 3:17-cv-03906-MMC Document 157 Filed 12/27/19 Page 1 of 26

1 UNITED STATES DISTRICT COURT

4 N.Y., through his guardians ) Case No. 17-cv-03906-MMC

15 For Plaintiff: JAMES C. McFALL, ESQ.

18 For Defendants: PATRICK C. MALLOY, ESQ.

21 Transcription Service: Peggy Schuerger

25 Proceedings recorded by electronic sound recording; transcript

1 McKINLEYVILLE, CA THURSDAY, DECEMBER 5, 2019 11:33 A.M.

3 THE CLERK: The Court calls Civil Case Number 17-cv-

4 3906-MMC, N.Y. v. San Ramon Valley Unified School District, et al.

5 Parties, state your appearances for the record.

6 MR. McFALL: James McFall, Jackson Walker LLP in Dallas

7 on behalf of the Plaintiff, N.Y.

8 MR. MALLOY: Hello, everyone. This is Patrick Malloy on

9 behalf of the District Defendants calling on CourtCall.

10 THE COURT: All right. This is Judge Illman and we are

11 here on the discovery letter brief that the parties submitted. I

13 issues here through your meet-and-confer.

14 Let’s get into it. The first issue is the additional

15 documents evidencing efforts by District personnel to disclose

16 Plaintiff’s confidential and personally identifiable information.

17 Can you describe what those -- the efforts to disclose the

18 confidential and personally identifiable information were that

19 you’re talking about?

20 MR. McFALL: Yes. There was a campaign following N.Y.’s

21 reinstatement as the Junior Class President and his reinstatement

22 back into the Leadership Class in which a number of school

23 officials, including Heidi Stepp, Ann Katzburg, and Ms. Willford

24 engaged in communications that either listed N.Y.’s name, his

25 grade, his -- any disciplinary measures and investigations taken

1 by the District into his alleged misconduct relating to a parody

2 that was disclosed to a third party, to a not school official.

3 That information is confidential, as testified to by multiple

4 witnesses in this case and should not have been disclosed.

5 We’ve requested that information in an effort to determine

6 the full extent to which his information was being disclosed to

7 third parties, but what we’ve received to date is -- appears to be

8 basically a cherry-picked set of documents that do not fully

9 detail the extent to which the Defendants and other District

10 officials employed by the District were engaging in that

12 THE COURT: And why do you think -- first of all, who

14 what was produced isn’t -- is cherry-picking as opposed to

15 containing the universe of all those disclosures?

16 MR. McFALL: Well, the third parties to whom the

17 information of N.Y. was disclosed are parents, members of the

18 community, local Islamic leaders, as well as members of the media.

19 They were provided information as part of what we contend was a

20 campaign to inflict distress upon N.Y. as a result of Defendants

21 subjected this case for a parody video that he created.

22 We contend that that information or the documents we’ve

23 received to date are cherry-picked because we have received via

24 third party production documents that were in the custody and

25 control of Defendants, meaning that they were sent from email

1 directives of various school officials out to the public, out to

2 third parties, and those underlying documents have not been

3 produced by the District Defendants themselves.

4 So our contention is based on the fact that production from

5 third parties has provided us with some communication clearly