Mollica v. County of Sacramento

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 Lia D. Mollica, No. 2:19-cv-02017-KJM-DB

12 Plaintiff, ORDER

13 v.

14 County of Sacramento, et al.,

1S Defendants.

16

17 The County of Sacramento requests reconsideration of the magistrate judge’s order

18 | compelling the production of documents. The County unsuccessfully asserted the protection of

19 | the work product doctrine. As explained in this order, the County did not show the documents in

20 | question were prepared in anticipation of litigation, so they were not protected by the work

21 | product doctrine. The motion for reconsideration is denied.

22 | I. BACKGROUND

23 Lia D. Mollica alleges she severely injured her foot after falling from the top bunk of her

24 | bed in the Sacramento County Main Jail. See generally Am. Compl., ECF No. 20. She also

25 | alleges she was denied necessary medical care. See generally id. She asserts claims against the

26 | County and others under 42 U.S.C. § 1983, the Rehabilitation Act, the Americans with

27 | Disabilities Act, California Government Code section 845.6, the Tom Bane Civil Rights Act, and

28 | California tort law. See id. J§ 6-11, 70-119.

1 The case is now in discovery. The parties have come to the court with a dispute about the

2 County’s response to Mollica’s second request for production. She requested “all documents

3 relating to” a citizen complaint she filed against the County before this lawsuit began. Request

4 for Production No. 2, Merin Decl. Ex. H at 3, ECF No. 38-1. After citing the identification

5 number of her citizen complaint, Mollica’s disputed discovery request offers examples of the

6 types of materials it encompasses: “interviews conducted, statements, correspondence,

7 video/audio recordings, reports, and memos.” See id. The County responded to this request with

8 a lengthy paragraph of objections, many of which are identical to others listed repetitively

9 throughout its response. See generally Responses & Objections, Merin Decl. Ex. I, ECF

10 No. 38-1. Among other objections, such as vagueness and overbreadth, the County claimed

11 Mollica’s request invaded its attorney–client privilege and the work product doctrine. See id. at

12 4–5. Despite these objections, the County searched for and identified responsive documents. It

13 withheld them, however, claiming the protection of the attorney–client privilege and the work

14 product doctrine in a privilege log. See id. at 5; Privilege Log, Merin Decl. Ex. J, ECF No. 38-1.

15 Mollica contested the County’s objections and argued its privilege log did not give her

16 enough information to evaluate the County’s claim of privilege. See generally Merin Letter

17 (Nov. 10, 2020), Merin Decl. Ex. K, ECF No. 38-1. The County responded, standing by its

18 objections and log. See generally Whitefleet Letter (Nov. 18, 2020), Merin Decl. Ex. L, ECF No.

19 38-1. Eventually, however, after meeting and conferring with plaintiff’s counsel, the County

20 agreed to amend its privilege log. The parties now dispute two entries in the amended log. In the

21 first entry, the County claims the protections of the work product doctrine over a document titled

22 “Citizen complaint 2019PSD-0464” dated August 28, 2019, which the amended privilege log

23 describes as “[i]nter-department correspondence prepared in anticipation of litigation, and made

24 in confidence without disclosure to outside parties, regarding investigation into the specific

25 claims that are the subject matter of this lawsuit.” Merin Decl. Ex. P, ECF No. 38-1. The second

26 entry is a document titled “Civil Claim Review Mollica 2019PSD-0464” dated September 13,

27 2019, which the amended privilege log describes as “[i]nter-department correspondence prepared

28 in the anticipation of litigation, and made in confidence without disclosure to outside parties,

1 regarding the summary of the investigation into Lia D. Mollica’s citizen complaint.” Id. Neither

2 of the two documents was sent from or to an attorney. See id. In neither entry does the County

3 claim attorney–client privilege. It argues only that the documents are protected by the work

4 product doctrine. See id.

5 Unsatisfied with the amended log and unpersuaded by the County’s assertion of privilege,

6 Mollica moved to compel production of the two documents. See generally Mot. Compel, ECF

7 No. 37. She challenged the County’s vagueness, overbreadth and other objections, argued the

8 amended privilege log did not satisfy the requirements of Rule 26(b)(5)(A), and contested the

9 County’s assertion of protection by the work product doctrine. See Joint Discovery Statement at

10 6–15, ECF No. 38. She also sought an award of her fees. See id. at 21–22. The County again

11 stood by its objections and privilege assertions, and it opposed the fee request. See id. at 15–21,

12 22–23.

13 The magistrate judge assigned to this matter heard the motion by operation of this

14 District’s local rules. She granted the motion to compel and denied the fee request on the record

15 at a videoconference hearing and confirmed that decision in a short written order “for the reasons

16 set forth on the record” at the hearing. Minutes, ECF No. 40; Order, ECF No. 41.1 The County

17 filed a timely motion for reconsideration by the assigned district judge. See Mot., ECF No. 42. It

18 claims four errors. First, it argues the magistrate judge erred by not expressly sustaining or

19 overruling its objections to Mollica’s discovery request. See id. at 4–5. Second, it argues the

20 magistrate judge erred by not explaining whether the amended privilege log complied with Rule

21 26(b)(5)(A). See id. at 7–8. Third, it argues the magistrate judge acted contrary to law by

22 rejecting its work product claim. See id. at 5–7. Fourth, it argues the magistrate judge erred by

23 declining to review the disputed documents in camera. See id. at 7. Mollica opposes, requesting

24 /////

1 There is no transcript of the hearing in the record. While the County at one point

apparently sought to obtain a transcript of the hearing, it did not ultimately do so. See Jeppson

Decl. ¶ 10, ECF No. 42-1 (“On March 23, 2021, our office sent a request to [the] Court Reporter

[ ] seeking an expedited hearing transcript in time to file this instant reconsideration motion.

[The] Court Reporter [ ] informed our office that an expedited transcript could not be provided, as

she would be out of the office from March 25, 2021, to April 5, 2021.”).

1 sanctions. See Opp’n, ECF No. 43. Briefing is complete, and this court submitted the matter

2 without a hearing. See Reply, ECF No. 45; E.D. Cal. L.R. 303; Minute Order, ECF No. 44.

3 II. STANDARD OF REVIEW

4 Federal Rule of Civil Procedure 72(a) permits parties to object to a magistrate judge’s

5 orders on any nondispositive pretrial matter. A district court must consider timely objections and

6 “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R.

7 Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); E.D. Cal. L.R. 303(f). These two standards—

8 “clearly erroneous” and “contrary to law”—apply to different aspects of the magistrate judge’s

9 order. The “contrary to law” standard applies to legal determinations. See, e.g., Computer Econ.,

10 Inc. v. Gartner Grp., Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) (citing Haines v. Liggett

11 Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992)). Legal questions are considered de novo. See id.

12 The “clearly erroneous” standard applies to the magistrate judge’s factual determinations and

13 discretionary decisions. See id. (citing Maisonville v. F2 Am., Inc., 902 F.2d 746, 748 (9th Cir.

14 1990)). A decision is “clearly erroneous” if the district court “is left with the definite and firm

15 conviction that a mistake has been committed.” Concrete Pipe and Prods. v. Constr. Laborers

16 Pension Trust, 508 U.S. 602, 622 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S.

17 364, 395 (1948)). The latter is a “significantly differential” standard of review. Id. at 623.

18 III. ANALYSIS

19 To begin, the magistrate judge did not err by overruling the County’s vagueness,

20 overbreadth and other objections without a more detailed explanation of reasons. The County

21 cites no authority requiring such specificity, and this court is aware of none. Nor was the

22 magistrate judge’s decision to overrule these objections clear error. Although a request for “all

23 documents relating to” a claim might be unfairly vague and overbroad, that is not always so. See,

24 e.g., Goose Pond AG, Inc. v. Duarte Nursery, Inc., No. 19-2631, 2020 WL 4607279, at *2 (E.D.

25 Cal. Aug. 11, 2020). Mollica’s request here was not unworkably vague or overbroad. It referred

26 to her citizen’s complaint and was specific enough to permit the County to look for and find

27 documents related to that complaint.

28 /////

1 Nor did the magistrate judge err by not explaining in detail why the County’s privilege log

2 fell short of the requirements in Rule 26. Again, the County identifies no authority requiring a

3 more specific explanation than the magistrate judge offered, and again the court is aware of none.

4 In any event, the magistrate judge’s decision was also correct. An assertion of privilege must be

5 accompanied by a description of “the nature of the . . . things not produced or disclosed” that

6 “will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). To evaluate that

7 description, a court considers, among other things, “the degree to which the objection or assertion

8 of privilege enables the litigant seeking discovery and the court to evaluate whether each of the

9 withheld documents is privileged.” See Burlington N. & Santa Fe Ry. v. United States Dist.

10 Court, 408 F.3d 1142, 1149 (9th Cir. 2005). At a minimum, a party must offer “some

11 information about the content of the allegedly privileged material.” Id. at 1148. Here, the County

12 did not explain the contents of the disputed documents beyond describing them as “confidential

13 inter-department correspondence” about its investigation of Mollica’s claims. If this were

14 enough, then a litigant could withhold any nonpublic document by reiterating the elements of the

15 work product doctrine. See Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ.,

16 No. 11-3471, 2017 WL 445722, at *9 (E.D. Cal. Feb. 2, 2017) (finding privilege log inadequate

17 because it merely repeated “the definitions of attorney client materials” (emphasis in original)).

18 Even the County seems to have realized its amended log fell short. Rather than relying solely on

19 that log in opposing Mollica’s motion, it relied on details provided in a later-filed declaration. See

20 Daily Decl., ECF No. 39.

21 With the support of this late-filed declaration, the County’s work product claim—the

22 subject of its third argument for reconsideration—poses a more difficult question than its first two

23 arguments. The work product doctrine shields documents and tangible things from disclosure if

24 they were prepared (1) “by or for another party or its representative” (2) “in anticipation of

25 litigation or for trial.” Fed. R. Civ. P. 26(b)(3)(A). The party asserting the protection of this

26 privilege bears the burden to show these requirements are satisfied. Garcia v. City of El Centro,

27 214 F.R.D. 587, 591 (S.D. Cal. 2003). The work product protection is not absolute. The party

28 seeking disclosure may obtain a protected document or tangible thing if the requesting party

1 shows it has a “substantial need” for the protected materials “and cannot, without undue hardship,

2 obtain their substantial equivalent by other means”—assuming, of course, that the document or

3 thing would otherwise be disclosed under the Federal Rules. Fed. R. Civ. P. 26(b)(3)(A)(i)–(ii).

4 The extent of the work product doctrine’s protections is a mixed question of law and fact that this

5 court must consider independently under the “contrary to law” standard. See United States v.

6 Richey, 632 F.3d 559, 563 (9th Cir. 2011). Factual findings, if any, are reviewed for clear error.

7 See id.

8 There is no dispute here that County representatives prepared the documents listed in the

9 privilege log. The parties contest only (1) whether those documents were prepared “in

10 anticipation of litigation” and if so, (2) whether Mollica has a “substantial need” for those

11 documents and would suffer “undue hardship” in obtaining their “substantial equivalent” under

12 Rule 26(b)(3)(A); compare Mot. at 5–7 with Opp’n at 9–15. The court begins with the first

13 question: Were these documents prepared in anticipation of litigation? The County has not

14 shown they were. To understand why, it is necessary to describe the origins of those documents

15 in more detail.

16 Mollica alleges she was injured in May 2019. See Am. Compl. ¶ 17. She filed this action

17 in October 2019. See Compl., ECF No. 1. Between May and October, she submitted two

18 documents to the County and Sheriff’s Department. First, on August 19, she submitted an

19 administrative claim to the County under the California Government Claims Act. See Merin

20 Decl. ¶ 2 & Ex. A. A claim under that act is a prerequisite to a lawsuit for “money or damages”

21 against a public entity. See State of California v. Superior Ct., 32 Cal. 4th 1234, 1239 (2004).

22 She did not cite that claim in her discovery request. Second, a few days after submitting her

23 administrative claim, she submitted a citizen complaint to the Sheriff’s Department under

24 California Penal Code section 832.5. See Merin Decl. ¶ 4 & Ex. C. That is the citizen complaint

25 she cited in her discovery request. See id. Ex. H at 3.

26 These two documents—the administrative claim and the citizen complaint—started two

27 parallel processes. The administrative claim started the first. After the County received that

28 claim, it was forwarded to the County’s Risk Management Office. See Daily Decl. ¶ 2. Mollica

1 was represented at the time, and her attorney had sent the claim, so the Risk Management Office

2 followed its standard practice and sent a letter to her attorney confirming it had received and was

3 processing her claim. See id. ¶¶ 3, 6; Merin Decl. Ex. D, ECF No. 38-1. The County sent that

4 confirmation on August 27, a few days after receiving the claim. Daily Decl. ¶ 6. The County

5 also sent Mollica’s claim to its liability claims administrator, and a claims adjuster asked the

6 Sheriff’s Department for its response to her claim and allegations. Id. ¶ 7. It also sent Mollica’s

7 attorney a confirmation that it was investigating. Merin Decl. ¶ 6 & Ex. E. This was on

8 August 29. Daily Decl. ¶ 7; Merin Decl. ¶ 6.

9 Mollica’s citizen complaint began the second process: a mandatory internal investigation

10 within the Sheriff’s Department. Every California “department or agency that employs peace

11 officers” must “establish a procedure to investigate complaints by members of the public against

12 personnel of these departments or agencies,” Cal. Pen. Code § 832.5(a)(1), and agencies and

13 departments must comply with their policies, see Galzinski v. Somers, 2 Cal. App. 5th 1164, 1174

14 (2016). The Sacramento County Sheriff’s Department has established a procedure under this

15 section. See General Order, Merin Decl. Ex. B, ECF No. 38-1. The details of this process are not

16 relevant, but the County appears to have followed its written process for the most part in response

17 to Mollica’s citizen complaint.

18 Both of these investigations were ongoing when County representatives created the two

19 documents listed in its privilege log. See Am. Privilege Log, Merin Decl. Ex. P. It would not be

20 clearly erroneous to conclude that both documents were prepared to further both investigations,

21 that is, that they were each prepared for two purposes. On the one hand, both documents identify

22 the citizen complaint in their titles, and the County identified both documents in response to

23 Mollica’s discovery request, which named only the citizen complaint. See Merin Decl. Ex. I at 4–

24 5; Privilege Log, Merin Decl. Ex. J; Am. Privilege Log, Merin Decl. Ex. P. On the other hand,

25 Mollica does not contest the County’s claim that the documents were generated in response to a

26 request from the County’s claims adjuster during the investigation of her administrative claim.

27 See Daily Decl. ¶ 7. As noted above, Rule 26 protects against disclosure only if a document was

28 prepared in anticipation of litigation. See Richey, 632 F.3d at 568.

1 The citizen complaint was not investigated in anticipation of litigation. Documents a law

2 enforcement agency creates routinely, regardless of potential litigation, are not created in

3 anticipation of litigation; they are created in the ordinary course of business. California district

4 courts are united in this conclusion. See, e.g., Myles v. Cty. of San Diego, No. 15-1985,

5 2016 WL 2343914, at *9–11 (S.D. Cal. May 4, 2016); Anderson v. Marsh, 312 F.R.D. 584,

6 592–93 (E.D. Cal. 2015); Miller v. Pancucci, 141 F.R.D. 292, 303 (C.D. Cal. 1992); Kelly v. City

7 of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987). For that reason, a law enforcement agency’s

8 documentation of an internal affairs investigation following a citizen complaint is not protected

9 work product. See, e.g., Myles, 2016 WL 2343914 at *9; Anderson, 312 F.R.D. at 593;

10 Miller, 141 F.R.D. at 303; Kelly, 114 F.R.D. at 659.

11 Mollica’s administrative claim, by contrast, cannot be analyzed so categorically. “Many

12 courts have struggled” to decide whether and how the work product privilege applies to insurance

13 files and investigations. Garcia, 214 F.R.D. at 593. “[A] more or less routine investigation of a

14 possibly resistible claim is not sufficient to immunize under the work product rule an

15 investigative report developed in the ordinary course of business.” Id. (other alterations omitted)

16 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). “This is

17 especially true when there is no evidence in the record that an attorney was hired at the time of

18 the investigation or that an attorney requested the preparation of a document.” Id. Some

19 insurance investigations, however, might be conducted with an eye toward litigation. See id. at

20 594–95.

21 Here, no evidence shows the County had decided to accept or reject Mollica’s claim when

22 its representatives were preparing the two disputed documents. Nor had the County’s insurance

23 adjuster made any decision. No attorney was involved in their preparation at all; the County had

24 not yet retained counsel or issued a litigation hold. By all appearances, the documents were

25 created in the ordinary course of the County’s business. See id. at 593–94 (finding interviews by

26 claims adjuster not conducted in anticipation of litigation because claims had not yet been

27 rejected and no attorney had been retained). The County has not carried its burden to show the

28 documents are protected work product.

1 The County cites two cases to advocate the opposite conclusion, but neither supports its

2 position. In the first, Garcia, quoted extensively above, the court found that some files were

3 protected and others were not. See id. at 593–95. The protected materials in that case had been

4 created after the plaintiff’s claims had been rejected and when the circumstances showed there

5 was little hope of any course but litigation. See id. at 594–95. Similarly, in the second case, the

6 disputed documents had been created after counsel had been retained and after a federal agency

7 had informed the client of a pending investigation against it. See In re Grand Jury Subpoena

8 (Mark Torf / Torf Env’t Mgmt.), 357 F.3d 900, 905 (9th Cir. 2004). Some of the documents had

9 even been created at the attorney’s request “for the purpose of assisting [the client] in preparing a

10 legal defense.” Id. Here, the County, in contrast with the litigants in both Garcia and Torf, has

11 not presented evidence that it knew litigation was likely at the time the two disputed documents

12 were created. It had not even decided whether to accept or reject the claims against it and had not

13 retained an attorney. The County does not claim the documents were created at an attorney’s

14 request.

15 The County also argues the court should decide whether the documents were created

16 “because of” the potential for litigation even if they were also created for other purposes. See

17 Reply at 5–6. This argument refers to a test a court uses when disputed materials were created for

18 more than one purpose, at least one of which was in anticipation of litigation. See Richey,

19 632 F.3d at 568 (citing Torf, 357 F.3d at 908). That test is inapplicable here. The County has not

20 shown the disputed documents were created in anticipation of litigation at all. Even if it had

21 satisfied that burden, the dual purpose test would lead to the same conclusion. When a document

22 was not prepared exclusively in anticipation of litigation, then the work product rule protects

23 against disclosure if the document “can fairly be said to have been prepared or obtained because

24 of the prospect of litigation” given the document’s nature and the totality of the surrounding

25 circumstances. Richey, 632 F.3d at 568. Here, the nature and totality of the surrounding

26 circumstances show the documents were not prepared with an eye toward litigation. The County

27 was investigating a claim in the ordinary course of its business. No dispute had arisen.

28 /////

1 Because the County has not shown the two documents listed in its privilege log contained

2 protected work product, it is unnecessary to decide whether Mollica would be entitled to their

3 production based on a “substantial need” under Rule 26(b)(3)(A)(ii). The court thus rejects the

4 County’s argument that the magistrate judge erred by declining to review the two documents in

5 camera to decide whether they revealed the “mental impressions” of its investigators. See Mot. at

6 7; Reply at 7–8. A review of that kind is necessary only if a court orders the production of work

7 product under Rule 26(b)(3)(A). See Fed. R. Civ. P. 23(b)(3)(B) (imposing protections “[i]f the

8 court orders discovery of those materials,” i.e., the protected work product described in the

9 preceding subsection (emphasis added)); see also Upjohn Co. v. United States, 449 U.S. 383, 400

10 (1981) (“Rule 26 accords special protection to work product revealing the attorney’s mental

11 processes.” (emphasis added)).

12 IV. CONCLUSION

13 The motion for reconsideration is denied.

14 Mollica’s request for sanctions is also denied. Reasonable people could disagree whether

15 the County’s motion was appropriate, so its position was “substantially justified” under the terms

16 of Federal Rule of Civil Procedure 37(a)(5)(A)(ii). See Pierce v. Underwood, 487 U.S. 552, 565

17 (1988); Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982), overruled on

18 other grounds by Cunningham v. Hamilton Cty, 527 U.S. 198, 204 (1999).

19 This order resolves ECF No. 42.

20 IT IS SO ORDERED.

21 DATED: February 1, 2022.