explaining that 20 pretrial orders of a magistrate judge “are not subject to de novo determination”
How later courts described this case
- explaining that 20 pretrial orders of a magistrate judge “are not subject to de novo determination”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MARILYN MORTON, et al., Case No. 21-cv-1428-MMA-DDL
12 Plaintiffs,
ORDER OVERRULING
13 v. DEFENDANT COUNTY OF SAN
DIEGO’S RULE 72 OBJECTION
14 COUNTY OF SAN DIEGO, et al.,
15 Defendants. [Doc. No. 105]
16
17
18
19 Marilyn Morton (“Ms. Morton”), as successor in interest to Decedent Joseph Earl
20 Morton’s (“Mr. Morton”) estate, as well as Ms. Morton and Dean Morton as individuals
21 (collectively, “Plaintiffs”), bring this civil rights action pursuant to 42 U.S.C. § 1983
22 against the County of San Diego (the “County”), Samantha Macanlalay, Bijan Rahmani,
23 Hosanna Alto, Matthew Berlin, Liberty Healthcare, and Does 1–10. See Doc. No. 28
24 (“Third Amended Complaint” or “TAC”). The County objects to and seeks
25 reconsideration of United States Magistrate Judge David D. Lesner’s June 27, 2023
26 discovery order (the “Discovery Order”). Plaintiffs filed an opposition, to which the
27 County replied. See Doc. Nos. 115, 118. For the foregoing reasons, the Court
28 OVERRULES the County’s objection.
1 I. BACKGROUND
2 This action stems from Mr. Morton’s suicide while in custody at the Vista
3 Detention Facility in May 2020. See TAC ¶ 16. Following Mr. Morton’s suicide, the
4 County’s Critical Incident Review Board (“CIRB”) met and a CIRB Report was
5 generated on February 24, 2021. At the heart of this ten-month discovery dispute is
6 whether the CIRB Report and related documents and emails are protected by the
7 attorney-client privilege and/or the work product doctrine.
8 On February 27, 2023, Plaintiff filed a motion to compel, among other things, the
9 CIRB Report and related documents and emails from the County. See Doc. No. 56. The
10 County opposed the motion. See Doc. No. 58. Judge Leshner held a status conference on
11 March 15, 2023, and permitted Plaintiffs to file a reply. See Doc. No. 60. On
12 April 24, 2023, Judge Leshner held an evidentiary hearing on the matter, during which
13 time two witnesses testified and exhibits were offered into evidence. See Doc. No. 76.
14 Thereafter, the parties submitted supplemental briefing, see Doc. Nos. 83, 84, and
15 appeared for a second hearing on the matter on May 15, 2023, see Doc. No. 87. At the
16 May 15 hearing, Judge Leshner conducted an in camera review of the documents with
17 Defendants’ counsel ex parte. See Doc. No. 86.
18 On June 27, 2023,1 Judge Leshner issued the Discovery Order. As relevant,2 Judge
19 Leshner granted Plaintiffs’ motion to compel and ordered the County to produce the
20 CIRB Report and related documents and emails, with the exception of a portion of the
21 CIRB Report that Judge Leshner ordered be redacted.
22
23
24
25 1 Judge Leshner initially issued an order on the motion on June 20, 2023. See Doc. No. 96. However,
that order has since been stricken from the record and an amended version, the Discovery Order, was
26 docketed on June 27, 2023.
2 Plaintiffs’ motion to compel, and Judge Leshner’s Discovery Order, also addressed documents from
27 the Citizens Law Enforcement Review Board as well as emails among Defendant Liberty Healthcare’s
employees. The County does not object to the Discovery Order as it pertains to these document requests
28
1 On July 11, 2023, the County filed a motion for reconsideration of and Rule 72
2 objection to Judge Leshner’s Discovery Order. See Doc. No. 105. Thereafter, Judge
3 Leshner stayed that portion of the Discovery Order to which the County objects. See
4 Doc. No. 109. After the matter was fully briefed, see Doc. Nos. 115, 118, the Court
5 ordered the County to lodge the CIRB Report and related documents and emails that are
6 the subject of its objection with the undersigned’s chambers for in camera review, see
7 Doc. No. 120.
8 II. LEGAL STANDARD
9 In general, pretrial discovery matters are non-dispositive. Therefore, a magistrate
10 judge has the authority to resolve them. See Grimes v. City and County of S.F., 951 F.2d
11 236, 240 (9th Cir. 1991). Pursuant to Rule 72, a party may object to a non-dispositive
12 pretrial order of a magistrate judge within fourteen days after service of the order. See
13 Fed. R. Civ. P. 72(a). When considering objections to a magistrate judge’s non-
14 dispositive order under Rule 72, the district judge must modify or set aside any part of the
15 order “that is clearly erroneous or is contrary to law.” Id. The “clearly erroneous”
16 standard applies to the magistrate judge’s factual determinations and discretionary
17 decisions. Computer Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980, 983
18 (S.D. Cal. 1999). The “contrary to law” standard applies to a magistrate judge’s purely
19 legal determinations. Id.
20 “Under Rule 72(a), [a] finding is clearly erroneous when, although there is
21 evidence to support it, the reviewing court on the entire evidence is left with the definite
22 and firm conviction that a mistake has been committed.” Waterfall Homeowners Ass’n v.
23 Viega, Inc., 283 F.R.D. 571, 575 (D. Nev. 2012) (internal quotation marks and citation
24 omitted). “An order is contrary to law when it fails to apply or misapplies relevant
25 statutes, case law or rules of procedure.” Id. (citation omitted). “When reviewing
26
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1 discovery disputes, however, the Magistrate [Judge] is afforded broad discretion, which
2 will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443,
3 446 (C.D. Cal. 2007) (internal citations and quotation omitted); see also Grimes, 951
4 F.2d at 241 (stating that on a Rule 72 objection, the district court “may not simply
5 substitute its judgment for that of the [magistrate] court”).
6 III. DISCUSSION
7 The Court incorporates the Discovery Order by reference here. In short, Judge
8 Leshner determined that the County failed to meet its burden of demonstrating that the
9 CIRB Report and related documents and emails are protected by either the attorney-client
10 privilege or the work-product doctrine. Pursuant to Rule 72, the County objects to these
11 rulings. A review of the relevant briefing and record, as well as a thorough analysis of
12 the documents in question reveal no clear error or misapplication of law.
13 A. CIRB and Chief Legal Advisor4
14 Before turning to the County’s objection, the Court begins with a discussion of the
15 relevant board, policy provisions, and personnel.
16 CIRB is a San Diego County Sheriff’s Department Review Board established and
17 governed by the Sheriff’s Department Policy and Procedures Manual (the “Manual”)
18 § 4.23. A “Review Board” is defined as “an organized body of investigators who review
19 specific incidents and report their findings to a higher authority.” According to the
20 Manual, CIRB’s responsibility is as follows:
21
Responsibility:
22
23 The purpose of this board is to consult with department legal counsel when an
incident occurs which may give rise to litigation. The focus of the CIRB will
24
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26 4 This section is derived from the Sheriff’s Department Policy and Procedures Manual, see Doc. No. 58-
1 at 11–24, Michael Baranic’s declaration submitted in opposition to Plaintiffs’ motion to compel, see
27 Doc. No. 58-1 (“Baranic Decl.”), as well as Mr. Baranic’s testimony at the April 24, 2023 evidentiary
hearing, see Doc. No. 79 (“April Tr.”). All citations to Mr. Baranic’s testimony at the April evidentiary
28
1 be to assess the department’s civil exposure as a result of a given incident.
The CIRB will carefully review those incidents from multiple perspectives,
2
including training, tactics, policies, and procedures with the ultimate goal of
3 identifying problem areas and recommending remedial actions so that
potential liability can be avoided in the future.
4
The Standards and Compliance Manager of the Division of Inspectional
5 Services shall ensure that a copy of all related reports is forwarded to each
member of the Critical Incident Review Board, for each critical incident to be
6
reviewed by the review board, within 30 days of the completion of the
7 investigation, and no later than seven (7) days prior to the date of the Critical
Incident Review Board convening. Copies of audio and video recordings will
8
be available to members of the Critical Incident Review Board upon request.
9
10 CIRB consists of three (3) voting members and two (2) non-voting members. The
11 three (3) voting members are Commanders from Law Enforcement, Court Services, and
12 Detention Services. The two (2) non-voting members are the Chief Legal Advisor
13 (“CLA”) and Commander from Human Resources. The Human Resources Commander
14 chairs the CIRB.
15 CIRB is triggered by what is called a “critical incident.” As relevant, critical
16 incidents include in custody deaths, other than natural causes. CIRB may also convene
17 “[w]hen requested by the Sheriff, Undersheriff, Assistant Sheriff, or a board member.”
18 A preliminary CIRB, or pre-CIRB, is to convene within two (2) weeks of a critical
19 incident. Thereafter, CIRB is to convene within thirty (30) days of a critical incident or
20 letter from the District Attorney.
21 The CIRB meeting begins with a presentation session, during which time “the
22 investigators involved in the investigation of the critical incident will present facts and
23 circumstances to the members of the CIRB. At the conclusion of the presentation each
24 board member will have an opportunity to question the investigator regarding the specific
25 facts and circumstances surrounding the critical incident.”
26 Following the presentation session, the five (5) CIRB members, along with a
27 representative from the Division of Inspectional Services (“DIS”), meet in a closed
28 session. During this time, CIRB is tasked with three responsibilities, conforming to the
1 “Responsibility” provision transcribed above. First, policy violations: “After hearing
2 from all necessary parties, the three Commanders will vote to make a determination as to
3 whether or not a policy violation may exist.” Depending upon whether the voting
4 members identify a potential policy violation, the case is either forwarded to Internal
5 Affairs (for potential violation) or the DIS Standards and Compliance Manager “for the
6 generation of a report, consistent with the Board’s findings” (for no violation). Second,
7 training: “CIRB is also tasked with making recommendations for training based upon the
8 analysis of critical incidents. If the Board identifies significant training issues, the Board
9 will direct those issues to the Training Lieutenant” for preparation of a report “outlining
10 the actions taken based upon the Boards direction.” Third, policies: “If [ ] CIRB
11 identifies policy issues of concern while reviewing a critical incident, the Board will
12 direct its concerns to the [DIS] Standards and Compliance Manager . . . .”
13 According to the relevant “Distribution of Reports” provision in the Manual,
14 within 45 days of the CIRB meeting, the DIS Standards and Compliance Manager “will
15 prepare a report summarizing the actions and conclusions of the board. The CIRB report
16 shall contain specific findings with regard to whether the review board found any policy
17 violations, and training or policy issues, as well as what actions were taken by the
18 department. A copy of the CIRB Confidential Report and other related reports shall be
19 filed in the Legal Affairs Section, Office of the Sheriff.”
20 At the time CIRB convened to review Mr. Morton’s death, Mr. Robert Faigin was
21 the Sheriff’s Department’s CLA and was a nonvoting member of CIRB. See Baranic
22 Decl. ¶ 18. Mr. Michael Baranic was appointed CLA in 2022. See id.
23 A. Attorney-Client Privilege
24 The attorney-client privilege protects “communications between client and
25 attorney for the purpose of obtaining legal advice, provided such communications were
26 intended to be confidential.” Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir. 2001).
27 The privilege extends to communications by corporate or government employees to
28 counsel, made at the direction of their superiors, in order to secure legal advice. See
1 United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996); see also Upjohn Co. v.
2 United States, 449 U.S. 383, 395 (1981). In addressing the County’s asserted attorney-
3 client privilege, Judge Leshner identified and applied the primary purpose test adopted by
4 the Ninth Circuit in In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021), which
5 governs dual purpose communications. It is not clear whether the County challenges the
6 Discovery Order in this respect. While the County asserts that Judge Leshner misapplied
7 the law, the County does not argue that some other test or standard applies.6
8 The County urges that Judge Leshner erred in concluding that the CIRB Report
9 and related documents and emails were not created for the primary purpose of providing
10 or obtaining legal advice. The Court notes that the County has lodged two sets of
11 documents with the undersigned’s chambers. The first is a set of documents containing
12 the notation “County’s Privilege Log re: CIRB.” These documents include the CIRB
13 Report, other CIRB-related documents, as well as CIRB-related emails. The second set
14 depicts the notation: “County’s Privilege Log re: EMAILS.” This set includes emails and
15 their attached documents, some of which, but not all, facially or tangentially relate to
16 CIRB. Comparing these document sets to the County’s privilege log, see Doc. No. 56 at
17
18
19 5 The Court notes that the Ninth Circuit has, in an unpublished decision, approvingly cited to Chen in the
government context. See Mendoza v. Gates, 19 F. App’x 514, 520 (9th Cir. 2001).
20
6 While the matter was before Judge Leshner it appears that the County took differing positions on this
21 point. For example, the County argued that CIRB, the CIRB Report, and the related documents only
serve one purpose—to obtain and provide legal advice. Elsewhere, however, it appears that the County
22 conceded that there are other, albeit incidental in the County’s opinion, purposes of the communications.
Mr. Baranic’s testimony reflects the same inconsistency. While on the one hand Mr. Baranic testified he
23 believes CIRB serves multiple purposes, see April Tr. at 37:21–22, 76:1–2, he also testified that he
believed CIRB’s sole purpose is to look at critical incidents from a liability standpoint and how to
24
prevent future liability, see id. 83:6–10.
25 In any event, the Court finds that Judge Leshner did not err in identifying the primary purpose
test as applicable here. It is undisputed that the CIRB Report and related documents and emails were
26 created, authored, or collected either in preparation for or to memorialize the CIRB meeting. The plain
language of the Manual provisions governing the CIRB meeting identify numerous purposes.
27 Additionally, the County offers no evidence or argument that the emails, which are facially not CIRB-
related, were created only for one purpose. The Court therefore cannot say that the communications at
28
1 23–166, and the County’s objection, see Doc. No. 105, it appears to the Court that:
2 (1) the CIRB Report is the Report itself (and potentially, drafts of the Report); (2) “CIRB
3 Records,” see Doc. No. 105 at 27, refers to the remaining documents in Set One; and
4 (3) “Other Emails,” see id. at 28, relates to the emails and their attachments in Set Two.
5 Accordingly, the Court addresses each category in turn.
6 1. CIRB Report
7 As Judge Leshner noted, this Court has already had occasion to apply the primary
8 purpose test in considering whether the attorney-client privilege applies to documents
9 created during a CIRB investigation. See Greer v. Cty. of San Diego, No. 19-cv-378-JO-
10 DEB, 2022 U.S. Dist. LEXIS 184647, at *14–22 (S.D. Cal. Oct. 7, 2022). In Greer, the
11 Court found that the County had not met its burden of establishing that the primary
12 purpose of the CIRB investigation and meeting was to solicit legal advice. Relying on
13 Greer but conducting his own analysis based upon the evidence and record, Judge
14 Leshner came to the same conclusion. While the County maintains that Greer was
15 decided incorrectly, they do not explain how other than to say it is wrong and should not
16 be followed.7
17 As it relates to the CIRB Report, the County takes issue with Judge Leshner’s
18 approach to the issue: Judge Leshner considered whether the primary purpose of the
19 communications at the November 18, 2020 CIRB meeting was to provide or obtain legal
20 advice. The County maintains that the question is really whether the CIRB Report was
21 created for the primary purpose of obtaining or giving legal advice. But this is a point
22 without any meaningful distinction.8 It is undisputed that the CIRB Report simply
23 memorialized what transpired at the CIRB meeting, see April Tr. at 42:12–18, and a
24 review of the CIRB Report reveals as much. As such, the Court finds no error here.
25
26
7 It is clear Judge Leshner found Greer persuasive, although not binding. See Doc. No. 128 (“May Tr.”)
27 at 49:5–7. The Court finds no error here.
8 It is also a point either not clearly argued or inconsistent with the position taken at the May 15, 2023
28
1 Even assuming there is a distinction, the Court finds no error in Judge Leshner’s
2 ultimate conclusion. The County repeatedly asserts that the CIRB Report was prepared at
3 the direction of counsel. To that end, the County also argues that the DIS Sergeant who
4 prepared the Report and was present during the closed session of the CIRB meeting was
5 there as a scribe on Mr. Faigin’s behalf, to act as a legal secretary or paralegal. But there
6 is no evidence that Mr. Faigin actually directed the production of this CIRB Report.
7 Rather, it is undisputed that this CIRB Report was required under the Manual to be
8 produced.
9 Judge Leshner credited the evidence Mr. Baranic offered, both via declaration and
10 testimony, that in his opinion the primary purpose of the CIRB meeting, and therefore the
11 CIRB Report, was to obtain and provide legal advice. See Discovery Order at 9–10.
12 Judge Leshner found that nonetheless, legal advice was not the primary purpose. Judge
13 Leshner came to this conclusion after finding that the Manual, which clearly invokes
14 legal concerns as a purpose, nevertheless can be complied with, and CIRB’s duties can be
15 fulfilled, absent any legal advice. To that end, Judge Leshner also noted that Mr. Faigin
16 was a non-voting member of CIRB and that the CIRB Report reflects no legal advice.
17 Other than disagreeing with this result, it is unclear where or how the County
18 assigns error to these findings. A Rule 72 objection is not a vehicle to simply reargue the
19 issues and hope for a different result. See Grimes, 951 F.2d at 241 (explaining that
20 pretrial orders of a magistrate judge “are not subject to de novo determination”). On a
21 Rule 72 objection, the Court is not to substitute its judgment for that of the Magistrate
22 Judge. See id. Rather, the County must meet its burden of demonstrating that a clear
23 error has been committed. On this record, the Court is not left with the definite and firm
24 conviction that Judge Leshner erred in his findings.
25 The Court appreciates the County’s position that CIRB must be encouraged to
26 have frank and candid discussions with counsel about potential liability stemming from
27 critical incidents without fear that the communications will be discovered in the course of
28 litigation by opposing counsel. But a review of the CIRB Report reveals, frankly, no
1 such communication. As noted above and will be addressed below, Judge Leshner
2 ordered that the portions of the Report summarizing Mr. Faigin’s questions—during the
3 presentation session—and the answers received be redacted. Notwithstanding
4 Mr. Baranic’s testimony of what may occur, or even ordinarily occurs, during a CIRB
5 meeting, there is no evidence that Mr. Faigin actually provided legal advice during
6 Mr. Morton’s CIRB meeting. If there were any discussions wherein Mr. Faigin provided
7 legal advice to help the voting CIRB members decide whether a policy violation may
8 exist, whether there are any training issues, or whether there are policy concerns, such is
9 not reflected in the CIRB Report. For that reason, as Judge Leshner correctly stated: “On
10 its face, the CIRB Report does not describe any legal advice provided by the Chief Legal
11 Advisor.” Discovery Order at 11. Moreover, even if the CIRB meeting and subsequent
12 Report served the purpose of providing Mr. Faigin with factual information in order to
13 subsequently provide legal advice, it is not sufficiently clear on this record that this was
14 the primary purpose of the CIRB Report. The Court therefore finds no clear error in
15 Judge Leshner’s ruling that the County failed to meet its burden of demonstrating that the
16 primary purpose of the CIRB Report was to obtain or provide legal advice.
17 2. CIRB-Related Records
18 There are forty (40) CIRB-related records at issue. Judge Leshner conducted an in
19 camera review of these documents and determined that the County failed to carry its
20 burden for the same reasons he found the CIRB Report was not privileged. See
21 Discovery Order at 12. The Court has similarly conducted an in camera review of these
22 documents and finds no error in Judge Leshner’s ruling.
23 The County’s briefing on the CIRB-related records is largely duplicative of its
24 arguments related to the CIRB Report. See Doc. No. 105-1 at 27. It appears plain on this
25 record that these documents were created in advance of and for the CIRB meeting. And
26 for the reasons explained above, the Court finds no error in Judge Leshner’s
27 determination that the primary purpose of Mr. Morton’s CIRB meeting and thus the
28 creation of the CIRB Report was not legal in nature.
1 A review of the CIRB-related records themselves also reveals that Judge Leshner’s
2 ruling was not in error. For example, many of these documents are email chains
3 regarding scheduling the CIRB meetings and circulating a factual synopsis of the incident
4 in advance of the meetings. Mr. Faigin is neither a recipient nor author of many of these
5 emails, and there is no explanation as to who these other persons are, or what legal
6 purpose these communications served, such that the Court could find Judge Leshner erred
7 in determining these were not created for the primary purpose of soliciting or receiving
8 legal advice.
9 Looking at the CIRB-related records as a whole, the Court notes that Mr. Baranic
10 testified to the existence of a general directive regarding what information should be
11 collected and included in the Powerpoint presented at the open session. See April Tr. at
12 71–72. But there is no evidence that Mr. Faigin in this instance requested that these items
13 be collected or created. In fact, Mr. Baranic testified that there may be unique situations
14 where he would reach out to DIS prior to the CIRB meetings about, at least, who should
15 attend, and presumably, what documents should be collected or created. Id. at 72.
16 However, there is no evidence or suggestion that occurred here. The Court therefore
17 finds that Judge Leshner did not err in determining that the County did not meet its
18 burden of demonstrating that the CIRB-related records are privileged.
19 3. Emails
20 There are ninety-three (93) emails at issue, and many of these emails include
21 attachments. Judge Leshner conducted an in camera review of these documents and
22 determined that the County failed to carry its burden for the same reasons he found the
23 CIRB Report was not privileged. See Discovery Order at 12.
24 In the Discovery Order, Judge Leshner noted that the County’s briefing on this
25 matter was devoid of explanation or argument as to how these emails are privileged. Id.
26 The County now argues that because (some) of the emails involve “assisting counsel with
27 responding to press and media inquiries,” they are all privileged. Doc. No. 105-1 at 28
28 (citing Stardock Sys. v. Reiche, No. 4:17-cv-07025-SBA (KAW), 2018 U.S. Dist. LEXIS
1 204438, at *17 (N.D. Cal. Nov. 30, 2018)). However, the Court has the discretion to
2 decline to address the County’s new arguments raised in its objection and chooses to do
3 so here. See Hall v. Marriott Int’l, Inc., No. 19-cv-01715-JLS-AHG, 2021 U.S. Dist.
4 LEXIS 211726, at *15 (S.D. Cal. Nov. 1, 2021) (collecting cases). The parties have been
5 given ample time to brief and argue their respective positions—ten (10) months to be
6 sure—through multiple rounds of briefings, two hearings, and an in camera review with
7 counsel ex parte. Judge Leshner devoted a substantial amount of time and resources to
8 duly consider this matter and resolve it. The Court finds it inappropriate on this record to
9 allow the County to raise new arguments for the first time at this late stage of the matter.9
10 Turning to the emails and attachments, the County has not demonstrated that Judge
11 Leshner erred in determining that legal advice was not the primary purpose of these
12 communications. While Mr. Faigin is a recipient of some of these emails, he is not
13 included on many of them. The emails do not appear to contain any reference to legal
14 consequences or liability. And there is simply no evidence or argument from which the
15 Court can extrapolate that these emails were nevertheless created for the primary purpose
16 of securing legal advice. Accordingly, the Court is not left with the firm and definite
17 conviction that Judge Leshner erred in his ruling.
18
19
20
21 9 Even assuming the Court considered this new argument, the Court finds no error in Judge Leshner’s
ultimate ruling. The County’s sole citation in support of its position is to Stardock Sys. v. Reiche,
22 No. 4:17-cv-07025-SBA (KAW), 2018 U.S. Dist. LEXIS 204438, at *17 (N.D. Cal. Nov. 30, 2018), but
this case does not provide a basis for finding that all of the emails are privileged. In Stardock, the
23 defendants’ counsel hired a PR firm specifically for the purpose of determining a litigation strategy and
the communications were found to pertain to the giving and receiving of legal advice. Id. at *17 (“Here,
24
the Court finds that because Defendants’ counsel (and not Defendants themselves) hired the PR firm of
25 Singer to provide PR counseling specifically for the purposes of litigation strategy in the current action, .
. . the attorney-client privilege extends to the withheld communications between Singer and Defendants’
26 counsel pertaining to “giving and receiving legal advice about the appropriate response to the lawsuit
and making related public statements.”). The present case does not involve such a situation. Nor is
27 there any evidence that these emails involved Mr. Faigin providing the assistance of counsel with
responding to press and media inquiries, nonetheless that the primary purpose of all of these emails—
28
1 4. Summary
2 As explained above, the Court finds that Judge Leshner did not misapply the law.
3 And having reviewed the relevant briefing and transcripts, and having conducted and
4 independent in camera review of the CIRB Report and related documents and emails, the
5 Court finds no clear error in Judge Leshner’s determination that these items are not
6 protected by the attorney-client privilege. Accordingly, the Court OVERRULES the
7 County’s objection in this respect.
8 B. Work-Product Doctrine
9 “The work-product doctrine is a qualified privilege that protects from discovery
10 documents and tangible things prepared by a party or his representative in anticipation of
11 litigation.” United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020)
12 (citations omitted). The County’s objection merely touches the work-product doctrine in
13 passing. As such, the Court does not analyze the three categories of items claimed
14 protected by this doctrine separately.
15 As noted above, it is clear that all of these documents served more than one
16 purpose. To that end, the County does not argue that the CIRB Report and related
17 documents and emails were prepared exclusively for litigation, an implicit finding in the
18 Discovery Order. “In circumstances where a document serves a dual purpose, that is,
19 where it was not prepared exclusively for litigation, then the ‘because of’ test is used.”
20 United States v. Richey, 632 F.3d 559, 567–68 (9th Cir. 2011) (citation omitted). “In
21 applying the ‘because of’ standard, courts must consider the totality of the circumstances
22 and determine whether the document was created because of anticipated litigation, and
23 would not have been created in substantially similar form but for the prospect of
24 litigation.” Id. (citation omitted).
25 As the County explains, a Tort Claim was filed prior to the CIRB meeting.
26 Plaintiffs filed their Tort Claim on November 2, 2020, see Doc. No. 28 ¶ 23, and the
27 CIRB meeting took place on November 18, 2020. Additionally, the CIRB Report was
28 finalized shortly after the claim was rejected. See id. Defendants thus argue that the
1 CIRB Report and related documents were prepared because of the prospect of litigation.
2 See Doc. No. 105-1 at 26–27. However, as the records reveal, all interested parties were
3 preparing for the CIRB meeting well in advance of November 2020, and many of the
4 documents predate the Tort Claim. And most importantly, as Judge Lesher highlighted,
5 section 4.23 requires CIRB to review all critical incidents, including in custody deaths,
6 regardless of whether or litigation is anticipated. Thus, the mandatory policy is
7 indifferent to whether litigation is anticipated in particular circumstances. Judge Leshner
8 therefore found that the CIRB meeting would have occurred, and the resulting CIRB
9 Report and related documents and emails would have been prepared or created,
10 regardless of any anticipated or already commenced litigation. This finding was not in
11 error. There is simply no evidence, or argument for that matter, that any of these
12 documents would not have been created in substantially similar form but for the
13 anticipation of litigation.
14 The County argues that Judge Leshner failed to apply the case-by-case doctrine
15 and “makes a blanket decision for all CIRB’s having to happen regardless of litigation.”
16 Id. at 27. But it appears that the County seeks such a blanket approach. The Court
17 understands the County’s position that all incidents triggering CIRB are pre-determined
18 to carry a heightened risk or threat of litigation; that CIRB was put in place for the
19 purpose of collecting information and meeting about incidents likely to result in
20 litigation. However, Judge Leshner was clearly not persuaded that CIRB serves such a
21 sole purpose and that simply because an incident triggers CIRB, the work-product
22 doctrine attaches. The Court finds no persuasive error in this determination. The Court
23 is hard-pressed to follow the County’s reasoning, which would result in a rule that
24 anything created under or related to section 4.23 is protected by the work-product
25 doctrine simply because of the County’s predetermination. Rather, the Court must look
26 to this specific incident and CIRB and these resulting documents. Based upon the
27 Court’s review of the record submitted in support of this objection, the Court is not
28 persuaded that these documents would not have been created in substantially similar form
1 || but for the prospect of litigation. Rather the evidence supports Judge Leshner’s ruling.
2 || Accordingly, the Court OVERRULES Defendant’s objection in this respect.
3 ||C. Redaction of CIRB Report
4 In their opposition to the County’s objection, Plaintiffs argue that Judge Leshner
5 ||should not have ordered that the CIRB Report be redacted. However, Plaintiffs did not
6 || file an objection to the Discovery Order. Even assuming the Court were inclined to treat
7 || this portion of their opposition as an objection, it is untimely. See Fed. R. Civ. P. 72(a)
8 ||(“A party may not assign as error a defect in the order not timely objected to.”). And in
9 event, the Court finds no clear error in Judge Leshner’s decision to order that a
10 || portion of the CIRB Report be redacted. Accordingly, the Court declines to alter the
11 || Discovery Order in this respect.
12 IV. CONCLUSION
13 For the foregoing reasons the Court OVERRULES the County’s objection to the
14 || Discovery Order. Pursuant to Judge Leshner’s July 14, 2023 Order, see Doc. No. 109,
15 stay of the Discovery Order is LIFTED. The parties must comply with Judge
16 || Leshner’s Discovery Order, his July 14, 2023 Order setting the deadline to comply with
17 Discovery Order, and all other scheduling orders.
18 IT IS SO ORDERED.
19 Dated: September 6, 2023
20 Maths LU - / hpltr
21 HON. MICHAEL M. ANELLO
22 United States District Judge
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