“[I]t is the default principle ‘that a court’s decisions apply 28 retroactively to all cases still pending before the courts.”
How later courts described this case
- “[I]t is the default principle ‘that a court’s decisions apply 28 retroactively to all cases still pending before the courts.”
- “Reconsideration is appropriate if the district court (1) 6 presented with newly discovered evidence, (2) committed clear error or the initial 7 decision was manifestly unjust, or (3) if there is an intervening change in controlling 8 ||law.”
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 THE ESTATE OF ELISA SERNA Case No.: 20-cv-2096-LAB-DDL
by and through its administrator
12
DOUGLAS GILLILAND; et al., ORDER:
13
Plaintiffs,
(1) DENYING DEFENDANTS’
14
v. MOTION TO BIFURCATE
15 PLAINTIFFS’ MONELL CLAIMS
COUNTY OF SAN DIEGO; et al.,
AND STAY MONELL-RELATED
16
Defendants. DISCOVERY, [Dkt. 99];
17
(2) DENYING PLAINTIFFS’
18
MOTION TO SEAL OPPOSITION
19 TO MOTION TO BIFURCATE,
[Dkt. 122]; and
20
21
(3) OVERRULING COUNTY
22 OF SAN DIEGO’S OBJECTIONS
TO DISCOVERY ORDER,
23
[Dkt. 231]
24
25 Defendants County of San Diego (“County”), William Gore, Barbara Lee,
26 Lorna Roque, and Hazel Camama (collectively, the “County Defendants”) filed a
27 motion to bifurcate Plaintiffs’ claims pursuant to Monell v. Dep’t of Soc. Serv. of
28 City of N.Y., 436 U.S. 658 (1978), and to stay Monell-related discovery. (Dkt. 99).
1 Plaintiffs opposed the motion to bifurcate and filed a motion to seal their opposition
2 based on the parties’ protective order. (Dkt. 122, 124). The County also filed
3 Federal Rule of Civil Procedure 72(a) Objections (“Objections”) to Magistrate
4 Judge David D. Leshner’s August 30, 2023 Discovery Order (“Discovery Order”),
5 which granted in part and denied in part Plaintiffs’ motion to compel production of
6 documents related to the Critical Incident Review Board (“CIRB”) Reports and
7 CIRB Spreadsheet. (Dkt. 231). The Court having read all papers filed in support
8 and in opposition to the motions and Objections rules as follows.
9 I. BACKGROUND
10 This action stems from the death of Elisa Serna while in the custody of the
11 County at the Las Colinas Detention Facility. Plaintiffs allege the County
12 Defendants, Coast Correctional Medical Group (“CCMG”) including Mark O’Brien
13 and Friederike C. Von Lintig (collectively, the “CCMG Defendants”), and Danalee
14 Pascua (together with County Defendants and CCMG Defendants, “Defendants”)
15 are responsible for Serna’s death. (Dkt. 34). Plaintiffs allege Defendants Gore,
16 Lee, and Dr. O’Brien failed to properly train, supervise, and discipline their staff,
17 (id. ¶¶ 220–263), and the County and CCMG have longstanding and systemic
18 deficiencies in the treatment of inmates, (id. ¶¶ 264–301).
19 Plaintiffs requested documents, including the CIRB Reports and CIRB
20 Spreadsheet, to prove the County and CCMG knew about these issues involving
21 the treatment of inmates but failed to act. (Dkt. 99-1 at 3–5). The production of the
22 CIRB Reports and CIRB Spreadsheet was highly contested by the County
23 Defendants and CCMG Defendants based on their arguments that the documents
24 are privileged and protected from disclosure by the attorney-client privilege and
25 attorney work-product doctrine. (See Dkt. 141, 143, 152, 153, 184, 185, 231-1).
26 After multiple rounds of briefing and oral argument, Judge Leshner issued his order
27 granting in part and denying in part Plaintiffs’ motion to compel the production of
28 the CIRB Reports and CIRB Spreadsheet on August 30, 2023. (Dkt. 220). Judge
1 Leshner determined the CIRB documents weren’t privileged, thirty-three of thirty-
2 five of the requested CIRB Reports were relevant and proportional to the needs of
3 the case, and any privacy concerns could be properly limited with redactions. (Id.
4 at 2, 6–24).
5 The County subsequently filed an ex parte application requesting a stay on
6 Judge Leshner’s Discovery Order. (Dkt. 223). Prior to the Court ruling on the ex
7 parte application, the County filed its Objections to the Discovery Order. (Dkt. 231).
8 On September 14, 2023, Judge Leshner issued an order regarding redactions to
9 the CIRB documents, rejecting the County’s proposed redactions and ordering the
10 production of unredacted versions of the CIRB documents. (Dkt. 232). Shortly
11 thereafter, the Court denied the ex parte application, but allow the County one
12 more opportunity to identify specific statements that might be protected by the
13 attorney-client privilege through in camera review. (Dkt. 236). The County timely
14 submitted its proposed redactions, and Judge Leshner issued a supplemental
15 order about the proper redactions and the production of the CIRB documents.
16 (Dkt. 246). The County filed another ex parte application requesting a stay of the
17 supplemental order, (Dkt. 249), but this application was denied and the production
18 of the CIRB documents was required by October 4, 2023, (Dkt. 253).
19 II. MOTION TO BIFURCATE MONELL CLAIMS AND STAY DISCOVERY
20 County Defendants seek to bifurcate the Monell claims and stay all Monell-
21 related discovery because (1) it would be prejudicial for the jury to hear about
22 thirteen other individuals who have died in jails over the past twelve years and may
23 cause jury confusion; (2) will promote convenience and judicial economy; and
24 (3) the Monell claims involve separate issues. (Dkt. 99, 118). CCMG Defendants
25 join in the motion. (Dkt. 100). Plaintiffs oppose the motion. (Dkt. 124).
26 Federal Rule of Civil Procedure 42 provides a court may order a separate
27 trial “[f]or convenience, . . . or to expedite and economize.” Fed R. Civ. P. 42(b);
28 see also In re Hyatt Corp., 262 F.R.D. 538, 543 (D. Haw. 2009). When determining
1 whether to order a separate trial, courts consider several factors, including whether
2 separate trials will result in judicial economy and whether separate trials will unduly
3 prejudice either party. See Myspace, Inc. v. Graphon Corp., 732 F. Supp. 2d 915,
4 917 (N.D. Cal. 2010).
5 Under Monell, municipalities and local governments may be held liable under
6 42 U.S.C. § 1983 if a policy, practice, or custom of the government is the moving
7 force behind a violation of constitutional rights. Monell, 436 U.S. at 694. To
8 establish Monell liability, a plaintiff must prove: (1) he was deprived of a
9 constitutional right; (2) the government had a policy or custom; (3) the policy or
10 custom amounts to deliberate indifference to the plaintiff’s constitutional right; and
11 (4) “the policy is the moving force behind the constitutional violation.” Gordon v.
12 Cnty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quoting Dougherty v. City of
13 Covina, 654 F.3d 892, 900 (9th Cir. 2011)).
14 A plaintiff can satisfy Monell’s policy requirement in one of three ways. First,
15 the government acted pursuant to an official policy. Id. Second, the government
16 had a “longstanding practice or custom.” Id. (quoting Thomas v. Cnty. of Riverside,
17 763 F.3d 1167, 1170 (9th Cir. 2014)). Third, “‘the individual who committed the
18 constitutional tort was an official with final policy making authority’ or such an
19 official ‘ratified a subordinate’s unconstitutional decision or action and the basis for
20 it.’” Id. at 974 (quoting Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1250
21 (9th Cir. 2010), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833
22 F.3d 1060 (9th Cir. 2016)).
23 A local government “may be liable if it has a ‘policy of inaction and such
24 inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los
25 Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d
26 1470, 1474 (9th Cir. 1992)). “Liability for improper custom may not be predicated
27 on isolated or sporadic incidents; it must be founded upon practices of sufficient
28 duration, frequency and consistency that the conduct has become a traditional
1 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996);
2 see also Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017)
3 (“While one or two incidents are insufficient to establish a custom or policy, . . . we
4 have not established what number of similar incidents would be sufficient to
5 constitute a custom or policy.”).
6 A local government’s failure to train its employees may also create § 1983
7 liability when the “failure to train amounts to deliberate indifference to the rights of
8 persons with whom the [employees] come into contact.” City of Canton v. Harris,
9 489 U.S. 378, 388 (1989). “The issue is whether the training program is adequate
10 and, if it is not, whether such inadequate training can justifiably be said to represent
11 municipal policy.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1186 (9th Cir.
12 2006) (citing City of Canton, 489 U.S. at 390)). “To allege a failure to train, a plaintiff
13 must include sufficient facts to support a reasonable inference (1) of a
14 constitutional violation; (2) of a municipal training policy that amounts to a
15 deliberate indifference to constitutional rights; and (3) that the constitutional injury
16 would not have resulted if the municipality properly trained their employees.”
17 Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153–54 (9th Cir. 2021) (citing
18 Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007)). “A pattern of
19 similar constitutional violations by untrained employees is ‘ordinarily necessary’ to
20 demonstrate deliberate indifference for purposes of failure to train.” Connick v.
21 Thompson, 563 U.S. 51, 62 (2011) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty.
22 v. Brown, 520 U.S. 397, 409 (1997)). However, a plaintiff can “prov[e] a failure-to-
23 train claim without showing a pattern of constitutional violations where ‘a violation
24 of federal rights may be a highly predictable consequence of a failure to equip law
25 enforcement officers with specific tools to handle recurring situations.’” Long, 442
26 F.3d at 1186 (quoting Brown, 520 U.S. at 409); see also Brown, 520 U.S. at 409
27 (“The likelihood that the situation will recur and the predictability that an officer
28 lacking specific tools to handle that situation will violate citizens’ rights could justify
1 a finding that policymakers’ decision not to train the officer reflected ‘deliberate
2 indifference’ to the obvious consequence of the policymakers’ choice—namely, a
3 violation of a specific constitutional or statutory right.”).
4 Here, there’s an overlap between Plaintiffs’ claims against Defendants Gore,
5 Lee, and Dr. O’Brien for their failures to train, supervise, and discipline, and the
6 Monell claims against the County and CCMG. In these overlapping claims,
7 Plaintiffs will need to show that the supervisory Defendants knew of the need to
8 train or supervise and they failed to train or supervise. These previous occurrences
9 would help establish there was a custom of not training or supervising in place to
10 support Monell liability. See Greer v. Cnty. of San Diego, No. 19-cv-378-JO-DEB,
11 ECF Nos. 173, 176. Moreover, the County claims that it would be more convenient,
12 efficient, and economical to have a separate trial on the Monell claims, but it argued
13 against having two separate trials for the County Defendants and remaining
14 Defendants because the parties would have to expend money and introduce
15 overlapping evidence. (Dkt. 264). The same argument would apply if the Court
16 decided to separate the Monell claims because Plaintiffs would necessarily
17 introduce the evidence of past failures to train or supervise employees at both
18 trials. (Dkt. 124 at 6). The County Defendants have merely taken the stance that
19 two separate trials would be convenient and promote judicial economy when it is
20 better for their case, and then taken the opposite stance when it hurts their case.
21 The request to bifurcate the Monell claims and stay Monell-related discovery is
22 DENIED.1 (Dkt. 99). If the Defendants believe it will be helpful, the Court may be
23 willing to instruct the jury on limiting instructions to avoid any prejudice.
24 //
25
26
27 1 At this time, the parties have conducted all discovery related to the Monell
claims. The request to stay Monell-related discovery is MOOT and can be
28
1 III. MOTION TO SEAL
2 Plaintiffs filed a motion to seal their opposition to the motion to bifurcate the
3 Monell claims and stay Monell-related discovery. (Dkt. 122). Plaintiffs filed the
4 motion to seal because they were informed their opposition contained material
5 taken from Serna’s homicide investigation that is subject to this case’s confidential
6 protective order. (Id. at 1).
7 The public has less of a need for access to court records attached only to
8 non-dispositive motions because those documents are often “‘unrelated, or only
9 tangentially related, to the underlying cause of action.’” Foltz v. State Farm Mut.
10 Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Phillips ex rel. Ests.
11 of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). A
12 particularized showing under the “good cause” standard of Federal Rule of Civil
13 Procedure 26(c) will suffice to warrant preserving the secrecy of sealed discovery
14 material attached to non-dispositive motions. Id. at 1135.
15 Plaintiffs don’t believe it’s necessary to seal portions of their opposition.
16 (Dkt. 122 at 1). County Defendants indicate Judge Leshner issued a protective
17 order that protects Serna’s homicide file, which should help preserve the fairness
18 of the ongoing criminal proceedings. (Dkt. 118 at 10). The Court agrees the
19 arguments to protect the fairness of the criminal trial and avoid tainting the jury
20 pool meets or exceeds the good cause standard. See Crowe v. Cnty. of San Diego,
21 210 F. Supp. 2d 1189, 1200 (S.D. Cal. 2002); see also Phillips, 307 F.3d at 1213
22 (“When a court grants a protective order for information produced during discovery,
23 it already has determined that ‘good cause’ exists to protect this information from
24 being disclosed to the public by balancing the needs for discovery against the need
25 for confidentiality.”). However, the proposed redactions are already publicly
26 available as this information was produced during the criminal trial and there’s no
27 longer any worry about tainting the jury pool. See Kamakana v. City & Cnty. of
28 Honolulu, 447 F.3d 1172, 1184 (9th Cir. 2006) (unsealing records that were either
1 already publicly available or were available in other documents being produced).
2 The motion to seal is DENIED. (Dkt. 122). Plaintiffs have five days from the date
3 of this Order to file an unredacted version of the opposition.
4 IV. MOTION FOR RECONSIDERATION OF DISCOVERY ORDER
5 The County objects to the portion of Judge Leshner’s Discovery Order
6 granting in part Plaintiffs’ motion to compel the production of the thirty-three CIRB
7 Reports and the portion of the CIRB Spreadsheet that identifies the “action items”
8 because: (1) the CIRB Reports and CIRB Spreadsheet are privileged; (2) if the
9 CIRB Reports are dual-purpose communications the “a primary purpose” standard
10 as articulated in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014),
11 applies; (3) it’s unfair to apply “the primary purpose” standard adopted in In re
12 Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021), retroactively; and (4) other than
13 Serna’s CIRB Report, the other thirty-two CIRB Reports aren’t relevant or
14 proportional to this case. (Dkt. 231, 258). Plaintiffs opposed the County’s
15 Objections and request to reconsider. (Dkt. 251).
16 A. Legal Standard
17 A party may object to a magistrate judge’s non-dispositive pretrial order
18 within fourteen days after service of the order. See Fed. R. Civ. P. 72(a). Under
19 Federal Rule of Civil Procedure 72(a), a magistrate judge’s discovery order may
20 be modified or set aside if it is “clearly erroneous or contrary to law.” Id. “The
21 ‘clearly erroneous’ standard applies to factual findings and discretionary decisions
22 made in connection with non-dispositive pretrial discovery matters.” Obesity Rsch.
23 Inst., LLC v. Fiber Rsch. Int’l, LLC, No. 15-cv-595-BAS-MDD, 2017 WL 3335736,
24 at *2 (S.D. Cal. Aug. 4, 2017) (quoting F.D.I.C. v. Fid. & Deposit Co. of Md., 196
25 F.R.D. 375, 378 (S.D. Cal. 2000)); Computer Econ., Inc. v. Gartner Grp., Inc., 50
26 F. Supp. 2d 980, 983 (S.D. Cal. 1999). The clear error standard allows the court
27 to overturn a magistrate judge’s factual determinations only if the court reaches a
28 “definite and firm conviction that a mistake has been committed.” Wolpin v. Philip
1 Morris Inc., 189 F.R.D. 418, 422 (C.D. Cal. 1999) (quoting Fed. Sav. & Loan Ins.
2 Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507, 508 (D.D.C. 1990)).
3 An order is contrary to law, on the other hand, “if the judge applies an incorrect
4 legal standard or fails to consider an element of the applicable standard.”
5 PetConnect Rescue, Inc. v. Salinas, No. 20-cv-527-LL-DEB, 2022 WL 703836,
6 at *3 (S.D. Cal. Mar. 9, 2022) (citing Hunt v. Nat’l Broad. Co., 872 F.3d 289, 292
7 (9th Cir. 1989)). “When reviewing discovery disputes, however, ‘the Magistrate is
8 afforded broad discretion, which will be overruled only if abused.’” Columbia
9 Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007) (citations omitted);
10 see also Grimes v. City & Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991)
11 (stating that on a Rule 72 objection, the district court “may not simply substitute its
12 judgment for that of the deciding court”).
13 B. Analysis
14 1. Factual Findings
15 First, the parties dispute whether Judge Leshner’s factual findings in his
16 Discovery Order are clearly erroneous. The County lists eight different instances
17 where Judge Leshner relied on sworn testimony by Michael Baranic, the current
18 Sheriff’s Department Chief Legal Advisor, who hasn’t testified nor been deposed
19 in this action. (Dkt. 231-1 at 4–6). Plaintiffs argue Judge Leshner properly relied
20 on sworn testimony Mr. Baranic gave in the case Morton v. Cnty of San Diego,
21 No. 21-cv-1428-MMA-DDL, 2023 WL 4243239 (S.D. Cal. June 27, 2023).
22 (Dkt. 251 at 6–8). The County cites Upjohn Co. v. United States, 449 U.S. 383,
23 396–97 (1981), for the premise that privilege is to be determined on a case-by-
24 case basis. (Dkt. 231 at 4–6; 258 at 2–3). However, at no point does the County
25 argue Mr. Baranic’s sworn testimony is incorrect or inconsistent with current
26 CIRB’s processes and functions or his own declaration he submitted in this case.
27 The County fails to provide any convincing argument why Judge Leshner wasn’t
28 allowed to rely on this testimony. But see United States v. RAJMP, Inc., No. 17-
1 cv-515-AJB-DEB, 2020 WL 5752938, at *3–4 (S.D. Cal. Aug. 25, 2020) (allowing
2 use of prior deposition testimony from prior action for use in that action).
3 In addition, as Plaintiffs assert, the County never argued in its underlying
4 motion why Judge Leshner shouldn’t or couldn’t rely on Mr. Baranic’s testimony in
5 Morton. (Dkt. 251 at 8). The Court needn’t address the County’s argument raised
6 for the first time in its Objections. See In re Midland Credit Mgmt., Inc., Tel.
7 Consumer Prot. Act Litig., No. 11-md-2286-MMA-MDD, 2020 WL 6504416, at *5
8 (S.D. Cal. Nov. 5, 2020) (quoting Hendon v. Baroya, No. 05-cv-01247-AWI-GSA-
9 PC, 2012 WL 995757, at *1 (E.D. Cal. Mar. 23, 2012)) (“Motions to reconsider a
10 magistrate judge’s ruling ‘are not the place for parties to make new arguments not
11 raised in their original briefs.’”); see also Hall v. Marriott Int’l, Inc., No. 19-cv-01715-
12 JLS-AHG, 2021 WL 5077595, at *5 (S.D. Cal. Nov. 1, 2021) (collecting cases).
13 The Court isn’t convinced a mistake has been committed, Wolpin, 189 F.R.D.
14 at 422), so it OVERRULES the County’s objections to Judge Leshner’s factual
15 findings.
16 2. Legal Conclusions
17 Next, the parties dispute whether Judge Leshner’s legal conclusions in his
18 Discovery Order are contrary to law. The County objects to eight different legal
19 conclusions in Judge Leshner’s Discovery Order: (1) the CIRB Reports aren’t
20 privileged in their entirety and aren’t protected work-product; (2) the In re Grand
21 Jury’s “the primary purpose” standard applies instead of Kellogg’s “a primary
22 purpose” standard; (3) retroactive application of In re Grand Jury “the primary
23 purpose” standard when other judges in this District had already determined the
24 CIRB Reports to be privileged in 2015 and 2017; (4) thirty-three of thirty-five CIRB
25 Reports are relevant and proportional to the needs of this case; (5) the County
26 must show every communication was made for the purpose of giving or seeking
27 legal advice; (6) the “action item” portion of the CIRB Spreadsheet wasn’t
28 privileged; (7) there’s no work-product protection when the Chief Legal Advisor is
1 involved; and (8) the production of thirty-two CIRB Reports is proportional to the
2 needs of this case. (Dkt. 231-1 at 7–8).
3 i. Attorney-Client Privilege
4 The attorney-client privilege protects “communications between client and
5 attorney for the purpose of obtaining legal advice, provided such communications
6 were intended to be confidential.” Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir.
7 2001). The purpose of the privilege is to encourage clients to make full disclosures
8 to their attorneys. Upjohn, 449 U.S. at 389.
9 As detailed in Judge Leshner’s Discovery Order, the San Diego Sheriff’s
10 Department Policy and Procedure Manual Section 4.23 (“Section 4.23”) describes
11 the CIRB’s purpose and procedures:
12 The purpose of [the CIRB] is to consult with department legal counsel
when an incident occurs which may give rise to litigation. The focus of
13
the CIRB will be to assess the department’s civil exposure as a result
14 of a given incident. The CIRB will carefully review those incidents from
multiple perspectives, including training, tactics, policies, and
15
procedures with the ultimate goal of identifying problem areas and
16 recommending actions so that potential liability can be avoided in the
future.
17
18 (Dkt. 220 at 3 (citing Dkt. 153-2 at 11)). The Discovery Order also provided details
19 about the CIRB’s five members, review process including the presentation session
20 and closed session, and post-CIRB meeting requirements. (Id. at 4–5). Most
21 importantly, the CIRB consists of three voting members that includes the Sheriff’s
22 Department Commanders from the Law Enforcement, Court Services, and
23 Detention Services Divisions and two non-voting members that are the Sheriff’s
24 Department Chief Legal Advisor and a Commander from Human Resources. (Id.
25 at 4 (citing Dkt. 153-2 at 11). These members meet in a closed session, the three
26 voting members will vote to make a determination as to whether or not a policy
27 violation may exist, and the CIRB may make training and policy recommendations.
28 (Id. at 5).
1 Before addressing the merits, Judge Leshner’s Discovery Order identified
2 recent cases in this District, including Greer, 634 F. Supp. 3d 911 (S.D. Cal. 2022)
3 and Morton, 2023 WL 4243239 (S.D. Cal. June 27, 2023), that considered
4 attorney-client privilege assertions as to the CIRB Reports. (Id. at 8–9). In both of
5 these cases, the County failed to prove that the CIRB Reports were privileged in
6 their entirety. (Id.). With this backdrop in mind, Judge Leshner turned to the
7 asserted privileges. (Id. at 6–21).
8 As to the attorney-client privilege, Judge Leshner provided an explanation
9 that while the purpose of the CIRB-related documents may have a legal
10 component, this wasn’t the primary purpose, which is why he applied “the primary
11 purpose” standard adopted by the Ninth Circuit in In re Grand Jury. (Id. at 9). He
12 determined the County didn’t show that every communication memorialized in the
13 CIRB Reports were made for the purpose of giving or seeking legal advice. (Id.).
14 Judge Leshner cited to Greer, where a judge in this District already applied “the
15 primary purpose” standard in considering whether the attorney-client privilege
16 applies to CIRB Reports. (Id. at 10). He also conducted an in camera review of the
17 thirty-five CIRB Reports and CIRB Spreadsheet, and determined the primary
18 purpose of the communications wasn’t to seek or received legal advice. (Id. at 11,
19 13). Although the County argues the purpose of CIRB is to seek and receive legal
20 advice concerning critical events for risk management purposes, (Dkt. 231-1 at 9),
21 it doesn’t dispute that the CIRB Reports memorialize the discussions at the CIRB
22 meetings and Section 4.23 requires the preparation of a CIRB Report without any
23 legal advice from the Chief Legal Advisor, Morton, 2023 WL 5746921, at 5
24 (S.D. Cal. Sept. 6, 2023) (overruling the County’s objections to Judge Leshner’s
25 discovery order requiring the production of CIRB Reports).
26 If there’s more than one purpose for the CIRB, the County argues the D.C.
27 Circuit’s “a primary purpose” standard as established in Kellogg should apply.
28 (Dkt. 231-1 at 12–13). The Court recognizes that the Ninth Circuit left open
1 whether the “a primary purpose” standard should apply. See In re Grand Jury, 23
2 F.4th at 1094–95. However, Kellogg isn’t the standard in this Circuit, and it wasn’t
3 “clearly erroneous for Judge [Leshner] not to apply it.” In re Apple Inc. Sec. Litig.,
4 No. 19-cv-2033-YGR, 2022 WL 4351392, at *2 (N.D. Cal. Sept. 12, 2022).
5 The County further argues it’s unfair to retroactively apply “the primary
6 purpose” standard adopted by the Ninth Circuit in 2021 in In re Grand Jury to CIRB
7 Reports when prior courts have ruled the attorney-client privileges do apply.
8 (Dkt. 231-1 at 14–16). According to the County, it “has always considered and
9 treated CIRB Reports as privileged and confidential, particularly because in 2015
10 Magistrate Judge Jan M. Adler determined that the CIRB Reports are protected by
11 the attorney-client privilege and in 2017 Magistrate Judge Mitchell D. Dembin
12 came to the same conclusion.” (Id. at 14 (emphasis in original)). The Court doesn’t
13 need to address this argument because it was raised for the first time in the
14 County’s Objections. Hendon, 2012 WL 995757, at *1; see also Hall, 2021 WL
15 5077595, at *5. Nevertheless, the Court agrees with Plaintiffs’ argument that In re
16 Grand Jury’s “the primary purpose” standard is the controlling law in this Circuit
17 and should be applied retroactively. See, e.g., Gulf Offshore Co. v. Mobil Oil Corp.,
18 453 U.S. 473, 486 n.16 (1981); Thorpe v. Hous. Auth. of City of Durham, 393 U.S.
19 268, 281 (1969) (“The general rule, however, is that an appellate court must apply
20 the law in effect at the time it renders its decision.”); see also Harper v. Virginia
21 Dep’t of Tax’n, 509 U.S. 86, 97 (“When this Court applies a rule of federal law to
22 the parties before it, that rule is the controlling interpretation of federal law and
23 must be given full retroactive effect in all cases still open on direct review and as
24 to all events, regardless of whether such events predate or postdate our
25 announcement of the rule.”); Snell v. G4S Secure Sols. (USA) Inc., 424 F. Supp.
26 3d 892, 897 (E.D. Cal. Dec. 19, 2019) (quoting Nunez-Reyes v. Holder, 646 F.3d
27 684, 690 (9th Cir. 2011) (“[I]t is the default principle ‘that a court’s decisions apply
28 retroactively to all cases still pending before the courts.”).
1 Nothing suggests that Judge Leshner committed clear error by applying the
2 Ninth Circuit’s “the primary purpose” standard instead of the D.C. Circuit’s “a
3 primary purpose” standard when coming to the legal conclusion that the CIRB
4 documents weren’t entirely privileged. The County also doesn’t meet its burden
5 demonstrating that the CIRB records as a whole are privileged. Judge Leshner
6 properly conducted an in camera review of the thirty-five CIRB Reports and CIRB
7 Spreadsheet and concluded that the entirety of these documents weren’t drafted
8 to seek or received legal advice. (See Dkt. 220 at 11–13). The Court OVERRULES
9 the County’s objections as it relates to the attorney-client privilege.
10 ii. Work-Product Doctrine
11 “The work product doctrine is a ‘qualified privilege’ that protects ‘certain
12 materials prepared by an attorney acting for his client in anticipation of litigation.’”
13 Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010) (quoting United
14 States v. Nobles, 422 U.S. 225, 237–38 (1975). “In circumstances where a
15 document serves a dual purpose, that is, where it was not prepared exclusively for
16 litigation, then the ‘because of’ test is used.” United States v. Richey, 632 F.3d
17 559, 567–68 (9th Cir. 2011). “In applying the ‘because of’ standard, courts must
18 consider the totality of the circumstances and determine whether the document
19 was created because of anticipated litigation, and would not have been created in
20 substantially similar form but for the prospect of litigation.” Id. at 568 (internal
21 quotation marks and citations omitted).
22 The County, in passing, argues that the work-product doctrine applies to
23 each of the thirty-five CIRB Reports because the “purpose of the CIRB is to
24 consider and avoid the prospect of litigation resulting from critical incidents.”
25 (Dkt. 231-1 at 12). However, the County doesn’t argue that the CIRB Reports were
26 prepared exclusively for litigation. Judge Leshner properly applied the “because
27 of” standard and determined the County didn’t meet its burden “because Section
28 4.23 mandates the CIRB review process for all critical incidents whether or not
1 litigation is anticipated.” (Dkt. 220 at 14 (citing Kelly v. City of San Jose, 114 F.R.D.
2 653, 659 (N.D. Cal. 1987); Martin v. Evans, No. C 08-4067 JW (MEJ), 2012 WL
3 1894219, at *5 (N.D. Cal. May 23, 2012); and Greer, 634 F. Supp. 3d at 921–22).
4 The Court OVERRULES the County’s objection as it relates to the work-product
5 doctrine.
6 iii. Relevance and Proportionality
7 “Typically, the relevance standard is broad in scope and ‘encompass[es] any
8 matter that bears on, or that reasonably could lead to other matters that could bear
9 on, any issues that is or may be in a case.’” Yphantides v. Cnty. of San Diego,
10 No. 21-cv-1575-GPC-BLM, 2022 WL 3362271, at *3 (S.D. Cal. Aug. 15, 2022)
11 (alteration in original) (quoting Doherty v. Comenity Cap. Bank & Comenity Bank,
12 No. 16-cv-1321-H-BGS, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017). District
13 courts have broad discretion to determine relevancy for discovery purposes and to
14 limit discovery to prevent abuse. Id. (citations omitted). “Further, ‘[w]hen analyzing
15 the proportionality of a party’s discovery requests, a court should consider the
16 importance of the issues at stake in the action, the amount in controversy, the
17 parties’ relative access to the information, the parties’ resources, the importance
18 of the discovery in resolving the issues, and whether the burden or expense of the
19 proposed discovery outweighs its likely benefit.’” Id. (citations omitted).
20 According to the County, the thirty-two CIRB Reports and CIRB Spreadsheet
21 are irrelevant because Serna’s incident wasn’t like the other instances of death
22 contained in the CIRB documents. (Dkt. 231-1 at 17; 258 at 4). Judge Leshner
23 properly addressed the County’s reliance on Gordon, and decided that thirty-three
24 of the thirty-five CIRB Reports were relevant and proportional under Rule 26 to
25 help establish Plaintiffs’ Monell claims. (Dkt. 220 at 22–24). One of the ways in
26 which Plaintiffs can prove Monell liability is showing the government has a policy
27 of inaction and such inaction amounts to a failure to protect constitutional rights.
28 Lee, 250 F.3d at 681. The fact that there have been many instances of inmate
1 ||deaths may establish whether the County had a policy of inaction to protect
2 ||inmates’ constitutional rights. Thus, there’s a need for these documents as Judge
3 ||Leshner determined. The County hasn’t presented any new grounds for
4 ||reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d
5 1255, 1263 (9th Cir. 1993) (“Reconsideration is appropriate if the district court (1)
6 presented with newly discovered evidence, (2) committed clear error or the initial
7 decision was manifestly unjust, or (3) if there is an intervening change in controlling
8 ||law.”). The Court OVERRULES the County’s objection as it relates to relevance
9 proportionality of the CIRB documents.
10 ||V. CONCLUSION
11 The Court ORDERS as follows:
12 1. The request to bifurcate the Monell claims and stay Monell-related
13 discovery is DENIED. (Dkt. 99).
14 2. | Themotion to seal is DENIED. (Dkt. 122). Plaintiffs have five days from
15 ||the date of this Order to file an unredacted version of the opposition to the docket.
16 3. The County fails to meet its burden establishing any part of Judge
17 ||Leshner’s Discovery Order is clearly erroneous or contrary to law. Fed. R. Civ. P.
18 || 72(a); see also Bare Escentuals Beauty, Inc. v. Costco Wholesale Corp., No. 07-
19 ||cv-90, 2007 WL 4357672, at *2 (S.D. Cal. Dec. 11, 2007) (“This Court’s function,
20 |}on a motion for review of a magistrate judge’s discovery order, is not to decide
21 ||what decision this Court would have reached on its own, nor to determine what is
22 ||\the best possible result considering all available evidence.”). Judge Leshner’s
23 ||Discovery Order is AFFIRMED and the County’s Objections are OVERRULED.
24 || (Dkt. 231).
25 IT IS SO ORDERED.
26 ||Dated: March 5, 2024 lau A (Buywy
27 Honorable Larry Alan Burns
28 United States District Judge