“The district court 18 retain[s] the power to modify the protective order” even after the underlying suit is 19 dismissed.”
How later courts described this case
- “The district court 18 retain[s] the power to modify the protective order” even after the underlying suit is 19 dismissed.”
- “[T]he district court had no power to amend its opinion” after the notice 3 of appeal.
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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FRANKIE GREER, Case No.: 19-cv-0378-JO-DEB
11 Plaintiff,
ORDER DENYING PLAINTIFF’S
12 v. MOTION TO MODIFY THE
13 PROTECTIVE ORDER TO PERMIT
COUNTY OF SAN DIEGO, et al.,
USE OF CIRB REPORTS IN THE
14 Defendants. MATTER OF ESTATE OF ELISA
15 SERNA
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[DKT. NO. 395]
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18 I. Introduction
19 Before the Court is Plaintiff Frankie Greer’s Motion to Modify the Protective Order
20 to Permit Use of CIRB Reports Filed with this Court in the Matter of Estate of Elisa Serna
21 (“Motion” or “Motion to Modify”). Dkt. No. 395. Defendants oppose the Motion (Dkt. No.
22 398), and Greer replied (Dkt. No. 399). For the reasons discussed below, the Court denies
23 the Motion.
24 II. Procedural Background
25 Greer’s Motion seeks modification of the Protective Order so Greer’s attorneys can
26 use certain Critical Incident Review Board reports (“CIRB Reports”) in connection with
27 their representation of other plaintiffs in an unrelated case, The Estate of Elisa Serna, et al.
28 v. County of San Diego, et al., 20-cv-2096-LAB-DDL (S.D. Cal. Oct. 26, 2020) (“Serna”).
1 The Motion is rooted in litigation before the undersigned and the presiding district
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judge. Greer served a Request for Production of Documents seeking the CIRB Reports
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from the Defendant County of San Diego. The undersigned issued a written order rejecting
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the County’s claim that the CIRB Reports were protected from disclosure by, among other
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things, the attorney-client privilege. Dkt. No. 226. The County objected to the order (Dkt.
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No. 232), which the district judge overruled (Dkt. No. 267). The County then produced the
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CIRB Reports pursuant to the Court’s Protective Order.
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Although the parties settled this case, the privilege issue remains a live controversy
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in the Ninth Circuit by virtue of the County’s appeal of the district judge’s Order Granting
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Media Intervenors’ Motion to Intervene and Unseal. Dkt. No. 379. In that appeal, the
11 County contends this Court erred by unsealing the CIRB Reports because they are
12 protected from disclosure by, among other things, the attorney-client privilege.
13 In Serna, discovery is closed and defendants’ Motion for Summary Judgment is
14 pending. 20-cv-2096-LAB-DDL (Dkt. No. 308). The Serna plaintiffs’ opposition to
15 defendants’ motion attached the CIRB Reports that were subject to the Court’s Protective
16 Order in this case. Id. (Dkt. No. 343). The Serna plaintiffs had the opportunity to take
17 discovery in that case, but they apparently did not seek production of the CIRB Reports at
18 issue here. Those CIRB Reports were not produced in the Serna discovery. Dkt. No. 398
19 at 10–11.
20 The County filed a Motion for Enforcement of Protective Order and Sanctions
21 asserting that Greer’s counsel violated this Court’s Protective Order by attaching the CIRB
22 Reports to their Serna briefing. Dkt. No. 391. The Court ruled that Greer’s counsel violated
23 this Court’s Protective Order but denied the County’s Motion for Sanctions without
24 prejudice. Dkt. No. 393. Following the hearing, Plaintiffs’ counsel withdrew the CIRB
25 Reports from their summary judgment opposition in Serna. 20-cv-2096-LAB-DDL (Dkt.
26 No. 393).
27 Greer then filed this Motion to Modify to permit use of the CIRB Reports in Serna.
28 Following completion of the briefing, the Court requested supplemental briefing “on
1 whether the County’s pending appeal of the Court’s order Granting Media Intervenor’s
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Motion to Intervene and Unseal (Dkt. Nos. 379, 380) divests this Court of jurisdiction to
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issue orders regarding the documents at issue in the appeal, including issuing an order on
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Plaintiff’s Motion to Modify the Protective Order (Dkt. No. 395).” Dkt. No. 400. Greer
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and the County submitted the requested supplemental briefing. Dkt. Nos. 401 (County’s
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Supplemental Brief arguing the pending appeal prevents the Court from modifying the
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Protective Order), 402 (Greer’s Response arguing the Court retains jurisdiction to modify
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the Protective Order).
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III. Legal Standards
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Federal Rule of Civil Procedure 26(c)(1) authorizes the court, for good cause, to
11 “issue an order to protect a party or person from annoyance, embarrassment, oppression,
12 or undue burden or expense . . . .” “The Supreme Court has interpreted this language as
13 conferring ‘broad discretion on the trial court to decide when a protective order is
14 appropriate and what degree of protection is required.’” Phillips ex rel. Estates of Byrd v.
15 Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002) (quoting Seattle Times Co. v.
16 Rhinehart, 467 U.S. 20, 36 (1984)). This authority survives termination of the case.
17 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992) (“The district court
18 retain[s] the power to modify the protective order” even after the underlying suit is
19 dismissed.”) (citing United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th
20 Cir. 1990)).
21 A pending appeal divests a lower court of its ability to issue or modify any orders
22 encompassed by the appeal. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
23 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional
24 significance—it confers jurisdiction on the court of appeals and divests the district court of
25 its control over those aspects of the case involved in the appeal.”); Evans v. Synopsys, Inc.,
26 34 F.4th 762, 776 (9th Cir. 2022) (same). Although this rule does not divest the lower court
27 of subject-matter jurisdiction, Rodriguez v. County of Los Angeles, 891 F.3d 776, 790–91
28 (9th Cir. 2018), it does bar a lower court from issuing or modifying orders involved in the
1 appeal. Pro Sales, Inc. v. Texaco, U.S.A., Div. of Texaco, Inc., 792 F.2d 1394, 1396 n. 1
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(9th Cir. 1986) (“[T]he district court had no power to amend its opinion” after the notice
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of appeal.). This bar extends to “proceedings that relate to any aspect of the case involved
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in the appeal.” Coinbase, Inc. v. Bielski, 599 U.S. 736, 744 (2023); see also Rodriguez, 891
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F.3d at 790 (“The ‘divestiture of jurisdiction rule is not based upon statutory provisions or
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the rules of civil or criminal procedure. Instead, it is a judge made rule originally devised
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in the context of civil appeals to avoid confusion or waste of time resulting from having
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the same issues before two courts at the same time.’”) (quoting United States v. Claiborne,
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727 F.2d 842, 850 (9th Cir. 1984)).
10 IV. Discussion
11 Greer’s Motion to Modify seeks permission to use the CIRB Reports subject to the
12 Protective Order in this case in Serna, an unrelated case pending before other judges in this
13 District. Greer obtained the CIRB Reports in discovery after both the undersigned and the
14 district judge rejected the County’s assertion that the CIRB Reports are documents subject
15 to the attorney-client privilege. The County’s privilege claim is now pending in the Ninth
16 Circuit in the County’s appeal of the Media Intervenor’s Motion to Intervene and Unseal.
17 The County’s Opening Brief in the Ninth Circuit framed the issue on appeal as follows:
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Did the District Court err in finding that the CIRB materials are not privileged
19 and are not protected by the attorney work product doctrine? Specifically: (a)
20 Did the District Court err by finding that the County failed to prove that “the
primary purpose” of CIRB is legal advice? (b) Did the District Court err by
21 declining to analyze whether legal advice is “one of the significant purposes”
22 of CIRB? (c) Did the District Court err by finding that the CIRB materials are
not protected from disclosure by the attorney work product?
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Dkt. No. 401 at 4, Ex. A.
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25 If the County’s privilege claim succeeds on appeal, then this Court would have erred
26 in compelling production of the CIRB Reports. Thus, whether the CIRB Reports may be
27 used in Serna is the mirror image of the question pending before the Ninth Circuit.
28 Significantly, the Ninth Circuit granted the County’s Motion to Stay this Court’s July 11,
1 2023 order unsealing the CIRB Reports, thereby prohibiting public dissemination of the
2 CIRB Reports until the appeal is resolved. Dkt. No. 385. This Court, therefore, declines to
3 enter an order directly related to the subject matter of the County’s appeal.
4 Greer’s Response to the County’s Supplemental Brief argues the “County’s attempt
5 to use an appeal of a Rule 24 intervention and unsealing order to challenge the district
6 court’s substantive orders in Mr. Greer’s underlying case is rendered constitutionally moot
7 because Mr. Greer and the County have settled all their claims.” Dkt. No. 402 at 2. Greer’s
8 mootness argument, however, constitutes another reason to deny Greer’s Motion to
9 Modify. Greer has settled and dismissed his case against the County. He has no stake in
10 the ongoing appeal, and he has no stake in the pending Serna litigation that is the subject
11 of his Motion to Modify. The real parties in interest are the Serna plaintiffs, and they are
12 not the moving party here. If the Serna plaintiffs were to successfully intervene and obtain
13 modification of the Protective Order, however, they would very likely find themselves in
14 the same position as the Media Intervenors: in the Ninth Circuit responding to the County’s
15 argument that the CIRB Reports are protected from disclosure by the attorney-client
16 privilege.
17 Finally, the Court notes the parties in Serna litigated the discoverability of other
18 CIRB Reports. 20-cv-2096-LAB-DDL (Dkt. No. 220) (ruling a different set of CIRB
19 Reports are not protected by attorney-client privilege). But the Serna plaintiffs apparently
20 did not seek discovery of the specific CIRB Reports at issue here. Had they done so, the
21 County might have raised relevance, proportionality, and/or other objections to those
22 requests based on the different facts of that case. And the judicial officers presiding over
23 Serna (who are not the judicial officers presiding over this case) might have sustained those
24 objections. The undersigned, therefore, declines to take action that might usurp judicial
25 management of Serna.
26 //
27 //
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1 V. Conclusion
Whether the CIRB Reports are privileged is the subject of a pending appeal. Greer
3 has settled his case against the County and, therefore, has neither a need for access to the
4 CIRB Reports nor any stake in the pending Serna litigation. The Court, therefore, denies
Greer’s Motion to Modify.
6 IT IS SO ORDERED.
] Dated: March 6, 2024 — ‘
Daud Teron,
9 Honorable Daniel E. Butcher
10 United States Magistrate Judge
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