Frankie Greer v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANKIE GREER, No. 23-55607

Plaintiff, D.C. No.

and 3:19-cv-00378-

JO-DEB

SAN DIEGO UNION TRIBUNE,

LLC; PRISON LEGAL NEWS;

VOICE OF SAN DIEGO, OPINION

Intervenors-Appellees,

v.

COUNTY OF SAN DIEGO,

Defendant-Appellant,

WILLIAM GORE, Sheriff; ALFRED

JOSHUA, M.D.; BARBARA LEE;

MACY GERMONO; FRANCISCO

BRAVO; CHRISTOPHER SIMMS;

MICHAEL CAMPOS,

Defendants.

Appeal from the United States District Court

for the Southern District of California

Jinsook Ohta, District Judge, Presiding

2 GREER V. COUNTY OF SAN DIEGO

Argued and Submitted August 14, 2024

San Francisco, California

Filed February 10, 2025

Before: Susan P. Graber, Consuelo M. Callahan, and Lucy

H. Koh, Circuit Judges.

Opinion by Judge Graber;

Concurrence by Judge Graber;

Partial Dissent by Judge Koh

SUMMARY *

Attorney-Client Privilege

The panel reversed the district court’s order to unseal

documents from the County of San Diego’s Critical Incident

Review Board (“CIRB”) that had been produced in an

underlying civil rights action, and remanded with

instructions to return and/or destroy the disputed documents

because they were protected by the attorney-client privilege.

Frankie Greer brought an action against the County of

San Diego under 42 U.S.C. § 1983, alleging that he suffered

serious injuries while incarcerated in the San Diego Central

Jail. During discovery, he sought the production of

documents related to in-custody deaths from the County’s

CIRB meetings. The CIRB’s stated purpose is to consult

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GREER V. COUNTY OF SAN DIEGO 3

with legal counsel when an incident occurs which may give

rise to litigation, identify problem areas, and recommend

remedial action to avoid future liability. The district court

found that the requested documents were not protected by

the attorney-client privilege because the CIRB serves

multiple purposes unrelated to obtaining legal advice from

counsel. The district rejected efforts to immunize

documents from disclosure simply because an attorney was

involved in an incident investigation. After Greer settled his

claims with the County, various media organizations

successfully moved to intervene for the purpose of unsealing

the CIRB documents that had been produced in the litigation.

The panel held that the appeal was not moot even though

the County had elected to produce the purportedly privileged

CIRB documents. Because the panel could order the district

court to direct intervenors’ counsel and plaintiff’s counsel to

return or destroy their copies of the CIRB documents,

particularly given that they received non-redacted versions,

effective relief remained available.

The panel held that the attorney-client privilege applied

to the disputed CIRB documents. The district court erred in

determining that obtaining legal advice was not the primary

goal of the CIRB meetings memorialized in the underlying

reports. A lawyer’s recommendations on both liability for

past events and avoidance of future liability-creating events

constitute legal advice. Both the participants in the CIRB

and its critics consistently viewed the primary purpose of the

CIRB as assessing legal liability for a past event and

avoiding legal liability for future similar events.

The panel further rejected intervenors’ alternative

argument that even if the attorney-client privilege applied,

the County waived that privilege by, among other things,

4 GREER V. COUNTY OF SAN DIEGO

failing to establish an attorney-client relationship with every

person who attended the CIRB meetings at issue. The Chief

Legal Advisor’s declaration stated that he was the legal

advisor for the San Diego County Sheriff’s Department as a

whole, not just for the Sheriff alone. All participants in

CIRB meetings were employees of the Sheriff’s Department

and, therefore, the attorney-client privilege attached.

Judge Graber concurred in order to address in greater

detail how this court’s precedents concerning review of the

question whether the attorney-client privilege applies to a

particular communication came to be in disarray, and to add

a real-world perspective to the analysis of the attorney-client

privilege.

Judge Koh agreed the case was not moot but otherwise

dissented on three grounds. First, binding Ninth Circuit

precedent provides that the clear error standard applies to the

district court’s factual finding that the primary purpose of the

CIRB reports was not to obtain legal advice. The district

court’s factual finding on this score was not clearly

erroneous, but to the contrary, supported by ample evidence

in the record, including the County’s policy manual,

statements by County officials and, most importantly, the

CIRB reports themselves. Indeed, some CIRB reports do not

record any attendance or statements by an attorney at all, let

alone legal advice.

Second, the County waived the privilege by twice failing

to properly assert it. Despite a direct order from the district

court to identify the reports’ recipients, the County failed to

identify who attended the relevant CIRB meetings and all of

the individuals who received the CIRB reports on its

privilege log. Without this information the court below could

GREER V. COUNTY OF SAN DIEGO 5

not properly assess whether all elements of the privilege

were established.

Third, the majority has offered no basis to order that the

entirety of the CIRB reports be withheld from production.

The CIRB reports contain much information that is

undeniably not privileged, including information that is

publicly available. Ninth Circuit precedent provides that the

proper remedy is to redact whatever privileged material is

contained in the CIRB reports, not withhold all the CIRB

reports in their entirety.

COUNSEL

James M. Davis (argued), Leslie E. Hurst, and Timothy G.

Blood, Blood Hurst & O'Reardon LLP, San Diego,

California, for Intervenors-Appellees.

Jeffrey P. Michalowski (argued), Eric M. Fox, and Carrie L.

Mitchell, Quarles & Brady LLP, San Diego, California;

Steven E. Boehmer, McDougal Boehmer Foley Lyon

Mitchell & Erickson, La Mesa, California; for Defendants-

Appellants.

Jaqueline A. Osorno and Sarah Ortlip-Sommers, Public

Justice, Washington, D.C., for Amici Curiae Coalition of

Press and Open Government Organizations.

6 GREER V. COUNTY OF SAN DIEGO

OPINION

GRABER, Circuit Judge:

Plaintiff Frankie Greer brought this action against the

County of San Diego (“County”) under 42 U.S.C. § 1983,

alleging that he suffered serious injuries while incarcerated

in the San Diego Central Jail. After he settled his claims with

the County, the San Diego Union Tribune, LLC; Prison

Legal News; and Voice of San Diego (“Intervenors”)

successfully moved to intervene for the purpose of unsealing

documents from the County’s Critical Incident Review

Board (“CIRB”) that had been produced in the underlying

litigation. The district court ruled that the documents are not

protected from disclosure by the attorney-client privilege or

under the work product doctrine. We hold that the attorney-

client privilege protects the CIRB documents at issue here

and, therefore, reverse. 1

FACTUAL AND PROCEDURAL BACKGROUND 2

A. The Critical Incident Review Board

In describing the CIRB’s responsibility, the San Diego

County Sheriff’s Department Policy Manual provides:

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 be to assess the

1

Because of our holding we need not and do not consider the work

product doctrine.

2

To the extent that these opinions refer to information that has been filed

under seal, no party has requested sealing or redactions, and we hereby

unseal that information for purposes of the opinions.

GREER V. COUNTY OF SAN DIEGO 7

department’s civil exposure as a result of a

given incident. The CIRB will carefully

review those incidents from multiple

perspectives, including training, tactics,

policies, and procedures with the ultimate

goal of identifying problem areas and

recommending remedial actions so that

potential liability can be avoided in the

future.

(Emphasis added.) The policy defines “critical incidents”

that the CIRB must review to include an in-custody death

not resulting from natural causes; a use of deadly force by an

employee of the Sheriff’s Department; a pursuit resulting in

an injury requiring hospitalization or causing major property

damage; a death or serious injury resulting from an action by

a member of the Sheriff’s Department; a “Law Enforcement

related” injury requiring hospitalization; discharge of a

firearm by sworn personnel; any other incident involving the

discharge of a firearm, major property damage, or major

damage to a vehicle by a member of the Department; and

any other serious incident deemed to warrant review.

“Serious injury” is defined to include loss of consciousness,

concussion, fracture of a bone, protracted loss or impairment

of any organ or “bodily member,” a wound requiring

extensive suturing, and serious disfigurement.

The Director of Legal Affairs for the San Diego County

Sheriff’s Department “was the primary architect of the CIRB

policy and procedure that has been in place since

approximately 2006.” “[T]he CIRB reports have always

been treated as protected attorney client communications

and maintained in [his] office in the Legal Affairs Section of

the Office of the Sheriff. . . . In [this] role on the CIRB board,

8 GREER V. COUNTY OF SAN DIEGO

[he] provide[d] legal advice, in [his] official capacity as the

Chief Legal Advisor for the Sheriff’s Department, with the

expectation that communications are made in confidence

and shall remain so. . . . The focus of each and every CIRB

meeting is to assess the Sheriff’s department[’s] civil

exposure as a result of a given incident in anticipation of

litigation and to improve service delivery to minimize the

potential for future civil exposure.”

In 2022, the California State Auditor issued a report,

which concluded that the San Diego County Sheriff’s

Department had failed adequately to prevent and respond to

in-custody deaths. In that report, the Auditor wrote:

The stated purpose of the [CIRB] is to consult

with the department’s legal counsel when an

incident occurs that may give rise to

litigation. Therefore it appears that its

primary focus is protecting the Sheriff’s

Department against potential litigation rather

than focusing on improving the health and

welfare of incarcerated individuals. . . . [The

CIRB’s] ultimate goal is identifying problem

areas and recommending remedial actions—

such as posting a training bulletin or

changing a policy—so that potential liability

can be avoided in the future.

San Diego County Sheriff’s Department: It Has Failed to

Adequately Prevent and Respond to the Deaths of

Individuals in Its Custody, California State Auditor Report

2021-109, at 36 (Feb. 2022), http://auditor.ca.gov/pdfs/

reports/2021-109.pdf (emphasis added). The Auditor

observed that the CIRB “does not review natural deaths [as

GREER V. COUNTY OF SAN DIEGO 9

distinct from suicides, homicides, and accidental in-custody

deaths] in part because the risk of legal liability in those

incidents is low,” even though natural deaths accounted for

about half the in-custody deaths. Id. at 37. The Auditor

criticized the CIRB for its failure in many cases even to

discuss policies and practices, and the Auditor reported that

in only six of eighteen cases considered by the CIRB were

substantive changes in policy, procedures, or training made.

Id. at 36.

The CIRB consists of four commanders from various

divisions of the Department and, importantly, the Chief

Legal Advisor. The CIRB is to convene for a preliminary

assessment within two weeks of a critical incident. In

addition, the CIRB must convene within thirty days of a

District Attorney’s review letter involving a critical incident

and within thirty days of the completion of the investigation

of a critical incident. A CIRB meeting occurs in three stages:

First, Department personnel present factual

information regarding the underlying

incident, including, in some instances,

PowerPoints, to the CIRB members,

including the Department’s legal counsel.

Department employees whose attendance

was requested because of their relevant

subject-matter expertise (e.g., weapons

training unit, in-service training, K-9 unit,

etc.) also attend. Next, the Department

employees who present the factual

information are dismissed from the room and

CIRB members, including legal counsel,

discuss and address issues with the

Department’s subject-matter experts. Lastly,

10 GREER V. COUNTY OF SAN DIEGO

the subject-matter experts are dismissed from

the room and the CIRB members, including

legal counsel, engage in further discussions.

The [Division of Inspectional Services] DIS

Lieutenant is also present to facilitate these

communications and to document key issues,

comments, and matters for inclusion in the

CIRB confidential report.

Within forty-five days after the CIRB meets, the

Lieutenant of the Division of Inspectional Services must

prepare a report summarizing the actions and conclusions of

the board. Among other items, the report must contain

findings with regard to any policy violations, training or

policy issues, and actions taken by the Department. In

addition, “[a] copy of the CIRB Confidential Report and

other related reports shall be filed in the Legal Affairs

Section, Office of the Sheriff.” Additional documents

produced by the CIRB include memoranda, records, and

reports containing findings about inmate deaths and injuries

and summarizing the CIRB’s actions and conclusions.

B. Initial Litigation

In February 2019, Plaintiff filed the underlying action

against the County and other Defendants 3 alleging that they

had violated his civil rights. During discovery, Plaintiff

sought production of documents from the County’s CIRB

meetings—in particular, documents concerning the

investigation of twelve in-custody deaths. The County

3

The other defendants were Sheriff William Gore, Alfred Joshua,

Barbara Lee, Macy Germono, Francisco Bravo, Christopher Simms, and

Michael Campos. But the claims against those defendants were

dismissed.

GREER V. COUNTY OF SAN DIEGO 11

objected. The County argued, among other things, that those

CIRB documents were protected by the attorney-client

privilege. The parties jointly moved to resolve the discovery

dispute. The district court overruled the County’s

objections. The County moved for reconsideration. In the

interim, while awaiting the district court’s decision on the

County’s reconsideration request, Plaintiff moved to compel

production of the CIRB documents.

The district court denied the County’s request for

reconsideration. The court granted Plaintiff’s motion to

compel, ordering the County to produce the CIRB

documents. The court concluded that the County had “failed

to carry its burden of demonstrating [that] the CIRB

documents Plaintiff [sought were] protected from

disclosure.” The court rejected the County’s “blanket

assertion that ‘[a]ll CIRB reports . . . are confidential

communications with . . . the department’s Chief Legal

Advisor and have been prepared at [his] request and

review.’” The court held that the CIRB “serves multiple

purposes unrelated to obtaining legal advice from counsel”

and rejected the County’s effort to “immunize documents

from disclosure by simply involving an attorney in the

investigation.”

The County again moved for reconsideration, but the

district court denied that motion. The district court did,

however, agree to review the CIRB documents in camera

before ordering their production, given the “extremely grave

interest at stake.” After conducting its in camera review, the

court ordered the County to produce to Plaintiff all the CIRB

documents (with redactions proposed by the parties), subject

to an attorneys’-eyes-only protective order, and it ordered

that any filings including or referring to those documents be

filed provisionally under seal. The County petitioned this

12 GREER V. COUNTY OF SAN DIEGO

court for a writ of mandamus seeking vacatur of the order

compelling production of the CIRB documents. This court

summarily denied mandamus relief the same day.

Thereafter, the County complied with the district court’s

order and produced the CIRB documents to Plaintiff’s

counsel. In opposing the County’s pending motion for

summary judgment, Plaintiff then relied on portions of the

CIRB reports, which he filed conditionally under seal in

keeping with the district court’s instruction.

C. Intervention

After the district court denied the County’s motion for

summary judgment with respect to Plaintiff’s claims, the

parties reached a settlement agreement. About two weeks

later, Intervenors 4 filed their motion to intervene pursuant to

Federal Rule of Civil Procedure 24(b) and to unseal the

CIRB documents for “public inspection.” Intervenors

argued that the documents “will assist the public in

understanding the reason for the high rate of injuries and

deaths of those in the Sheriff’s custody and are needed to

hold the Sheriff’s Department accountable to the public.”

The district court granted the motion by oral order and

ordered the parties to “meet and confer regarding proposed

redactions in accordance with the Court’s oral order.” The

County produced the CIRB documents to Intervenors, and

the parties discussed proposed redactions. The district court

then entered a written order, granting the motion to intervene

and denying the County’s request to stay the order pending

appeal. The County timely appeals.

4

Intervenors are “news organizations that have reported on the San

Diego County Sheriff’s Department, including the deaths and injuries of

inmates in the Sheriff Department’s care.”

GREER V. COUNTY OF SAN DIEGO 13

STANDARDS OF REVIEW

We review de novo questions of mootness. United States

v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1111 (9th Cir.

2012).

Similarly, we review de novo “rulings on the scope of the

attorney-client privilege,” United States v. Graf, 610 F.3d

1148, 1157 (9th Cir. 2010) (citation and internal quotation

marks omitted), and waiver of the attorney-client privilege,

United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th

Cir. 2020).

With respect to the question whether the attorney-client

privilege applies to a particular communication, our court

has stated two different standards of review. In In re Grand

Jury, 23 F.4th 1088 (9th Cir. 2021), we wrote that the

question whether the attorney-client privilege applies to

specific documents represents “a mixed question of law and

fact which this court reviews independently and without

deference to the district court.” Id. at 1091 (quoting United

States v. Richey, 632 F.3d 559, 563 (9th Cir. 2011)) (internal

quotation marks omitted); see also United States v. Ruehle,

583 F.3d 600, 606 (9th Cir. 2009) (“whether [a] party has

met the requirements to establish the existence of the

attorney-client privilege is reviewed de novo”). This

standard appears to trace its origin to Tornay v. United States,

840 F.2d 1424 (9th Cir. 1988), in which we held that the

district court’s conclusion that certain documents were “not

a confidential communication protected by the attorney-

client privilege is a mixed question of law and fact, and

reviewed de novo.” Id. at 1426. But in Sanmina, we stated

that “[w]e review for clear error a district court’s factual

findings for attorney-client privilege.” 968 F.3d at 1116.

14 GREER V. COUNTY OF SAN DIEGO

We need not try to reconcile our precedents here, because

our conclusion would be the same under either standard of

review. Nor do we express any view on which formulation

is preferable. As noted in our discussion below, the district

court made significant legal errors and, in addition, its

finding concerning the primary purpose of the CIRB is

illogical, implausible, and without support in the record. See

Graf, 610 F.3d at 1157 (“A finding is clearly erroneous if it

is illogical, implausible, or without support in the record.”).

DISCUSSION

A. The Appeal Is Not Moot.

Intervenors argue that this appeal is moot because “[t]he

County elected to produce the purportedly privileged CIRB

documents . . . .” They argue that “the alleged harm from

disclosure has already occurred” and, therefore, no recourse

exists to remedy the harm. Intervenors are mistaken.

“A case is moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the

outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287

(2000) (brackets and some internal quotation marks omitted)

(quoting County of Los Angeles v. Davis, 440 U.S. 625, 631

(1979)). Addressing issues regarding documents that have

been produced pursuant to a court order, the Supreme Court

in Church of Scientology of California v. United States, 506

U.S. 9 (1992), held that “a court may not be able to return

the parties to the status quo ante,” because there is “nothing

a court can do to withdraw all knowledge or information,”

that a party may have acquired by examining documents or

other material produced in compliance with a court order.

Id. at 12. But in circumstances such as these, “a court can

fashion some form of meaningful relief”’; it has the “power

to effectuate a partial remedy by ordering [Intervenors] to

GREER V. COUNTY OF SAN DIEGO 15

destroy or return any and all copies [they] may have in [their]

possession.” Id. at 12–13 (emphasis omitted); see id. at 13

(further holding that the “availability of this possible remedy

is sufficient to prevent [a] case from being moot”); see also

Golden Valley, 689 F.3d at 1112 (“A case becomes moot

only when it is impossible for a court to grant any effectual

relief whatever to the prevailing party.” (citation and internal

quotation marks omitted)).

Intervenors rely on earlier case law from this court, but

their reliance is misplaced. We rejected those decisions as

to the question of mootness because they conflicted with

later Supreme Court precedent:

We have previously recognized that

Church of Scientology is controlling on this

issue. See United States v. Rubin, 2 F.3d 974,

976 (9th Cir. 1993). We take this opportunity

to further clarify our case law. We conclude

that the Supreme Court’s decision in Church

of Scientology is “clearly irreconcilable”

with our prior decisions listed above. See

Remark v. United States, 979 F.2d 770, 771

n.1 (9th Cir. 1992); EEOC v. St. Regis Paper

Co.-Kraft Div., 717 F.2d 1302, 1303 (9th Cir.

1983); United States v. Silva & Silva Acct.

Corp., 641 F.2d 710, 711 (9th Cir. 1981);

SEC v. Laird, 598 F.2d 1162, 1163 (9th Cir.

1979). The fact that these cases arose under

different federal statutes does not distinguish

them from Church of Scientology. Church of

Scientology, 506 U.S. at 17 (relying on

16 GREER V. COUNTY OF SAN DIEGO

“earlier cases involving other statutes” to

hold the appeal not moot).

Accordingly, we hold that Golden

Valley’s appeal is not moot despite Golden

Valley’s compliance with the district court’s

order.

Golden Valley, 689 F.3d at 1112–13 (internal citations

altered). All the in-circuit cases that Intervenors cite pre-

date Golden Valley.

Because we can order the district court to direct

Intervenors’ counsel and Plaintiff’s counsel to return or

destroy their copies of the CIRB documents, particularly

given that they received non-redacted versions, 5 effective

relief remains available. The County thus “[has] a concrete

interest . . . in the outcome of [this] litigation.” Knox v.

Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307–08

(2012) (citation omitted). Therefore, this appeal is not moot.

B. The Attorney-Client Privilege Applies.

Generally, “a party asserting the attorney-client privilege

has the burden of establishing the [existence of an attorney-

client] relationship and the privileged nature of the

communication.” Ruehle, 583 F.3d at 607 (emphasis

omitted) (quoting United States v. Bauer, 132 F.3d 503, 507

(9th Cir. 1997)). We apply an “eight-part test” to determine

5

Intervenors received the CIRB discovery under the “‘attorneys’ eyes

only’ protective measures so that the parties [could] . . . meet and confer

about redactions.”

GREER V. COUNTY OF SAN DIEGO 17

whether the information in dispute is covered by the

attorney-client privilege:

(1) Where legal advice of any kind is

sought (2) from a professional legal adviser

in his capacity as such, (3) the

communications relating to that purpose,

(4) made in confidence (5) by the client,

(6) are at his instance permanently protected

(7) from disclosure by himself or by the legal

adviser, (8) unless the protection be waived.

Graf, 610 F.3d at 1156 (citation omitted).

In this circuit, “the primary-purpose test applies to

attorney-client privilege claims for dual-purpose

communications.” 6 In re Grand Jury, 23 F.4th at 1092. The

CIRB serves more than one purpose. As the Chief Legal

Advisor wrote:

Conferring with legal counsel regarding

potential litigation is one primary purpose of

a CIRB. Litigation is almost assuredly going

to follow any truly critical event.

A CIRB also serves to review and address

department deficiencies in a number of areas

6

By failing to raise the issue properly in a timely manner in the district

court, the County waived or forfeited its argument that we should adopt

the test set forth in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C.

Cir. 2014). See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),

887 F.2d 955, 957 (9th Cir. 1989) (“The rule in this circuit is that

appellate courts will not consider arguments that are not properly raised

in the trial courts.” (brackets omitted) (citation and internal quotation

marks omitted)).

18 GREER V. COUNTY OF SAN DIEGO

using real facts and circumstances as a

catalyst. Several areas lend themselves well

to this type of review, including training,

tactics, policies, and procedures.

Under the primary-purpose test, “courts look at whether

the primary purpose of the communication is to give or

receive legal advice, as opposed to business or [other non-

legal] advice.” In re Grand Jury, 23 F.4th at 1091.

Importantly, under our current formulation of the test, “a

dual-purpose communication can only have a single

‘primary’ purpose.” Id.

In deciding that the primary purpose of the CIRB, and

the documents it generates, is not to obtain legal advice, the

district court made two significant legal errors. First,

avoiding future legal liability is not necessarily just an

“investigative and remedial” purpose. As then-Sheriff

William Gore correctly responded to the Auditor’s critique,

the “CIRB’s role of preventing future litigation

complements[,] rather than undercuts[,] the Department’s

goals of improving the health and welfare of incarcerated

individuals.” When something goes terribly wrong at a

jail—such as a non-natural in-custody death or a serious

injury—the jail reasonably expects a lawsuit, such as the one

here, to follow. Investigation—that is, discovering what

happened—is a necessary predicate to assessing liability for

that past event and thus is not separate from the provision of

legal advice. See Upjohn Co. v. United States, 449 U.S. 383,

390 (1981) (noting that the attorney-client “privilege exists

to protect not only the giving of professional advice to those

who can act on it but also the giving of information to the

lawyer to enable him to give sound and informed advice”).

The jail also reasonably wishes to understand not only its

GREER V. COUNTY OF SAN DIEGO 19

liability for what already happened but also options for

avoiding future liability-creating incidents. A lawyer’s

recommendations on both liability for past events and

avoidance of future liability-creating events constitute legal

advice. See, e.g., Pritchard v. County of Erie (In re County

of Erie), 473 F.3d 413, 419 (2d Cir. 2007) (“Fundamentally,

legal advice involves the interpretation and application of

legal principles to guide future conduct or to assess past

conduct.”).

Second, the court erred by relying on the purported

motive of the CIRB’s creator to dress non-privileged

communications in privileged garb. Considering the full

context of the quoted magazine article, the court’s assertion

ascribes a motive that is not present. The Chief Legal

Advisor wrote that, without a consideration of possible

organizational changes, “negative conduct is likely to

continue, generating increased liability for the agency,” as

well as other problems. (Emphasis added.) He

recommended participation by a legal advisor as part of a

CIRB because a “legal advisor brings risk/liability

perspective to the discussion”—a classic function of legal

advice. The district court seized on the additional phrase that

including a legal advisor “potentially provides the ability to

protect the confidentiality of the discussion under the cloak

of the attorney-client privilege.” There are at least two

reasons why this passage does not carry a nefarious

connotation. One, the article concerned CIRBs generally,

and the author was not giving definitive legal advice to

anyone, especially not knowing how someone else’s CIRB

would operate. Two, contextually it is clear that the author

used the noun “cloak” in the neutral sense of “something that

envelops.” See, e.g., Cloak, Merriam-Webster.com

Dictionary, https://www.merriam-webster.com/dictionary/

20 GREER V. COUNTY OF SAN DIEGO

cloak (last visited January 8, 2025); see also Cloak,

Merriam-Webster.com Thesaurus, https://www.merriam-

webster.com/thesaurus/cloak (last visited January 8, 2025)

(listing “cover” or “blanket” as synonyms for “cloak”).

More importantly, though, what matters is not what the

architect of the CIRB thought, but how the CIRB actually

operates. For example, if an attorney-client meeting

involves only filling out March Madness brackets, the

communication is not privileged even if labeled a legal

consultation. On the other hand, if a lawyer-client meeting

is labeled purely social, but the lawyer discusses the client’s

potential liability for a breach of contract, that

communication is privileged. The situation here differs

markedly from cases in which the protections of the

attorney-client privilege have been rejected. See, e.g.,

United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121,

129–30 (D.D.C. 2012) (rejecting a claim of attorney-client

privilege where the allegedly privileged audit report was

completed without any input whatsoever from counsel,

where the audit in question was designed specifically to

assist in making a business decision, and where the report

was not sent to counsel until two months after completion).

Those two legal errors fatally infected the court’s

determination that obtaining legal advice (both backward-

and forward-looking) is not the primary goal of the CIRB

meetings memorialized in the underlying reports. Even if

we consider the court’s “primary purpose” conclusion as a

finding of fact that we review only for clear error, the court’s

finding is “illogical, implausible, [and] without support in

the record.” Sanmina, 968 F.3d at 1116 (citation omitted).

When an inmate dies in custody from non-natural causes, or

when another “critical incident” occurs, litigation is almost

guaranteed to follow. Consulting with a lawyer and with the

GREER V. COUNTY OF SAN DIEGO 21

relevant members of management, along with other

employees who have knowledge of the incident, is the

natural next step for any entity facing a high probability of

being sued.

The district court’s conclusion runs counter not only to

that reality, but also to the relevant documents. The first two

sentences of Section 4.23 of the Policy Manual state: “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 be to assess the

department’s civil exposure as a result of a given incident.”

The CIRB, by definition, convenes only to assess “critical

incidents” that are likely to generate litigation. And the

County’s current and former Chief Legal Advisors both

averred that consulting with counsel is the primary purpose

of the CIRB.

Notably, the dissent discounts the truthfulness of only

former Chief Legal Advisor Robert Faigin, and not current

Chief Legal Advisor Michael Baranic. Dissent at 39–40.

Although Baranic assumed his role after the particular CIRB

reports at issue were prepared, he stated that he was familiar

with those reports, noting that they were subject to “the

longstanding protection afforded to the CIRB process and

related documents.” He also stated unequivocally that all

communications and documents generated as part of the

CIRB process are confidential because they occur within the

attorney-client relationship and are “for the purpose of

obtaining legal advice and assisting Sheriff’s Legal counsel

in rendering legal advice.”

The independent state body that investigated the San

Diego County Sheriff’s Department for failure to prevent

and respond to in-custody deaths also shares this view. The

22 GREER V. COUNTY OF SAN DIEGO

State Auditor’s Report states the “[p]urpose of [the CIRB] is

to assess legal liability.” California State Auditor Report

2021-109, at 35. And, as a criticism, it emphasizes that “it

appears that [the CIRB’s] primary focus is protecting the

Sheriff’s Department against potential litigation rather than

focusing on improving the health and welfare of incarcerated

individuals.” Id. at 36.

Here, the CIRB reports contained in the record meet the

criteria for attorney-client privilege. Department Policy

required the Chief Legal Advisor to be part of the CIRB, and

there is no contention that the Chief Legal Advisor was

absent from any of the meetings memorialized in the reports.

In each instance, areas of potential liability for the inmate’s

death were discussed. In most instances, counsel

participated actively by asking questions designed to

understand and, where appropriate, by highlighting areas of

potential liability.

In short, both the participants in the CIRB and its critics

consistently viewed the primary purpose of the CIRB as

assessing legal liability for a past event and avoiding legal

liability for future similar events. The district court’s ruling

to the contrary was erroneous.

C. The County Did Not Waive the Attorney-Client

Privilege.

Intervenors argue, in the alternative, that if the attorney-

client privilege applies, “the County never met its burden of

establishing that it did not waive that privilege.”

Specifically, Intervenors assert that (1) the County disclosed

the disputed CIRB reports to third parties, but failed in the

privilege logs to identify anyone other than the Chief Legal

GREER V. COUNTY OF SAN DIEGO 23

Advisor as a recipient of those reports, 7 and (2) the County

failed to establish an attorney-client relationship with every

person who attended the CIRB meetings at issue. Neither

claim is persuasive.

As to the first contention, the County identified the Chief

Legal Advisor as the only recipient of the disputed CIRB

reports because he was, in fact, the only recipient. As his

sworn declaration asserted, CIRB reports are “sent to me

only and [are] maintained in a confidential file system in the

legal affairs unit. The reports are not accessible or

disseminated to anyone else in the Department.”

Additionally, CIRB reports were not distributed to anyone

outside the Department except the State Auditor. There is no

evidence in the record to the contrary. As to the State

Auditor, disclosure of the CIRB reports is required by law,

Cal. Gov’t Code § 8545.2, but as a matter of law that

disclosure is not a waiver: “Providing confidential

information to the California State Auditor . . . shall not

constitute a waiver of that privilege.” Id. § 8545.2(b). To

the extent that the district court made a finding that the

disputed CIRB reports were sent to someone else, that

finding is without support in the record and, therefore, is

clearly erroneous.

As to the second argument, Intervenors misconstrue the

reach of the attorney-client privilege. The Chief Legal

Advisor’s declaration stated that he was the legal advisor for

the San Diego County Sheriff’s Department as a whole, not

7

The district court found the amended privilege log deficient for a

different reason: the County’s assertion that the attorney-client privilege

covered the entirety of the CIRB reports, rather than only the portions

specifically containing legal advice. That ruling was erroneous for the

reasons explained in Part B, above.

24 GREER V. COUNTY OF SAN DIEGO

just for the Sheriff alone. All participants in CIRB meetings

are employees of the Sheriff’s Department. And as the

Supreme Court’s decision in Upjohn Co. established in the

context of a corporation, the attorney-client privilege

attaches to communications between lower-level employees

and the employer’s counsel when the employer seeks legal

advice for the corporation; otherwise, counsel cannot be

fully informed so as to give sound advice. See Upjohn Co.,

449 U.S. at 397 (holding that “the communications by

Upjohn employees to counsel are covered by the attorney-

client privilege”); id. at 389 (discussing the principle that

sound legal advice and advocacy depend on the lawyer’s

being fully informed by the client). The same principle

applies, for the same reasons, to public entities that are

seeking legal advice with respect to official business.

For the foregoing reasons, the attorney-client privilege

applies to the disputed CIRB reports. And the County did

not waive that privilege.

REVERSED and REMANDED with instructions to

require the return and/or destruction of the disputed

documents, which are privileged.

GREER V. COUNTY OF SAN DIEGO 25

GRABER, Circuit Judge, concurring:

I write this concurrence for two reasons. First, I will

explore in greater detail how our precedents concerning

review of the question whether the attorney-client privilege

applies to a particular communication came to be in disarray.

Second, I wish to add a real-world perspective to the analysis

of the attorney-client privilege.

A. Standard of Review

Our precedents concerning review of the question

whether the attorney-client privilege applies to specific

documents, held by the district court not to be privileged, are

contradictory. In re Grand Jury, 23 F.4th 1088 (9th Cir.

2021), stated that the question whether the attorney-client

privilege applies represents “a mixed question of law and

fact which this court reviews independently and without

deference to the district court.” Id. at 1091 (quoting United

States v. Richey, 632 F.3d 559, 563 (9th Cir. 2011)) (internal

quotation marks omitted). Similarly, we stated in United

States v. Ruehle, 583 F.3d 600 (9th Cir. 2009):

The district court’s conclusion that

statements are protected by an individual

attorney-client privilege is “a mixed question

of law and fact which this court reviews

independently and without deference to the

district court.” United States v. Bauer, 132

F.3d 504, 507 (9th Cir. 1997) (quoting United

States v. Gray, 876 F.2d 1411, 1415 (9th Cir.

1989)). That is, whether the party has met the

requirements to establish the existence of the

attorney-client privilege is reviewed de novo.

Id. We also review de novo the district

26 GREER V. COUNTY OF SAN DIEGO

court’s rulings on the scope of the attorney-

client privilege. Id. Factual findings are

reviewed for clear error. See Al-Haramain

Islamic Found. v. Bush, 507 F.3d 1190, 1196

(9th Cir. 2007). A district court’s credibility

determinations are given “special deference.”

United States v. Craighead, 539 F.3d 1073,

1082 (9th Cir. 2008) (citing United States v.

Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998)).

Id. at 606–07 (emphasis added).

But, by citing both Bauer and Al-Haramain, Ruehle

perpetuated a problematic inconsistency. Bauer squarely

held that the question whether the party asserting the

attorney-client privilege met the requirements to establish

both the relationship and the privileged nature of the

communication is reviewed de novo, as is the district court’s

conclusion that a communication is not protected by the

privilege. Bauer, 132 F.3d at 507. Inexplicably, Al-

Haramain cited Bauer for a proposition that it does not

contain: that we review a ruling on attorney-client privilege

for “clear error as to factual determinations by the district

court, but de novo . . . as to the application of legal principles

to those facts.” Al-Haramain, 507 F.3d at 1196. And Al-

Haramain did not concern the attorney-client privilege;

rather, we established the standard of review for a claim

under the state secrets privilege and merely analogized,

inaccurately, to our earlier precedent pertaining to the

attorney-client privilege. Id.

These two standards of review are irreconcilable. If we

review “independently and without deference to the district

court. . . . [t]hat is, . . . de novo,” Ruehle, 583 F.3d at 606, a

district court’s ruling that the attorney-client privilege does

GREER V. COUNTY OF SAN DIEGO 27

not protect a communication, we do not give any

deference—including clear-error review—to the district

court’s findings on the subject.

Similarly problematic is the ruling in Sanmina that “[w]e

review for clear error a district court’s factual findings for

attorney-client privilege and work-product doctrine.” 968

F.3d at 1116. Sanmina cited Richey, 632 F.3d at 563–64, for

this proposition, but it is unclear whether Richey intended

the sentence concerning factual findings to be part of, or

separate from, the attorney-client privilege. Moreover,

Richey cites United States v. Graf, 610 F.3d 1148, 1158 (9th

Cir. 2010), which in turn cites Ruehle, 583 F.3d at 606,

which in turn—as explained above—incorporates the

inconsistency in our precedents pertaining to the standard of

review. In re Grand Jury itself is internally inconsistent,

asserting that de novo review applies but seemingly

engaging in clear-error review and citing Sanmina. In re

Grand Jury, 23 F.4th at 1091, 1095.

Although it is difficult to pinpoint exactly how and when

the incompatible statements of our standard of review arose,

the first case that I have found in this circuit clearly

confronting the question is Tornay v. United States, 840 F.2d

1424 (9th Cir. 1988). There, taxpayers argued that the

attorney-client privilege protected certain records sought by

the IRS. We held that the district court’s conclusion that the

records were “not a confidential communication protected

by the attorney-client privilege is a mixed question of law

and fact, and reviewed de novo.” Id. at 1426. Not long after,

Gray followed, again holding without exception that the

district court’s conclusion that a communication was “not

protected by the attorney-client privilege is a mixed question

28 GREER V. COUNTY OF SAN DIEGO

of law and fact which this court reviews independently and

without deference to the district court.” 876 F.2d at 1415. 1

The ruling that Tornay established can be changed only

by the en banc court. Hart v. Massanari, 266 F.3d 1155,

1171–72 (9th Cir. 2001). It may be that the standard of

review for which the dissent advocates is the better rule. But

to date, the process that would allow our court to alter its

course has not occurred. This case, though, is not a good

vehicle for taking up this issue en banc. In my view, we

should await an appeal in which the standard of review

matters to the outcome. As the majority opinion explains,

whichever standard applies here, the district court’s finding

about the primary purpose of the CIRB is clearly erroneous;

it is illogical, implausible, and without support in the record.

I turn next to that topic.

B. Attorney-Client Privilege

Before becoming a judge, I spent several years as a

management-side labor and employment lawyer. In that

capacity, I responded to clients whose businesses had

experienced personnel problems or industrial accidents.

When meeting with such a client, the first step was to

investigate and discuss the facts. After that, my advice could

take a number of forms: “there is significant potential for

1

A circuit split exists on this issue. The Sixth and Eleventh Circuits, like

our earliest cases and some of our later cases, review de novo. United

States v. Sadler, 24 F.4th 515, 556-57 (6th Cir. 2022); In re Grand Jury

Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992). The First,

Fourth, and Fifth Circuits use the hybrid approach advocated by the

dissenting opinion. LLuberes v. Uncommon Products, LLC, 663 F.3d 6,

23 (1st Cir. 2011); Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir.

1998); Taylor Lohmeyer Law Firm P.L.L.C. v. United States, 957 F.3d

505, 509 (5th Cir. 2020). If and when our court takes up this issue en

banc to resolve the intra-circuit split, the inter-circuit split will remain.

GREER V. COUNTY OF SAN DIEGO 29

liability, so consider a settlement”; “you do not face realistic

exposure because you followed all statutes and policies

correctly”; “some company policies should be revised to

prevent a similar problem from arising again in the future”;

“I don’t know the answer until we investigate further”; and

so on. These meetings, and the documents memorializing

what took place at them, were entirely privileged whether I

wrote the notes or the client did, and whether or not I

recommended revisions in the client’s policies and

procedures. Such recommendations, made in the context of

assessing and advising a client about a potentially liability-

generating event, are not, as the dissent would have it, “non-

legal purposes.” Dissent at 39.

The dissent’s proposed analogy to advice from a driving

instructor or an accountant, Dissent at 34–35, is not

persuasive, because lawyers’ communications are

privileged. It is true, for instance, that if an accountant had

given my client the same advice that I did, the accountant’s

advice would not be protected by a privilege. But that fact

says nothing whatsoever about whether the advice that I

communicated was protected by the attorney-client

privilege.

Similarly, the dissent’s observation that the documents at

issue “were not even prepared by an attorney,” Dissent at 35,

is irrelevant. If the client wrote notes to record what

happened at our meeting, that document would be just as

privileged as my own notes, provided that it was not given

to a third party. 2 That is exactly what occurred here. And

2

The dissent asserts that the privilege was waived. Dissent at 42–47.

But for the reasons given in the majority opinion, that contention rests

on a misunderstanding of the record, which establishes that only the

lawyer received the CIRB reports, and on a misunderstanding of the

30 GREER V. COUNTY OF SAN DIEGO

the CIRB reports are just as privileged as the notes from my

meetings with my clients.

KOH, Circuit Judge, dissenting in part:

I respectfully dissent. Whether the attorney-client

privilege applies here presents a straightforward question of

fact: Was the primary purpose of the Critical Incident

Review Board (“CIRB”) process to seek legal advice or

some other non-legal purpose? The district court made the

factual finding that the primary purpose of the CIRB process

was not to provide legal advice, but instead to improve the

operation of the County’s jails. This factual finding was not

clearly erroneous but, to the contrary, was supported by

ample evidence in the record, including the County’s policy

manual, statements by County officials and, most

importantly, the CIRB reports themselves.

But in my view, we do not even need to reach the

question of what the primary purpose of the CIRB reports

may have been because the County failed to properly assert

the privilege. The County failed to identify all of the

individuals who received the CIRB reports and who attended

the relevant CIRB meetings on its privilege log, despite a

direct order from the court to identify the reports’ recipients.

Without this information the court below could not properly

assess whether all elements of the privilege were established.

By failing to provide it, the County waived the privilege.

Finally, even assuming the privilege had been properly

asserted, the County has offered no compelling explanation

scope of the privilege, which applies to all employees of the Sheriff’s

Department.

GREER V. COUNTY OF SAN DIEGO 31

as to why the entirety of the CIRB reports must be withheld.

Those reports contain much information that is indisputably

not privileged. At the very least, that information should be

disclosed. 1

I. Primary Purpose

The district court correctly found that the CIRB reports

were not privileged because their primary purpose was not

to obtain legal advice. “[T]he attorney-client privilege

extends only to communications made ‘for the purpose of

facilitating the rendition of professional legal services.’” In

re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021) (quoting

United States v. Rowe, 96 F.3d 1294, 1296 (9th Cir. 1996)).

Because the attorney-client privilege stands as “an obstacle

to the investigation of the truth,” it must “be strictly confined

within the narrowest possible limits consistent with the logic

of its principle.” In re Horowitz, 482 F.2d 72, 81 (2d Cir.

1973) (Friendly, J.) (quoting 8 Wigmore, Evidence § 2291);

see United States v. Christensen, 828 F.3d 763, 803 (9th Cir.

2015) (“The scope of the privilege should be strictly

confined within the narrowest possible limits.” (internal

quotation marks omitted)). The privilege “applies only

where necessary to achieve its purpose.” Fisher v. United

States, 425 U.S. 391, 403 (1976). Where a communication

has both a legal and non-legal purpose, as is the case here,

the court must determine whether the “primary purpose” of

the communication was to seek or provide legal advice. In re

Grand Jury, 23 F.4th at 1092-94. “[A] dual-purpose

1

I agree with the majority that this case is not moot and join the portion

of the majority’s opinion as to mootness. I also agree with the majority

that the County waived or forfeited the argument that we should adopt

the test set forth in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C.

Cir. 2014).

32 GREER V. COUNTY OF SAN DIEGO

communication can only have a single ‘primary’ purpose.”

Id at 1091.

“We review for clear error a district court’s factual

findings for attorney-client privilege . . . .” United States v.

Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). “A

finding is clearly erroneous if it is illogical, implausible, or

without support in the record.” Id. (quoting United States v.

Graf, 610 F.3d 1148, 1157 (9th Cir. 2010)). Our Court has

twice held that a district court’s conclusions about the

primary purpose of a dual-purpose communication are

among the factual findings subject to such clear error review.

See id. at 1118-19 (applying clear error standard to district

court’s determination that the primary purpose of a dual-

purpose communication “was to obtain a non-legal valuation

analysis from DLA Piper, rather than legal advice”); In re

Grand Jury, 23 F.4th at 1095 (“[T]he district court did not

clearly err in finding that the predominate purpose of the

disputed communications was not to obtain legal advice

. . . .” (citing Sanmina, 968 F.3d at 1119)). We are not at

liberty to deviate from this on-point precedent.

The cases cited by the majority to suggest that a de novo

standard may be applicable, Majority at 13, did not involve

the question of how a district court’s findings about the

primary purpose of a communication should be reviewed,

and so cannot overcome this more specific (and more recent)

precedent. But more fundamentally, I disagree with the

majority that applying a deferential standard of review to this

primary-purpose determination is inconsistent with the more

general rule that application of the attorney-client privilege

to a particular communication presents a mixed question

reviewed de novo. See United States v. Ruehle, 583 F.3d 600,

606-07 (9th Cir. 2009). Determinations of “basic or

historical fact—who did what, when or where, how or

GREER V. COUNTY OF SAN DIEGO 33

why”—are reviewed for clear error, even if application of

the law to those facts may be a mixed question. U.S. Bank

Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at

Lakeridge, LLC, 583 U.S. 387, 394 (2018) (internal

quotation marks omitted). Identification of the primary

purpose of a communication fits comfortably within the

realm of the purely factual. See Pullman-Standard v. Swint,

456 U.S. 273, 288 (1982) (“Treating issues of intent as

factual matters for the trier of fact is commonplace.”). And

even if this primary-purpose determination were, itself, a

mixed question of law and fact, a deferential standard of

review would still be appropriate given the fact-bound nature

of the inquiry. See U.S. Bank Nat. Ass’n, 583 U.S. at 395-96

(holding that “the standard of review for a mixed question

all depends on whether answering it entails primarily legal

or factual work” (cleaned up)); Fon v. Garland, 34 F.4th 810,

817–18 (9th Cir. 2022) (Graber, J., concurring) (“[I]f

answering the mixed question is primarily factual, then we

review with deference to the fact-finder.”).

Applying the primary purpose test, the district court

concluded that legal advice was not the primary purpose of

the CIRB reports, but instead “a tertiary and incidental

goal.” 2 The district court identified several non-legal

purposes of the CIRB reports that predominated, including

identifying violations of Department policy to be referred for

further investigation, identifying ways to improve the

Department’s policies and training, and promoting

accountability and public trust in the Sheriff’s Department.

2

In keeping with the majority’s nomenclature, references to the “district

court” include both the magistrate judge’s initial order directing

production of the CIRB reports and the district court’s subsequent

decision adopting it.

34 GREER V. COUNTY OF SAN DIEGO

In essence, the district court found the primary purpose of

the CIRB was not to obtain legal advice, but rather to

investigate ways to improve the operations of County jails.

A. The District Court Committed No Legal Error.

The majority identifies two purported legal errors in the

district court’s reasoning. Majority at 18-20. In my view

these were not errors, let alone legal ones. Instead, the

majority simply disagrees with the district court’s factual

findings.

First, the majority asserts that “avoiding future legal

liability is not necessarily just an ‘investigative and

remedial’ purpose.” Majority at 18. But whether a

communication helps to avoid future liability is not the test

for privilege. A driving instructor who advises their student

on how to avoid getting a ticket does not give legal advice,

an accountant who advises a company about internal audit

procedures to avoid securities law violations does not give

legal advice, and “normal tax return preparation assistance—

even coming from lawyers—is generally not privileged,”

even though erroneous tax preparation can result in

substantial liability. In re Grand Jury, 23 F.4th at 1095 n.5.

As these examples illustrate, what matters is not the ultimate

aim of avoiding liability, but rather whether legal advice is

sought or obtained to achieve that goal. See Sanmina, 968

F.3d at 1116; United States v. Chen, 99 F.3d 1495, 1502 (9th

Cir. 1996) (“What matters is whether the lawyer was

employed with or without reference to his knowledge and

discretion in the law, to give the advice.” (internal quotation

marks omitted)). Investigative and remedial measures, even

if carried out by an attorney, are not privileged insofar as

they involve business advice rather than legal advice. See

Rowe, 96 F.3d at 1297 (“Where the attorney [is] asked for

GREER V. COUNTY OF SAN DIEGO 35

business (as opposed to legal) counsel, no privilege

attache[s].”); see, e.g., In re Polaris, Inc., 967 N.W.2d 397,

410-11 (Minn. 2021) (concluding that a report prepared by

attorneys was not privileged where its “primary purpose . . .

was setting corporate policy” even where a portion of the

report “focus[ed] on compliance with federal regulations”);

Marceau v. I.B.E.W., 246 F.R.D. 610, 613-14 (D. Ariz. 2007)

(concluding that audit report prepared by attorneys was not

privileged because “[t]he co-mingling of the purposes of the

audit between identifying improved business operations and

obtaining legal advice to this degree vitiates the protection

of the attorney-client privilege”).

Here, contrary to the County’s suggestion, the district

court did not simply “assum[e]” that “training and

remediation have nothing to do with legal advice.” Rather,

the district court found a near-complete absence of legal

advice in the CIRB reports at issue, which were not even

prepared by an attorney. The district court further found, as

a factual matter, that “the primary purpose of these

documents is for investigative and remedial purposes in

order to increase accountability and public trust,” whereas

“obtaining legal advice is a tertiary and incidental goal of

these CIRB memoranda.” This is not a legal conclusion but

a factual finding that is reviewed for clear error. See

Sanmina, 968 F.3d at 1116, 1118-19 (“[T]he district court’s

finding that [defendant’s] purpose was to obtain a non-legal

valuation analysis from DLA Piper, rather than legal advice,

was not clearly erroneous . . . .”).

Second, the majority disagrees with the district court’s

reliance on a remark by Robert Faigin—the former legal

advisor to the Department and the “architect” of the CIRB

process—in which he suggested that including a lawyer in

the CIRB meetings had the benefit of “potentially

36 GREER V. COUNTY OF SAN DIEGO

provid[ing] the ability to protect the confidentiality of the

discussion under the cloak of the attorney-client privilege.”

The district court reasonably inferred from this statement

that an attorney was included in the CIRB process not

primarily to provide legal advice, but instead to potentially

shield the discussions from disclosure. The majority offers

an alternate reading of Faigin’s statement in an attempt to

show why it “does not carry a nefarious connotation.”

Majority at 19. But offering an alternative interpretation of

the evidence does not demonstrate the district court

committed clear error, let alone that any error was legal, as

opposed to factual, in nature. See Chaudhry v. Aragon, 68

F.4th 1161, 1171 (9th Cir. 2023) (“[W]here there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985))).

The majority claims that “what matters is not what the

architect of the CIRB thought, but how the CIRB actually

operates.” Majority at 20. But Faigin’s statement speaks

directly to how the CIRB actually operates. Faigin not only

designed the CIRB process but was also the only attorney

who attended CIRB meetings. Insofar as Faigin believed at

the outset that his role in the CIRB was not primarily to

provide legal advice, one can reasonably infer that only

limited legal advice was actually offered. And more

fundamentally, this statement by Faigin was far from the

only evidence on which the district court relied.

B. The District Court’s Factual Findings Were Not

Clearly Erroneous.

Even in the absence of legal error, the majority insists

that the district court’s factual findings are clearly erroneous

GREER V. COUNTY OF SAN DIEGO 37

because they “run[] counter” to “relevant documents” and

the “reality” that the County faced a high risk of litigation.

Majority at 21. As an initial matter, the district court found,

based on its in camera review, that the CIRB reports contain

only “small snippets of legal advice.” Even a cursory review

of the CIRB reports reveals that this finding was correct.

None of the CIRB reports contain any assessment of the

County’s potential liability for the underlying events. To the

extent the reports reflect discussions of potential reforms to

County policies and training, the discussions were

dominated by non-lawyers and did not concern the law.

Faigin rarely spoke at those meetings, and even when he did,

he rarely gave legal advice. Indeed, three of the CIRB reports

do not record any statement by Faigin at all, let alone any

legal advice. 3

The majority does not engage with the content of the

CIRB reports themselves and instead relies on extraneous

documents characterizing the purpose of the CIRB, namely

the Sheriff’s Department’s policy manual, the Faigin

declaration, and the State Auditor Report. But as discussed

below, these documents come nowhere near demonstrating

that the district court’s findings were clearly erroneous, i.e.,

“illogical, implausible, or without support in the record.”

Sanmina, 968 F.3d at 1116.

First, the assertion in the Sheriff’s Department’s policy

manual that the purpose of the CIRB is to assess legal

3

Indeed, to date the County failed to produce attendance sheets for two

of these CIRB meetings (despite the fact that the reports list such a roster

as among the attachments). Significantly, neither the County’s privilege

logs nor any of the supporting declarations the County submitted actually

state that an attorney was in attendance at either of these meetings, as is

required to establish the privilege. Accordingly, there is no evidence that

Faigin or any other attorney was present at either of these meetings.

38 GREER V. COUNTY OF SAN DIEGO

liability and consult with counsel is an unsupported legal

conclusion that is no different than an “attorney-client

privilege” stamp on an email or document. Cf. United States

v. Fluitt, 99 F.4th 753, 764 & n.7 (5th Cir. 2024) (finding that

inclusion of “attorney client privileged and confidential” in

email subject line is insufficient to establish email was

privileged). Far more probative is the actual operation of the

CIRB which, as set forth in the policy manual, involved a

multitude of non-legal tasks unrelated to any assessment of

civil liability. According to the manual, the CIRB reports are

to be prepared by a non-lawyer from the Sheriff’s

Department’s Division of Inspectional Services (“DIS”) and

must “summariz[e] the actions and conclusions of the board”

concerning a variety of non-legal matters. But nowhere does

the manual require that the CIRB reports contain any

assessment or findings about the County’s potential legal

liability or legal compliance.

The County claims that the CIRB process is limited to

circumstances that present a uniquely high risk of litigation,

but that alone says nothing about whether legal advice was

actually provided. And more to the point, a CIRB meeting is

required in many circumstances where the litigation risk is

limited, including after any “[d]ischarge of a firearm by

sworn personnel,” regardless of whether injury results, and

following “[a]ny other incident involving the discharge of a

firearm, major property damage, or major vehicle damage by

a member of this Department or other critical incident which,

in the judgment of the Sheriff, Undersheriff, Assistant

Sheriff, or board member warrants review.” 4 The fact that

the CIRB convenes even in the absence of a substantial risk

4

Indeed, one of the CIRB reports at issue concerned an individual whose

death resulted from natural causes.

GREER V. COUNTY OF SAN DIEGO 39

of liability supports the contrary inference that its purposes

extend beyond obtaining legal advice.

Second, the district court was under no obligation to

credit the declaration of Faigin in light of the contrary

evidence in the record. 5 This is particularly true because

there were reasons to doubt Faigin’s credibility. Faigin’s

declaration in support of the County’s privilege claim stated,

“[t]he reports are a record of legal advice sought from, and

provided by, me.” And yet, the district courts in camera

review revealed the reports contained only “small snippets

of legal advice,” and several reports did not contain any

statement by Faigin at all. Further, as noted, Faigin

previously authored an article about the CIRB process in

which he suggested that a lawyer was being included to

“potentially provide[] the ability to protect the

confidentiality of the discussion under the cloak of the

attorney-client privilege.” And this is not the only statement

in the article that conflicts with Faigin’s declaration. The

article identified a multitude of non-legal purposes of the

CIRB, such as improving “training, tactics, policies, and

procedures,” “meet[ing] the public’s expectation of effective

self-policing,” and avoiding “negative public perception,

and potential government intervention.” The article

concludes with the following observation:

5

The declaration of Michael Baranic, the current Chief Legal Advisor to

the County, says nothing about whether these CIRB reports are

privileged because Baranic assumed his role well after the relevant CIRB

meetings took place. Baranic’s declaration does not establish how, if at

all, he had any personal knowledge concerning the relevant period. And

regardless, the district court was not required to credit his declaration in

light of the other evidence in the record.

40 GREER V. COUNTY OF SAN DIEGO

A successful CIRB process will ultimately

provide an agency with constantly updated

training and thorough incident review.

Byproducts of the CIRB process also include

increased accountability and reduced

numbers of future critical incidents. Reduced

civil liability and improved public perception

round out the reasons for ensuring that every

agency has a well-formulated CIRB process.

Consistent with the district court’s findings, this article

confirms that “[r]educed civil liability” “round[ed] out” the

purposes of the CIRB but was not its primary purpose. 6

Third, the State Auditor’s Report is at best marginally

relevant. Whether the primary purpose of a communication

is legal advice, such that the privilege applies, is a question

for the courts to resolve, and the generic statement by a state

agency not even involved in this litigation is hardly

dispositive. 7 It is also important to understand the full

6

It is noteworthy that “[r]educed civil liability” is at the end of this list,

and is treated as a separate objective from training, increased

accountability, and improved public perceptions. Even Faigin apparently

agreed with the district court that avoiding future liability is a separate

and distinct objective from any “investigative and remedial” purposes of

the CIRB.

7

Indeed, it is not even clear the State Auditor reviewed any of the CIRB

reports at issue. The State Auditor apparently reviewed a sample of only

18 CIRB reports, but (because of the County’s deficient privilege log) it

is not clear whether any of the CIRB reports at issue here were included

in that sample. The County’s original and amended privilege log gave no

indication that any of the CIRB reports at issue here were included in the

sample. Faigin’s declaration suggested the CIRB reports generally may

have been shared with the State Auditor, but did not state whether the

specific CIRB reports at issue actually were.

GREER V. COUNTY OF SAN DIEGO 41

context of the statements in the Audit Report. The State

Auditor was not praising or endorsing the County’s position

that the CIRB reports were privileged, but rather criticizing

this position and the resulting lack of transparency. The

Audit Report ultimately recommended that “the Legislature

. . . require the Sheriff’s Department to either make public

the facts it discusses and recommendations it decides upon

in the relevant [CIRB] meetings or . . . establish a separate

public process for internally reviewing deaths and making

necessary changes.”

The County’s letter responding to the State Auditor is

revealing. In it, the County argued that no reforms to County

policies were needed because the CIRB is capable of

performing the oversight function the State Auditor deemed

lacking. In advancing this argument, the County conceded

that the CIRB serves the non-legal purpose of “improving

the health and welfare of incarcerated individuals.” To

address this apparent contradiction, the County argued in its

letter that avoiding future litigation through privileged legal

advice and improving service delivery are not mutually

exclusive objectives, a view that the majority endorses.

Majority at 18. But when it comes to the attorney client

privilege, the practical compatibility of these distinct

objectives is irrelevant. “[A] dual-purpose communication

can only have a single ‘primary’ purpose,” and here the

district court found that the primary purpose was not

obtaining legal advice. In re Grand Jury, 23 F.4th at 1091.

The County has failed to demonstrate that this finding was

“illogical, implausible, or without support in the record,” and

thus has failed to establish clear error. Sanmina, 968 F.3d at

1116 (citation omitted).

42 GREER V. COUNTY OF SAN DIEGO

II. Waiver

Even setting aside the primary purpose issue, I would

affirm the district court’s alternate finding that the County

waived the privilege by failing to properly assert it. The

County, as the party invoking the attorney-client privilege,

bore the burden of establishing all of the elements of the

privilege were satisfied. See Ruehle, 583 F.3d at 609; Clarke

v. Am. Com. Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992).

“One of the elements that the asserting party must prove is

that it has not waived the privilege.” Weil v. Inv./Indicators,

Rsch. & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981). To

establish its claim of privilege, the County was required to

“describe the nature of the documents” being withheld “in a

manner that, without revealing information itself privileged

or protected, [would] enable other parties to assess the

claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii).

The County’s initial privilege log provided almost no

information to justify application of the privilege. It stated

each CIRB report was to “SLA Faigin” and was from “DIS,”

and justified application of the privilege by stating each

CIRB report “contain[ed] analysis and legal assessment.” 8

The magistrate judge found this privilege log to be

inadequate because, among other things, it failed to identify

“all individuals listed as receiving a copy of the document

and their relationship to the County” and failed to identify

the attendees of the CIRB meetings.

The magistrate judge gave the County an opportunity to

produce an amended privilege log, but the County failed to

correct these deficiencies. The County’s amended privilege

8

As to one of the CIRB reports, the initial privilege log failed even to

state that it “contain[ed] analysis and legal assessment.”

GREER V. COUNTY OF SAN DIEGO 43

log provided no further details about the contents of the

CIRB reports, did not identify all the recipients of the CIRB

reports, and did not identify any of the participants in the

CIRB meetings.

Although the amended privilege log suggested that

Faigin was the “only recipient,” that statement is at best

ambiguous and at worst untrue. For starters, the

accompanying declaration submitted with the privilege log

seems to suggest that the CIRB reports were shared with the

State Auditor. 9 Whether or not disclosure to the State Auditor

waives the privilege, the failure to list the State Auditor as a

recipient on the privilege log demonstrates the log was not

intended to include all individuals who received the CIRB

reports. Similarly, the declaration indicates the reports were

sent to Faigin only “[a]fter each report is approved by my

client,” thereby conceding that other individuals within the

Department (whose names and roles are not specified) were

privy to the documents before they were ultimately sent to

Faigin. Indeed, the amended privilege log states the CIRB

reports are from “DIS,” but does not identify who at DIS

actually prepared them or how many individuals within DIS

(or the Department) actually viewed the CIRB reports before

they were “sent” to Faigin for storage. 10

9

The declaration is, admittedly, ambiguous as to whether the specific

CIRB reports at issue were disclosed to the State Auditor or whether the

State Auditor reviewed other CIRB reports.

10

The fact that the CIRB reports were eventually sent to legal counsel

and stored by the legal department does nothing to demonstrate the

applicability of the privilege. See 2 Paul B. Rice et al., Attorney-Client

Privilege in the U.S. § 7:2 (Dec. 2023) (“In those instances where in-

house counsel has been designated the official records custodian, this

should pose little difficulty for courts. The applicability of the attorney-

44 GREER V. COUNTY OF SAN DIEGO

On appeal, the County attempts to excuse its failure to

identify the recipients of the CIRB reports and the attendees

at the CIRB meetings on the grounds that any recipients or

attendees would have been employees of the Sheriff’s

Department, and so would not have broken the privilege.

The majority endorses this view, Majority at 23-24, but it is

simply not the case that disclosure of a communication to an

organization’s employee can never waive the privilege.

To maintain the confidentiality of a communication, and

hence its privileged status, the communication may be

distributed only to those individuals within an organization

who “need to know” its contents to facilitate the provision of

legal advice or who are “authorized to speak or act for the”

organization. F.T.C. v. GlaxoSmithKline, 294 F.3d 141, 147

(D.C. Cir. 2002) (internal quotation marks omitted); see

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,

863 (D.C. Cir. 1980) (“The test . . . is whether the agency is

able to demonstrate that the documents . . . were circulated

no further than among those members of the organization

who are authorized to speak or act for the organization in

relation to the subject matter of the communication.”

(internal quotation marks omitted)); Restatement (Third) of

the Law Governing Lawyers § 73 cmt. g (“The need-to-

know limitation . . . permits disclosing privileged

communications to other agents of the organization who

reasonably need to know of the privileged communication in

order to act for the organization in the matter.”). 11 Courts

client privilege turns on the substance and context of the

communications, not the fact of who possesses them.”).

11

Contrary to the majority’s contention, Majority at 24, Upjohn did not

hold that all communications between a corporate employee and counsel

are always privileged. Rather, Upjohn rejected the “control group” test

the lower court had adopted, but explicitly declined to set forth an

GREER V. COUNTY OF SAN DIEGO 45

routinely hold that the privilege is waived where a

supposedly privileged communication is shared within an

organization in violation of this limitation. See, e.g.,

Melendres v. Arpaio, 2015 WL 13649412, at *5 (D. Ariz.

Apr. 2, 2015) (holding that sheriff’s department waived

privilege over documents shared with Deputy Chief of

Detention where department failed to show the subject

matter of the communication was “part of the scope of his

duties” or that he had any “demonstrable need to be privy to”

it); Revelry Vintners, LLC v. Mackay Rest. Mgmt. Grp., Inc.,

2024 WL 3280012, at *5 (E.D. Wash. Apr. 2, 2024) (finding

that disclosure of information in email to IT department

waived the privilege).

In light of this limitation, the proponent of the privilege

must identify each individual that received the

communication in question in their privilege log and offer

sufficient information to demonstrate that disclosure of the

communication to that recipient did not waive the privilege.

As a leading treatise explains:

The privilege proponent must adequately

explain each distributee’s relationship to [the]

communication’s content in order to

successfully assert his claim. . . . Adequate

alternative test for determining when communications with a corporate

employee are privileged, leaving that matter for subsequent case-by-case

development. See Upjohn Co. v. United States, 449 U.S. 383, 396-97

(1981); Admiral Ins. Co. v. U.S. Dist. Ct. for Dist. of Arizona, 881 F.2d

1486, 1492 (9th Cir. 1989) (“The Court [in Upjohn] . . . declined to

establish an all-encompassing test for application of the attorney-client

privilege to corporations.”). Upjohn did not address the waiver issue

present here because the confidentiality of the documents at issue in that

case was not in dispute. See Upjohn, 449 U.S. at 396 n.5.

46 GREER V. COUNTY OF SAN DIEGO

explanation necessitates disclosure of the

identity of each distributee, including her title

and responsibilities to the entity that she

represents. The prevailing “subject matter”

test demands that the privilege proponent

prove that each individual receiving the

communication had corporate

responsibilities that relate to the substance of

the communication. Merely stating in a

supporting affidavit the conclusion that

distribution has not been made beyond those

with a need to know in the scope of their

employment responsibilities is not sufficient.

The proponent must provide enough

evidence to permit the judge to come to that

conclusion as the judge is the sole

independent finder of facts.

2 Paul B. Rice et al., Attorney-Client Privilege in the U.S.

§ 11:6 (Dec. 2023) [hereinafter Rice et al., Attorney-Client

Privilege] (footnotes omitted).

By failing to identify all of the individuals who attended

the CIRB meetings and who reviewed the CIRB reports, the

County failed to provide the court below with sufficient

information to determine whether the privilege applied. If,

for example, anyone who wished to attend a CIRB meeting

was welcome, and employees who were not necessary to

provide legal advice were present, then any discussions

during those portions of the meeting would not have been

privileged. Similarly, any indiscriminate dissemination of

the CIRB reports within the Department before they were

sent to Faigin had the potential to waive the privilege. The

County failed to carry its burden of establishing that the

GREER V. COUNTY OF SAN DIEGO 47

communications remained confidential and accordingly

waived the privilege.

III. Scope of Privilege

The County’s position in this litigation is all the more

remarkable for the breadth of the claim of privilege being

asserted. The County does not simply claim that those

portions of the CIRB reports that reflect legal advice are

privileged. Instead, the County argues that the entirety of all

of the CIRB reports, including all of their attachments, are

privileged, without regard to their contents. 12 Even

accepting that small portions of the CIRB reports reflect

legal advice, as the district court acknowledged was the case,

that is no basis to accord protection to the entirety of the

CIRB reports, as the majority does through its ruling today.

“The scope of the privilege should be strictly confined

within the narrowest possible limits.” Christensen, 828 F.3d

at 803 (internal quotation marks omitted). Accordingly, “[i]f

the nonprivileged portions of a communication are distinct

and severable, and their disclosure would not effectively

reveal the substance of the privileged legal portions, the

court must designate which portions of the communication

are protected and therefore may be excised or redacted

(blocked out) prior to disclosure.” Id. (quoting Rice et al.,

Attorney-Client Privilege, supra, § 11:21). The party

asserting the privilege must, “if necessary, . . . segregate the

12

Indeed, when questioned about this claim at oral argument, counsel for

the County adopted the extraordinary position that even the “To” and

“From” line of the CIRB reports, and who was in attendance at the

meetings, are privileged, notwithstanding the fact that this information

was (or should have been) included on the County’s privilege log.

48 GREER V. COUNTY OF SAN DIEGO

privileged information from the non-privileged

information.” Ruehle, 583 F.3d at 609.

Whole swaths of the CIRB reports are plainly not

privileged. Each report contains a summary of the County’s

factual investigation, including publicly available

information that is not privileged such as the date of the

individual’s arrest, the offense for which the individual was

arrested, and the jail where the individual was held. See

Upjohn, 449 U.S. at 396 (“[The client] may not refuse to

disclose any relevant fact within his knowledge merely

because he incorporated a statement of such fact into his

communication to his attorney.” (quotation omitted)). Most

reports contain a list of who attended the CIRB meeting in

question that is not privileged. See Dole v. Milonas, 889 F.2d

885, 889 (9th Cir. 1989) (“[T]he general rule is that [the]

identity of an attorney’s clients is not a matter within the

attorney-client privilege.”); Rice et al., Attorney-Client

Privilege, supra, § 11:6 (“Neither the identification of

documents nor the identity of individuals involved in

allegedly privileged communications is information that is

protected by the attorney-client privilege.”). Each report

contains much crosstalk amongst the board members or

witnesses that had nothing to do with the law and in which

Faigin did not participate that is not privileged. See Matter

of Fischel, 557 F.2d 209, 212 (9th Cir. 1977) (“An attorney’s

involvement in, or recommendation of, a transaction does

not place a cloak of secrecy around all the incidents of such

a transaction.”); Brinckerhoff v. Town of Paradise, 2011 WL

2926936, at *3 (E.D. Cal. July 15, 2011) (explaining that

“[e]ven assuming that a primary purpose of the management

meeting was to have the ability to seek legal advice,” the

court must “differentiate those communications amongst

management which recount/discuss attorney advice as

GREER V. COUNTY OF SAN DIEGO 49

opposed to discussion reflecting management decisions”

because “not all communications at a meeting [with lawyers

present] are automatically privileged”). Each report contains

a description of remedial measures ultimately taken or not

taken by the CIRB at the conclusion of the process, including

the votes of each member of the board, that are not

privileged. See Rice et al., Attorney-Client Privilege, supra,

§ 5:14 (“The privilege does not extend to opinions and

decisions made by the client based on the legal advice the

client received.”); Matter of Fischel, 557 F.2d at 212.13

Neither the County nor the majority offer any compelling

reason why these non-privileged portions of the reports are

inextricably intertwined with what little privileged material

there is in them. Accordingly, the proper remedy was to

redact, not withhold, the reports.

13

Indeed, in responding to attacks on the CIRB process by the State

Auditor, the County explained that “[a]ny changes to Sheriff’s policies,

procedures, training, or education” that are adopted by the CIRB “are

published and available for the public to access on the Sheriff’s

Department’s website.”