“We 24 hold that the primary-purpose test applies to attorney-client privilege claims for 25 dual-purpose communications.”
How later courts described this case
- “We 24 hold that the primary-purpose test applies to attorney-client privilege claims for 25 dual-purpose communications.”
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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11 CAROLINA HIPSCHMAN, an Case No.: 22-cv-903-AJB-BLM
individual; et al.,
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ORDER OVERRULING
13 Plaintiffs, PLAINTIFFS’ OBJECTIONS TO THE
MAGISTRATE JUDGE’S DENIAL
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v. OF THEIR MOTION TO COMPEL
15 THE COUNTY TO PROVIDE
COUNTY OF SAN DIEGO, a public TRAINING MATERIALS
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entity; et al.,
17 (Doc. No. 155)
Defendants.
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20 Following the Magistrate Judge’s orders denying Carolina Hipschman and
21 Alexander Hipschman’s (“Plaintiffs”) motion to compel the County of San Diego
22 (“County”) to produce certain training materials and their motion for reconsideration,
23 Plaintiffs filed the instant objection pursuant to Federal Rules of Civil Procedure 72(a).
24 (Doc. Nos. 137, 154, 155.) For the reasons stated below, the Court OVERRULES the
25 entirety of Plaintiffs’ objections.
26 I. BACKGROUND
27 Plaintiffs’ action arises from the County’s and its social workers’ alleged improper
28 seizure of their minor child following a hospital visit for a bump on the minor’s head. The
1 instant discovery dispute concerns Plaintiffs’ Request for Production of Documents, Set
2 Seven, which requests the County produce all documents including, “training memoranda,
3 PowerPoint Presentations (in native form), lecture notes, letters, flyers, handouts, movies,
4 and/or training materials (hereinafter “training materials”) regarding documents given, or
5 presentations made, to Defendant Romero regarding her responsibilities as a County social
6 worker from 2001 to present.” (Doc. No. 137 at 4.)1 Plaintiffs argue that the training
7 materials are relevant to their claims arising under Monell v. Dep’t of Social Services of
8 New York, 426 U.S. 658 (1978). They also assert that the County’s withholding of the
9 materials based on attorney-client privilege and attorney work product privilege lacks
10 substantial justification, and that it has waived such privilege objections.
11 Following briefing, the Magistrate Judge denied Plaintiffs’ motion to compel,
12 finding that: (1) although the training materials were relevant for discovery purposes, they
13 are subject to attorney-client privilege and the attorney work product privilege; (2) the
14 County did not waive these privileges; and (3) in camera review was not warranted. (Doc.
15 No. 137 at 5–17.) Plaintiffs subsequently filed a motion for reconsideration (Doc. No. 141.)
16 The Magistrate Judge denied it, finding that Plaintiffs failed to show new or different facts
17 or circumstances to support reconsideration. (Doc. No. 154.) The instant objection
18 followed.
19 II. LEGAL STANDARD
20 “A non-dispositive order entered by a magistrate must be deferred to unless it is
21 ‘clearly erroneous or contrary to law.’” Grimes v. City & Cnty. of San Francisco, 951 F.2d
22 236, 241 (9th Cir. 1991) (quoting Fed. R. Civ. P. 72(a)). “[T]hey are not subject to de novo
23 determination.” Id. (internal quotation marks and citation omitted). Thus, when considering
24 objections to a magistrate judge’s ruling on non-dispositive pretrial matters, such as
25 discovery disputes, the “reviewing court may not simply substitute its judgment for that of
26 the deciding court.” Id. The clear error standard “is significantly deferential,” and allows
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1 the court to overturn a magistrate judge’s determinations only if the court has a “definite
2 and firm conviction that a mistake has been committed.” Concrete Pipe & Prods. of
3 California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S. 602, 623
4 (1993).
5 III. DISCUSSION
6 Plaintiffs object to the Magistrate Judge’s orders, arguing that the Magistrate Judge:
7 (1) lacked an evidentiary basis to find that the training materials at issue are protected by
8 attorney-client privilege and attorney work product privilege; (2) erred in finding good
9 cause for relief from untimely objections; and (3) erred in declining to conduct an in
10 camera review of the disputed documents. (Doc. Nos. 155 at 8; 158 at 4.) Because the
11 challenged rulings concern a non-dispositive pretrial matter, namely, a discovery dispute,
12 the Court must defer to the Magistrate Judge unless the rulings are “clearly erroneous or
13 contrary to law.” Grimes, 951 F.2d at 241. Upon review and consideration of the parties’
14 moving papers and the Magistrate Judge’s orders, the Court does not find the rulings to be
15 clearly erroneous or contrary to law.
16 A. Rulings on Privilege
17 First, the Court rejects Plaintiffs’ argument that the Magistrate Judge erred in finding
18 that the attorney-client and attorney work product privileges applied. The record shows
19 that the Magistrate Judge thoroughly considered the arguments and evidence submitted in
20 connection with the motion to compel and motion for reconsideration. The Magistrate
21 Judge cited and applied the correct standards for analyzing each claim of privilege and
22 relied on appropriate evidence and case law to support its denial of Plaintiffs’ motions.
23 1) Attorney-Client Privilege
24 “The attorney-client privilege protects confidential communications between
25 attorneys and clients, which are made for the purpose of giving legal advice.” United States
26 v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). The Magistrate Judge found that the County
27 met its burden of proving the attorney-client privilege applies based on the Declaration of
28 Caitlin Rae, Assistant County Counsel. (Doc. No. 137 at 7–10.) The Magistrate Judge
1 considered and rejected Plaintiffs’ arguments to the contrary, including the one they raise
2 here: that Ms. Rae’s Declaration is conclusory. (Id. at 10.) The Magistrate Judge disagreed
3 with Plaintiffs, finding that Ms. Rae’s sworn testimony “adequately sets forth facts
4 establishing the elements of the attorney-client privilege.” (Id.) In so concluding, the
5 Magistrate Judge described the details contained in Ms. Rae’s Declaration and determined
6 that they established that the training materials withheld were prepared by attorneys whose
7 duties included providing representation and legal advice to County social workers on
8 juvenile dependency matters and provided or presented to them such information in a
9 confidential manner. (Id. at 8–9.) Having reviewed Ms. Rae’s Declaration, the Court is not
10 left “with a definite and firm conviction that a mistake has been committed.” See Concrete
11 Pipe & Prods. of Cal., 508 U.S. at 623.
12 Plaintiffs make much ado about the Magistrate Judge’s other order denying the
13 County’s privilege claims in a prior motion to compel. But as the Magistrate Judge made
14 abundantly clear, the County’s showing of privilege here is different. Unlike the
15 two-sentence conclusory declaration the Magistrate Judge found insufficient in the other
16 motion to compel, the County submitted here a detailed declaration specifying the nature
17 and contents of each presentation, including who prepared them, why they were prepared,
18 and to whom they were presented. (Doc. No. 128-1 at 2–6.) And contrary to Plaintiffs’
19 contention that the Magistrate Judge did not consider whether the trainings were akin to
20 general summaries of cases, the record indicates otherwise. (Doc. No. 137 at 8–10 (the
21 Magistrate Judge contrasting Ms. Rae’s Declaration with the one it found insufficient).)
22 The Magistrate Judge also properly applied the primary purpose test for
23 dual-purpose communications. In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021) (“We
24 hold that the primary-purpose test applies to attorney-client privilege claims for
25 dual-purpose communications.”). Specifically, the Magistrate Judge found that while other
26 advice given during the trainings may have had a more general purpose, the primary
27 purpose of the presentations was to avoid prospective civil and dependency litigation—as
28 attested to by Ms. Rae under penalty of perjury. (Doc. Nos. 137 at 10; 154 at 6.)
1 Based on the foregoing and a review of the relevant law and record, the Court does
2 not find that the Magistrate Judge’s ruling on the attorney-client privilege issue is clearly
3 erroneous or contrary to law. The record reflects the Magistrate Judge applied the correct
4 law and reasonably interpreted and relied on the County’s evidence to find that it met its
5 burden to establish the privilege. Accordingly, the Court accords significant deference to
6 the Magistrate Judge’s decision that the attorney-client privilege applies and
7 OVERRULES Plaintiffs’ objection to this ruling.
8 2) Work Product Privilege
9 “The work-product doctrine protects from discovery documents and tangible things
10 prepared by a party or his representative in anticipation of litigation.” Richey, 632 F.3d at
11 567 (internal quotation marks and citation omitted). “To qualify for work-product
12 protection, documents must: (1) be prepared in anticipation of litigation or for trial and (2)
13 be prepared by or for another party or by or for that other party’s representative.” Id.
14 Here, the Magistrate Judge found that the County met its burden to establish that the
15 attorney work product privilege applies to the training materials, including the requested
16 materials in their native form. (Doc. No. 137 at 10–12.) In so concluding, the Magistrate
17 Judge explained that “Ms. Rae’s declaration makes clear that the training materials at issue
18 were prepared and presented by attorneys and would not have been created unless there
19 was the prospect of litigation.” (Id. at 12.) The Magistrate Judge again contrasted the
20 detailed declaration the County submitted here with the one it found inadequate in the other
21 motion to compel. (Id. at 10–12.)
22 The Magistrate Judge also highlighted Ms. Rae’s explanation that providing the
23 training materials in their native form would “reveal the context of the legal advice and
24 strategies provided to social workers by attorneys” because the notes section of the
25 PowerPoint slides “contain the mental impressions of the embedded attorneys who created
26 the presentations” and “include interpretation of the law and legal strategies used to defend
27 from current and future civil and dependency litigation.” (Id. at 11 (quoting Doc. No. 128-1
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1 at 5–6).) Plaintiffs’ contention that there is no evidence to support the Magistrate Judge’s
2 finding is therefore belied by the record.
3 Additionally, the Court finds reasonable the Magistrate Judge’s rejection of
4 Plaintiffs’ claim about the severability of purported non-attorney slides in the Child Victim
5 Witness Protocol presentation as speculative. (Doc. No. 154 at 6–7 (“Plaintiffs’ assertion
6 that there are ‘non privileged slides – that can be easily separated’ is based on speculation
7 that an unknown amount of the individual slides [was] prepared solely by the non-attorney
8 with no input from the embedded attorney who was working alongside the analyst which
9 is not a reasonable interpretation of Ms. Rae’s declaration.”)
10 In the end, Plaintiffs merely disagree with the Magistrate Judge’s interpretation of
11 the evidence the County submitted to meet its burden of proof. Having reviewed the
12 applicable law and record, however, there is nothing before the Court meeting the clearly
13 erroneous or contrary to law standards required to overturn the Magistrate Judge’s decision.
14 Because the Magistrate Judge’s determination was based on the correct law, the totality of
15 the circumstances, and reasonable interpretation of, and reliance on, the County’s evidence,
16 the Court is not left with a “definite and firm conviction that a mistake has been
17 committed.” Concrete Pipe & Prods. of California, Inc, 508 U.S. at 623. Accordingly, the
18 Court accords significant deference to the Magistrate Judge’s conclusion that the attorney
19 work product privilege applies and OVERRULES Plaintiffs’ objection to this ruling.
20 3) Waiver and In Camera Review
21 Next, Plaintiffs object to the Magistrate Judge’s finding that the County’s privilege
22 objections were not untimely. The Court does not find the ruling clearly erroneous or
23 contrary to law. The Magistrate Judge thoroughly considered the arguments concerning
24 waiver and found based on a reasonable interpretation of the record (including the parties’
25 agreements to extend the County’s time to respond to Plaintiffs request for training
26 materials spanning over twenty years) that good cause existed for the County raising
27 privilege objections when they did. The Court also does not find that the Magistrate Judge
28 abused its discretion in declining to adopt Plaintiffs’ overly technical argument that the
1 || County has conceded its objections were untimely. See generally Eitel v. McCool, 782 F.2d
2 1470, 1472 (9th Cir. 1986) (“Cases should be decided upon their merits whenever
3 ||reasonably possible.”).
4 Lastly, as to Plaintiffs’ argument that the Magistrate Judge erred in declining to
5 ||review the training materials in camera, the Court finds there was sufficient factual
6 ||information in Ms. Rae’s Declaration from which the Magistrate Judge could reject
7 || Plaintiff's attempt at showing the contrary and decline in camera review.
8 There being record support for the Magistrate Judge’s finding of good cause for
9 || relief from waiver and declining in camera review, the Court does not have a “definite and
10 || firm conviction that a mistake has been committed.” Concrete Pipe & Prods. of California,
11 508 U.S. at 623. Accordingly, the Court OVERRULES Plaintiffs’ objections to the
12 || Magistrate Judges’ rulings on the waiver and in camera issues.
13 CONCLUSION
14 For the reasons stated herein, the Court OVERRULES the entirety of Plaintiffs’
15 || objections to the Magistrate Judge’s denial of their motion to compel county to provide the
16 || training materials. (Doc. No. 155.)
17 IT IS SO ORDERED.
18 || Dated: April 28, 2025 ©
19 Hon. Anthony J.Battaglia
20 United States District Judge
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