Pittman et al v. County of San Diego et al, No. 3:2009cv01952 - Document 30 (S.D. Cal. 2010)
Court Description: ORDER Granting Defendant's Motion For Reconsideration (Doc. 26 ) Or Order To Produce Portions Of Internal Files (Doc. 23 ). Signed by Magistrate Judge William V. Gallo on 11/3/2010. (mdc)
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Pittman et al v. County of San Diego et al Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH PITTMAN, JR., DIANA PITTMAN, 16 ) ) ) ) ) ) ) ) ) ) ) 17 Pending before the Court is defendant, County of San 12 Plaintiffs, 13 v. 14 COUNTY OF SAN DIEGO, 15 Defendant. Civil No. 09-CV-1952-WQH(WVG) ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION (DOC. 26) OF ORDER TO PRODUCE PORTIONS OF INTERNAL FILES (DOC. 23) 18 Diego’s (“County”), motion for reconsideration (Doc. No. 26) of 19 the Court’s order compelling production of documents (Doc. No. 20 23). 21 tion that documents bearing Bates numbers Sheriff 0001832-0001845 22 and Sheriff 0001851-0001870 are not protected by the attorney- 23 client privilege or work-product doctrine. 24 facts the County presented for the first time here, the Court 25 GRANTS the motion. 26 27 28 Specifically, the County objects to the Court’s determina- I. After considering new FACTUAL SUMMARY County Counsel is charged with representing the County and its various subdivisions and departments in all legal affairs. 1 09cv1952 Dockets.Justia.com 1 County Counsel’s role includes primary responsibility for investi- 2 gating administrative claims for damages against the County. 3 Plaintiffs in this case tendered a claim that arose from 4 their confrontation with San Diego Sheriff Deputies on the evening 5 of October 19, 2008. 6 evaluation and disposition of the claim. 7 County Counsel received and handled the On February 20, 2009, a non-attorney, Mary Ann Wiggs of the 8 County Counsel’s Claims Division, sent the Sheriff’s Department a 9 request for the Sheriff’s “comments” on the claim. (Bates Nos. 10 Sheriff 001844-45.) 11 response as “Attorney Client Communication” and advised that 12 “[a]ny investigative efforts you now take and your analysis of the 13 facts are in anticipation of litigation.” 14 The letter advised the Sheriff to mark his (Id.) On February 25, 2009, Lieutenant Margaret Sanfilippo of the 15 Sheriff’s Division of Inspectional Services forwarded the request 16 to the Commander and Captain in charge of the Sheriff’s Lemon 17 Grove substation for their “recommendation regarding settlement.” 18 (Bates No. Sheriff 001843.) 19 On March 19, 2009, the Sergeant assigned to review the 20 matter and make a recommendation completed and submitted a highly 21 detailed report that included the Sergeant’s evaluation of the 22 underlying incident and recommendation regarding the outcome of 23 the plaintiffs’ claim. 24 001851-71.) 25 (Bates Nos. Sheriff 001840-42, Sheriff On March 24, 2009, Lieutenant Sanfilippo wrote Ms. Wiggs 26 and made a recommendation regarding the Pittmans’ claim. 27 No. Sheriff 001835.) 28 2 09cv1952 (Bates 1 On March 30, 2009, Ms. Wiggs sent an e-mail requesting 2 Joseph Pittman’s full medical records on a compact disc. 3 No. Sheriff 001833.) 4 (Bates On April 1, 2009, Lieutenant Sanfilippo forwarded Ms. 5 Wiggs’s request to the Sheriff’s Medical Services Division. 6 (Bates No. Sheriff 001832.) 7 On April 14, 2009, a Sheriff’s Detentions Supervising Nurse 8 prepared a very superficial report of Mr. Pittman’s medical 9 treatment in jail. 10 (Bates Nos. Sheriff 001836-39.) On April 15, 2009, the Division of Inspectional Services 11 forwarded the medical report to Ms. Wiggs. 12 001834.) 13 (Bates No. Sheriff The lead or title document in each submission was marked 14 either “Confidential,” “Attorney Client Confidential,” or “Attor- 15 ney Client Communication.” 16 II. 17 18 A. LEGAL STANDARD Motions For Reconsideration The Court has discretion to reconsider interlocutory orders 19 at any time prior to final judgment. Hydranautics v. Filmtec 20 Corp., 306 F. Supp. 2d 958, 968 (S.D. Cal. 2003); Washington v. 21 Garcia, 977 F. Supp. 1067, 1069 (S.D. Cal. 1997); Cal. v. Summer 22 Del Caribe, Inc., 821 F. Supp. 574, 577 (N.D. Cal. 1993) (cita- 23 tions omitted). 24 intervening change in the law, or the need to correct a clear 25 error or prevent manifest injustice.” 26 (citing Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 27 364, 369 n.5 (9th Cir. 1989)). 28 sider, a party must set forth facts or law of a strongly convinc- “Such motions may be justified on the basis of an Cal., 821 F. Supp. at 577 “To succeed in a motion to recon- 3 09cv1952 1 ing nature to induce the court to reverse its prior decision.” 2 Id. (citations omitted). 3 As the Fifth Circuit explained, “the trial court is free to 4 reconsider and reverse its decision for any reason it deems 5 sufficient, even in the absence of new evidence or an intervening 6 change in or clarification of the substantive law.” 7 Tex. Farm Bureau, 996 F.2d 734, 738 n.6 (5th Cir. 1993) (quoting 8 Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 9 (5th Cir. 1990)). McKethan v. Ultimately, the decision on a motion for 10 reconsideration lies in the Court’s sound discretion. 11 Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir.2003) (citing Kona 12 Enters. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)). 13 B. 14 Navajo Work-Product Doctrine The so-called work-product doctrine, as embodied in Federal 15 Rule of Civil Procedure 26(b)(3), broadly applies to documents 16 prepared by the “parties’ attorney, consultant, surety, 17 indemnitor, insurer, or agent.” 18 Fed. R. Civ. P. 26(b)(3)(A). In order to qualify for work-product protection, the 19 asserting party must show that the withheld materials are: 20 documents or tangible things; (2) prepared in anticipation of 21 litigation or for trial; and (3) the documents or tangible things 22 were prepared by or for the party or the attorney asserting the 23 privilege. 24 780-81 (9th Cir. 1989). 25 (1) See id.; In re Cal. Pub. Util. Comm’n, 892 F.2d 778, “At its core, the work-product doctrine shelters the mental 26 processes of the attorney, providing a privileged area within 27 which he can analyze and prepare his client’s case. 28 doctrine is an intensely practical one, grounded in the realities 4 But the 09cv1952 1 of litigation in our adversary system. 2 that attorneys often must rely on the assistance of investigators 3 and other agents in the compilation of materials in preparation 4 for trial. 5 material prepared by agents for the attorney as well as those 6 prepared by the attorney himself.” 7 U.S. 225, 238-39 (1975); see also In re Grand Jury Subpoena, 350 8 F.3d 1010, 1015 (9th Cir. 2003). 9 One of those realities is It is therefore necessary that the doctrine protect United States v. Nobles, 422 Nevertheless, the protection afforded by the doctrine is 10 qualified and may be overcome if the party seeking disclosure 11 shows that the materials are otherwise discoverable under Rule 12 26(b)(1) and that “it has substantial need for the materials to 13 prepare its case and cannot, without undue hardship, obtain their 14 substantial equivalent by other means.” 15 26(b)(3)(A)(i)-(ii). 16 C. Fed. R. Civ. P. Attorney-Client Privilege 17 The attorney-client privilege “exists to protect not only 18 the giving of professional advice to those who can act on it but 19 also giving of information to the lawyer to enable him to give 20 sound and informed advice.” 21 383, 390 (1981). 22 tant part of an attorney’s legal services to a client. 23 States v. Rowe, 96 F.3d 1294, 1296-97 (9th Cir. 1996). 24 Upjohn v. United States, 449 U.S. Courts have found that investigation is imporUnited “[A] party asserting the attorney-client privilege has the 25 burden of establishing the [existence of an attorney-client] 26 relationship and the privileged nature of the communication.” 27 United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (quot- 28 ing United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997)). 5 09cv1952 1 An eight-part test determines whether information is covered by 2 the attorney-client privilege: 3 6 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. 7 Id. (quoting In re Grand Jury Investigation, 974 F.2d 1068, 1071 8 n.2 (9th Cir. 1992)). 4 5 9 10 II. A. DISCUSSION The Court Accepts The New Facts Presented For the First Time in the Reconsideration Motion 11 12 Although the County presented facts in support of its 13 privilege and work-product doctrine claims for the first time in 14 its motion for reconsideration, the Court exercises its discretion 15 to consider those facts in the interest of judicial economy and in 16 light of the importance of the issues. 17 B. 18 Work-Product Doctrine All of the documents under reconsideration in some way 19 relate to Plaintiffs’ pre-litigation claim tender and County 20 Counsel’s request for the Sheriff’s evaluation and input. 21 ever, the Court evaluates only the ultimate products of County 22 Counsel’s requests, the Sergeant’s report (Bates Nos. Sheriff 23 001840-42, Sheriff 001851-71) and Medical Services Division report 24 (Bates Nos. Sheriff 001836-39), under the work-product doctrine. 25 The remaining document pages (Bates Nos. Sheriff 001832-35, 26 001843-45) are more aptly categorized as “communications” and will 27 be evaluated under the attorney-client privilege doctrine. 28 / / / 6 09cv1952 How- 1 1. The Reports Were Created Under Counsel’s Direction 2 Based on the County’s explanation of the chain of communi- 3 cations that led to the reports’ creation, it is clear that both 4 reports were prepared at the request and direction of the County’s 5 attorney. 6 prepared “in anticipation of litigation.” The Court next turns to whether the reports above were 7 2. 8 Because the reports at issue were prepared before litiga- 9 The Reports Were Made In Anticipation of Litigation tion and during the claim tender phase, the Court must decide 10 whether reports prepared to accept or deny a claim are prepared 11 “in anticipation of litigation.” 12 the Court finds that the reports were so generated. 13 Based on the facts of this case, Central to the work-product doctrine is the requirement 14 that the documents under its umbrella be “prepared in anticipation 15 of litigation.” 16 law, a document meets this requirement if it was prepared “because 17 of the prospect of litigation.” 18 F.3d 900, 908 (9th Cir. 2003) (emphasis added). 19 satisfies Rule 26(b)(3) under this standard if, under the totality 20 of circumstances, “it can fairly be said that the ‘document was 21 created because of anticipated litigation, and would not have been 22 created in substantially similar form but for the prospect of that 23 litigation[.]’” 24 F.3d 1194 (2d Cir. 1998)). 25 against the County will result in a lawsuit, “the fact that [a 26 party] conducts an investigation into claims against [it] . . . as 27 a matter of routine does not necessarily mean that the investiga- 28 tion is not being conducted in anticipation of litigation, if Fed. R. Civ. P. 26(b)(3)(A). Under Ninth Circuit In re Grand Jury Subpoena, 357 A document Id. at 908 (quoting United States v. Adlman, 134 While it is true that not every claim 7 09cv1952 1 other factors are present.” 2 F.R.D. ___, 2010 WL 306289 at *4 (S.D. Cal. Aug. 2, 2010) (citing 3 Spaulding v. Denton, 68 F.R.D. 342, 345 (D. Del. 1975); 6 Moore’s 4 Federal Practice - Civil at ¶ 26.70[3][a] (Matthew Bender 3d ed.). 5 Garcia v. City of Imperial, ___ On February 9, 2009, the Pittmans’ attorney submitted a 6 claim notice to the County in the form of a letter. 7 Exhibit A.) 8 of events and concluded as follows: “The amount of this claim for 9 each of the Claimants individually exceeds ten thousand dollars 10 ($10,000) and when it is filed in court it will be filed as an 11 unlimited case seeking in excess of $1,000,000.” 12 (emphasis added). 13 “when,” which essentially put the County on notice that the 14 Pittmans would file a lawsuit if their claim was denied, instead 15 of “if,” which would have made the prospects of future litigation 16 much less certain. 17 Sheriff’s investigation and evaluation of the allegations and 18 claim, the County reasonably anticipated that the Pittmans would 19 file a lawsuit seeking more than $1,000,000 if their claim was 20 denied–-the Pittmans warned the County as much from the beginning. 21 (Motion, The Pittmans’ notice included their detailed version (Exhibit A at 5 The Court finds notable the letter’s use of Thus, at the time County Counsel sought the In light of the Pittmans’ letter, County Counsel’s request 22 to the Sheriff served a dual purpose. 23 the Sheriff’s opinion on the active claim and requested that the 24 Sheriff “help the County Counsel assess the County’s civil liabil- 25 ity.” 26 lawsuit was not pending when the reports were made, as it is 27 sufficient that litigation was reasonably anticipated under the 28 totality of the circumstances. (Motion at 11:1.) It simultaneously sought It is not relevant that an active In re Grand Jury Subpoena, 357 8 09cv1952 1 F.3d 900, 908 (9th Cir. 2003). 2 were created in anticipation of litigation. 3 The Court finds that the reports The Court further finds that the reports would not have 4 been created in substantially similar form but for the prospect of 5 litigation. 6 during the ordinary course of business. 7 Sanfilippo declares that the Department of Inspectional Services 8 “would not initiate such an internal review and investigation 9 without a request from County Counsel.” The Pittmans assert that the reports were created However, Lieutenant (Sanfilippo Decl. at 10 ¶ 6.) 11 dations are not part of the Sheriff’s daily operations, as County 12 Counsel, not the Sheriff, has primary responsibility for handling 13 claims and litigation. 14 303 (C.D. Cal. 1992) (finding that a report was created during the 15 course of a police department’s business because the internal 16 affairs unit had been established partly with the purpose of 17 investigating tort claims). 18 In other words, claim and litigation reviews and recommen- Cf. Miller v. Pancucci, 141 F.R.D. 292, The same is true for the Medical Services Division’s 19 report, which bears the claim number and is essentially a bare- 20 bones summary of Mr. Pittman’s routine, post-booking medical 21 processing, and which was derived from documents created at the 22 time of his processing. 23 other reason to create such reports during the course of its daily 24 business. 25 3. 26 Further, it is not relevant that the reports were not The Medical Services Division has no The Reports Were Created By County Counsel’s Agents 27 prepared by County Counsel, but were prepared for County Counsel. 28 The Sheriff Sergeant and Supervising Nurse were both employees and 9 09cv1952 1 agents of the Sheriff’s Department, a division of the County, and 2 were employees and agents of the County as a result. 3 reports were prepared by the County’s employees and are eligible 4 for the doctrine’s protection. See Fed. R. Civ. P. 26(b)(3)(A) 5 (“Ordinarily, a party may not discover documents and tangible 6 things . . . by or for another party or its representative (in- 7 cluding the other party’s attorney, consultant, . . . or agent).”) 8 (emphasis added); Canel v. Lincoln Nat’l Bank, 179 F.R.D. 224, 227 9 (N.D. Ill. 1998) (memorandum prepared by bank officer analyzing 10 legal, factual, and financial issues raised by minority share- 11 holder suit was entitled to work product protection). 12 As such, the The Court recognizes that it previously found that these 13 reports were not protected based on its then assessment that they 14 were prepared in the course of the Sheriff’s operations. 15 the Court was not previously privy to the sequence of communica- 16 tions and requests that led to their creation. 17 and without context, it is not self-evident that these documents 18 were created at County Counsel’s request and outside the course of 19 the Sheriff’s daily operations. 20 reports originally appeared to be prepared within, and for, the 21 Sheriff’s Department, as County Counsel’s name does not appear on 22 any of them. 23 and the proper context, it is evident that these reports were 24 generated during the course of legal representation and are 25 attorney work product. However, When viewed alone Without proper context, these However, with the benefit of additional information 26 4. 27 While it is true that work-product doctrine is not abso- 28 Plaintiffs Make No Showing Of Undue Hardship lute, the plaintiffs have made no showing whatsoever of undue 10 09cv1952 1 hardship or substantial need, as their pleadings simply do not 2 address the issue. 3 Ins. Co. v. United States District Court, 881 F.2d 1486, 1494 (9th 4 Cir. 1989) (“The primary purpose of the work product rule is to 5 ‘prevent exploitation of a party’s efforts in preparing for 6 litigation.’”). 7 available to the Pittmans, whether from the original arrest 8 reports, medical reports, or through witness depositions. 9 reports contain no facts that are unique to them and which cannot 10 be obtained during the ordinary course of litigation and discov- 11 ery. See Fed. R. Civ. P. 26(b)(3)(A)(ii); Admiral All of the information in the reports is equally The 12 The reports here are distinguishable from arrest reports 13 and medical records that are ordinarily prepared at or near the 14 time of an incident. 15 not protect contemporaneously-prepared police reports or reports 16 that document the patient’s then-existing ailments, diagnosis, and 17 treatment, as they were prepared at the time of injury when the 18 prospect of litigation was completely unknown. 19 these reports are prepared months after the underlying incident, 20 after a claim has been filed, and after counsel has requested 21 them, they serve a different purpose. 22 facts for the sake of documentation but rather review, evaluate, 23 and summarize facts and source reports with the ultimate purpose 24 of helping develop legal strategy. 25 B. 26 27 In general, the work-product doctrine does However, when They no longer document Attorney-Client Privilege Based on the reasons below, the Court next finds that documents bearing Bates numbers Sheriff 001832-35 and Sheriff 28 11 09cv1952 1 001843-45 satisfy the attorney-client privilege’s elements and are 2 absolutely protected from disclosure. 3 First, the communications were made during the course of 4 County Counsel’s request for the client’s input on how a claim 5 should be handled. 6 This qualifies as “legal advice of any kind.” Next, the County Counsel was acting as the County’s legal 7 advisor and the communications were made in County Counsel’s 8 capacity as such; the Sheriff is part of the County. 9 Ms. Wiggs was not herself an attorney, she was acting in her 10 capacity as a County Counsel employee. 11 And although Kovel, 296 F.2d 918, 921 (2d Cir. 1961). 12 See United States v. Next, the communications were made in confidence. Each 13 communication is marked as confidential and there was full expec- 14 tation that the communications would be kept confidential. 15 16 Next, the client, the County, is now insisting that the documents be kept confidential and from being disclosed. 17 Finally, there is no indication that the attorney-client 18 privilege was waived by disclosure to third parties or in any 19 other way. 20 V. 21 22 CONCLUSION Based on the foregoing, the Court GRANTS the County’s motion for reconsideration and finds as follows: 23 (1) The document pages numbered Sheriff 001840-42, Sheriff 24 001851-71, and 001836-39 are protected from disclosure by the 25 attorney work-product doctrine;1/ and 26 1/ 27 28 The Court is careful to note that while the work-product doctrine prevents the production of the reports themselves, the facts and witness identities within the reports are not protected if they are independently responsive to discovery requests and are themselves not independently privileged from disclosure. 12 09cv1952 1 (2) The document pages bearing Bates numbers Sheriff 2 001832-35 and Sheriff 001843-45 are absolutely protected from 3 disclosure by the attorney-client privilege. 4 IT IS SO ORDERED. 5 DATED: November 3, 2010 6 7 Hon. William V. Gallo U.S. Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 09cv1952
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