Swartwood et al v. County of San Diego et al, No. 3:2012cv01665 - Document 41 (S.D. Cal. 2013)
Court Description: ORDER Granting in part and Denying in part 30 Plaintiff's Motion to Compel. Signed by Magistrate Judge Bernard G. Skomal on 12/18/2013. (srm)
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Swartwood et al v. County of San Diego et al Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 STEVEN SWARTWOOD; JOANNA SWARTWOOD; R.S., a minor; D.S., a minor, Plaintiffs, v. 14 15 16 17 COUNTY OF SAN DIEGO; SAN DIEGO HEALTH AND HUMAN SERVICES AGENCY; POLINSKY CHILDREN’S CENTER; MAYA BRYSON, Defendants. Civil No. 12CV1665-W (BGS) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL [Doc. No. 30] 18 19 Before the Court is Plaintiffs’ motion to compel documents over which 20 Defendants have asserted the deliberative process, official information and attorney- 21 client privileges. 22 accompanying submissions, the Court grants Plaintiffs’ motion in part and denies it in 23 part. (Doc. No. 30.) Having considered the parties’ briefs and 24 I. Background 25 This is an action filed under 42 U.S.C. § 1983 for civil rights violations and 26 the matter includes a cause of action pursuant to Monell v. Dep’t of Soc. Servs. of New 27 York, 436 U.S. 658 (1978). (Compl., Doc. No. 1.) In addition, Plaintiffs have pendent 28 state claims for assault, battery, false imprisonment, intentional infliction of emotional 1 12cv1665-W Dockets.Justia.com 1 distress, as well as violations of state civil rights laws. (Id.) Specifically, Plaintiffs 2 Steven and Joanna Swartwood, along with their two minor children through their 3 guardian ad litem, allege Defendants violated their constitutional rights by wrongfully 4 removing and detaining the two children from May 17, 2011 to May 19, 2012. (Id.) 5 Plaintiffs also allege Defendants conducted an illegal and intrusive physical 6 examination of the children without the parents’ presence or consent. (Id.) 7 Plaintiffs move to compel disclosure of: (1) approximately 11 lines of text 8 redacted from documents prepared as a result of the Office of the Ombudsman’s 9 investigation into Plaintiffs’ complaints against the social worker who removed the 10 children, and (2) a line of redacted text from an email stream.1 (Pls.’ Mot. To Compel; 11 Doc. No. 30.) II. Discussion 12 13 A. Discovery Legal Standard 14 Federal Rule of Civil Procedure 26 governs the scope of discovery, and 15 provides “[p]arties may obtain discovery regarding any nonprivileged matter that is 16 relevant to any party’s claim or defense . . . . Relevant information need not be 17 admissible at the trial if the discovery appears reasonably calculated to lead to the 18 discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Federal privilege law 19 applies in this federal question case. NLRB v. North Bay Plumbing, Inc., 102 F.3d 20 1005, 1009 (9th Cir.1996) (citing Fed. R. Evid. 501.) 21 /// 22 1 23 24 25 26 27 28 Plaintiffs’ motion also addresses Defendants’ delay in producing the privilege log and argues delay as a basis for the Court to decide Defendants waived their right to assert privileges. (Pls.’ Mem. of P.& A. at 9; Doc. No. 30.) Although Plaintiffs make cogent arguments regarding Defendants’ delay in producing a privilege log, the Court finds it more appropriate to directly address the merits of the privilege claims rather than first engage in the “holistic reasonableness analysis” required to decide whether Defendants waived privilege. Burlington Northern & Santa Fe Ry Co. v. U.S. District Court for Dist. of Montana, 408 F.3d 1142, 1149 (2005). Ultimately the privilege log was produced and contained sufficient information to allow Plaintiffs and the Court to analyze the claimed privileges. Thus, ordering disclosure based on waiver in these circumstances would amount to the “mechanistic determination” the Ninth Circuit cautioned against in Burlington. Id. 2 12cv1665-W 1 B. Analysis of Claimed Privileges 2 1. Deliberative Process Privilege 3 Defendants asserted the Deliberative Process Privilege as a basis to withhold 4 11 tines of text reflecting the findings and conclusions of an investigation by the 5 Health and Human Services Agency’s special unit, the Office of the Ombudsman 6 (“Ombuds”). The Ombuds is comprised of a group of four employees that work under 7 the umbrella of the Health and Human Services Agency (“Agency”). The Ombuds 8 independently investigate complaints made against social workers and report the 9 results of those investigations to the Agency’s department of Child Welfare Services. 10 (Zanders-Willis Decl. at ¶¶ 1,3; Doc. No. 33-2.) Here, the Ombuds conducted an 11 investigation into the actions of the social worker who removed Plaintiffs’ minor 12 children from the home and it is the investigators’ conclusions and recommendations 13 regarding the social worker’s actions in this matter at issue in this privilege dispute. 14 (Id. at ¶ 12.) 15 Federal law recognizes the deliberative process privilege, which shields 16 confidential inter-agency memoranda on matters of law or policy from public 17 disclosure. Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th 18 Cir.1988). Under the privilege, a government may withhold documents that “reflect 19 advisory opinions, recommendations and deliberations comprising part of a process by 20 which government decisions and policies are formulated.” FTC v. Warner Commc’ns 21 Inc., 742 F.2d 1156, 1161 (9th Cir.1984). The purpose of the privilege is “to promote 22 frank and independent discussion among those responsible for making governmental 23 decisions and also to protect against premature disclosure of proposed . . . policies or 24 decisions.” Id. (citations omitted). 25 In order to be protected by the deliberative-process privilege, “a document 26 must be both (1) predecisional or antecedent to the adoption of agency policy and 27 (2) deliberative, meaning it must actually be related to the process by which policies 28 are formulated.” United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir.2000). 3 12cv1665-W 1 Notably, even when the deliberative process privilege applies, the privilege is a 2 qualified one and if a litigant’s need for the materials and need for accurate fact- 3 finding outweigh the government’s interest in confidentiality, the materials will be 4 disclosed. FTC, 742 F.2d at 1161. a. Predecisional 5 6 A “predecisional” document is one “prepared in order to assist an agency 7 decisionmaker in arriving at his decision,” and may include “recommendations, draft 8 documents, proposals, suggestions, and other subjective documents which reflect the 9 personal opinions of the writer rather than the policy of the agency.” Maricopa 10 Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1093 (9th Cir.1997). Moreover, 11 “the agency must identify a specific decision to which the document is predecisional.” 12 Id. at 1094. 13 The declarations submitted by Defendants indicate the redacted lines of text 14 contained in the Office of Ombudsman Brief Case Review: Swartwood Family, 15 constitute a predecisional document because the Ombuds investigator’s findings and 16 recommendations precede any ultimate action such as revision of policies or 17 procedures. (Zanders Decl.; Doc. No. 33-2, Hoene Decl.; Doc. No. 33-3.) The 18 decision to revise policies and procedures would not be made by Ombuds investiga- 19 tors, those decisions are ultimately made by Agency management. (Id.) Thus, this 20 order finds that the Office of Ombudsman, Brief Case Review document is 21 predecisional because the investigator’s findings are recommendations reflecting the 22 investigator’s opinions rather than a policy decision of the Agency. 23 b. Deliberative 24 The next issue is whether the findings and recommendations of the Ombuds 25 investigation are deliberative. A predecisional document is part of the deliberative 26 process if “the disclosure of [the] materials would expose an agency’s decision-making 27 process in such a way as to discourage candid discussion within the agency and 28 thereby undermine the agency’s ability to perform its functions.” Carter v. U.S. Dep’t 4 12cv1665-W 1 of Commerce, 307 F.3d 1084, 1089 (9th Cir.2002). “[P]redecisional materials are 2 privileged to the extent they reveal the mental processes of decision-makers.” Id. at 3 1090. Moreover, “the document is considered to be part of the deliberative process as 4 long as it is . . . actually related to the process by which policies are formulated” Nat’l 5 Wildlife, 861 F.2d at 1118. 6 Defendant argues the results of this Ombuds investigation “is precisely the 7 type of information protected by the deliberative process privilege.” (Defs.’ Mem. of 8 P. & A. ISO Opp’n at 5; Doc. No. 33.) According to Defendants, the investigation 9 findings are deliberative because the investigator seeks out evidence and makes 10 determinations based on facts. (Id.) The findings and recommendations relate to the 11 process by which policies are formulated because based on the investigation, the 12 Agency often will implement additional training or change existing policies and 13 practices. (Zanders-Willis Decl. at ¶ 4; Doc. No. 33-2.) 14 Plaintiffs appear to concede the deliberative nature of the information 15 contained in the redacted text. (Pls.’ Mem. of P. & A. at 6; Doc. No. 33 (stating 16 “Defendant’s deliberative privilege claim cannot be applicable to the information on 17 page 25 of the Ombudsman report because the deliberative process of the County is 18 itself in dispute.”).) By arguing that their need for disclosure of the redacted text stems 19 from the fact the deliberative process is precisely at issue in this case, Plaintiffs cannot 20 also argue the documents sought are not deliberative in nature. 21 Because the findings and recommendations of the Ombuds investigation 22 appear both predecisional and deliberative, they may fit within the protective realm 23 of the deliberative-process privilege. Defendant, however, cites to no controlling 24 authority applying the deliberative process privilege in the context of a civil rights case 25 to documents like the one sought through Plaintiffs’ request. Other courts in the Ninth 26 Circuit have rejected a defendant’s use of the deliberative process privilege in relation 27 to internal affairs investigations, as these communications are not designed to 28 contribute to the formulation of important public policy and are routinely generated. 5 12cv1665-W 1 See Soto v. City of Concord, 162 F.R.D. 603, 612–13 (N.D. Cal. 1995) (“The 2 ‘deliberative process’ privilege, closely related to the self-critical analysis privilege, 3 is also inappropriate for use in civil rights cases against police departments.”); Pittman 4 v. County of San Diego, 2010 WL 3733867, at *3 (S.D. Cal. Sept.17, 2010). Although 5 this is not a civil rights case against a police department, those cases are instructive 6 because this is a civil rights case against a government agency and the documents at 7 issue here result from an internal investigation akin to internal affairs investigations 8 arising out of complaints made against police department personnel. 9 Because existing case law does not precisely address whether the deliberative 10 process privilege applies to the documents at issue in this litigation, in an abundance 11 of caution and in order to afford Defendants the benefit of the doubt that the privilege 12 applies in the circumstances, the Court will conduct the balancing analysis to 13 determine whether Plaintiffs’ need for disclosure outweighs Defendants’ interest in 14 confidentiality. 15 c. Balancing of Factors to Decide Whether Disclosure Appropriate 16 “A litigant may obtain deliberative materials if his or her need for the 17 materials and the need for accurate fact-finding override the government’s interest in 18 non-disclosure.” FTC, 742 F.2d at 1161. In balancing the need for disclosure against 19 the need for confidentiality, the Ninth Circuit has considered the following factors: 20 “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the 21 government’s role in the litigation; and (4) the extent to which disclosure would hinder 22 frank and independent discussion regarding contemplated policies and decisions.” Id. 23 Other factors courts may consider include: “(5) the interest of the litigant, and 24 ultimately society, in accurate judicial fact finding, (6) the seriousness of the litigation 25 and the issues involved, (7) the presence of issues concerning alleged governmental 26 misconduct, and (8) the federal interest in the enforcement of federal law.” North 27 Pacifica, LLC v. City of Pacifica, 274 F. Supp.2d 1118, 1122 (N.D. Cal. 2003). The 28 /// 6 12cv1665-W 1 deliberative-process privilege should be “strictly confined within the narrowest 2 possible limits consistent with the logic of its principles.” Id. i. Relevance. 3 4 The gravamen of Plaintiffs’ complaint is Defendants violated Plaintiffs’ 5 constitutional rights by removing the children from the home and detaining them 6 unnecessarily. Further, Plaintiffs state a Monell claim against the County of San Diego 7 on the basis that the County failed to change its policies and counsel or discipline 8 social workers following citizen complaints. (Pls.’ Mem. P. & A. at 7.) The lines of 9 text in dispute are centrally relevant to Plaintiffs’ claims because they contain the 10 Ombuds investigators’ conclusions and recommendations regarding the social workers’ 11 actions after conducting an independent investigation into Swartwood matter. 12 (Zanders- Willis Decl. at ¶ 12.) Further, these conclusions and recommendations are 13 considered by the Ombud’s Child Welfare Services Director, who makes decisions as 14 to whether or not applicable policies and procedures need improvements. (Decl. 15 Hoene; Doc. No. 33-3.) The findings and recommendations provide important 16 information concerning the adequacy of the social workers’ actions in the Swartwood 17 matter and the sufficiency of the Agency’s policies and procedures—issues at the heart 18 of this litigation. Defendants concede the information sought is relevant to Plaintiffs’ 19 Monell claim. 20 Accordingly, the Court concludes the redacted text is relevant to the case. 21 ii. Availability of Comparable Evidence From Other Sources. 22 The lines of text in question are the findings and recommendations of an 23 internal independent investigation by the Office of Ombudsman. One of Ombuds’ 24 significant roles is to investigate complaints made against social workers and make 25 findings and recommendations stemming from the investigation. (Zanders Decl. ¶¶ 3- 26 5.) Defendants concede this information is not available from other sources. (Defs.’ 27 Mem. of P. & A. ISO Opp’n at 7.) This factor weighs heavily in favor of disclosure. 28 See North Pacifica, 274 F. Supp. 2d at 1124 (noting that this factor is “perhaps the 7 12cv1665-W 1 most important factor in determining whether the deliberative-process privilege should 2 be overcome”). iii. Government’s Role in the Litigation. 3 4 Obviously, as a defendant, the government plays a prominent role in this 5 litigation. In Newport Pacific, Inc. v. County of San Diego, 200 F.R.D. 628, 640 (S.D. 6 Cal. 2001), the court held the “nature of the allegations and the role of the government 7 in the litigation itself . . . tip [ped] the scales in favor of disclosure.” Thus, the 8 government’s role in this litigation similarly militates toward disclosure. iv. Chilling of Agency Discussion. 9 10 Defendants rely on a declaration by Debra Zanders-Willis, Deputy Director 11 of Child Welfare Services, for the proposition that the entire process of Ombuds 12 investigations “would be tainted because the investigator, instead of being independent 13 and simply following the evidence wherever it leads, would likely be affected by 14 knowing that the person complaining about the social worker will likely be informed 15 of the results of the investigation . . . .” (Zanders-Willis Decl. ¶ 9.) Zanders-Willis 16 contends independent investigations may cease completely if the results of investiga- 17 tions could be provided to plaintiffs in subsequent civil lawsuits. (Id.) Despite the 18 entrance of a protective order in this matter, Zanders-Willis argues the protection of 19 the order does not alleviate the concerns of disclosure because Defendants are more 20 concerned with the detriment of disclosing the results to plaintiffs as opposed to 21 outside parties. (Id.) 22 In Sanchez v. Johnson, 2001 WL 1870308 *1 (N.D. Cal. 2001), the court 23 faced similar contentions regarding the chilling effect disclosure of documents would 24 have on behind-the-scenes discussions. There the court held disclosure of the 25 documents “intrude[d] minimally, and without prejudice, into agency deliberations.” 26 Sanchez, 2001 WL 1870308 at *4 n. 7. And in Price v. County of San Diego, 165 27 F.R.D. 614, 620 (S.D. Cal. 1996), the court similarly found the documents at issue 28 should be produced and noted “the infringement upon the frank and independent 8 12cv1665-W 1 discussions regarding contemplated policies and decisions by the County . . . can be 2 alleviated through the use of a strict protective order.” 3 This Court finds both decisions persuasive. In short, Defendants’ concerns 4 regarding the frankness of Agency discussion does not weigh strongly against 5 disclosure and can be mitigated through the use of the protective order. 7 v. Interest in Judicial Fact-finding and Seriousness of Litigation Issues. The desirability of accurate fact-finding weighs in favor of disclosure. 8 Moreover, the issue in this litigation is whether the County and its agencies complied 9 with federal law when removing and detaining the minor children. In addition, 10 Plaintiffs assert Monell claims geared toward determining whether Defendants failed 11 to change policies, advise, or discipline social workers following formal complaints 12 and investigations into social workers’ decisions to remove and detain children. (Pls.’ 13 Mem. of P. &A. at 7.) Defendants would be hard-pressed to argue a serious issue is 14 not at stake in this litigation. The seriousness of the issue involved magnifies the 15 interest of the court and society in accurate fact-finding. See L.H. v. Schwarzenegger, 16 2007 WL 2009807 *1, 8 (E.D. Cal July 6, 2007) (finding when issues involved are 17 alleged violations of federally-protected civil rights, disclosure is favored). These 18 factors support disclosure of the redacted text. 6 20 vi. Issues of Alleged Government Misconduct And Federal Interest In Enforcement of Federal Law. The misconduct alleged include Defendants’ failure to change Agency 21 policies and counsel or discipline social workers when complaints are made, as well 22 as failure to properly investigate before removing minors from the home—a matter of 23 constitutional significance. (Pls.’ Mem. of P. & A. at 7-8.) As such, federal interest 24 in the enforcement of constitutional law is clearly at play here. These factors also 25 support disclosure. 19 26 27 28 vii. Conclusion of Factor Analysis Applying the multi-factor balancing test, the Court finds Plaintiffs’ need for disclosure overrides Defendants’ interest in confidentiality. In sum, the Ombuds investigation of the Swartwood matter is clearly relevant because it concerns the 9 12cv1665-W 1 specific incident listed in Plaintiffs’ complaint; the information was generated by the 2 Ombuds, a special unit of the Health and Human Services Agency; the information is 3 not otherwise available to Plaintiffs; this type of investigative document is routinely 4 generated by Defendant San Diego Health and Human Services Agency; and the claims 5 concern federal civil rights law. Thus, the Court overrules Defendants’ use of the 6 deliberative process privilege as a basis to refuse to produce the redacted lines of text. 7 2. Official Information Privilege 8 Defendants also asserted the Official Information Privilege as a basis to 9 withhold the 11 tines of text reflecting the conclusions and recommendations of the 10 Ombuds investigation into the social worker’s actions in the Swartwood matter. 11 The official information privilege is also a “qualified privilege” under federal 12 common law that “must be formally asserted and delineated in order to be raised 13 properly.” Kerr v. U.S. District Court for the Northern District of California, 511 F.2d 14 192, 198 (9th Cir. 1975). In determining what level of protection should be afforded 15 by this privilege, courts conduct a case by case balancing analysis, in which the 16 interests of the party seeking discovery are weighed against the interests of the 17 governmental entity asserting the privilege. Kelly v. City of San Jose, 114 F.R.D. at 18 660; Miller v. Pancucci, 141 F.R.D. at 300; Hampton v. City of San Diego, 147 F.R.D. 19 at 230–31. 20 Before the Court, however, engages in the balancing of interests, the party 21 asserting the privilege (Defendant San Diego Health and Human Services Agency) 22 must properly invoke the privilege by making a “substantial threshold showing.” Kelly, 23 114 F.R.D. at 669. In order to fulfill the threshold requirement, the party asserting the 24 privilege must submit a declaration from a responsible official with personal 25 knowledge of the matters to be attested to in the declaration. Id. The declaration must 26 include: “(1) an affirmation that the agency generated or collected the material in issue 27 and has maintained its confidentiality; (2) a statement that the official has personally 28 reviewed the material in question; (3) a specific identification of the governmental or 10 12cv1665-W 1 privacy interests that would be threatened by disclosure of the material to plaintiff 2 and/or his lawyer; (4) a description of how disclosure subject to a carefully crafted 3 protective order would create a substantial risk of harm to significant governmental or 4 privacy interests, and (5) a projection of how much harm would be done to the 5 threatened interests if disclosure were made.” Id. at 670. 6 Defendant submitted a declaration by Debra Zanders-Willis, Deputy Director 7 of Child Welfare Services. (Zanders-Willis Decl., Doc. No. 33-2.) The declaration 8 states the Agency and its Office of the Ombudsman generated the material at issue and 9 maintained its confidentiality insofar as it has not been disclosed to anyone other than 10 the Ombuds, Agency management and County Counsel. (Zanders-Willis Decl. at 11 ¶¶ 5, 7.) Zanders-Willis also personally reviewed the materials in question. (Id. at 12 ¶ 12.) (Id.) Her declaration states the interests of the Agency would be threatened by 13 disclosure of the material to Plaintiffs or their lawyer because it will likely taint future 14 investigators’ willingness to independently follow evidence where it leads and the 15 Agency would no longer want to investigate complaints and make recommendations 16 for policy and procedure improvements if the information could be made available to 17 plaintiffs in subsequent civil suits. (Id. at ¶ 9.) According to Zanders-Willis, the 18 protective order would not alleviate the risk of harm to the Agency because the 19 “substantial detriment to the Agency would result from disclosing the investigation 20 results to the parties in this lawsuit, not outside parties.” (Id. at ¶ 10.) Zanders-Willis, 21 however, was not able to project the harms that would be suffered by disclosure of the 22 Ombuds investigation findings. (Id. at ¶ 11.) Rather, she mentioned that as a result of 23 past investigations, policies and procedures have improved over the years, and she 24 fears the Agency will cease to allow investigations in the future if the results and 25 recommendations are subject to disclosure. (Id.) 26 The purpose of the declaration in support of an assertion of the official 27 information privilege “is to provide the court with the information it needs to make a 28 reasoned assessment of the weight of the interests that line up, in the particular 11 12cv1665-W 1 situation before the court, against the requested disclosure.” Kelly, 114 F.R.D. at 670. 2 The general assertions of potential harm in Zanders-Willis’s declaration fail to 3 establish that the potential disadvantages of disclosure outweigh the potential benefits 4 of disclosure. Miller, 141 F.R.D. at 299. 5 For example, in Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 6 1995), the court found that, where the defendants asserted only “the general 7 proposition that internal affairs investigatory documents and statements of police 8 officers and/or witnesses should remain secret in order to encourage ‘frank discus- 9 sions,’ ” that assertion was “insufficient to meet the threshold test for invoking the 10 official information privilege” 162 F.R.D. at 614. “ ‘[A] general claim of harm to the 11 “public interest” is insufficient to overcome the burden placed on the party seeking to 12 shield material from disclosure.’ [Citation omitted.]” Id. (quoting Kelly, 114 F.R.D. at 13 672). 14 Other courts have held a declaration in support of the official information 15 privilege must “provide specific information about how disclosure of the specific 16 documents requested . . . would threaten the specific governmental and privacy 17 interests at stake.” Bernat v. City of California City, 2010 WL 4008361, at *3 (E.D. 18 Cal. 2010) (italics in original). Like in Bernat, the declaration submitted to assert the 19 privilege in this matter fails to provide specific information about how disclosure of 20 the specific lines of text requested would threaten a specific governmental interest at 21 stake. (See generally Zanders-Willis Decl. at Doc. No. 33-2.) In fact, the only harm 22 asserted in the declaration is harm that may result if the Agency may decide to no 23 longer conduct Ombuds investigations out of fear disclosure may subject it to civil 24 liability. (Id. at ¶ ¶ 9, 11.) The mere possibility that disclosure will “increase the 25 likelihood of civil liability depending on the result of the investigation” is not the type 26 of harm the privilege seeks to protect against. (Id. at ¶ 9.) This assertion is more akin 27 to “[a] general claim of harm to the public interest [that] would not be sufficient to 28 overcome the burden placed on the party seeking to shield material from disclosure.” 12 12cv1665-W 1 Kelly, 511 F.2d at 672. Rather, when the results of an internal investigation reveal 2 facts and findings that may increase the likelihood the Agency will be found liable for 3 a civil rights violation, the information is exactly the important information necessary 4 to assist plaintiffs in proving their cases. 5 Defendants’ hypothetical situation conceivably could apply here if disclosure 6 of the results of the investigation in this case would result in the Ombuds no longer 7 conducting independent investigations into future complaints against social workers. 8 This reasoning is flawed and at best is speculative. The declaration does not 9 substantiate that independent investigations will in fact cease if disclosure is ordered 10 in this matter. (Zanders-Willis Decl. at ¶ 9.) Further, the declaration’s claim that future 11 independent investigations will be tainted is based on unsound reasoning. (Id.) 12 Zanders-Willis contends that if the independent investigators learn their investigations 13 will have greater transparency and potentially be subject to public review, rather than 14 conducting their investigations as they do now—by “simply following the evidence 15 wherever it leads”—the investigators will become biased. (Id.) In addition to Zanders- 16 Willis’s failure to offer any facts to support such a fantastical theory, the idea that 17 independent investigators will suddenly fail to see themselves as independent if the 18 results of investigations are subject to disclosure defies logic. Essentially, the 19 declaration states Ombuds independent investigators only remain unbiased because the 20 results of their investigations remain confidential to people outside the Agency. Yet, 21 the declaration offers no evidence to support the contention that independent 22 investigators will become biased if the results of their investigations could be subject 23 to disclosure. 24 Accordingly, Defendants fail to meet their threshold burden to invoke the 25 privilege because the declaration only generally asserts Ombuds investigation results 26 should be kept confidential based on the hypothetical proposition that disclosure could 27 harm future investigations and “cripple the Agency’s ability to self-evaluate and 28 improve its policies.” (Zanders- Willis Decl. at ¶ 9.) The Court finds the declaration 13 12cv1665-W 1 in this case lacks the requisite specificity and fails to allege any more than the general 2 allegation of “harm to candid communications” that was found insufficient in Soto and 3 Miller. Therefore, Defendants’ assertion of the official information privilege is 4 overruled and the lines of redacted text from the Office of Ombudsman, Brief Case 5 Review: Swartwood Family must be produced. 6 3. Attorney-Client Privilege 7 Defendants asserted the attorney-client privilege with respect to one line of 8 text contained in a email stream circulated among Agency employees. (Defs.’ Mem. 9 of P. & A. ISO Opp’n at 8.) 10 The attorney-client privilege protects “communications between client and 11 attorney for the purpose of obtaining legal advice, provided such communications were 12 intended to be confidential.” Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir. 2001). 13 “Because the attorney-client privilege has the effect of withholding relevant 14 information from the fact-finder, it is applied only when necessary to achieve its 15 limited purpose of encouraging full and frank disclosure by the client to his or her 16 attorney.” Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992) 17 (citing Fisher v. United States, 425 U.S. 391, 403 (1976)). As the party asserting the 18 privilege, Defendants bear the burden of establishing that the attorney-client privilege 19 applies. Clarke, 974 F.2d at 129. 20 Defendants have successfully established that the lines of text redacted from 21 the email stream on page 33 of the document production fall within the attorney-client 22 privilege. The text mentions Lisa Macchione, Senior Deputy County Counsel 23 responsible for advising the Health and Human Services Agency and specifically the 24 Child Welfare Services Department. According to Defendants, the redacted text 25 repeats legal advice given by Lisa Macchione to Defendants. The email is written by 26 Theresa Pelenska, Child Welfare Services Manager, and sent to Ann Fox, a manager 27 at Child Welfare Services, as well as to Elyce Hoene, Protective Services Supervisor 28 in the Health and Human Services Agency and Ed Cadena, Assistant Deputy Direct. 14 12cv1665-W 1 All recipients work for Defendants, thus are covered as clients by the attorney-client 2 privilege. 3 Plaintiffs fail to provide any evidence or argument to refute the claim of 4 attorney-client privilege with respect to this text. Accordingly, Plaintiffs’ motion to 5 compel the redacted text from this email stream is DENIED. 6 III. Conclusion 7 For all of the above reasons, Plaintiffs’ Motion to Compel disclosure is 8 GRANTED in part and DENIED in part. Defendants must disclose the redacted text 9 related to the investigation into the Swartwood’s complaints against the social worker, 10 lodged as Exhibit D to Defendants’ Opposition. 11 documents without redaction no later than December 23, 2013. The Court, however, 12 denies Plaintiffs’ request for disclosure of the redacted email stream because the text 13 falls under the protection of the attorney-client privilege. 14 Defendant must produce the IT IS SO ORDERED. 15 16 DATED: December 18, 2013 17 18 19 Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court 20 21 22 23 24 25 26 27 28 15 12cv1665-W
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