A.C. v. City of Santa Clara et al

Filing 88

DISCOVERY ORDER by Judge Haywood S. Gilliam, Jr. Re 66 Discovery Letter Brief. (ndr, COURT STAFF) (Filed on 6/24/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

A.C.,

Case No. 13-cv-03276-HSG
Plaintiff,

8
9
10

Re: Dkt. No. 66
CITY OF SANTA CLARA, et al.,
Defendants.

United States District Court
Northern District of California

11
12

DISCOVERY ORDER

v.

On March 17, 2015, the parties filed a joint discovery letter regarding a dispute over the

13

discoverability of a memorandum authored by Officer Nathan Crescini (“Crescini”) in connection

14

with an earlier case. Dkt. No. 66. Defendant City of Santa Clara (“City”) has declined to produce

15

the requested memorandum, contending that it is protected by the attorney–client privilege and the

16

work–product doctrine. Id. 3-4. On March 20, 2015, the Court ordered Defendants to submit the

17

memorandum in question, and transcripts of two depositions of Crescini, for in camera review.

18

Dkt. No. 67. On March 24, 2015, Defendant submitted the requested materials, along with

19

another memo authored by Crescini about the same incident that already has been produced in this

20

case. On April 20, 2015, after reviewing the materials in camera, the Court ordered the parties to

21

submit supplemental materials relevant to the privilege analysis. Dkt. No. 70. The parties

22

submitted these supplemental materials on April 24, 2015.

23

Having reviewed the joint discovery letter submitted by the parties, the supplemental

24

briefing, and the materials submitted for in camera review, the Court finds that the memorandum

25

is shielded from production by the attorney–client privilege and is appropriately withheld on that

26

ground.

27

Background

28

The materials submitted in camera establish that after receiving an administrative claim

1

from James Weaver in March of 2013, Assistant City Attorney Julia Hill forwarded the claim to

2

City’s claims handling agent Rodger Hayton pursuant to City’s procedure for investigating claims

3

anticipated to result in litigation. Under that procedure, the involved City department provides a

4

response to an “Internal Claim Memorandum” (“ICM”) requesting information pertinent to City’s

5

evaluation of the anticipated litigation. Pursuant to this procedure, Mr. Hayton sent an ICM to the

6

Santa Clara Police Department (“Department”) under the heading “Privileged and Confidential in

7

Anticipation of Litigation.” The ICM, sent to the attention of Department’s chief, asked

8

Department to provide certain information pertinent to the claim, and directed Department to send

9

the response directly to the City Attorney’s Office with a copy to the claims handling company.

10

Ms. Hill was directly involved in the investigation of the Weaver claim, and had telephone

United States District Court
Northern District of California

11

and email communications with Department staff regarding the investigation. A Department

12

officer then provided a response to the ICM to Ms. Hill under the heading “Internal Claim

13

Memorandum Response -- Privileged and Confidential In Anticipation of Litigation.” The

14

Crescini memorandum was included in the ICM response.

15

Discussion

16

The attorney-client privilege protects confidential communications between attorneys and

17

clients made for the purpose of giving legal advice. Upjohn Co. v. United States, 449 U.S. 383,

18

389 (1981). In the institutional context, the attorney-client privilege extends to communications

19

made by employees to counsel “at the direction of . . . superiors in order to secure legal advice

20

from counsel.” Upjohn, 449 U.S. at 394; United States v. Jicarilla Apache Nation, 131 S. Ct.

21

2313, 2321 (2011) (“Unless applicable law provides otherwise, the Government may invoke the

22

attorney-client privilege in civil litigation to protect confidential communications between

23

Government officials and Government attorneys.”) (internal quotation marks and citations

24

omitted); Restatement (Third) of Law Governing Lawyers § 74 (2000), Comment b, p. 574

25

(“[G]overnmental agencies and employees enjoy the same privilege as nongovernmental

26

counterparts”). This includes communications made by a lower or midlevel employee at the

27

direction of a supervisor, where the supervisor is acting at the direction of counsel and collecting

28

information necessary to the provision of legal advice. Upjohn, 449 U.S. at 391.
2

1

Here, the record establishes that the Crescini memorandum was prepared and provided to

2

Assistant City Attorney Hill for the purpose of enabling her to evaluate anticipated litigation and

3

advise City accordingly. As a result, the Court finds that the memorandum is protected from

4

disclosure under the attorney-client privilege.

5

Plaintiff also argues that City waived any privilege attaching to the memorandum because

6

Crescini “relied upon the document to prepare for and during his deposition.” See Dkt. No. 66 at

7

3. Under Federal Rule of Evidence 612, when a witness uses a document to refresh his memory

8

while testifying, the adverse party is entitled to inspect the document, introduce relevant portions

9

into evidence, and cross examine the witness about the document. Fed. R. Evid. 612. Where a
party only uses the document to refresh his memory before testifying, however, the Court has

11
United States District Court
Northern District of California

10

discretion to order its production “if justice so requires.” Id. Having reviewed Crescini’s

12

deposition transcripts from both the Weaver matter and this case, the Court finds no evidence that

13

Crescini used the document while testifying, and further finds that justice does not require

14

disclosure of this privileged document under these circumstances under Rule 612.

15

For these reasons, Plaintiff’s motion to compel is DENIED. 1

16
17
18

IT IS SO ORDERED.
Dated: June 24, 2015
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

19
20
21
22
23
24
25
26
27
1

28

Because the attorney-client privilege issue is dispositive, the Court does not reach the attorney
work product issue.
3