Estate of Amilcar Perez Lopez et al v. Suhr et al

Filing 101

Order by Magistrate Judge Jacqueline Scott Corley denying 99 Discovery Letter Brief.(jsclc1S, COURT STAFF) (Filed on 8/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESTATE OF AMILCAR PEREZ LOPEZ,
ET AL.,

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Plaintiffs,

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v.

ORDER DENYING PARTIES’ MOTION
TO COMPEL
Re: Dkt. No. 99

GREG SUHR, et al.,

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United States District Court
Northern District of California

Case No.15-cv-01846-HSG (JSC)

Defendants.

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Plaintiff and Defendants seek certain documents from non party San Francisco District

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Attorney’s Office. After considering the parties’ written submission, the Court concludes that oral

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argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b) and DENIES the parties’ motion to

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compel documents from the District Attorney except for the 3D Forensics animation.

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1.

The District Attorney has met its burden of establishing that his memoranda

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summarizing witness interviews are protected work product. See Hickman v. Taylor, 329 U.S.

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495, 511 (1947). The District Attorney’s evidence shows that the interviews were done in

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anticipation of potential criminal charges. (Dkt. No. 99-1 ¶ 3.) The Court finds that they “would

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not have been generated but for the pendency or imminence of litigation.” Kelly v. City of San

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Jose, 114 F.R.D. 653, 659 (C.D. Cal. 1995). The parties’ reliance on Anderson v. Marsh, 312

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F.R.D. 584 (E.D. Cal. 2015) is misplaced. In Anderson, the court distinguished between two types

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of investigations of officer-involved shootings: “a criminal investigation and a departmental

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investigation.” Id. at 590. The court held that the documents created as part of the departmental

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investigation by non-attorneys were not entitled to attorney-client or work product protection. Id.

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at 951-53. Here, in contrast, the sought-after documents were generated by the District Attorney

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as part of a criminal investigation, that is, in anticipation of criminal litigation. Miller v. Pancucci,

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141 F.RD. 292 (C.D. Cal. 1992) is likewise distinguishable as it involved discoverability of a

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police department’s internal affairs section which conducts “complete, objective investigations

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and for making fair, impartial evaluations of complaints against police department personnel.” Id.

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at 303. The court found that such investigations are conducted regardless of whether litigation is

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anticipated. Id. Not so here. The District Attorney’s evidence establishes that the interviews

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were conducted in anticipation of potential criminal charges.

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Although not argued by the parties, fact work product is discoverable upon a showing of

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substantial need and that the party cannot discover the information on his own without undue

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hardship. No such showing has been made here.

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2.

The District Attorney shall produce the 3D Forensics animation of the incident to

United States District Court
Northern District of California

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the parties. While it may be publicly available on YouTube, the District Attorney’s production

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will eliminate any issues as to authenticity.

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3.

The District Attorney has met his burden of showing that the use of force expert

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report prepared at the direction of the District Attorney in anticipation of litigation is attorney

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work product. See S.E.C. v. Reyes, No. C06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. Mar.

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30, 2007) (“When experts serve as litigation consultants, the work-product privilege generally

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applies to materials reviewed or generated by them in that capacity.”) The parties argue, however,

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that the District Attorney waived that privilege by heavily quoting from the expert’s report in the

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District Attorney’s “Summary of Investigation and Legal Analysis of the Fatal Shooting of

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Amilcar Perez-Lopez” and then making that Summary publicly available. The Court agrees.

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Although not provided by the parties, the Court located the Summary online.

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http://sfdistrictattorney.org/sites/default/files/Document/FOLSOM%20STREET%20SUMMARY

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%20AND%20ANALYSIS_0.pdf (visited August 16, 2017). The disclosure of the expert’s

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conclusion online for everyone to view constitutes a waiver of work product protection. See Great

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Am. Assur. Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1092 (N.D. Cal. 2009).

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The deliberative process privilege does not apply. The District Attorney has not submitted

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an affidavit that satisfies the required showing. See United States v. Ellis, No. 13-cr-001818-

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PJH(DMR), 2017 WL 1164172 (N.D. Cal. March 29, 2017). It cannot make that showing since
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the report’s conclusion, and thus the expert’s impressions and mental processes, has been publicly

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disclosed.

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This Order disposes of Docket No. 99.
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IT IS SO ORDERED.
Dated: August 16, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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