Economus v. City and County of San Francisco et al

Filing 155

ORDER re 59 MOTION to Compel: Defendants shall produce the Whitted Report to Plaintiff by no later than April 1, 2019. Signed by Magistrate Judge Donna M. Ryu on 3/28/2019. (dmrlc3, COURT STAFF) (Filed on 3/28/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY ECONOMUS,
Plaintiff,

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Case No. 18-cv-01071-HSG (DMR)
ORDER TO PRODUCE DOCUMENT

v.

Re: Dkt. No. 59
CITY AND COUNTY OF SAN
FRANCISCO, et al.,

United States District Court
Northern District of California

Defendants.
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The court held a hearing on January 24, 2019 on a number of discovery disputes, and issued

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rulings on the majority of them. Two issues were taken under submission, including the production

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of a report prepared by a San Francisco Park Ranger. For the reasons stated below, Plaintiff’s

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motion to compel production of the report is granted.

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On July 11, 2017, Economus took part in an annual downhill skateboarding event on a hill

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in San Francisco. Mot. at 1-2. Dozens of skateboarders participated, and police officers from the

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San Francisco Police Department (“SFPD”), including Defendant Flint Paul, were present. Id. at 2.

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Paul directed another officer to park his patrol car to partially block the road at the bottom of the

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downhill course. Id. This still left a gap large enough for skateboarders to pass between the car and

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the sidewalk. Id. Paul was standing near the gap when Economus skateboarded down the hill. Id.

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Economus attempted to skateboard through the gap between the patrol car and the sidewalk and

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collided with Paul, causing Economus to fall off his skateboard and sustain injuries. Id. at 3.

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Economus alleges that Paul deliberately shoulder-checked him and then walked away without

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providing assistance. Id. at 3-4.

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San Francisco Park Ranger Jayel Whitted observed the incident and prepared an incident

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report (“Whitted Report”). The incident report was written on a form that was pre-marked as

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“Confidential to City Attorney.” Economus moves to compel the production of the Whitted Report.

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Defendants oppose on the basis that it is protected by attorney-client privilege. Economus contends

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that the report is not privileged, or in the alternative, that attorney-client privilege was waived when

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the report was released to the Department of Police Accountability and used in its investigation into

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Paul’s conduct.
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Legal Standard

The attorney-client privilege has eight essential elements: “1) where legal advice of any

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kind is sought; 2) from a legal adviser in his capacity as such; 3) the communications relating to that

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purpose; 4) made in confidence; 5) by the client; 6) are at his instance permanently protected; 7)

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from disclosure by himself or by the legal adviser; 8) unless the protection be waived.” In re Grand

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United States District Court
Northern District of California

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Jury Investigation, 974 F.2d 1068, 1071 fn. 2 (9th Cir. 1992). “The party asserting the privilege

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bears the burden of proving each essential element.” United States v. Ruehle, 583 F.3d 600, 608

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(9th Cir. 2009)
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Analysis

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Defendants state that the claims department of the San Francisco Recreation and Park

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Department (“SFRPD”) “collects incident reports from Park Rangers in order to evaluate potential

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claims against the City.” Opp. at 18. They argue that since the purpose of the incident reports is to

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communicate confidential information between an attorney and a client, the attorney-client privilege

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attaches to the report.

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Environment, Health and Safety Division Manager of the SFRPD. Bramblatt Decl. Bramblatt

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testifies that it is an SFRPD practice for employees to prepare reports documenting incidents

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involving personal injuries that may become claims or litigation involving CCSF. Id. ¶ 3. SFRPD

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treats the reports as confidential communications and marks them as “Confidential to City

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Attorney.” Id.

Id.

Defendants submitted a declaration from Jeffrey Bramblatt, the

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Defendants have not met their burden to show that the attorney-client privilege attaches to

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the Whitted Report. Bramblatt’s declaration establishes that reports such as the one prepared by

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Whitted are prepared as a matter of routine following incidents involving personal injuries.

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Bramblatt Decl. ¶ 3. There is no evidence that Whitted wrote the report in order to seek legal advice
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from the City Attorney. Upon in camera review, the court has determined that the report only

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conveys factual information regarding the incident, and is not a communication seeking legal advice.

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See United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1069 (N.D. Cal. 2002) (“At the

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outset, we note that the privilege protects communications, not underlying evidence.”)

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Nor is it sufficient that SFRPD treats the reports as confidential. Molex v. City & Cty. of San

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Francisco, No. 11-cv-1282-YGR (KAW), 2012 WL 1831640, at *3 (N.D. Cal. May 18, 2012)

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(“[Confidential] [t]reatment of an unprivileged document does not by itself create privilege.”); see

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also Marceau v. I.B.E.W., 246 F.R.D. 610, 613 (D. Ariz. 2007) (“The fact that attorneys were

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retained to prepare the Report and that the Report is marked as an attorney-client privileged

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document are not dispositive of the issue. Rather what controls is the purpose of the activity.”).
Accordingly, Defendants have not met their burden to establish that the Whitted Report is

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protected by attorney-client privilege. The court therefore does not reach the question of whether

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the privilege was waived. Defendants must produce the report to Economus by no later than April

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1, 2019.

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FO

______________________________________
M. Ryu
DonnaoM. a
ge D nn Ryu
Jud
United States Magistrate Judge
ER
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F
D IS T IC T O
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Dated: March 28, 2019

DERED

O OR
IT IS S

LI

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IT IS SO ORDERED.

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UNIT
ED

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S DISTRICT
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NO

United States District Court
Northern District of California

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