Sommer v. United States of America et al

Filing 124

ORDER: The Objection to Order Denying Defendant Dumanis' Motion to Compel Production of Documents (Doc. 106 ) is granted in part and denied in part. Defendant may file an additional motion to compel no later than twenty-five days from the date of this Order. All discovery matters are referred to Magistrate Judge Bernard G. Skomal pursuant to Local Civil Rule 72.1(b). Signed by Judge William Q. Hayes on 1/5/2012. (mdc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

CYNTHIA SOMMER,

CASE NO. 09cv2093 WQH (WMc)

12

Plaintiff,
vs.
UNITED STATES OF AMERICA, ROB
TERWILLIGER, RICK RENDON,
MARK RIDLEY, S.D. ADAMS, JOSE
CENTENO, COUNTY OF SAN DIEGO
MEDICAL EXAMINER’S OFFICE,
GLENN N. WAGNER, COUNTY OF
SAN DIEGO DISTRICT ATTORNEY’s
OFFICE, BONNIE DUMANIS, LAURA
GUNN, and DOES 1 through 100,
inclusive,

ORDER

13
14
15
16
17
18

Defendants.

19
20

HAYES, Judge:

21

The matter before the Court is the Objection to Order Denying Defendant Dumanis’

22

Motion to Compel Production of Documents filed by Defendant Bonnie Dumanis. (ECF No.

23

106).

24

I.

Background

25

On September 24, 2009, Plaintiff Cynthia Sommer initiated this action by filing the

26

Complaint. (ECF No. 1). Plaintiff alleges that Plaintiff’s husband, Todd Sommer, a 23-year-old

27

Sergeant in the United States Marine Corps, died of a cardiac arrhythmia in February of 2002.

28

Plaintiff alleges that the results of an autopsy showed that Todd Sommer died of natural causes.
-1-

09cv2093 WQH (WMc)

1

Plaintiff alleges that “Defendants refused to accept those results and embarked upon an

2

investigation intended to find criminal conduct” by Plaintiff. Id. at ¶ 21. Plaintiff alleges that

3

Defendants had tissue samples tested and “purportedly found extremely high levels of arsenic

4

in two of six tissue samples,” which shows “the samples were negligently or intentionally

5

contaminated” because “arsenic is ubiquitous.” Id. at ¶ 24. Plaintiff alleges that all of the tissue

6

samples, as well as Todd Sommer’s blood and urine, “should have shown high levels of arsenic”

7

if the test results were accurate. Id.

8

Plaintiff alleges “[d]uring their investigation prior to Mrs. Sommer’s arrest, Defendants

9

consulted with several qualified independent forensic toxicologists . . . . [who] refused to concur

10

in the results of the testing performed by [the prior laboratory because] the results were

11

demonstrably false.” Id. at ¶ 29. Plaintiff alleges one such expert, Dr. Poklis, “a highly

12

respected forensic pathologist and ... leading expert in arsenic poisoning,” told Defendants there

13

was “no evidence that Todd Sommer died of arsenic poisoning” and that the test results were

14

“false.”1/ Id. at ¶ 30. Plaintiff alleges Defendants Dumanis and Gunn “knew or should have

15

known during the investigation ... that there was no evidence” that Plaintiff killed Todd Sommer.

16

Id. at ¶ 32.

17

Plaintiff alleges that she was wrongfully tried and convicted for murdering her husband.

18

Plaintiff alleges that her conviction was overturned and she was granted a new trial on November

19

30, 2007. Id. at 52.

20

additional tissue samples, and Defendant Gunn twice told Plaintiff’s attorney that the samples

21

“no longer existed.” Id. at ¶ 53. Plaintiff alleges that “without notifying Mrs. Sommer or her

22

attorney” that the samples had been located, Defendants had these additional samples “tested at

23

a highly respected private testing facility in Canada.” Id. at ¶ 54. Plaintiff alleges that “[n]one

24

of the tissue samples showed the presence of any arsenic whatsoever .... prov[ing] ... Mrs.

25

Sommer had been convicted of a crime that had never occurred.” Id. Plaintiff alleges that

26

Defendants Dumanis and Assistant District Attorney Laura Gunn refused to dismiss the criminal

Plaintiff alleges her criminal defense attorney sought access to the

27
28

1/

Dr. Poklis testified as an expert on behalf of Plaintiff Sommer during the criminal trial.
See ECF Nos. 91 at 2; 104 at 5).
-2-

09cv2093 WQH (WMc)

1

charges against her with prejudice and continued to investigate her even after she had been

2

released. Id. at ¶ 58.

3

Plaintiff asserts a claim for violation of her Fourth, Fifth, and Fourteenth Amendments

4

rights pursuant to 42 U.S.C. § 1983, against the “State Defendants” including Dumanis and

5

Gunn. Id. at ¶¶ 3, 63. Plaintiff alleges that the State Defendants “knew or had reason to know

6

that the results of the testing conducted by [the laboratory] were corrupt, false, fabricated, and

7

completely lacking in credibility.” Id. at ¶ 64. Plaintiff alleges the State Defendants “knew or

8

should have known that the deliberate fabrication of false evidence . . . would result in

9

[Plaintiff’s] wrongful arrest, incarceration, and subsequent conviction . . . .” Id. at ¶ 65.

10

On June 10, 2011, Defendant Dumanis filed a Motion to Compel Further Discovery.

11

(ECF No. 82). On October 3, 2011, the Honorable Magistrate Judge Bernard G. Skomal issued

12

an Order Denying Defendant Dumanis’s Motion to Compel Production of Documents. (ECF

13

No. 104). On October 17, 2011, Defendant Dumanis filed the Objection to Order Denying

14

Defendant Dumanis’ Motion to Compel Production of Documents. (ECF No. 106).

15

II.

Discussion

16

Defendant Dumanis objects the Magistrate Judge’s denial of the motion to compel

17

production of documents responsive to the request for production numbers 12, 13, 19, 20, 21,

18

25, 26, 27, 34, 35, 36, 38, 39, 40, 41, 44, 45, and 46 which was served on Plaintiff on September

19

22, 2010.

20

“Where a magistrate is designated to hear a discovery motion, ‘[a] judge of the court may

21

reconsider any pretrial matter ... where it has been shown that the magistrate’s order is clearly

22

erroneous or contrary to law.’” Rockwell Int’l, Inc. v. Pos-A-Traction Indus., Inc., 712 F.2d

23

1324, 1325 (9th Cir. 1983) (quoting 28 U.S.C. § 636(b)(1)(A)); see also Fed. R. Civ. P. 72(a)

24

(“[t]he district judge in the case must consider timely objections [to nondispositive matters] and

25

modify or set aside any part of the order that is clearly erroneous or is contrary to law.”).

26

“Matters concerning discovery generally are considered ‘nondispositive’ of the litigation.” See

27

Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). “Review under the

28

clearly erroneous standard is significantly deferential, requiring a definite and firm conviction
-3-

09cv2093 WQH (WMc)

1

that a mistake has been committed.” Concrete Pipe & Prod. v. Constr. Laborers Pension Trust,

2

508 U.S. 602, 623 (1993) (quotation omitted); see also Hernandez v. Tanninen, 604 F.3d 1095,

3

1100 (9th Cir. 2010) (same). “[T]he magistrate judge’s decision ... is entitled to great deference

4

by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001).

5

A.

Requests for Production Numbers 25, 26, 27, 40, and 46

6

Defendant Dumanis contends that Plaintiff has implicitly waived attorney-client privilege

7

regarding communications and implicitly waived work product immunity regarding documents

8

responsive to requests for production numbers 25, 26, 27, 40, and 46. Defendant Dumanis

9

contends that Plaintiff waived any privilege regarding “communications between plaintiff’s

10

criminal defense counsel and Dr. Poklis” on the grounds that the complaint alleges that Dr.

11

Poklis told Dumanis that the arsenic evidence was false. (ECF No. 106-1 at 19). Defendant

12

Dumanis contends that Plaintiff waived any work product immunity regarding defense counsel’s

13

case notes on the grounds that the complaint alleges that prosecutor Gunn told Plaintiff’s defense

14

counsel twice that tissue samples no longer existed.

15

Requests for production number 25, 26, and 46 encompass communications between

16

Plaintiff’s criminal defense counsel and Dr. Poklis. Request for production number 25 seeks:

17

“All documents that mention or relate to Robert Udell [one of Plaintiff’s trial defense

18

attorneys].” (ECF No. 106-2 at 49). Request for production number 26 seeks: “All documents

19

that mention or relate to Allen Bloom [one of Plaintiff’s trial defense attorneys].” Id. Request

20

for production number 46 seeks: “‘Plaintiff’s Criminal Attorney notes re: potential experts’

21

identified on Plaintiff Cynthia Sommer’s FRCP Rule 26(b)(5) Privilege Log dated April 20,

22

2010.” Id. at 51.

23

Requests for production numbers 27 and 40 encompass Plaintiff’s attorney’s notes

24

regarding the availability of tissue samples. Request for production number 27 seeks: “All

25

documents that relate or refer to testing or re-testing of tissues of other items from Todd

26

Sommer’s autopsy.” Id. at 49. Request for production number 40 seeks: “‘Plaintiff’s Criminal

27

Attorney notes re: additional testing’ identified on Plaintiff Cynthia Sommer’s FRCP Rule

28

26(b)(5) Privilege Log dated April 20, 2010.” Id. at 50.
-4-

09cv2093 WQH (WMc)

1

The Magistrate Judge correctly found that the issue in this case is whether Defendants

2

continued their investigation despite the fact that they knew or should have known that the

3

plaintiff was innocent. See Devereaux v. Abbey, 263 F.3d 1070, 1075-76 (9th Cir. 2001).

4

The Magistrate Judge correctly found that the documents requested qualify as protected

5

work product. The work product doctrine is not an assertion of a privilege, but an assertion of

6

a qualified immunity. See Admiral Ins. v. United States Dist. Ct., 881 F.2d 1486, 1494 (9th Cir.

7

1989). The work product doctrine protects from discovery material obtained and prepared by

8

an attorney or the attorney’s agent in anticipation of litigation or preparation for trial. See

9

Fed.R.Civ.P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 509-12 (1947). The primary purpose

10

of the work product rule is to “prevent exploitation of a party’s efforts in preparing for

11

litigation.” Admiral Ins., 881 F.2d at 1494.

12

The doctrine of implied waiver exists to prevent a party from using the attorney-client

13

privilege or work product immunity as both a shield and a sword. See e.g., Chevron Corp. v.

14

Penzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). To determine whether implied waiver applies,

15

the Court of Appeals for the Ninth Circuit follows a three-part test:

16
17
18

First, the court considers whether the party is asserting the “privilege as
the result of some affirmative act, such as filing suit.” Second, the court
examines whether “through this affirmative act, the asserting party puts
the privileged information at issue.” Finally, the court evaluates whether
“allowing the privilege would deny the opposing party access to
information vital to its defense.”

19

United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999) (quoting Home Indem. Co. v. Lane
20

Powell Moss & Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (citations omitted)). “When the
21

sought-after evidence is ‘only one of several forms of indirect evidence about an issue,’ the
22

privilege has not been waived.” Id. (quoting Hamilton v. Lumsden (In re Geothermal Resources
23

Int’l, Inc.), 93 F.3d 648, 653 (9th Cir. 1996) (per curiam) (internal citations omitted)).
24

The Magistrate Judge correctly concluded that Plaintiff’s Devereaux claim “is not
25

predicated on what she or her attorney knew during the criminal proceedings. Rather, her claim
26

is based on what Defendants knew at that time.” (ECF No. 104 at 10).
27

However, Plaintiff has made affirmative allegations in the Complaint implicitly waiving
28

privilege or immunity as follows: (1) Plaintiff alleges that Dr. Poklis, “a highly respected
-5-

09cv2093 WQH (WMc)

1

forensic pathologist and ... leading expert in arsenic poisoning,” told Defendants there was “no

2

evidence that Todd Sommer died of arsenic poisoning” and that the test results were “false;” (2)

3

Plaintiff alleges that her criminal defense attorney sought access to the additional tissue samples,

4

and Defendant Gunn twice told Plaintiff’s attorney that the samples “no longer existed,” and

5

“without notifying Mrs. Sommer or her attorney” that the samples had been located, Defendants

6

had these additional samples tested. (ECF No. 1 at ¶¶ 30, 53-54). Plaintiff’s allegations are

7

relevant to whether Defendants continued their investigation despite the fact that they knew or

8

should have known that Plaintiff was innocent. See Devereaux v. Abbey, 263 F.3d 1070,

9

1075-76 (9th Cir. 2001). The Court finds that allowing the privilege or immunity to apply would

10

deny Defendant access to information vital to its defense. Unless Plaintiff withdraws the

11

allegations, Plaintiff may not rely on privilege or immunity to prevent discovery. See Chevron

12

Corp. v. Pennzoil Co., 974 F.2d 1156, 1162-63 (9th Cir. 1992).

13

The Court concludes that, to the extent the discovery order disallowed discovery of

14

documents addressing the specific allegation that Dr. Poklis, “a highly respected forensic

15

pathologist and ... leading expert in arsenic poisoning,” told Defendants there was “no evidence

16

that Todd Sommer died of arsenic poisoning” and that the test results were “false,” the order is

17

not supported by law. (ECF No. 1 at ¶ 30). Defendant Dumanis is entitled to discovery of

18

communications between Plaintiff’s criminal defense counsel and Dr. Poklis regarding whether

19

Dr. Poklis told Defendants that there was “no evidence that Todd Sommer died of arsenic

20

poisoning” and that the test results were “false.” Id. Defendant Dumanis’s Motion to Compel

21

Production of Documents responsive to requests for production numbers 25, 26, and 46 is

22

GRANTED with respect to communications between Plaintiff’s criminal defense counsel and

23

Dr. Poklis regarding whether Dr. Poklis told Defendants that there was “no evidence that Todd

24

Sommer died of arsenic poisoning” and that the test results were “false.” Id.

25

The Court concludes that, to the extent the discovery order disallowed discovery of

26

documents addressing the specific allegation that Plaintiff’s criminal defense attorney sought

27

access to additional tissue samples and Defendant Gunn twice told Plaintiff’s attorney that the

28

samples “no longer existed,” and “without notifying Mrs. Sommer or her attorney” that the
-6-

09cv2093 WQH (WMc)

1

samples had been located, Defendants had these additional samples tested; the order is not

2

supported by law. (ECF No. 1 at ¶¶ 53-54). Defendant Dumanis is entitled to discovery of

3

Plaintiff’s attorney’s notes regarding whether Defendant Gunn told Plaintiff’s attorney that tissue

4

samples “no longer existed” and whether Plaintiff’s attorney was notified that additional tissue

5

samples had been located. Id. Defendant Dumanis’s Motion to Compel Production of

6

Documents responsive to requests for production numbers 27 and 40 is GRANTED with respect

7

to whether Defendant Gunn told Plaintiff’s attorney that tissue samples “no longer existed” and

8

whether Plaintiff’s attorney was notified that additional tissue samples had been located. Id.

9

Plaintiff shall produce any additional documents responsive to requests for production

10

numbers 25, 26, 27, 40, and 46 by no later than ten days from the date of this Order. See (ECF

11

No. 1 at ¶¶ 30, 53-54). Defendant may file an additional motion to compel no later than twenty-

12

five days from the date of this Order.

13

B.

Requests for Production Numbers 12, 13, 34, 35, 36, 38, 39, 41, 44, and 45

14

Defendant Dumanis also contends that Plaintiff has implicitly waived attorney-client

15

privilege regarding communications and implicitly waived work product immunity for all

16

communications and documents in the criminal case file by asserting the current suit.

17

Requests for production numbers 12, 13, 34, 35, 36, 38, 39, 41, 44, and 45 seek the entire

18

case file from the underlying murder trial. Request for production number 12 seeks: “All

19

documents that relate or refer to arsenic poisoning.” (ECF No. 106-2 at 27). Request for

20

production number 13 seeks: “All documents that relate or refer to arsenic speciation.” Id.

21

Request for production number 34 seeks: “The ‘Research re: arsenic poisoning' identified on

22

Plaintiff Cynthia Sommer’s ... Privilege Log ....” Id. at 50. Request for production number 35

23

seeks: “The ‘Research re: discovery issues’ identified on Plaintiff Cynthia Sommer’s ... Privilege

24

Log ....” Id. Request for production number 36 seeks: “‘Plaintiff’s Criminal Attorney notes re:

25

research on discovery issues’ identified on Plaintiff Cynthia Sommer’s ... Privilege Log ....” Id.

26

Request for production number 38 seeks: “‘Plaintiff’s Criminal Attorney correspondence with

27

defense investigator re: defense investigation’ identified on Plaintiff Cynthia Sommer’s ...

28

Privilege Log ....” Id. Request for production number 39 seeks: “‘Plaintiff’s Criminal Attorney
-7-

09cv2093 WQH (WMc)

1

notes re: character evidence’ identified on Plaintiff Cynthia Sommer’s ... Privilege Log ....” Id.

2

Request for production number 41 seeks: “The ‘Correspondence between co-counsel regarding

3

case strategy’ identified on Plaintiff Cynthia Sommer’s ... Privilege Log ....” Id. Request for

4

production number 44 seeks: “‘Plaintiff’s Criminal Attorney correspondence with defense

5

investigator re: purchase of arsenic’ identified on Plaintiff Cynthia Sommer’s ... Privilege Log

6

....” Id. at 51. Request for production number 45 seeks: “The ‘Case research re: fatal arsenic

7

poisoning’ identified on Plaintiff Cynthia Sommer’s ... Privilege Log ....” Id.

8

The Magistrate Judge correctly found that “[t]he documents Dumanis’s [requests for

9

production] seek constitute Plaintiff’s criminal defense attorneys’ files from the underlying

10

murder trial.” (ECF No. 104 at 9). The Magistrate Judge correctly concluded that Plaintiff’s

11

Devereaux claim “is not predicated on what she or her attorney knew during the criminal

12

proceedings. Rather, her claim is based on what Defendants knew at that time.” (ECF No. 104

13

at 10). The requests for production numbers 12, 13, 34, 35, 36, 38, 39, 41, 44, and 45 do not

14

relate to any specific allegations in the Complaint which could implicitly waive the attorney-

15

client privilege or work product immunity. The Court finds that the discovery order is supported

16

by law with regards to requests for production numbers 12, 13, 34, 35, 36, 38, 39, 41, 44, and

17

45.

18

C.

Requests for Production Numbers 19, 20, and 21

19

Defendant Dumanis objects to the finding that Plaintiff adequately responded to

20

requests for production numbers 19, 20, and 21 which sought identification of Plaintiff’s

21

documents supporting her claim of fabrication of false evidence. Defendant contends that

22

Plaintiff’s response includes the entire trial transcript. Defendant contends that the voluminous

23

response was “frivolously non-responsive.” (ECF No. 106-1 at 20).

24

The Magistrate Judge found that Plaintiff responded to the request by identifying

25

documents including portions of the criminal trial transcript and certain exhibits. The Magistrate

26

Judge found that Plaintiff had represented that she “identified all documents in her possession

27

responsive to this request.” Id. at 11. The Court finds that the Magistrate Judge correctly held

28

that “Dumanis has not provided the Court with any facts or argument indicating that Plaintiff’s
-8-

09cv2093 WQH (WMc)

1

response is not truthful.” (ECF No. 104 at 11). The Court does finds that the discovery order

2

is supported by law with regards to requests for production numbers 19, 20, and 21.

3

III.

Conclusion

4

IT IS HEREBY ORDERED that the Objection to Order Denying Defendant Dumanis’

5

Motion to Compel Production of Documents (ECF No. 106) is GRANTED in part and DENIED

6

in part. Defendant Dumanis is entitled to discovery of communications between Plaintiff’s

7

criminal defense counsel and Dr. Poklis regarding whether Dr. Poklis told Defendants that there

8

was “no evidence that Todd Sommer died of arsenic poisoning” and that the test results were

9

“false.” (ECF No. 1 at ¶ 30). Defendant Dumanis’s Motion to Compel Production of

10

Documents responsive to requests for production numbers 25, 26, and 46 is GRANTED with

11

respect to communications between Plaintiff’s criminal defense counsel and Dr. Poklis regarding

12

whether Dr. Poklis told Defendants that there was “no evidence that Todd Sommer died of

13

arsenic poisoning” and that the test results were “false.” Id. Defendant Dumanis is entitled to

14

discovery of Plaintiff’s attorney’s notes regarding whether Defendant Gunn told Plaintiff’s

15

attorney that tissue samples “no longer existed” and whether Plaintiff’s attorney was notified that

16

additional tissue samples had been located. (ECF No. 1 at ¶¶ 53-54). Defendant Dumanis’s

17

Motion to Compel Production of Documents responsive to requests for production numbers 27

18

and 40 is GRANTED with respect to whether Defendant Gunn told Plaintiff’s attorney that

19

tissue samples “no longer existed” and whether Plaintiff’s attorney was notified that additional

20

tissue samples had been located. Id. Plaintiff shall produce any additional documents

21

responsive to requests for production numbers 25, 26, 27, 40, and 46 by no later than ten days

22

from the date of this Order. Defendant may file an additional motion to compel no later than

23

twenty-five days from the date of this Order. All discovery matters are referred to the Honorable

24

Magistrate Judge Bernard G. Skomal pursuant to Local Civil Rule 72.1(b)

25

DATED: January 5, 2012

26
27

WILLIAM Q. HAYES
United States District Judge

28
-9-

09cv2093 WQH (WMc)