The Estate of Ruben Nunez et al v. County of et al

Filing 186

ORDER on 176 Joint Motion for Determination of Discovery Dispute Regarding CIRB Report. As provided herein, Defendant Countys assertion of attorney-client privilege to protect from disclosure the CIRB report regarding the death of Ruben Nunez is SUSTAINED. Signed by Magistrate Judge Mitchell D. Dembin on 9/11/17. (Dembin, Mitchell)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 13 THE ESTATE OF RUBEN NUNEZ, by and through its successor-ininterest LYDIA NUNEZ, ALBERT NUNEZ, and LYDIA NUNEZ, 14 Plaintiffs, 12 15 v. 16 COUNTY OF SAN DIEGO, et al., 17 18 19 20 21 22 23 24 25 26 Defendants, Third-Party Plaintiffs, Case No.: 16cv1412-BEN-MDD ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE REGARDING REPORT OF CRITICAL INCIDENT REVIEW BOARD [ECF NO. 176] v. CORRECTIONAL PHYSICIANS MEDICAL GROUP, INC., et al., Third-Party Defendants. Before the Court is the Joint Motion of the parties to determine a discovery dispute filed on September 1, 2017. (ECF NO. 176). The dispute involves Plaintiffs’ Request for Production (Set Two) No. 37 which, among other things, calls for Defendant County of San Diego to produce “critical 1 16cv1412-BEN-MDD 1 incident reports” relating to the death of Ruben Nunez. (ECF No. 176 at 2). 2 Defendant County identified a Critical Incident Review Board (“CIRB”) 3 report regarding the death of Ruben Nunez but has withheld the report from 4 disclosure on the basis of attorney-client privilege. As provided below, 5 Defendant County’s objection to disclosure is SUSTAINED. 6 LEGAL STANDARD 7 The Ninth Circuit consistently has described the attorney-client 8 privilege as protecting communications: (a) where legal advice of any kind is 9 sought; (b) from a professional legal advisor in his capacity as such; (c) 10 relating to that purpose; (d) made in confidence; (e) by the client; (f) that are 11 at the client’s insistence permanently protected; (g) from disclosure by 12 himself or the legal advisor; (h) unless the protection be waived. United 13 States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009); United States v. Martin, 14 278 F.3d 988, 999 (9th Cir. 2002). The party asserting the privilege has the 15 burden of establishing all of its elements and, even if established, the 16 privilege is strictly construed. Id. at 999-1000. 17 DISCUSSION 18 In support of its assertion of attorney-client privilege to protect against 19 disclosure of the CIRB report regarding the death of Ruben Nunez, 20 Defendant County submitted the Declaration of Robert P. Faigin. (ECF No. 21 176-6). Mr. Faigin is the Chief Legal Advisor for the San Diego County 22 Sheriff’s Department. (Id. at ¶ 1). Mr. Faigin asserts that the purpose of the 23 CIRB is to consult with department legal counsel when an incident occurs 24 which may give rise to litigation. (Id. at ¶ 5, also see Exh. A to Faigin 25 Declaration, San Diego County Sheriff’s Department Procedure § 4.23 (Id. at 26 176-6 at 4)). According to Mr. Faigin, the report is kept confidential and is 2 16cv1412-BEN-MDD 1 2 maintained in his office. (Id. at ¶ 6). Plaintiff challenges the assertion of privilege because Procedure § 4.23 3 allows for the CIRB to refer matters to the Internal Affairs section of the 4 Sheriff’s Office. (See ECF No. 176-6 at 7-8). In that regard, Plaintiff suggests 5 that the CIRB report is akin to an internal investigative report found not to 6 be protected in Anderson v. Marsh, 312 F.R.D. 584, 591-92 (E.D. Cal. 2015). 7 The Court disagrees. The investigative report at issue in Anderson was 8 created by a non-attorney and was not created for the purpose of obtaining 9 legal advice. Only after the report was created, was it disseminated to 10 11 general counsel for review. Id. Such is not the case here. Mr. Faigin attended the meeting 12 memorialized in the report and both the procedural manual and Mr. Faigin 13 assert that the purpose of the meeting was to obtain legal advice in advance 14 of potential litigation. The Court is satisfied that attorney-client privilege 15 properly is asserted to protect the CIRB report. 16 CONCLUSION 17 Defendant County’s assertion of attorney-client privilege to protect from 18 disclosure the CIRB report regarding the death of Ruben Nunez is 19 SUSTAINED. 20 SO ORDERED. 21 Dated: September 11, 2017 22 23 24 25 26 3 16cv1412-BEN-MDD

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