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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE ESTATE OF RUBEN NUNEZ,
by and through its successor-ininterest LYDIA NUNEZ, ALBERT
NUNEZ, and LYDIA NUNEZ,

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Plaintiffs,

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v.

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COUNTY OF SAN DIEGO, et al.,

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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

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16cv1412-BEN-MDD

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incident reports” relating to the death of Ruben Nunez. (ECF No. 176 at 2).

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Defendant County identified a Critical Incident Review Board (“CIRB”)

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report regarding the death of Ruben Nunez but has withheld the report from

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disclosure on the basis of attorney-client privilege. As provided below,

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Defendant County’s objection to disclosure is SUSTAINED.

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LEGAL STANDARD

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The Ninth Circuit consistently has described the attorney-client

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privilege as protecting communications: (a) where legal advice of any kind is

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sought; (b) from a professional legal advisor in his capacity as such; (c)

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relating to that purpose; (d) made in confidence; (e) by the client; (f) that are

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at the client’s insistence permanently protected; (g) from disclosure by

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himself or the legal advisor; (h) unless the protection be waived. United

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States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009); United States v. Martin,

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278 F.3d 988, 999 (9th Cir. 2002). The party asserting the privilege has the

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burden of establishing all of its elements and, even if established, the

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privilege is strictly construed. Id. at 999-1000.

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DISCUSSION

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In support of its assertion of attorney-client privilege to protect against

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disclosure of the CIRB report regarding the death of Ruben Nunez,

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Defendant County submitted the Declaration of Robert P. Faigin. (ECF No.

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176-6). Mr. Faigin is the Chief Legal Advisor for the San Diego County

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Sheriff’s Department. (Id. at ¶ 1). Mr. Faigin asserts that the purpose of the

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CIRB is to consult with department legal counsel when an incident occurs

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which may give rise to litigation. (Id. at ¶ 5, also see Exh. A to Faigin

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Declaration, San Diego County Sheriff’s Department Procedure § 4.23 (Id. at

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176-6 at 4)). According to Mr. Faigin, the report is kept confidential and is
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maintained in his office. (Id. at ¶ 6).
Plaintiff challenges the assertion of privilege because Procedure § 4.23

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allows for the CIRB to refer matters to the Internal Affairs section of the

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Sheriff’s Office. (See ECF No. 176-6 at 7-8). In that regard, Plaintiff suggests

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that the CIRB report is akin to an internal investigative report found not to

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be protected in Anderson v. Marsh, 312 F.R.D. 584, 591-92 (E.D. Cal. 2015).

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The Court disagrees. The investigative report at issue in Anderson was

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created by a non-attorney and was not created for the purpose of obtaining

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legal advice. Only after the report was created, was it disseminated to

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general counsel for review. Id.
Such is not the case here. Mr. Faigin attended the meeting

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memorialized in the report and both the procedural manual and Mr. Faigin

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assert that the purpose of the meeting was to obtain legal advice in advance

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of potential litigation. The Court is satisfied that attorney-client privilege

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properly is asserted to protect the CIRB report.

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CONCLUSION

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Defendant County’s assertion of attorney-client privilege to protect from

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disclosure the CIRB report regarding the death of Ruben Nunez is

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SUSTAINED.

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SO ORDERED.

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Dated: September 11, 2017

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