Adamson v. Pierce County

• Court: District Court, W.D. Washington
• Decided: May 6, 2024
• Docket: 3:21-cv-05592
• Status: Unknown

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CHRIS ADAMSON, et al., Case No. 3:21-cv-05592-TMC 8 Plaintiffs, ORDER ON DEFENDANT’S MOTION 9 FOR PROTECTIVE ORDER v. 10 PIERCE COUNTY, et al., 11 Defendants. 12 13

14 I. INTRODUCTION 15 Before the Court is Defendants’ Motion for Protective Order, Dkt. 145, which asks the 16 Court to prohibit use in this litigation of certain calendar entries and notes by former Pierce 17 County Chief Criminal Deputy Prosecuting Attorney James Schacht. As the motion 18 acknowledges, see id. at 2, and as discussed by the parties on the record at a hearing on May 2, 19 2024, the Defendants produced Schacht’s calendar entries under an agreed protective order 20 (commonly known as a clawback agreement) that facilitated the production of the documents to 21 Plaintiffs without regard for privilege but allowed Defendants to continue to assert work-product 22 or attorney-client privileges that would prevent the disclosure or use of the documents in this 23 litigation. As explained further below, the Court GRANTS Defendants’ motion in part and 24 DENIES it in part. 1 II. BACKGROUND At a hearing on May 2, 2024, the Court granted Plaintiffs’ motion to review all of the 2 calendar entries in camera to determine whether Defendants’ work-product objections to some of 3 the documents had been impliedly waived because (1) Defendants had already voluntarily 4 waived the privilege with the respect to some calendar entries, and that waiver should extend to 5 all of them; and (2) the attorney mental impressions are directly at issue in the current litigation 6 and the need for the material is compelling. Dkt. 203, 204; see Holmgren v. State Farm Mut. 7 Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992). 8 Specifically, Plaintiffs argue that (1) Schacht’s calendar entries relate directly to the 9 timing and substance of his investigation into alleged misconduct by the Pierce County Sheriff’s 10 Department Special Investigation Unit (of which Plaintiffs were members and the shutdown of 11 which led to this litigation), and (2) Defendants have placed Schacht’s mental impressions on 12 that topic directly at issue by relying on portions of his mental impressions in their summary 13 judgment motion. See Dkt. 135 (Schacht Declaration in support of Defendants’ summary 14 judgment motion). Defendants explained their position at the hearing that they have voluntarily 15 waived the privilege with respect to calendar entries arising from two criminal prosecutions that 16 they agree are directly at issue in this litigation, but they were asserting the privilege over 17 calendar entries that discussed other criminal prosecutions or charging decisions. 18 Plaintiffs’ counsel provided the Court with hard copies of the calendar entries compiled 19 as Exhibit 1 to the deposition of Mr. Schacht that occurred on February 5, 2024. At the Court’s 20 request, counsel for Defendants provided the Court with a list of the bates numbers within that 21 exhibit for which Defendants continued to assert the work-product privilege. For the sake of a 22 clear record, the Court reproduces that list here. 23 24 1 Exhibit 1 to Schacht Deposition on February 5, 2024 2 Bates Ranges to Which • 3107226 – 7227 Defendants Maintain 3 Privilege Objections • 3107234 – 7235 4 • 3107260 5 • 3107278 (additional objections based on privacy of 6 third-party employee) 7 • 3107291 8 • 3107293 9 • 3107298 10 • 3107311 – 7316 11 • 3107317 12 • 3107321 – 7223

13 • 3107324 (partial objection to specific portions) 14 • 3107338 – 7339 15 • 3107344 –7345 16 • 3107347 – 7350 17 • 3107356 18 • 3107358 – 7359 19 • 3107362 20 • 3107366 – 7380 21

22 III. DISCUSSION 23 Having reviewed the documents in camera, the Court makes the following rulings: 24 1 1. The calendar entries at bates range 3107234–3107235 and 3107366 do not 2 contain mental impressions that are directly at issue in this litigation. Defendant’s 3 motion for a protective order is GRANTED with respect to these documents.

4 2. The calendar entry at bates number 3107278 contains notes of a performance plan 5 discussion with another attorney in the Pierce County Prosecuting Attorney’s 6 Office arising from that attorney’s interaction with one of the Plaintiffs regarding 7 a criminal prosecution that Defendants agree is at issue in this litigation. The 8 Court finds (1) that Defendants’ work-product privilege is waived because the 9 contents of the document relate to mental impressions of Schacht that Defendants 10 have relied on in the litigation; and (2) Defendants’ employee privacy concerns 11 may be addressed through redacting the names of the third-party employees. 12 Defendant’s motion for a protective order is therefore GRANTED IN PART and

13 DENIED IN PART for this document. Defendants shall produce to Plaintiffs a 14 redacted version of this document no later than Friday, May 10, 2024. 15 3. Defendants object to use of the calendar entry at bates number 3107324 only to 16 the extent it mentions officers from other agencies and the name of a third-party 17 inmate. The Court GRANTS Defendants’ motion with respect to this document. 18 Defendants shall produce to Plaintiffs a redacted version of this document no later 19 than Friday, May 10, 2024. 20 4. The remaining calendar entries to which Defendants object all include at least 21 short mention of the SIU investigation that is at issue in this litigation and relate 22 to Schacht’s mental impressions regarding that investigation. Because Defendants

23 have relied on portions of Schacht’s mental impressions in their summary 24 judgment motion, Plaintiffs have a compelling need to be able to use these 1 materials in challenging Defendants’ arguments. The Court therefore finds that 2 the work-product privilege over discussion of the SIU investigation in these 3 documents is waived. Defendants’ concerns regarding the identities of third-party

4 criminal suspects, law enforcement officers, and unrelated investigations may be 5 addressed through redaction. Defendants’ motion for a protective order is 6 therefore GRANTED IN PART and DENIED IN PART with respect to the 7 remaining documents. Defendants shall produce to Plaintiffs redacted versions of 8 these documents no later than Friday, May 10, 2024. 9 The Court reminds the parties that these rulings are concerned solely with Defendants’ 10 work-product objections that would prevent the Plaintiffs from using these documents in any 11 way in this litigation. The Court has not made any determination as to whether these documents 12 will be admissible at trial.

13 IV. CONCLUSION Defendants’ motion for a protective order (Dkt. 145) is GRANTED IN PART and 14 DENIED IN PART as set forth above. 15 Dated this 6th day of May, 2024. 16 17 A 18 Tiffany M. Cartwright 19 United States District Judge

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