Hipschman v. County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 3:22-cv-0903 AJB (BLM) 11 CAROLINA HIPSCHMAN, an individual;

ALEX HIPSCHMAN, an individual, 12 ORDER DENYING PLAINTIFFS’ Plaintiffs, MOTION TO COMPEL 13 v. [ECF No. 125] 14

COUNTY OF SAN DIEGO, et al., 15 Defendants. 16

18 19 20 Currently before the Court is Plaintiffs’ November 18, 2024 Motion to Compel Defendant 21 County of San Diego to Provide Training Materials (“MTC”). ECF No. 125. On December 2, 22 2024, Defendant County of San Diego (“County”) filed an Opposition (“Oppo.”). ECF No. 128. 23 On December 9, 2024, Plaintiffs filed their Reply (“Reply”). ECF No. 136. After reviewing 24 Plaintiffs’ MTC, the County’s Oppo, Plaintiffs’ Reply and all supporting documents, the Court 25 DENIES Plaintiffs’ Motion for the reasons set forth below. 26 RELEVANT BACKGROUND 27 On June 21, 2022, Plaintiffs initiated this action alleging, , that Defendants County of San Diego, Nidia Romero, Elizabeth Samuels, Jose Padilla, and Mary Shehee (“County 1 Defendants”) violated their civil rights by improperly seizing their minor child from their 2 possession without a warrant or probable cause. ECF No. 1. On December 8, 2022, Plaintiffs 3 filed a first amended complaint (“FAC”). ECF No. 24. On January 3, 2023, the County filed a 4 motion to dismiss Plaintiffs’ FAC for failure to state a claim [ECF No. 32] which District Judge 5 Anthony J. Battaglia granted in part and denied in part. ECF No. 44. On September 15, 2023, 6 the County answered Plaintiffs’ FAC. ECF No. 45. On October 30, 2023, the Court conducted an 7 Early Neutral Evaluation Conference and Case Management Conference, and, on the same day, 8 issued a Scheduling Order regulating discovery and all other pre-trial proceedings. ECF Nos. 49, 9 50. 10 On June 5, 2024, Plaintiffs served a Request for Production of Documents (“RPD”), Set 11 Seven. Daner Decl. at ¶ 1, ECF No. 125-2, Ex. A. On July 9, 2024 the County responded that 12 they needed additional time to produce the responsive documents. Id. The parties met and 13 conferred and agreed that the County had until September 30, 2024 to produce the documents. 14 Id. On September 30, 2024, the County served its responses to Plaintiffs’ RPD which included 15 a privilege log. Id. at ¶ 2, Exs. C, D. On October 2, 2024, counsel for Plaintiffs, Stephen Daner, 16 transmitted a meet and confer letter regarding the County’s allegedly deficient responses to 17 Plaintiffs’ RPD and decision to withhold training documents. Id. at ¶ 2. On October 10, 2024, 18 Mr. Daner and counsel for the County, Jeffrey Miyamoto, met and conferred in person regarding 19 the discovery dispute and withheld training materials. Id. The County served a supplemental 20 response and privilege log but did not produce any additional documents. Id. at ¶ 3. 21 The parties met and conferred in person on November 7, 2024 and the County indicated 22 that no additional responses or documents would be produced. Id. The parties notified the 23 Court of the impasse and a briefing schedule was issued. Id. 24 LEGAL STANDARD 25 The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: 26 Parties may obtain discovery regarding any nonprivileged matter that is relevant 27 to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in 1 controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving issues, and whether the burden 2 or expense of the proposed discovery outweighs the likely benefit. Information 3 within this scope of discovery need not be admissible in evidence to be 4 discoverable. Fed. R. Civ. P. 26(b)(1). 5 Typically, the relevance standard is broad in scope and “encompass[es] any matter that 6 bears on, or that reasonably could lead to other matters that could bear on, any issue that is or 7 may be in a case.” Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at 8 *2 (S.D. Cal. May 9, 2017). Relevance, however, is not without limits. Id. The 2015 amendment 9 to Rule 26(b) removed the phrase “reasonably calculated to lead to the discovery of admissible 10 evidence” because it was often misconstrued to define the scope of discovery. Fed. R. Civ. P. 11 26(b)(1) advisory committee's notes (2015 amendment). Instead, to fall within the scope of 12 discovery, the information must also be “proportional to the needs of the case,” requiring lawyers 13 to “size and shape their discovery requests to the requisites of a case” while “eliminat[ing] 14 unnecessary or wasteful discovery.” Fed. Civ. R. P. 26(b)(1); Cancino Castellar v. McAleenan, 15 2020 WL 1332485, at *4 (S.D. Cal Mar. 23, 2020) (quoting Roberts v. Clark Cty. Sch. Dist., 312 16 F.R.D. 594, 603 (D. Nev. 2016)). 17 District courts have broad discretion to determine relevancy for discovery purposes. D.M. 18 v. County of Merced, 2022 WL 229865, at * 2 (E.D. Cal. Jan. 26, 2022) (citing Hallett v. Morgan, 19 296 F.3d 732, 751 (9th Cir. 2002) and Surfvivor Media v. Survivor Prods., 406 F.3d 625, 635 20 (9th Cir. 2005)). District courts also have broad discretion to limit discovery to prevent its abuse. 21 See Fed. R. Civ. P. 26(b)(2) (instructing that courts must limit discovery where the party seeking 22 the discovery “has had ample opportunity to obtain the information by discovery in the action” 23 or where the proposed discovery is “unreasonably cumulative or duplicative,” “obtain[able] from 24 some other source that is more convenient, less burdensome or less expensive,” or where it “is 25 outside the scope permitted by Rule 26(b)(1)”). Further, “[w]hen analyzing the proportionality 26 of a party's discovery requests, a court should consider the importance of the issues at stake in 27 the action, the amount in controversy, the parties’ relative access to the information, the parties’ 1 resources, the importance of the discovery in resolving the issues, and whether the burden or 2 expense of the proposed discovery outweighs its likely benefit.” Cancino, 2020 WL 1332485, at 3 *4 (citing Fed. R. Civ. P. 26(b)(1)). 4 Fed. Civ. R. P. 34 provides that a party may serve on another a request for production of 5 documents, electronically stored information, or tangible things within the scope of Fed. Civ. R. 6 P. 26(b). Fed. R. Civ. P. 34(a). Where a party fails to produce documents requested under Rule 7 34, the party propounding the request for production of documents may move to compel 8 discovery. See Fed. R. Civ. P. 37(a). “The party seeking to compel discovery has the burden of 9 establishing that its requests satisfy the relevancy requirements of Rule 26(b)(1). Thereafter, 10 the party opposing discovery has the burden of showing that the discovery should be prohibited, 11 and the burden of clarifying, explaining, or supporting its objections.” Williams v. County of San 12 Diego, 2019 WL 2330227, at *3 (citing Bryant v. Ochoa, 2009 WL 1390794, at *1 (S.D. Cal. May 13 14, 2009)) (internal quotations omitted). 14 PLAINTIFFS’ POSITION 15 Plaintiffs’ RPD, Set Seven, Nos. 106 – 112, request the County produce all documents 16 including, “training memoranda, PowerPoint Presentations (in native form), lecture notes, 17 letters, flyers, handouts, movies, and/or training materials (hereinafter “training materials”) 18 regarding documents given, or presentations made, to Defendant Romero regarding her 19 responsibilities as a County social worker from 2001 to present.” MTC at 2-3; Daner Decl. at 20 Ex. A. 21 Plaintiffs argue these training materials are relevant and discoverable as they relate to 22 Plaintiffs’ claims arising under Monell v. Dep’t of Social Services of New York, 426 U.S. 658 23 (1978). Specifically, Plaintiffs contend that their requests “are narrowly tailored to training 24 materials linked to the claims alleged – i.e., unwarranted seizure and deception.” Mot. at 4. 25 Plaintiffs assert that the County’s withholding of relevant documents on the grounds that they 26 are subject to attorney-client privilege and attorney work product privilege lacks substantial 27 justification and they have waived these privileges by “previously disclosing iterations of the 1 THE COUNTY’S POSITION 2 The County contends that they properly objected to Plaintiffs’ RFDs on the grounds of 3 relevance and the documents are subject to both attorney-client and attorney work product 4 privileges. Oppo. at 2. Specifically, Plaintiffs sought training materials provided and/or 5 presented to Defendant Romero from 2001 until the present. Id. However, Defendant Romero’s 6 involvement with the underlying facts in this matter ended on June 28, 2020 and therefore, any 7 trainings she received after this date are irrelevant. Id. at 1, 2. The County also contends that 8 the training materials are subject to the attorney-client privilege and protected attorney-work 9 product as the trainings were “prepared because of litigation” and they “reveal the context of 10 the legal advice and strategies provided to social workers by advisory attorneys.” Id. at 3-8. If 11 the Court finds that the attorney work product privilege does not apply, Defendants contend 12 Plaintiffs have failed to show a substantial need for these documents. Id. at 9. Finally, Plaintiffs’ 13 argument that the County has waived these privileges is without merit as these documents 14 “were not previously produced or disclosed in prior litigation or this pending litigation” and they 15 have not been “presented to third parties, or individuals outside the scope of the attorney-client 16 relationship.” Id. at 10-11. 17 ANALYSIS 18 Plaintiffs argue that this “Court has previously resolved” the issue of whether the trainings 19 given to County social workers were protected from disclosure due to the attorney-client 20 privilege and attorney work product objections. Mot. at 1 (citing Hipschman v. County of San 21 Diego, __ F.Supp.3d __, 2024 WL 3647061 (S.D. Cal. July 31, 2024) (“Hipschman I”). 22 Specifically, Plaintiffs are relying on this Court’s holding in Hipschman I that the training materials 23 provided to social workers are not protected by attorney-client privilege or the attorney work 24 product privilege. Id. However, the facts in Hipschman I are different from those in the instant 25 dispute and for the reasons set forth below the Court finds that the County has met its burden 26 in this action by demonstrating that the training materials currently at issue are protected by 27 these privileges. 1 A. Relevancy 2 Plaintiffs argue that the RPDs seek information relevant to their Monell claim and are 3 narrowly tailored to “training materials linked to the claims alleged – i.e., unwarranted seizure 4 and deception.” MTC at 4. These requests for training materials were directed to those trainings 5 “provided/presented to Defendant Nidia Romero at any point in time from 2001 to present.” 6 Daner Decl., Ex. A. 7 The County objects on the grounds that some of the information sought is not relevant. 8 Specifically, they contend that “Romero’s involvement with Plaintiffs and her conduct at issue in 9 this case ended no later than June 28, 2020, because the case was transferred to another social 10 worker on the morning of June 29, 2020.” Oppo. at 1. In the supplemental privilege log 11 provided by the Defendants, four of the five trainings “were provided/presented to Romero after 12 Plaintiffs’ son was removed from their custody.” Id. 13 Plaintiffs contend that “[p]ost-incident trainings are relevant to plaintiff’s Monell [failure 14 to train] claim.” Mot. at 4 (citing Henry v. Cnty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997), 15 as amended 137 F.3d 1372 (9th Cir. 1998); Corona v. City of Fontana, 2023 WL 9596831 (C.D. 16 Cal. Apr. 27, 2023)). In Henry, the plaintiff was seeking to hold Shasta County liable under 17 Monell based on claims of a pattern and practice of deliberate indifference to detainees in the 18 jail. Henry, 132 F.3d at 517. The Ninth Circuit found evidence of post-incident conduct, 19 specifically declarations from other detainees who had been treated similarly as the plaintiff by 20 multiple law enforcement officials, relevant to the question of whether there was a policy or 21 practice in place to violate a detainee’s constitutional rights. Id. In Corona, the plaintiff was 22 seeking policy records and training materials from the City of Fontana and the Fontana Police 23 Department with regard to his claim that the municipality had a policy or practice of conducting 24 unconstitutional traffic stops. 2023 WL 9596831, at * 1. The district court found that the 25 discovery was relevant because “post-incident policy and training records may indicate whether 26 defendant City took any actions in the wake of the incidence to address the purportedly 27 unconstitutional policy or training.” Id. at * 3. 1 County did not take corrective actions to address allegedly “unconstitutional policy or training” 2 under a Monell theory of liability. Id. Accordingly, and for discovery purposes only, the Court 3 finds that these documents are relevant but for the reasons set forth below, they are subject to 4 attorney-client privilege and the attorney work product privilege. 5 B. Attorney-Client Privilege 6 The County objected to the RPDs, in part, because the requests sought information that 7 it claims was protected from disclosure by the attorney-client privilege. Daner Decl. at C. The 8 attorney-client privilege protects confidential communications between attorneys and clients, 9 which are made for the purpose of giving legal advice. The party asserting the attorney-client 10 privilege has the burden of establishing the relationship and privileged nature of the 11 communication. The attorney-client privilege exists where: (1) legal advice of any kind is sought 12 (2) from a professional legal adviser in his capacity as such, (3) the communications relating to 13 that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently 14 protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be 15 waived. See United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (internal citations and 16 quotation marks omitted). Here, the County bears the ultimate burden of proving the privilege 17 applies. United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009) (citing United States v. 18 Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000)). 19 Plaintiffs’ arguments are identical to the arguments they brought before this Court in 20 Hipschman I and cite to the same cases in support of their argument that these materials are 21 not protected by attorney-client privilege. See Mot. at 1, 5-9 (citing United States v. 22 ChevronTexaco Corp, 241 F.Supp.2d 1065 (N.D. Cal. 2002); A.A. v. County of Riverside, 2016 23 WL 11954845, at *7 (C.D. Cal. Aug. 8, 2016); ACLU of N. Cal. V. FBI, 146 F.Supp.3d 1161 (N.D. 24 Cal. 2015) rev’d on other grounds, 881 F.3d 776 (9th Cir. 2018); ACLU of San Diego & Imperial 25 Counties v. U.S. Dep’t of Homeland Sec. I, 2017 WL 9500949 (C.D. Cal. Nov. 6, 2017); Amadei 26 v. Nielsen, 2019 WL 8165492 (E.D.N.Y Apr. 17, 2019)). 27 However, unlike the matter currently before the Court, in Hipschman I the Court found 1 written or presented by attorneys that defeated the County’s position that these materials were 2 protected by any privilege. Hipschman I, 2024 WL 3647061, at *6 (“The Court finds the 3 declaration of counsel for the County is insufficient to establish the applicability of the attorney- 4 client privilege as it is a conclusory statement without specific details or references to any of the 5 PowerPoint presentations and training materials.”). In Hipschman I, the Court analyzed the 6 above referenced cases and found that the County had not supplied the required detail to 7 support a finding that the materials contained any legal advice and without such a showing, the 8 training materials were more comparable to “general summaries of the applicable law.” Id. at 5. 9 In contrast to Hipschman I, in the instant dispute the County has supplied the Declaration 10 of Caitlin Rae, Assistant County Counsel, which establishes that the training materials currently 11 at issue were prepared and presented by attorneys providing legal advice to social workers to 12 avoid prospective litigation. Decl. of Caitlin Rae in Supp. of Oppo. to Mtn. to Compel, ECF No. 13 183-1 (“Rae Decl.”). 14 In this declaration, Ms. Rae explains that in 2015 the County “created a position of 15 ‘embedded’ attorney within the Office of County Counsel to bolster its support and training of 16 County social workers.” Rae Decl. at ¶ 3. Ms. Rae personally served in the role of “embedded 17 attorney” from November of 2015 to 2019. Id. at ¶ 4. She also served as “Chief Deputy 18 overseeing the entire Juvenile Dependency division of the Office of County Counsel from 2019 19 to 2022.” Id. She explained that the primary purpose of the embedded attorney was to provide 20 legal advice to social workers “with the purpose of minimizing legal exposure, decrease civil suits 21 and reduce civil liability.” Id. The duties of the embedded attorney required them to “develop, 22 prepare and present trainings to County social workers to avoid prospective litigation.” Id. at ¶ 23 5. The trainings were considered to be “confidential attorney-client privileged communications 24 and attorney work product” and were maintained by the Office of County Counsel. Id. They 25 were not shared with parties outside the County Counsel’s office or individuals other than the 26 social workers who attended the trainings. Id. Ms. Rae attests that all of the training materials 27 currently withheld by the County as privileged were “prepared by an embedded County Counsel 1 Id. at ¶ 6. As a result, the County has provided sworn testimony establishing that the documents 2 currently being withheld were prepared by attorneys whose duties included “provid[ing] 3 representation and legal advice to County social workers on juvenile dependency matters” and 4 provided or presented to the social workers in a confidential manner. Id. ¶ 4. 5 In their Reply, Plaintiffs argue that the County’s assertion that these materials are subject 6 to attorney-client privilege should be rejected because the “primary purpose” of the materials is 7 to educate the social workers, and the “ancillary byproduct of proper training is that a 8 competent, law abiding social worker would not be subjected to civil litigation.” Reply at 5. 9 Plaintiffs argue the County’s position is “analogous to an argument raised and rejected in 10 Dunsmore v. San Diego Cnty. Sheriff’s Dep’t, 2024 WL 1744078 (S.D. Cal. Apr. 23, 2024).” Id. 11 The Court finds that the facts in Dunsmore are distinguishable from the facts in this 12 matter. Dunsmore involved a private company that contracted with the County of San Diego to 13 provide healthcare to individuals detained in the County’s jails. Id. at *1. When a detainee 14 died, various documents would be prepared by the company’s administrators, staff physician, 15 and mental health director who are members of the “Morbidity and Mortality Review Committee.” 16 Id. at *2. After the documents were prepared, the Committee would review the circumstances 17 of the death at a committee meeting, which the company’s Chief Legal Officer would attend, 18 along with “members of the in-house legal team.” Id. at *3. In Dunsmore, the County took the 19 position that all of the underlying documents produced at these meetings were subject to 20 attorney-client privilege because the meetings were “primarily for the purpose of helping” in- 21 house counsel “give legal advice to the company and also to receive information that helps [in- 22 house counsel] give that legal advice … during the course of those meetings.” Id. The Court 23 rejected the County’s argument that these documents were subject to the attorney-client 24 privilege holding that the documents, on their face, did not contain legal advice provided by in- 25 house counsel and the primary purpose of the documents was not to “seek or provide legal 26 advice.” Id. at *6. The documents were prepared by employees of the company and the in- 27 house counsel played no role in their preparation or the presentation of the documents. Id. 1 embedded County Counsel” and their purpose was to “avoid prospective litigation.” See Rae 2 Decl. at ¶¶ 5, 6. 3 Plaintiffs also argued that Ms. Rae’s declaration is too conclusory and does not provide 4 sufficient facts to establish the applicability of the attorney-client privilege. Reply at 6. The 5 Court disagrees. The Court has considered Ms. Rae’s declaration and finds that it adequately 6 sets forth facts establishing the elements of the attorney-client privilege. 7 Accordingly, the Court finds that the County has established that the training materials 8 they have withheld are protected by the attorney-client privilege. 9 C. Attorney Work Product 10 Plaintiffs also argue that the attorney work product doctrine does not apply to these 11 training materials because the County has “failed to show that the withheld training materials 12 were prepared for litigation or for an adversarial purpose.” Mot. at 11. The work product 13 doctrine is not a privilege but a qualified immunity that “protects from discovery in litigation 14 ‘mental impressions, conclusions, opinions, or legal theories of a party's attorney’ that were 15 ‘prepared in anticipation of litigation or for trial.’” ACLU of N. Cal. v. U.S. Dep't of Justice, 880 16 F.3d 473, 483 (9th Cir. 2018) (quoting Fed. R. Civ. P. 26(b)(3)). “Shielding from discovery 17 materials prepared ‘with an eye toward the anticipated litigation’ protects the integrity of 18 adversarial proceedings by allowing attorneys to prepare their thoughts and impressions about 19 a case freely and without reservation.” Id. at 484. “To qualify for work-product protection, 20 documents must: (1) be ‘prepared in anticipation of litigation or trial’ and (2) be prepared ‘by or 21 for another party or by or for that other party’s representative.’” Richey, 632 F.3d at 567 (citation 22 omitted). 23 In Hipschman I, the Court found that it would have been possible to find that the training 24 materials did contain attorney work product but the County “did not provide any specific details 25 as to why these documents are subject to the attorney work product privilege.” Hipschman, 26 2024 WL 3647061, *6. Here, unlike Hipschman I, Ms. Rae attests that the materials currently 27 being withheld were prepared by attorneys who created the materials and presented these 1 at ¶ 6. Ms. Rae also notes that Plaintiffs have asked for these materials in their “native form” 2 but if they were to provide these materials in that form, it would “reveal the context of the legal 3 advice and strategies provided to social workers by attorneys.” Id. at ¶ 7. As an example, 4 according to Ms. Rae, the “notes” section of the PowerPoint documents “contain the mental 5 impressions of the embedded attorneys who created the presentations.” Id. In addition, the 6 documents “include interpretation of the law and legal strategies used to defend from current 7 and future civil and dependency litigation.” Id. 8 Plaintiffs argue that the work product privilege does not apply because “Defendants failed 9 to show that the withheld training materials were prepared for litigation or for an adversarial 10 purpose.” Mot. at 11. Plaintiffs also contend that where there is a training session provided by 11 a social worker to other social workers that contains the same title as a presentation prepared 12 and presented by an attorney, “it can be reasonably inferred that this training discussed [a] 13 policy [and] would have been presented in the course of business – regardless of the presenter’s 14 status.” Id. at 9. 15 The County argues in response that the “trainings at issue were prepared because of 16 litigation” and “reveal the context of legal advice and strategies provided to social workers by 17 advisory attorneys.” Oppo. at 12. They rely on Ms. Rae’s sworn declaration which states that 18 there were specific attorneys assigned to prepare and present material in their capacity as 19 attorneys in order to provide legal advice to County social workers in anticipation of litigation. 20 In response, Plaintiffs argue that Ms. Rae’s declaration is insufficient. Reply at 6 (citing 21 Ivy Hotel San Diego, LLC v. Houston Cas. Co., 2011 WL 4914941, at *6 (S.D. Cal. Oct. 17, 2011) 22 (“’[I]n anticipation of litigation’ has temporal and motivational components.”) “In determining 23 whether the document is entitled to work product protection, the Ninth Circuit looks to the 24 totality of circumstances surrounding the creation of the document.” Ivy Hotel, 4914941, at *6 25 (citing In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004)). Plaintiffs claim the 26 County “would have trained and educated its social workers regardless of whether an attorney 27 drafted the training.” Reply at 7. This Court found in Hipschman I that the training materials 1 apparently train social workers in ways that do not necessarily anticipate litigation. But in the 2 instant case, Ms. Rae’s declaration makes clear that the training materials at issue were prepared 3 and presented by attorneys and would not have been created unless there was the prospect of 4 litigation. She declares that the intention by the County when they created the embedded 5 attorney position was to “advise County social workers with the purpose of minimizing legal 6 exposure, decrease civil suits and reduce civil liability based on trends in litigation and emerging 7 case law.” Rae Decl. at ¶ 3. 8 The Court finds that Defendants have sufficiently met their burden to establish that the 9 training materials at issue, including the materials in their “native form,” are protected by the 10 attorney work product privilege. 11 D. Substantial need 12 In the alternative, Plaintiffs argue that this work product is “discoverable if Plaintiff shows 13 a substantial need for the materials, and cannot, without undue hardship, obtain their substantial 14 equivalent by other means.” Mot. at 11 (citing FRCP 26(b)(3)(A)). Plaintiffs contend that these 15 materials are directly relevant to their Monell claims and they are only available through the 16 County. Id. While there is a substantial need exception to the work-product rule, this rule is 17 not applicable in this matter due to the Court’s finding that these materials are subject to the 18 attorney-client privilege. See Admiral Ins. Co. v. U.S. Dist. Court of Arizona, 881 F.2d 1486, 19 1494 (9th Cir. 1989) (Even where a party can establish that their claims “cannot be discovered” 20 from another source, there is no “unavailability exception to the attorney-client privilege.”) 21 E. Waiver 22 Plaintiffs contend the County waived the attorney-client and work product privileges on 23 four grounds: (1) the privilege log was insufficient to show who received the training materials; 24 (2) the objections were untimely; (3) the County previously disclosed iterations of the withheld 25 materials to third parties; and (4) the County waived the privilege by implication. Mot. at 13- 26 14. The County contends that these materials have not been “previously produced or disclosed 27 in prior litigation or this litigation,” nor have they been disclosed to third parties outside the 1 1. Privilege log 2 First, the Court addresses Plaintiffs’ claims that the privilege log submitted by the County 3 “fails to show that the training materials were, and remain, confidential.” Mot. at 12. Plaintiffs 4 argue that the “privilege log must identify ‘all individuals listed as receiving a copy of the 5 document and their relationship to the County’ and ‘any other individuals to whom the document 6 was disseminated and their relationship to the County.’” Id. (citing Greer v. Cnty of San Diego, 7 634 F.Supp.3d 911, 921 (S.D. Cal. 2022)). 8 Federal Rule of Civil Procedure 26(b)(5) requires that a party asserting privilege “describe 9 the nature of the documents, communications, or tangible things not produced or disclosed— 10 and do so in a manner that, without revealing information itself privileged or protected, will 11 enable other parties to assess the claim.” Rule 26(b)(5). The privilege log provided by the 12 County states, in part, for each privilege claim that both the written materials and the 13 presentation was “prepared by County Counsel and presented by County Counsel for the 14 purpose of training County social workers.” See Daner Decl., Ex. D. Plaintiffs rely on Greer for 15 the proposition that the County identify all individuals to whom this information was 16 disseminated but in Greer, unlike the matter before this Court, there was information that the 17 documents at issue had been disseminated to third parties. Greer, 635 F.Supp.3d at 921. Here, 18 Ms. Rae attests that the trainings, and materials provided at the training, were only “shared with 19 County social workers who attend the trainings.” Rae Decl. at ¶ 6. The Court finds that this 20 statement is sufficient and that the County is not required to identify every social worker who 21 received the materials or heard the presentation. Plaintiffs also contend that it is “likely that 22 unknown training materials were/are produced in other lawsuits.” Mot. at 12-13. Plaintiff’s 23 speculation that these training materials were disseminated to parties outside of County Counsel 24 and the County social workers, without any supporting evidence, does not overcome the facts 25 in Ms. Rae’s declaration. Unlike Hipschman I, where Plaintiffs provided documentation that 26 some of the alleged privileged documents were produced in other litigation, there is no such 27 documentation provided in this matter. Accordingly, the Court overrules Plaintiffs’ argument that 1 2. Timeliness 2 Second, Plaintiffs argue that the County’s privilege objections are waived because 3 “Defendants Original Responses and First Supplemental Responses did contain 4 objections.” Mot. at 13. Instead, Plaintiffs contend that the County did not raise privilege 5 objections until eighty three (83) days after their original response to the discovery and they 6 “failed to explain the reason for the delay.” Id. Plaintiffs argue that in order to obtain relief 7 from an untimely objection, the County “must show ‘good cause’ to excuse a failure to timely 8 object.” Id. (citing In re Outlaw Laboratories, LP Litig., 2020 WL 1674552, at *8 (S.D. Cal. Apr. 9 6 2020)). 10 The Court finds that there is “good cause” for the County raising these objections when 11 they did. The RPDs at issue were seeking more than twenty years of materials relating to all 12 the training Defendant Romero received from the County from 2001 to the present. As set forth 13 in the Court’s September 24, 2024 Order, it was noted that on “August 26, 2024, Plaintiffs’ 14 counsel and Defendants’ counsel engaged in a discovery call with the Court’s law clerk pursuant 15 to the Court’s Chamber’s Rules in which Plaintiffs’ counsel informed the Court that they were 16 seeking the materials from Romero’s training log and Defendants’ counsel indicated that they 17 needed until September 30, 2024 to search for these materials as the requested time period 18 exceeded twenty years.” ECF No. 114 at 4. Ultimately the parties agreed to the September 30, 19 2024 date to produce these documents because both sides recognized that “any production 20 deadline earlier than September 30, 2024 is not feasible for Defendant.” ECF No. 103 at 3. 21 Plaintiffs requested training materials that Defendant Romero received from 2001 to the 22 present. The County agreed to provide the requested material for the lengthy requested time 23 period but indicated they needed additional time to obtain, review, and produce the materials. 24 Plaintiffs appropriately agreed to the extension of time and agreed that the materials would be 25 reviewed and produced by September 30, 2024. The County complied with this timeframe, 26 conducted its review, and served a privilege log on September 30, 2024. Daner Decl. at ¶ 2. 27 The County provided a supplemental response to the RPDs, along with a supplemental privilege 1 Accordingly, the Court finds that the County’s objections are not untimely. 2 3. Prior Disclosures 3 Plaintiffs argue that the County waived the attorney-client privilege and work product 4 privilege as to all the withheld training materials because the County voluntarily produced 5 “iterations” of these materials in prior lawsuits. Mot at 13-14. Plaintiffs also state that “an 6 express waiver occurs when a party discloses privileged information to a third party who is not 7 bound by the privilege, or otherwise shows disregard for the privilege by making the information 8 public.” Id. at 13 (citing Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003)). In Hipschman 9 I, Plaintiffs gave specific examples of documents the County claimed were privileged that had 10 been produced in other litigation which formed the basis for the Court’s finding that these 11 disclosures expressly waived the objections based on attorney-client privilege. However, in this 12 motion, Plaintiffs provide no such examples to support a finding that there has been an express 13 waiver of these privilege objections. 14 In their Reply, Plaintiffs raise the argument for the first time that the burden is on the 15 County to “ show that the attorney-client privilege has not been disclosed or 16 waived.” Mot. at 4 (citing Greer, 634 F.Supp.3d at 918) (emphasis in original.) The County 17 relies on Ms. Rae’s declaration to argue that they have not expressly waived these privileges 18 because Ms. Rae’s sworn declaration states that she is “not aware of any of the above-mentioned 19 documents being produced or disclosed in prior litigation or this pending litigation.” Oppo. at 20 10 (citing Rae Decl. at ¶ 6.) Neither Plaintiffs nor the County offer any examples or evidence of 21 documents in this motion having been disclosed in previous litigation. However, to the extent 22 that Ms. Rae’s declaration lacks personal knowledge as to whether there have been previous 23 disclosures of these materials, the County is ordered to produce any training materials at issue 24 in this discovery dispute that have been previously disclosed in other litigation matters for the 25 reasons the Court set forth in Hipschman I. Hipschman I, 2024 WL 3647061, at *7 (“The Court 26 finds that the County expressly waived these privileges when it voluntarily disclosed the 27 documents in previous cases without being ordered to do so by a court.”) Any previously 1 Alternatively, to the extent that there was no express waiver of the attorney-client 2 privilege with regard to the withheld documents at issue, Plaintiffs argue that the Court should 3 find that the privilege is waived because Defendants have “repeatedly demonstrated a disregard 4 for the privilege, and voluntarily produced training materials that addressed similar and/or 5 overlapping issues/topics.” Mot. at 14 (citing Daner Decl. ¶¶ 4, 5). In his declaration, counsel 6 for Plaintiffs refers to a number of PowerPoint presentations that were produced in separate civil 7 litigation matters which he claims were drafted and presented by social workers. Daner Decl. 8 at ¶¶ 4, 5. However, the titles of these presentations are not the same as the titles of the 9 presentations set forth in Ms. Rae’s declaration.1 In Hipschman I, the Court found that there 10 was subject matter waiver because the County’s privilege log indicated that the “listed 11 documents are either updated versions of the same documents [disclosed in previous litigation] 12 covering the same or similar content or the exact same document that is presented each year 13 to a new audience with a new presentation date.” Id., 2024 WL 3647061, at *7. The Court 14 reached this conclusion in Hipschman I due to the lack of “details or fact-specific analysis in [the 15 County’s] opposition or counsel’s declaration.” Id. Here, that is not at issue. Ms. Rae’s 16 declaration sets forth the titles of the privileged training and they are not the same as what 17 Plaintiffs’ counsel sets forth in his declaration. Ms. Rae also provides sworn testimony that these 18 presentations were prepared by an embedded County Counsel attorney and the materials were 19 marked “Confidential Attorney-Client Work Product.” Rae Decl. at ¶ 6. Plaintiffs fail to 20 demonstrate that the subject matter of the documents withheld in this matter involve the same 21 subject matter as previous documents that have been produced. 22 For all the above stated reasons, the Court finds that the County has not waived attorney- 23

24 1 In his declaration, Plaintiffs’ counsel identifies one individual slide found in a non-privileged 25 training material PowerPoint presentation, that covers multiple subjects, titled “Protective Custody Warrant.” Daner Decl. at ¶ 9. Ms. Rae’s declaration states that there is an entire 26 PowerPoint presentation on the subject of “Protective Custody Warrants” over which they assert 27 the attorney-client privilege. Rae Decl. at ¶ 6. An individual PowerPoint slide and an entire PowerPoint presentation are not the same document simply because they appear to involve the 1 || client privilege with respect to the training materials that have been withheld. 2 F. In Camera Review 3 Finally, Plaintiffs argue for the first time in their Reply that in the alternative, this Court 4 should conduct an in camera review of the documents withheld by Defendants. In support of 5 ||this request, Plaintiffs state “[t]his Court previously examined allegedly privileged training 6 ||materials, and found that they did not contain privileged information.” Reply at 8. This 7 || statement is inaccurate. The Court did not conduct an in camera review in Hipschman I. Instead, 8 || the Court reviewed documents that were filed by Plaintiffs in support of their motion to compel. 9 || For the reasons set forth above, the Court is able to resolve the motion based on briefing and 10 || finds no need to review the documents withheld by the County. Accordingly, the Court declines 11 review the documents in camera. 12 CONCLUSION 13 For the reasons set forth above, Plaintiffs’ motion to compel is DENIED. ECF No. 125. 14 || If any of the withheld materials were previously produced in other litigation, the County must 15 || produce the previously produced materials to Plaintiffs by December 16, 2024. See infra at 16 15. 17 18 ||Dated: 12/11/2024 iy, be He wr 19 Hon. Barbara L. Major United States Maqistrate Judde 20 21 22 23 24 25 26 27 28 17