Marroquin De Portillo v. County of San Diego

District Court, S.D. California·Decided December 9, 2024·No. 3:23-cv-00978·Unknown

Opinion

1 2 2 3 4 5 6 7 10 11 ALBA MARROQUIN DE PORTILLO, Case No.: 3:23-cv-00978-WQH-VET individually and as successor in interest to 12 her deceased son, Lester Daniel ORDER GRANTING IN PART AND 13 Marroquin, DENYING IN PART MOTION TO COMPEL PRODUCTION OF 14 Plaintiff, DOCUMENTS 15 v. 16 COUNTY OF SAN DIEGO; LA CRESHEIA LEE; SCOTT ROLLER; 17 OMAR ORTEGA; IVA NANUSEVIC; 18 MICHAEL CAMPOS; JOSEPH GIESEMAN; ADRIEN CARRILLO; 19 BENJAMIN NAZERIAN; and DOES 9– 20 20, inclusive, 21 Defendants. 22 23 Before the Court is Plaintiff Alba Marroquin De Portillo’s (“Plaintiff”) Motion to 24 Compel Production of Documents from Defendant County of San Diego (the “County”). 25 Doc. No. 24 (“Motion”). The County timely opposed the Motion. Doc. No. 26 26 (“Opposition”). The County also lodged the documents at issue for the Court’s in camera 27 review. See Doc. Nos. 22, 25. Following the Court’s in camera review, and for the reasons 28 discussed below, the Motion is GRANTED IN PART and DENIED IN PART. 2 A. Underlying Action 3 As the successor in interest to decedent Lester Daniel Marroquin (“Decedent”), 4 Plaintiff brings this civil rights suit against the County, seven County employees, and other 5 unknown individuals. See Doc. No. 32 (“Complaint”). Decedent, Plaintiff’s son, died while 6 in custody at the San Diego County Central Jail on May 30, 2021 (“Incident”). Id. Plaintiff 7 alleges that Decedent died from acute water intoxication after uncontrollably drinking 8 water from his cell toilet. Id. at ¶¶ 41–42. Plaintiff claims the County knew Decedent “was 9 suffering from psychosis and was actively engaged in self-harming and suicidal behaviors” 10 and failed to ensure “he did not have access to the means to harm himself.” Id. at ¶ 77. 11 Plaintiff further alleges that transferring Decedent from a safety cell without running water 12 to a cell with running water amounted to deliberate indifference and reckless disregard of 13 Decedent’s health, safety, and welfare. Id. at ¶¶ 76–79. The County admits that Decedent’s 14 cell had running water and a toilet but otherwise denies liability. Doc. No. 37 at 10–11. 15 B. Documents at Issue 16 1. Report by Critical Incident Review Board 17 Following the Incident, the County convened a Critical Incident Review Board 18 (“CIRB”). A CIRB is an organized body of investigators who review in-custody deaths, 19 among other critical incidents, and report their findings. Per the Sheriff’s Department 20 Policy and Procedure Manual (“Sheriff’s Manual”), the “purpose” of the CIRB is to 21 “consult with department legal counsel when an incident occurs which may give rise to 22 litigation,” with a “focus” on assessing “the department’s civil exposure because of a given 23 incident.” Doc. No. 24-1 at 59.1 The CIRB reviews the relevant incident from “multiple 24 perspectives, including training, tactics, policies, and procedures with the goal of 25 identifying problem areas and recommending remedial actions so that potential liability 26

27 1 Page numbers for docketed materials refer to those imprinted by the Court’s electronic 28 1 can be avoided in the future.” Id. It consists of three voting members (i.e., commanders 2 from law enforcement, court services, and detention services) and two non-voting members 3 (i.e., director of legal affairs and commander from human resources). Id. 4 The CIRB convenes both as a preliminary CIRB within 30 days of the relevant 5 incident for a preliminary assessment, followed by a final CIRB where investigators 6 present facts and circumstances surrounding the critical incident and board members have 7 an opportunity to ask questions. Id. at 60. The Director of Legal Affairs attends both 8 sessions. Id. at 59–60. The Division of Inspectional Services (“DIS”) ensures materials 9 related to an incident are available for the CIRB to review, presents basic facts of the 10 incident to the preliminary CIRB, and coordinates follow-up investigations as necessary. 11 Id. at 59–60, 72. DIS is considered a CIRB “facilitator” and does not separately investigate. 12 Id. at 71, 74. 13 In the case of an in-custody death, the Sheriff’s Homicide Unit investigates the 14 incident and conducts a more thorough presentation at the final CIRB. Id. at 71. At both 15 CIRB meetings, the board members discuss potential patterns in incidents, liability risk for 16 that particular incident, possible policy changes, and any relevant developments in the law. 17 Doc. No. 26-1 at 129–130. After hearing from necessary parties, the CIRB’s voting 18 members vote as to whether policy violations occurred. Doc. Nos. 24-1 at 61; 26-1 at 121. 19 If a majority of the three voting Commanders determine a policy violation may have 20 occurred, they refer the case to Internal Affairs for further investigation. Doc. Nos. 24-1 at 21 61; 26-1 at 121. Following any investigation by Internal Affairs, the case is “forwarded to 22 the command for review consistent with the Department’s policies and procedures.” Doc. 23 No. 26-1 at 121. The CIRB also evaluates training, and if it identifies significant training 24 issues, the CIRB will direct those issues to the Training Lieutenant, who subsequently 25 prepares a report outlining actions taken. Id. If the CIRB identifies any “policy issues,” it 26 directs those concerns to the DIS Standards and Compliance Manager, who then prepares 27 proposed policy recommendations and presents them for approval to SOPC within 30 days 28 of the CIRB. Id. 1 After both the preliminary and final CIRB presentations, the DIS Lieutenant 2 prepares confidential and public reports. Doc. No. 24-1 at 61. The confidential report 3 summarizes the CIRB’s actions and conclusions and contains specific findings regarding 4 any policy violations, any training or policy issues, and actions taken by the Sheriff’s 5 Department. Id. A copy of the confidential report and other related reports are filed in the 6 Legal Affairs Section, Office of the Sheriff. Id. The public report details the facts reviewed 7 by the CIRB at the CIRB meeting; it is posted on the Sheriff’s Department website. Id. 8 Here, the County prepared a confidential CIRB report related to the Incident, dated 9 May 10, 2022. Doc. No. 26-1 at 95. Based on the record, it is unclear whether the County 10 convened a preliminary CIRB following the Incident or if a confidential report followed 11 the preliminary CIRB. However, the record and documents lodged with the Court confirm 12 that CIRB members reviewed internal memoranda and a power point presentation related 13 to the Incident. Id. at 96–97. 14 2. Internal Affairs Documents 15 According to the Sheriff’s Manual, the Internal Affairs (“IA”) Unit handles all 16 complaints against County Sheriff employees. Doc. No. 24-1 at 51. This includes 17 investigating, generating an investigation report, proposing appropriate disciplinary action, 18 and recording the disposition of any investigation. Id. at 51–52. The IA Unit is also 19 responsible for notifying an employee being investigated of any relevant investigation 20 updates. Id. at 52–53. Documents lodged with the Court confirm that IA investigation 21 reports, memoranda, internal communications, and proposed disciplinary actions exist 22 relating to the Incident and certain named Defendants. Doc. No. 26-1 at 102–113. 23 C. The Parties’ Discovery Dispute 24 1. Plaintiff’s Request for Production of CIRB and IA Documents 25 On December 15, 2023, pursuant to Federal Rule of Civil Procedure 34, Plaintiff 26 served the County with a request for production of: 27 Any and all incident reports, post-incident reports, investigative reports, and 28 administrative reports concerning the INCIDENT, including the homicide 1 binder,” internal-affairs reports and conclusions, and critical incident review 2 board reports and conclusions for the INCIDENT. 3 Motion at 5; see also Doc. No. 24-1 at 7.

Free access — add to your briefcase to read the full text and ask questions with AI

27 2 The Court conducted an in camera review of the CIRB Documents. 28 1 2. New Statutory Authority 2 On July 9, 2024, Plaintiff filed a “Notice of New Authority in Support of Motion to 3 Compel.” Doc. No. 45. Therein, Plaintiff states that California Penal Code § 832.10, 4 effective July 1, 2024, is relevant to the issues raised in the Motion. Id. Specifically, Section 5 832.10 provides that records related to an investigation of an in-custody death shall “not 6 be made confidential and shall be made available for public inspection[.]” Id.; see also Cal. 7 Penal Code §832.10(b). In response, the County contends that Section 832.10 is not 8 relevant to the Motion, in part because it already agreed to produce IA documents. Doc. 9 No. 50 at 5. The County further argues that Section 832.10 does not apply to the CIRB 10 Documents as Plaintiff suggests, nor does it prevent the County from claiming privilege 11 over CIRB Documents. Id. at 4–5. The County requests that the Court consider the statute’s 12 “full and complete” language. See id. at 8–11. 14 The Court applies federal law and civil rules in analyzing the County’s privilege 15 objections. United States v. Zolin, 491 U.S. 554, 562 (1989). “Under the Rules, the only 16 express limitations are that the information sought is not privileged, and is relevant to the 17 subject matter of the pending action.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 18 (1984); Fed. R. Civ. P. 26(b)(1). 19 A. Attorney-Client Privilege 20 “The attorney-client privilege is the oldest of the privileges for confidential 21 communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 22 389 (1981). “Its purpose is to encourage full and frank communication between attorneys 23 and their clients and thereby promote broader public interests in the observance of law and 24 administration of justice.” Id. 25 26 27 28 1 “The attorney-client privilege protects confidential disclosures made by a client to 2 an attorney in order to obtain legal advice, . . . as well as an attorney’s advice in response 3 to such disclosures.” In re Grand Jury Investigation, 974 F.2d 1068, 1070 (1992) (internal 4 citation omitted); see also In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2022) (“the 5 attorney-client privilege extends only to communications made for the purpose of 6 facilitating the rendition of professional legal services”). “Thus, the client must consult the 7 lawyer for the purpose of obtaining legal assistance and not predominantly for another 8 purpose.” In re Grand Jury, 23 F.4th at 1092 (quoting Restatement (Third) of the Law 9 Governing Lawyers § 72 cmt. c (Am. L. Inst. 2000)). “Where the communication was made 10 for dual-purposes, courts must determine ‘whether the primary purpose of the 11 communication is to give or receive legal advice, as opposed to business . . . advice.’” 12 Greer v. County of San Diego, 634 F. Supp. 3d 911, 917 (S.D. Cal. 2022) (citing In re 13 Grand Jury, 23 F.4th at 1091); see also In re Grand Jury, 23 F.4th at 1091 (holding that 14 “the primary-purpose test applies to attorney-client privilege claims for dual-purpose 15 communications”). 16 “The attorney-client privilege has eight elements: (1) When legal advice of any kind 17 is sought (2) from a professional legal adviser in his or her capacity as such, (3) the 18 communications relating to that purpose, (4) made in confidence (5) by the client, (6) are, 19 at the client’s instance, permanently protected (7) from disclosure by the client or by the 20 legal adviser (8) unless the protection be waived.” United States v. Christensen, 828 F.3d 21 763, 802 n.18 (9th Cir. 2016) (quoting United States v. Martin, 278 F.3d 988, 999 (9th Cir. 22 2002)). “The burden is on the party asserting the privilege to establish all the elements of 23 the privilege.” Martin, 278 F.3d at 999–1000. 24 “Because it impedes full and free discovery of the truth, the attorney-client privilege 25 is strictly construed.” Martin, 278 F.3d at 999 (citation omitted). As such, “[t]he scope of 26 the privilege should be strictly confined within the narrowest possible limits.” Christensen, 27 828 F.3d at 803 (internal quotations omitted). “An entire document or set of documents 28 may be privileged when it contains privileged portions that are so inextricably intertwined 1 with the rest of the text that they cannot be separated.” Id. “In contrast, if the nonprivileged 2 portions of a communication are distinct and severable, and their disclosure would not 3 effectively reveal the substance of the privileged legal portions, the court must designate 4 which portions of the communication are protected and therefore may be excised or 5 redacted (blocked out) prior to disclosure.” Id. 6 B. Work Product Doctrine 7 “The work-product doctrine is a qualified privilege that protects from discovery 8 documents and tangible things prepared by a party or his representative in anticipation of 9 litigation.” United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020). “At its 10 core, the work-product doctrine shelters the mental processes of the attorney, providing a 11 privileged area within which he can analyze and prepare his client’s case, and protects both 12 material prepared by agents for the attorney as well as those prepared by the attorney 13 himself.” Id. (citation omitted). The doctrine “upholds the fairness of the adversarial 14 process by allowing litigators to creatively develop legal theories and strategies—without 15 their adversaries invoking the discovery process to pry into the litigators’ minds and free- 16 ride off them.” In re Grand Jury, 23 F.4th at 1093; see also Fed. R. Civ. P. 26(b)(3)(A) 17 (“Ordinarily, a party may not discover documents and tangible things that are prepared in 18 anticipation of litigation or for trial by or for another party or its representative . . . .”). 19 “In circumstances where a document serves a dual purpose, that is, where it was not 20 prepared exclusively for litigation, then the ‘because of’ test is used.” United States v. 21 Richey, 632 F.3d 559, 567–68 (9th Cir. 2011) (citation omitted). “In applying the ‘because 22 of’ standard, courts must consider the totality of the circumstances and determine whether 23 the document was created because of anticipated litigation, and would not have been 24 created in substantially similar form but for the prospect of litigation.” Id. (citation 25 omitted). “The party asserting work product protection has the burden to demonstrate it 26 applies to the information in question.” Greer, 634 F. Supp. 3d at 918 (citation omitted). 27 28 2 A. CIRB Documents: Attorney-Client Privilege 3 For the reasons discussed below, the CIRB Documents are not protected from 4 disclosure by the attorney-client privilege. 5 1. Marroquin CIRB Report 6 At the outset, the Court notes that the Marroquin CIRB Report is addressed to 7 Mr. Faigin, Defendant’s Chief Legal Advisor, and marked “Privileged Attorney-Client.” 8 Involving an attorney or marking a document “Privileged Attorney-Client,” however, does 9 not automatically create attorney-client privilege and immunize a document from 10 disclosure. Greer, 634 F. Supp. 3d at 920 (“Courts, however, have rejected attempts to 11 immunize documents from disclosure by simply involving an attorney in the 12 investigation.”) (citing United States v. ISS Marine Srvs., Inc., 905 F. Supp. 2d 121, 129– 13 130 (D.D.C. 2012)). Moreover, review of the Marroquin CIRB Report, combined with an 14 understanding of the role and purpose of the CIRB, confirms that its primary purpose is 15 not to provide legal advice. 16 First, as described in the Sheriff’s Manual, CIRB proceedings involve primarily non- 17 legal advisors and attendees. Among that non-legal personnel are Commanders from Law 18 Enforcement, Detention Services, and Human Resources as well as representatives from 19 the Facility or Unit Commander of the employee’s chain of command, Weapons Training 20 Unit, In-Service Training Unit, and Detention Training Unit. See Doc. Nos. 24-1 at 60; 26- 21 1 at 119. And consistent with the Sheriff’s Manual, the roster for the CIRB at issue here 22 confirms that no less than 28 individuals attended the CIRB proceeding, only three of 23 which are identified as “Legal” personnel. CSD Priv. Log 0009. 24 Second, as outlined in the Sheriff’s Manual, the CIRB has a variety of non-legal 25 purposes, including (i) determining whether policy violations occurred; (ii) identifying any 26 policies of concern; (iii) identifying opportunities for policy change or training; and 27 (iv) making recommendations as to training and remedial actions. See Doc. Nos. 24-1 at 28 60–61; 26-1 at 119–121. And, critically, it is the CIRB’s voting members that decide 1 whether policy violations occurred and thus whether to refer a case to Internal Affairs. As 2 a non-voting member, the Director of Legal Affairs does not participate in that decision 3 and thus plays no role in whether a case is forwarded to Internal Affairs for investigation. 4 Doc. No. 26-1 at 119, 121. As such, California’s State Auditor recently concluded that 5 CIRB’s “ultimate goal is identifying problem areas and recommending remedial actions— 6 such as posting a training bulletin or changing a policy—so that potential liability can be 7 avoided in the future.” Doc. No. 24-1 at 80. Here, regarding the Incident, the CIRB did 8 make recommendations regarding follow-on investigation by Internal Affairs and research 9 as to certain policies/procedures. See CSD Priv Log 0005. 10 Third, confidential CIRB reports, which are not prepared by a lawyer per the 11 Sheriff’s Manual, memorialize in a summary format the information presented to the CIRB 12 and discussions by CIRB attendees, along with the CIRB’s recommendations, findings, 13 and actions. Because they are not prepared by legal personnel, the CIRB reports do not, by 14 definition, include any legal analysis or legal advice directly from a lawyer or other legal 15 personnel. 16 Finally, to the extent the Marroquin CIRB Report can be characterized as having a 17 dual purpose, the Court’s in camera review confirms that its primary purpose is not to give 18 or solicit legal advice. Instead, it is a recitation of facts and information presented to and/or 19 discussed by the CIRB. Specifically, the Marroquin CIRB Report describes the Incident, 20 summarizes the information presented and shared with the CIRB, recites the discussion 21 that occurred at the CIRB proceeding, and lists the CIRB’s recommendations. It makes no 22 reference to liability, litigation, or any legal claims, potential or otherwise, nor does it 23 document any legal advice sought from or conveyed by Mr. Faigin or any other legal 24 advisor. 25 Based on the foregoing, the Court finds that the primary purpose of the Marroquin 26 CIRB Report is not to render or solicit legal advice, but rather investigative and remedial 27 in nature. Therefore, it is not protected from disclosure by the attorney-client privilege. 28 1 This conclusion is consistent with several decisions issued by this Court. Applying 2 the “primary purpose test” articulated in In re Grand Jury, 23 F.4th 1088, this Court has 3 repeatedly held that CIRB reports are not protected by the attorney-client privilege. See, 4 e.g., Greer, 634 F. Supp. 3d at 919–21; Morton v. County of San Diego, No. 21-cv-01428- 5 MMA-DDL, 2023 U.S. Dist. LEXIS 106737, at *6 (S.D. Cal. June 27, 2023); Estate of 6 Serna v. County of San Diego, No. 20-cv-02096-LAB-DDL, 2023 U.S. Dist. LEXIS 7 205089, at *17–18 (S.D. Cal. Aug. 30, 2023); and Dunsmore v. County of San Diego, No. 8 20-cv-00406-AJB-DDL, 2023 U.S. Dist. LEXIS 222118, at *16–17 (S.D. Cal. Dec. 13, 9 2023). In those prior cases, the Court similarly found that the attorney-client privilege did 10 not protect CIRB documents largely because “the CIRB’s primary purpose is investigative 11 and remedial[.]” Greer, 634 F. Supp. 3d at 921. Notably, in those prior decisions, the Court 12 evaluated evidence similar to that cited and submitted as part of the instant Motion. See, 13 e.g., Greer, 634 F. Supp. 3d at 920 (citing statements by Mr. Faigin, the “primary architect 14 of the CIRB policy and procedure”). Taken together, this evidence consistently indicates 15 that the primary purpose of CIRB documents is investigative and remedial. 16 Still, the County attempts to distinguish the Marroquin CIRB Report from the CIRB 17 reports at issue in those prior cases based on the timing of the Marroquin CIRB Report. 18 Opposition at 2. Specifically, the County emphasizes that the Marroquin CIRB Report was 19 prepared after the County rejected Plaintiff’s administrative tort claim for damages. Id. at 20 2–3, 6. Coupled with Plaintiff’s expressed intent to pursue litigation against the County, 21 the County contends this sequence of events presents a meaningful distinction from the 22 above-referenced cases because the Marroquin CIRB Report “was prepared with the 23 knowledge that Plaintiff was going to initiate litigation that contained a specific and distinct 24 cause of action.” Opposition at 6. As such, the County concludes that it is a “protected 25 attorney-client communication” and points to questions raised by the Sheriff’s Legal 26 Counsel during the Marroquin CIRB meeting to further support this conclusion. Id. at 7. 27 The Court is not persuaded that the timing of the Marroquin CIRB Report makes it 28 materially different from those CIRB reports considered in prior decisions. The Sheriff’s 1 Manual requires that the CIRB convene to review in-custody deaths. Doc. No. 26-1 at 120. 2 It also requires that the CIRB: (i) determine, by vote, whether any policy violations 3 occurred in connection with such critical incidents; (ii) make training recommendations as 4 appropriate; and (iii) direct policy concerns to certain parties. Id. at 121. Hence, irrespective 5 of any administrative tort claim or threatened litigation, the CIRB would have reviewed 6 and investigated the Incident and evaluated policies and training, resulting in the 7 preparation of the requisite CIRB report. Hence, it cannot be said that the Marroquin CIRB 8 Report reflects communications necessary to obtain informed legal advice that might not 9 have occurred absent the privilege. In re Grand Jury, 23 F.4th at 1092 (“As the Supreme 10 Court has recognized, the attorney-client privilege protects only those disclosures 11 necessary to obtain informed legal advice which might not have been made absent the 12 privilege.”) (internal quotations omitted). 13 Further, although the County makes much of Plaintiff’s impending Monell and 14 wrongful death claims, the Marroquin CIRB Report makes no reference to Plaintiff, an 15 administrative tort claim, a Monell claim, the elements of such a claim, or even any 16 anticipated litigation. In short, Plaintiff’s potential claims did not change the primary 17 purpose of the Marroquin CIRB Report given that such a report would exist even in the 18 absence of threatened litigation. 19 Lastly, in arguing that the Marroquin CIRB Report is protected because it “was 20 prepared with the knowledge that Plaintiff was going to initiate litigation,” see Opposition 21 at 6, the County advances an argument similar to that rejected in In re Grand Jury. In 22 adopting “the primary purpose test,” the Ninth Circuit expressly rejected a test borrowed 23 from the work-product doctrine, namely that the attorney-client privilege applies to 24 documents created “because of” anticipated litigation. In re Grand Jury, 23 F.4th at 1092– 25 93 (“It is a broader test than the ‘primary purpose’ test because it looks only at causal 26 connection, and not a ‘primary’ reason.”). In refusing to adopt the “because of” test in the 27 context of the attorney-client privilege, the Ninth Circuit expressed concern that such a test 28 1 would harm “our adversarial system if parties try to withhold key documents as privileged 2 by claiming that they were created ‘because of’ litigation concerns.” Id. at 1093. 3 Here, the County invites the Court to apply a variation of the “because of” test by 4 suggesting that the application of the attorney-client privilege hinges on the County’s 5 “knowledge” of Plaintiff’s threatened litigation. See Opposition at 6 (“The Marroquin 6 CIRB Report is protected attorney-client communication because it was prepared with the 7 knowledge that Plaintiff was going to initiate litigation that contained a specific and distinct 8 cause of action.”); 8 (“Since the Marroquin CIRB had specific knowledge as to Plaintiff’s 9 impending cause of action, the primary purpose of the Marroquin CIRB was to relay and 10 receive legal advice and legal analysis, as opposed to any other form of advice.”). The 11 Court declines to adopt such a test because it is contrary to the principles laid out by the 12 Ninth Circuit in In re Grand Jury. 13 Nevertheless, the Court acknowledges that the Marroquin CIRB Report reflects 14 questions raised by Mr. Faigin during the January 2022 CIRB meeting. Mr. Faigin’s 15 questions are consistent with the investigative and remedial character of the CIRB 16 proceedings. However, because Mr. Faigin was present at the CIRB in his capacity as the 17 Chief Legal Advisor, the Court cannot ignore the County’s representations that his 18 questions were made in the context of trying to formulate and provide legal advice. 19 Opposition at 7; see also Doc. No. 26-1 at 129–130 (84:5-85:12); United States v. Rowe, 20 96 F.3d 1294, 1297 (9th Cir. 1996) (“fact-finding which pertains to legal advice counts as 21 professional legal services”). Accordingly, as outlined below, the Court finds that those 22 portions of the Marroquin CIRB Report reflecting Mr. Faigin’s questions and the responses 23 thereto may be redacted as an attorney-client communication. 24 2. Marroquin CIRB Attachments 25 The Court further finds that the Marroquin CIRB Attachments, none of which are 26 marked “Privileged,” are investigative and remedial in nature, and nothing therein suggests 27 that their primary purpose pertains to legal advice. While the County does not separately 28 address the Marroquin CIRB Attachments, the County does identify them in the privilege 1 log as part of the “CIRB memorandum and its contents.” Doc. No. 26-1 at 99–100. While 2 attached to the Marroquin CIRB Report, the Marroquin CIRB Attachments are distinct 3 documents with little to no indication of a legal purpose. Of the 28 attendees on the CIRB 4 roster, only three are designated as “Legal.” Moreover, the inter-departmental 5 correspondence is addressed to the CIRB Chair, authored by a non-legal supervisor, and 6 solely discusses correctional facility policy. The MDG meeting agendas similarly do not 7 include legal personnel and disclose only facts. Accordingly, the Marroquin CIRB 8 Attachments are not protected from disclosure under attorney-client privilege. 9 3. Marroquin CIRB Presentation 10 Finally, for the same reasons the Marroquin CIRB Report is not protected from 11 disclosure by the attorney-client privilege, the Court finds that the Marroquin CIRB 12 Presentation is not a protected attorney-client communication as the primary purpose is not 13 to provide or solicit legal advice. 14 The County argues that the Presentation was prepared “in the course of the attorney- 15 client relationship,” incorporated information specifically requested by counsel, and was 16 drafted by an employee “clearly acting as counsel’s agent.” Opposition at 8–9. However, 17 review of the Marroquin CIRB Presentation shows it is not marked as “Privileged” and, 18 other than a bare assertion by County counsel, there is no evidence confirming or 19 demonstrating that it was prepared at the request of or with direction from the Sheriff’s 20 Legal Counsel. Moreover, like the Marroquin CIRB Report, the Marroquin CIRB 21 Presentation makes no mention of liability, litigation, legal advice, or requests from legal 22 counsel. Instead, the Marroquin CIRB Presentation summarizes and relays facts 23 surrounding the Incident. It describes events leading up to and following the Incident, 24 individuals involved, and statements by those individuals. These underlying facts are not 25 protected by the attorney-client privilege. Upjohn Co., 449 U.S. at 395 (“The privilege only 26 protects disclosure of communications; it does not protect disclosure of the underlying facts 27 by those who communicated with the attorney . . . .”). And, as the County acknowledges, 28 the Marroquin CIRB Presentation “was prepared for the purpose of presenting information 1 specific to the Incident to the Marroquin CIRB,” which consisted primarily of non-legal 2 personnel. Opposition at 8. 3 Moreover, the Sheriff’s Manual contradicts the contention that the Marroquin CIRB 4 Presentation was created “not in the ordinary course of business.” Opposition at 9 (quoting 5 Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 509 (S.D. Cal. 2003)). The Sheriff’s Manual 6 mandates that a Final CIRB presentation occur in every in-custody death, with the type of 7 information reflected in the Marroquin CIRB Presentation. See Doc. No. 26-1 at 120. While 8 an in-custody death should not be described as “ordinary,” a final CIRB presentation like 9 the one prepared for the Incident is ordinarily prepared and presented at CIRB meetings. 10 Doc. No. 24-1 at 60, 75–74. 11 In sum, the Court finds the Marroquin CIRB Presentation is not protected from 12 disclosure by the attorney-client privilege. 13 B. CIRB Documents: Work Product Doctrine 14 With the exceptions noted below, the CIRB Documents are also not protected from 15 disclosure by the work product doctrine because they were not prepared primarily to aid in 16 pending or anticipated litigation. Kelly v. San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987) 17 (“The work product doctrine does not apply to information collected or communications 18 made in the normal course of business. It applies only to material generated primarily for 19 use in litigation, material that would not have been generated but for the pendency or 20 imminence of litigation.”). 21 1. Marroquin CIRB Report 22 As noted above, the Sheriff Department’s procedures required that the CIRB 23 convene to review the Incident because it involved an in-custody death. The resulting 24 Marroquin CIRB Report is the product of that required CIRB proceeding, and its 25 preparation is similarly required and occurs at the conclusion of all CIRB meetings. As 26 such, the Marroquin CIRB Report was prepared in the regular course of business and not 27 in anticipation of litigation. Therefore, the work product doctrine does not apply. See, e.g., 28 Miller v. Pancucci, 141 F.R.D. 292, 303 (C.D. Cal. 1992) (finding that police department’s 1 internal affairs investigations were not work-product protected because they are performed 2 in the regular course of business); Kelly, 114 F.R.D. at 659 (“Since police departments are 3 under an affirmative duty, in the normal course of serving their public function, to generate 4 the kind of information at issue here [i.e., internal investigation reports], the policies that 5 inspire the work product doctrine are wholly inapplicable.”) (emphasis in original); Griffith 6 v. Davis, 161 F.R.D. 687, 699 (C.D. Cal. 1995) (“Because the memorandum would have 7 been generated whether or not litigation was pending, it does not qualify as attorney work 8 product.”). 9 The County asserts that work protection applies because the Marroquin CIRB Report 10 “would not have been prepared in the same manner and or [sic] contained the same 11 information, but for the specific knowledge of Plaintiff’s impending claim and causes of 12 action.” Opposition at 10. The County, however, fails to explain how this report differs in 13 any material respect from every other CIRB report generated at the conclusion of a CIRB 14 proceeding. Nor does the County identify what kind of “information” is included in the 15 Marroquin CIRB Report that does not ordinarily appear in other CIRB reports. Further, 16 based on an in camera review, the Court cannot conclude that the entire report constitutes 17 attorney work product, particularly when it was not prepared by an attorney and makes no 18 reference to Plaintiff, liability, or any impending litigation or claims. 19 Nevertheless, to the extent the Marroquin CIRB Report memorializes “specific 20 questions and responses” prompted by Mr. Faigin, the Court concludes that this 21 information is protected under the work product doctrine. Mr. Faigin attends CIRB 22 meetings in his capacity as the Sheriff’s Chief Legal Advisor. At the time of the January 23 2022 CIRB meeting, Mr. Faigin was presumably aware of the prospect of a suit involving 24 a Monell claim. Further, Mr. Faigin’s questions reflect his mental processes and potentially 25 his thinking concerning impending litigation. As such, out of an abundance of caution, the 26 Court finds that those portions of the Marroquin CIRB Report memorializing Mr. Faigin’s 27 questions and the responses thereto are protected attorney work product, even though the 28 entirety of the document was not prepared in anticipation of litigation. Therefore, 1 consistent with the Court’s order below, the paragraphs detailing Mr. Faigin’s questions 2 and the responses thereto may be redacted. 3 2. Marroquin CIRB Presentation and Attachments 4 The County argues that the Marroquin CIRB Presentation “contains specific 5 information that is germane to the elements that Plaintiff must prove for a successful 6 Monell claim” and, but for Plaintiff’s impending claims, the information therein “would 7 not have otherwise been prepared.” Id. at 10. Again, the Court is not persuaded. 8 First, the County makes these sweeping assertions without describing in even 9 general terms what “information” would not have otherwise been prepared. Second, there 10 is no indication that legal counsel helped prepare the Presentation or how counsel otherwise 11 influenced its contents. Third, to the extent the Marroquin CIRB Presentation briefly 12 discusses policy issues and/or remedial actions, the Court sees no express connection to 13 any anticipated litigation given that the CIRB is required to consider such matters. See Doc. 14 Nos. 24-1 at 60–61; 26-1 at 119–121. The same is true for the Marroquin CIRB 15 Attachments, which the County does not separately address. See Doc. Nos. 24-1 at 60–61; 16 26-1 at 119–121. Simply put, nothing in the Marroquin CIRB Presentation or Attachments 17 appear to capture the mental process of an attorney or have been prepared in anticipation 18 litigation. Thus, these documents are not protected from disclosure under the work product 19 doctrine. 20 C. IA Documents 21 Lastly, the County agrees to produce the Marroquin IA Documents under the 22 Protective Order, with “specific information, such as personal cell phone numbers, home 23 addresses, personnel information,” and information that does not pertain to the Incident 24 redacted. Opposition at 11. Based on an in camera review of the County’s proposed 25 redactions, the Court finds such redactions properly redact limited, sensitive, and/or 26 irrelevant information. Because Defendant has agreed to produce the IA Documents that 27 Plaintiff seeks, the Court does not address the County’s relevant privilege claims in the 28 CSD Privilege Log. 1 D. California Penal Code § 832.10 2 Because the Court is ordering the disclosure of the CIRB and IA Documents, the 3 Court declines to address whether California Penal Code § 832.10 also requires or 4 otherwise governs their disclosure in this action. See Simeonov v. Ashcroft, 371 F.3d 532, 5 538 (9th Cir. 2004) (“As a general rule courts and agencies are not required to make 6 findings on issues the decision of which is unnecessary to the results they reach.”); Playup, 7 Inc. v. Mintas, No. 2:21-cv-02129-GMN-NJK, 2024 U.S. Dist. LEXIS 21370, at *4 (D. 8 Nev. Feb. 6, 2024) (“Courts also have a general duty to avoid deciding unnecessary 9 issues.”). 11 For the reasons set forth above, Plaintiff’s Motion is GRANTED IN PART and 12 DENIED IN PART. The Court ORDERS the following: 13 1. The County shall produce the Marroquin CIRB Documents, bates-stamped 14 CSD Priv Log 0001–0035, with the following information redacted: 15  The third, fourth, and fifth paragraphs under “Discussion” on CSD Priv Log 16 0004, reflecting questions asked by Robert Faigin and/or responses thereto; 17  The first two lines on CSD Priv Log 0005, reflecting questions asked by 18 Robert Faigin and/or responses thereto; and 19  The portion of the second full paragraph on CSD Priv Log 0005, reflecting 20 questions asked by Robert Faigin and/or responses thereto. 21 2. Additionally, and consistent with the redactions proposed in the Marroquin 22 IA Documents, Defendant may redact the following information from the CIRB 23 Documents: 24  Non-Public Telephone Numbers 25  Non-Public Emails 26  Non-Public Mailing Addresses. 27 3. The County shall produce the Marroquin IA Documents, bates-stamped CSD 28 1 4. In accordance with the Protective Order, the County may designate the 2 || produced IA and CIRB Documents with the appropriate confidentiality designation. 4 Dated: December 9, 2024 [wre ° Honorable Valerie E. Torres 6 United States Magistrate Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

Marroquin De Portillo v. County of San Diego, (S.D. Cal. 2024).

Pincite

Marroquin De Portillo v. County of San Diego (Marroquin De Portillo v. County of San Diego) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Upjohn Co. v. United States

449 U.S. 383 (Supreme Court, 1981)

Seattle Times Co. v. Rhinehart

467 U.S. 20 (Supreme Court, 1984)

United States v. Zolin

491 U.S. 554 (Supreme Court, 1989)

United States v. Richey

632 F.3d 559 (Ninth Circuit, 2011)

In Re Grand Jury Investigation. United States of America v. The Corporation 1

974 F.2d 1068 (Ninth Circuit, 1992)

United States v. Charles E. Rowe, Individually Rowe and Associates, a Professional Corporation

96 F.3d 1294 (Ninth Circuit, 1996)