1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Lia D. Mollica, No. 2:19-cv-02017-KJM-DB 12 Plaintiff, ORDER 13 v. 14 County of Sacramento, et al., 1S Defendants. 16 17 The County of Sacramento requests reconsideration of the magistrate judge’s order 18 | compelling the production of documents. The County unsuccessfully asserted the protection of 19 | the work product doctrine. As explained in this order, the County did not show the documents in 20 | question were prepared in anticipation of litigation, so they were not protected by the work 21 | product doctrine. The motion for reconsideration is denied. 22 | I. BACKGROUND 23 Lia D. Mollica alleges she severely injured her foot after falling from the top bunk of her 24 | bed in the Sacramento County Main Jail. See generally Am. Compl., ECF No. 20. She also 25 | alleges she was denied necessary medical care. See generally id. She asserts claims against the 26 | County and others under 42 U.S.C. § 1983, the Rehabilitation Act, the Americans with 27 | Disabilities Act, California Government Code section 845.6, the Tom Bane Civil Rights Act, and 28 | California tort law. See id. J§ 6-11, 70-119.
1 The case is now in discovery. The parties have come to the court with a dispute about the 2 County’s response to Mollica’s second request for production. She requested “all documents 3 relating to” a citizen complaint she filed against the County before this lawsuit began. Request 4 for Production No. 2, Merin Decl. Ex. H at 3, ECF No. 38-1. After citing the identification 5 number of her citizen complaint, Mollica’s disputed discovery request offers examples of the 6 types of materials it encompasses: “interviews conducted, statements, correspondence, 7 video/audio recordings, reports, and memos.” See id. The County responded to this request with 8 a lengthy paragraph of objections, many of which are identical to others listed repetitively 9 throughout its response. See generally Responses & Objections, Merin Decl. Ex. I, ECF 10 No. 38-1. Among other objections, such as vagueness and overbreadth, the County claimed 11 Mollica’s request invaded its attorney–client privilege and the work product doctrine. See id. at 12 4–5. Despite these objections, the County searched for and identified responsive documents. It 13 withheld them, however, claiming the protection of the attorney–client privilege and the work 14 product doctrine in a privilege log. See id. at 5; Privilege Log, Merin Decl. Ex. J, ECF No. 38-1. 15 Mollica contested the County’s objections and argued its privilege log did not give her 16 enough information to evaluate the County’s claim of privilege. See generally Merin Letter 17 (Nov. 10, 2020), Merin Decl. Ex. K, ECF No. 38-1. The County responded, standing by its 18 objections and log. See generally Whitefleet Letter (Nov. 18, 2020), Merin Decl. Ex. L, ECF No. 19 38-1. Eventually, however, after meeting and conferring with plaintiff’s counsel, the County 20 agreed to amend its privilege log. The parties now dispute two entries in the amended log. In the 21 first entry, the County claims the protections of the work product doctrine over a document titled 22 “Citizen complaint 2019PSD-0464” dated August 28, 2019, which the amended privilege log 23 describes as “[i]nter-department correspondence prepared in anticipation of litigation, and made 24 in confidence without disclosure to outside parties, regarding investigation into the specific 25 claims that are the subject matter of this lawsuit.” Merin Decl. Ex. P, ECF No. 38-1. The second 26 entry is a document titled “Civil Claim Review Mollica 2019PSD-0464” dated September 13, 27 2019, which the amended privilege log describes as “[i]nter-department correspondence prepared 28 in the anticipation of litigation, and made in confidence without disclosure to outside parties, 1 regarding the summary of the investigation into Lia D. Mollica’s citizen complaint.” Id. Neither 2 of the two documents was sent from or to an attorney. See id. In neither entry does the County 3 claim attorney–client privilege. It argues only that the documents are protected by the work 4 product doctrine. See id. 5 Unsatisfied with the amended log and unpersuaded by the County’s assertion of privilege, 6 Mollica moved to compel production of the two documents. See generally Mot. Compel, ECF 7 No. 37. She challenged the County’s vagueness, overbreadth and other objections, argued the 8 amended privilege log did not satisfy the requirements of Rule 26(b)(5)(A), and contested the 9 County’s assertion of protection by the work product doctrine. See Joint Discovery Statement at 10 6–15, ECF No. 38. She also sought an award of her fees. See id. at 21–22. The County again 11 stood by its objections and privilege assertions, and it opposed the fee request. See id. at 15–21, 12 22–23. 13 The magistrate judge assigned to this matter heard the motion by operation of this 14 District’s local rules. She granted the motion to compel and denied the fee request on the record 15 at a videoconference hearing and confirmed that decision in a short written order “for the reasons 16 set forth on the record” at the hearing. Minutes, ECF No. 40; Order, ECF No. 41.1 The County 17 filed a timely motion for reconsideration by the assigned district judge. See Mot., ECF No. 42. It 18 claims four errors. First, it argues the magistrate judge erred by not expressly sustaining or 19 overruling its objections to Mollica’s discovery request. See id. at 4–5. Second, it argues the 20 magistrate judge erred by not explaining whether the amended privilege log complied with Rule 21 26(b)(5)(A). See id. at 7–8. Third, it argues the magistrate judge acted contrary to law by 22 rejecting its work product claim. See id. at 5–7. Fourth, it argues the magistrate judge erred by 23 declining to review the disputed documents in camera. See id. at 7. Mollica opposes, requesting 24 ///// 1 There is no transcript of the hearing in the record. While the County at one point apparently sought to obtain a transcript of the hearing, it did not ultimately do so. See Jeppson Decl. ¶ 10, ECF No. 42-1 (“On March 23, 2021, our office sent a request to [the] Court Reporter [ ] seeking an expedited hearing transcript in time to file this instant reconsideration motion. [The] Court Reporter [ ] informed our office that an expedited transcript could not be provided, as she would be out of the office from March 25, 2021, to April 5, 2021.”). 1 sanctions. See Opp’n, ECF No. 43. Briefing is complete, and this court submitted the matter 2 without a hearing. See Reply, ECF No. 45; E.D. Cal. L.R. 303; Minute Order, ECF No. 44. 3 II. STANDARD OF REVIEW 4 Federal Rule of Civil Procedure 72(a) permits parties to object to a magistrate judge’s 5 orders on any nondispositive pretrial matter. A district court must consider timely objections and 6 “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. 7 Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); E.D. Cal. L.R. 303(f). These two standards— 8 “clearly erroneous” and “contrary to law”—apply to different aspects of the magistrate judge’s 9 order. The “contrary to law” standard applies to legal determinations. See, e.g., Computer Econ., 10 Inc. v. Gartner Grp., Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) (citing Haines v. Liggett 11 Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992)). Legal questions are considered de novo. See id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Lia D. Mollica, No. 2:19-cv-02017-KJM-DB 12 Plaintiff, ORDER 13 v. 14 County of Sacramento, et al., 1S Defendants. 16 17 The County of Sacramento requests reconsideration of the magistrate judge’s order 18 | compelling the production of documents. The County unsuccessfully asserted the protection of 19 | the work product doctrine. As explained in this order, the County did not show the documents in 20 | question were prepared in anticipation of litigation, so they were not protected by the work 21 | product doctrine. The motion for reconsideration is denied. 22 | I. BACKGROUND 23 Lia D. Mollica alleges she severely injured her foot after falling from the top bunk of her 24 | bed in the Sacramento County Main Jail. See generally Am. Compl., ECF No. 20. She also 25 | alleges she was denied necessary medical care. See generally id. She asserts claims against the 26 | County and others under 42 U.S.C. § 1983, the Rehabilitation Act, the Americans with 27 | Disabilities Act, California Government Code section 845.6, the Tom Bane Civil Rights Act, and 28 | California tort law. See id. J§ 6-11, 70-119.
1 The case is now in discovery. The parties have come to the court with a dispute about the 2 County’s response to Mollica’s second request for production. She requested “all documents 3 relating to” a citizen complaint she filed against the County before this lawsuit began. Request 4 for Production No. 2, Merin Decl. Ex. H at 3, ECF No. 38-1. After citing the identification 5 number of her citizen complaint, Mollica’s disputed discovery request offers examples of the 6 types of materials it encompasses: “interviews conducted, statements, correspondence, 7 video/audio recordings, reports, and memos.” See id. The County responded to this request with 8 a lengthy paragraph of objections, many of which are identical to others listed repetitively 9 throughout its response. See generally Responses & Objections, Merin Decl. Ex. I, ECF 10 No. 38-1. Among other objections, such as vagueness and overbreadth, the County claimed 11 Mollica’s request invaded its attorney–client privilege and the work product doctrine. See id. at 12 4–5. Despite these objections, the County searched for and identified responsive documents. It 13 withheld them, however, claiming the protection of the attorney–client privilege and the work 14 product doctrine in a privilege log. See id. at 5; Privilege Log, Merin Decl. Ex. J, ECF No. 38-1. 15 Mollica contested the County’s objections and argued its privilege log did not give her 16 enough information to evaluate the County’s claim of privilege. See generally Merin Letter 17 (Nov. 10, 2020), Merin Decl. Ex. K, ECF No. 38-1. The County responded, standing by its 18 objections and log. See generally Whitefleet Letter (Nov. 18, 2020), Merin Decl. Ex. L, ECF No. 19 38-1. Eventually, however, after meeting and conferring with plaintiff’s counsel, the County 20 agreed to amend its privilege log. The parties now dispute two entries in the amended log. In the 21 first entry, the County claims the protections of the work product doctrine over a document titled 22 “Citizen complaint 2019PSD-0464” dated August 28, 2019, which the amended privilege log 23 describes as “[i]nter-department correspondence prepared in anticipation of litigation, and made 24 in confidence without disclosure to outside parties, regarding investigation into the specific 25 claims that are the subject matter of this lawsuit.” Merin Decl. Ex. P, ECF No. 38-1. The second 26 entry is a document titled “Civil Claim Review Mollica 2019PSD-0464” dated September 13, 27 2019, which the amended privilege log describes as “[i]nter-department correspondence prepared 28 in the anticipation of litigation, and made in confidence without disclosure to outside parties, 1 regarding the summary of the investigation into Lia D. Mollica’s citizen complaint.” Id. Neither 2 of the two documents was sent from or to an attorney. See id. In neither entry does the County 3 claim attorney–client privilege. It argues only that the documents are protected by the work 4 product doctrine. See id. 5 Unsatisfied with the amended log and unpersuaded by the County’s assertion of privilege, 6 Mollica moved to compel production of the two documents. See generally Mot. Compel, ECF 7 No. 37. She challenged the County’s vagueness, overbreadth and other objections, argued the 8 amended privilege log did not satisfy the requirements of Rule 26(b)(5)(A), and contested the 9 County’s assertion of protection by the work product doctrine. See Joint Discovery Statement at 10 6–15, ECF No. 38. She also sought an award of her fees. See id. at 21–22. The County again 11 stood by its objections and privilege assertions, and it opposed the fee request. See id. at 15–21, 12 22–23. 13 The magistrate judge assigned to this matter heard the motion by operation of this 14 District’s local rules. She granted the motion to compel and denied the fee request on the record 15 at a videoconference hearing and confirmed that decision in a short written order “for the reasons 16 set forth on the record” at the hearing. Minutes, ECF No. 40; Order, ECF No. 41.1 The County 17 filed a timely motion for reconsideration by the assigned district judge. See Mot., ECF No. 42. It 18 claims four errors. First, it argues the magistrate judge erred by not expressly sustaining or 19 overruling its objections to Mollica’s discovery request. See id. at 4–5. Second, it argues the 20 magistrate judge erred by not explaining whether the amended privilege log complied with Rule 21 26(b)(5)(A). See id. at 7–8. Third, it argues the magistrate judge acted contrary to law by 22 rejecting its work product claim. See id. at 5–7. Fourth, it argues the magistrate judge erred by 23 declining to review the disputed documents in camera. See id. at 7. Mollica opposes, requesting 24 ///// 1 There is no transcript of the hearing in the record. While the County at one point apparently sought to obtain a transcript of the hearing, it did not ultimately do so. See Jeppson Decl. ¶ 10, ECF No. 42-1 (“On March 23, 2021, our office sent a request to [the] Court Reporter [ ] seeking an expedited hearing transcript in time to file this instant reconsideration motion. [The] Court Reporter [ ] informed our office that an expedited transcript could not be provided, as she would be out of the office from March 25, 2021, to April 5, 2021.”). 1 sanctions. See Opp’n, ECF No. 43. Briefing is complete, and this court submitted the matter 2 without a hearing. See Reply, ECF No. 45; E.D. Cal. L.R. 303; Minute Order, ECF No. 44. 3 II. STANDARD OF REVIEW 4 Federal Rule of Civil Procedure 72(a) permits parties to object to a magistrate judge’s 5 orders on any nondispositive pretrial matter. A district court must consider timely objections and 6 “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. 7 Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); E.D. Cal. L.R. 303(f). These two standards— 8 “clearly erroneous” and “contrary to law”—apply to different aspects of the magistrate judge’s 9 order. The “contrary to law” standard applies to legal determinations. See, e.g., Computer Econ., 10 Inc. v. Gartner Grp., Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) (citing Haines v. Liggett 11 Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992)). Legal questions are considered de novo. See id. 12 The “clearly erroneous” standard applies to the magistrate judge’s factual determinations and 13 discretionary decisions. See id. (citing Maisonville v. F2 Am., Inc., 902 F.2d 746, 748 (9th Cir. 14 1990)). A decision is “clearly erroneous” if the district court “is left with the definite and firm 15 conviction that a mistake has been committed.” Concrete Pipe and Prods. v. Constr. Laborers 16 Pension Trust, 508 U.S. 602, 622 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 17 364, 395 (1948)). The latter is a “significantly differential” standard of review. Id. at 623. 18 III. ANALYSIS 19 To begin, the magistrate judge did not err by overruling the County’s vagueness, 20 overbreadth and other objections without a more detailed explanation of reasons. The County 21 cites no authority requiring such specificity, and this court is aware of none. Nor was the 22 magistrate judge’s decision to overrule these objections clear error. Although a request for “all 23 documents relating to” a claim might be unfairly vague and overbroad, that is not always so. See, 24 e.g., Goose Pond AG, Inc. v. Duarte Nursery, Inc., No. 19-2631, 2020 WL 4607279, at *2 (E.D. 25 Cal. Aug. 11, 2020). Mollica’s request here was not unworkably vague or overbroad. It referred 26 to her citizen’s complaint and was specific enough to permit the County to look for and find 27 documents related to that complaint. 28 ///// 1 Nor did the magistrate judge err by not explaining in detail why the County’s privilege log 2 fell short of the requirements in Rule 26. Again, the County identifies no authority requiring a 3 more specific explanation than the magistrate judge offered, and again the court is aware of none. 4 In any event, the magistrate judge’s decision was also correct. An assertion of privilege must be 5 accompanied by a description of “the nature of the . . . things not produced or disclosed” that 6 “will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). To evaluate that 7 description, a court considers, among other things, “the degree to which the objection or assertion 8 of privilege enables the litigant seeking discovery and the court to evaluate whether each of the 9 withheld documents is privileged.” See Burlington N. & Santa Fe Ry. v. United States Dist. 10 Court, 408 F.3d 1142, 1149 (9th Cir. 2005). At a minimum, a party must offer “some 11 information about the content of the allegedly privileged material.” Id. at 1148. Here, the County 12 did not explain the contents of the disputed documents beyond describing them as “confidential 13 inter-department correspondence” about its investigation of Mollica’s claims. If this were 14 enough, then a litigant could withhold any nonpublic document by reiterating the elements of the 15 work product doctrine. See Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., 16 No. 11-3471, 2017 WL 445722, at *9 (E.D. Cal. Feb. 2, 2017) (finding privilege log inadequate 17 because it merely repeated “the definitions of attorney client materials” (emphasis in original)). 18 Even the County seems to have realized its amended log fell short. Rather than relying solely on 19 that log in opposing Mollica’s motion, it relied on details provided in a later-filed declaration. See 20 Daily Decl., ECF No. 39. 21 With the support of this late-filed declaration, the County’s work product claim—the 22 subject of its third argument for reconsideration—poses a more difficult question than its first two 23 arguments. The work product doctrine shields documents and tangible things from disclosure if 24 they were prepared (1) “by or for another party or its representative” (2) “in anticipation of 25 litigation or for trial.” Fed. R. Civ. P. 26(b)(3)(A). The party asserting the protection of this 26 privilege bears the burden to show these requirements are satisfied. Garcia v. City of El Centro, 27 214 F.R.D. 587, 591 (S.D. Cal. 2003). The work product protection is not absolute. The party 28 seeking disclosure may obtain a protected document or tangible thing if the requesting party 1 shows it has a “substantial need” for the protected materials “and cannot, without undue hardship, 2 obtain their substantial equivalent by other means”—assuming, of course, that the document or 3 thing would otherwise be disclosed under the Federal Rules. Fed. R. Civ. P. 26(b)(3)(A)(i)–(ii). 4 The extent of the work product doctrine’s protections is a mixed question of law and fact that this 5 court must consider independently under the “contrary to law” standard. See United States v. 6 Richey, 632 F.3d 559, 563 (9th Cir. 2011). Factual findings, if any, are reviewed for clear error. 7 See id. 8 There is no dispute here that County representatives prepared the documents listed in the 9 privilege log. The parties contest only (1) whether those documents were prepared “in 10 anticipation of litigation” and if so, (2) whether Mollica has a “substantial need” for those 11 documents and would suffer “undue hardship” in obtaining their “substantial equivalent” under 12 Rule 26(b)(3)(A); compare Mot. at 5–7 with Opp’n at 9–15. The court begins with the first 13 question: Were these documents prepared in anticipation of litigation? The County has not 14 shown they were. To understand why, it is necessary to describe the origins of those documents 15 in more detail. 16 Mollica alleges she was injured in May 2019. See Am. Compl. ¶ 17. She filed this action 17 in October 2019. See Compl., ECF No. 1. Between May and October, she submitted two 18 documents to the County and Sheriff’s Department. First, on August 19, she submitted an 19 administrative claim to the County under the California Government Claims Act. See Merin 20 Decl. ¶ 2 & Ex. A. A claim under that act is a prerequisite to a lawsuit for “money or damages” 21 against a public entity. See State of California v. Superior Ct., 32 Cal. 4th 1234, 1239 (2004). 22 She did not cite that claim in her discovery request. Second, a few days after submitting her 23 administrative claim, she submitted a citizen complaint to the Sheriff’s Department under 24 California Penal Code section 832.5. See Merin Decl. ¶ 4 & Ex. C. That is the citizen complaint 25 she cited in her discovery request. See id. Ex. H at 3. 26 These two documents—the administrative claim and the citizen complaint—started two 27 parallel processes. The administrative claim started the first. After the County received that 28 claim, it was forwarded to the County’s Risk Management Office. See Daily Decl. ¶ 2. Mollica 1 was represented at the time, and her attorney had sent the claim, so the Risk Management Office 2 followed its standard practice and sent a letter to her attorney confirming it had received and was 3 processing her claim. See id. ¶¶ 3, 6; Merin Decl. Ex. D, ECF No. 38-1. The County sent that 4 confirmation on August 27, a few days after receiving the claim. Daily Decl. ¶ 6. The County 5 also sent Mollica’s claim to its liability claims administrator, and a claims adjuster asked the 6 Sheriff’s Department for its response to her claim and allegations. Id. ¶ 7. It also sent Mollica’s 7 attorney a confirmation that it was investigating. Merin Decl. ¶ 6 & Ex. E. This was on 8 August 29. Daily Decl. ¶ 7; Merin Decl. ¶ 6. 9 Mollica’s citizen complaint began the second process: a mandatory internal investigation 10 within the Sheriff’s Department. Every California “department or agency that employs peace 11 officers” must “establish a procedure to investigate complaints by members of the public against 12 personnel of these departments or agencies,” Cal. Pen. Code § 832.5(a)(1), and agencies and 13 departments must comply with their policies, see Galzinski v. Somers, 2 Cal. App. 5th 1164, 1174 14 (2016). The Sacramento County Sheriff’s Department has established a procedure under this 15 section. See General Order, Merin Decl. Ex. B, ECF No. 38-1. The details of this process are not 16 relevant, but the County appears to have followed its written process for the most part in response 17 to Mollica’s citizen complaint. 18 Both of these investigations were ongoing when County representatives created the two 19 documents listed in its privilege log. See Am. Privilege Log, Merin Decl. Ex. P. It would not be 20 clearly erroneous to conclude that both documents were prepared to further both investigations, 21 that is, that they were each prepared for two purposes. On the one hand, both documents identify 22 the citizen complaint in their titles, and the County identified both documents in response to 23 Mollica’s discovery request, which named only the citizen complaint. See Merin Decl. Ex. I at 4– 24 5; Privilege Log, Merin Decl. Ex. J; Am. Privilege Log, Merin Decl. Ex. P. On the other hand, 25 Mollica does not contest the County’s claim that the documents were generated in response to a 26 request from the County’s claims adjuster during the investigation of her administrative claim. 27 See Daily Decl. ¶ 7. As noted above, Rule 26 protects against disclosure only if a document was 28 prepared in anticipation of litigation. See Richey, 632 F.3d at 568. 1 The citizen complaint was not investigated in anticipation of litigation. Documents a law 2 enforcement agency creates routinely, regardless of potential litigation, are not created in 3 anticipation of litigation; they are created in the ordinary course of business. California district 4 courts are united in this conclusion. See, e.g., Myles v. Cty. of San Diego, No. 15-1985, 5 2016 WL 2343914, at *9–11 (S.D. Cal. May 4, 2016); Anderson v. Marsh, 312 F.R.D. 584, 6 592–93 (E.D. Cal. 2015); Miller v. Pancucci, 141 F.R.D. 292, 303 (C.D. Cal. 1992); Kelly v. City 7 of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987). For that reason, a law enforcement agency’s 8 documentation of an internal affairs investigation following a citizen complaint is not protected 9 work product. See, e.g., Myles, 2016 WL 2343914 at *9; Anderson, 312 F.R.D. at 593; 10 Miller, 141 F.R.D. at 303; Kelly, 114 F.R.D. at 659. 11 Mollica’s administrative claim, by contrast, cannot be analyzed so categorically. “Many 12 courts have struggled” to decide whether and how the work product privilege applies to insurance 13 files and investigations. Garcia, 214 F.R.D. at 593. “[A] more or less routine investigation of a 14 possibly resistible claim is not sufficient to immunize under the work product rule an 15 investigative report developed in the ordinary course of business.” Id. (other alterations omitted) 16 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). “This is 17 especially true when there is no evidence in the record that an attorney was hired at the time of 18 the investigation or that an attorney requested the preparation of a document.” Id. Some 19 insurance investigations, however, might be conducted with an eye toward litigation. See id. at 20 594–95. 21 Here, no evidence shows the County had decided to accept or reject Mollica’s claim when 22 its representatives were preparing the two disputed documents. Nor had the County’s insurance 23 adjuster made any decision. No attorney was involved in their preparation at all; the County had 24 not yet retained counsel or issued a litigation hold. By all appearances, the documents were 25 created in the ordinary course of the County’s business. See id. at 593–94 (finding interviews by 26 claims adjuster not conducted in anticipation of litigation because claims had not yet been 27 rejected and no attorney had been retained). The County has not carried its burden to show the 28 documents are protected work product. 1 The County cites two cases to advocate the opposite conclusion, but neither supports its 2 position. In the first, Garcia, quoted extensively above, the court found that some files were 3 protected and others were not. See id. at 593–95. The protected materials in that case had been 4 created after the plaintiff’s claims had been rejected and when the circumstances showed there 5 was little hope of any course but litigation. See id. at 594–95. Similarly, in the second case, the 6 disputed documents had been created after counsel had been retained and after a federal agency 7 had informed the client of a pending investigation against it. See In re Grand Jury Subpoena 8 (Mark Torf / Torf Env’t Mgmt.), 357 F.3d 900, 905 (9th Cir. 2004). Some of the documents had 9 even been created at the attorney’s request “for the purpose of assisting [the client] in preparing a 10 legal defense.” Id. Here, the County, in contrast with the litigants in both Garcia and Torf, has 11 not presented evidence that it knew litigation was likely at the time the two disputed documents 12 were created. It had not even decided whether to accept or reject the claims against it and had not 13 retained an attorney. The County does not claim the documents were created at an attorney’s 14 request. 15 The County also argues the court should decide whether the documents were created 16 “because of” the potential for litigation even if they were also created for other purposes. See 17 Reply at 5–6. This argument refers to a test a court uses when disputed materials were created for 18 more than one purpose, at least one of which was in anticipation of litigation. See Richey, 19 632 F.3d at 568 (citing Torf, 357 F.3d at 908). That test is inapplicable here. The County has not 20 shown the disputed documents were created in anticipation of litigation at all. Even if it had 21 satisfied that burden, the dual purpose test would lead to the same conclusion. When a document 22 was not prepared exclusively in anticipation of litigation, then the work product rule protects 23 against disclosure if the document “can fairly be said to have been prepared or obtained because 24 of the prospect of litigation” given the document’s nature and the totality of the surrounding 25 circumstances. Richey, 632 F.3d at 568. Here, the nature and totality of the surrounding 26 circumstances show the documents were not prepared with an eye toward litigation. The County 27 was investigating a claim in the ordinary course of its business. No dispute had arisen. 28 ///// 1 Because the County has not shown the two documents listed in its privilege log contained 2 protected work product, it is unnecessary to decide whether Mollica would be entitled to their 3 production based on a “substantial need” under Rule 26(b)(3)(A)(ii). The court thus rejects the 4 County’s argument that the magistrate judge erred by declining to review the two documents in 5 camera to decide whether they revealed the “mental impressions” of its investigators. See Mot. at 6 7; Reply at 7–8. A review of that kind is necessary only if a court orders the production of work 7 product under Rule 26(b)(3)(A). See Fed. R. Civ. P. 23(b)(3)(B) (imposing protections “[i]f the 8 court orders discovery of those materials,” i.e., the protected work product described in the 9 preceding subsection (emphasis added)); see also Upjohn Co. v. United States, 449 U.S. 383, 400 10 (1981) (“Rule 26 accords special protection to work product revealing the attorney’s mental 11 processes.” (emphasis added)). 12 IV. CONCLUSION 13 The motion for reconsideration is denied. 14 Mollica’s request for sanctions is also denied. Reasonable people could disagree whether 15 the County’s motion was appropriate, so its position was “substantially justified” under the terms 16 of Federal Rule of Civil Procedure 37(a)(5)(A)(ii). See Pierce v. Underwood, 487 U.S. 552, 565 17 (1988); Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982), overruled on 18 other grounds by Cunningham v. Hamilton Cty, 527 U.S. 198, 204 (1999). 19 This order resolves ECF No. 42. 20 IT IS SO ORDERED. 21 DATED: February 1, 2022.