Morton v. County of San Diego

Opinion

1 2 3 4 5 6 7 10 11 MARILYN MORTON, et al. Case No.: 21-cv-1428-MMA-DDL

12 Plaintiffs, ORDER REGARDING JOINT 13 v. MOTION FOR CLARIFICATION RE: DISCOVERY ORDER 14 COUNTY OF SAN DIEGO, et al.,

15 Defendants. [Dkt. No. 135]

17 18 On June 27, 2023, the Court issued an amended Order granting in part and denying 19 in part Plaintiffs’ motion to compel production of documents (the “Discovery Order”). 20 Dkt. No. 97. The Discovery Order provided, in relevant part: 21 The County has provided a “Privilege Log Re Emails” identifying 93 emails as to which it asserts the attorney-client privilege. The County asserts the 22 attorney-client privilege over these emails, which include discussions about 23 press releases and other issues relating to Morton’s death. However, the County’s briefing does not explain why these emails are privileged, and the 24 Court’s in camera review indicates that the emails are not confidential 25 attorney-client communications “which are made for the purpose of giving legal advice.” In re Grand Jury, 23 F.4th at 1091 (citation omitted). Based 26 on the current record, the County has failed to carry its burden to establish that 27 the attorney-client privilege applies to these documents. 28 Id. at 12. 1 The Court thereafter issued a limited stay of the Discovery Order pending resolution 2 of the County’s objection under Federal Rule of Civil Procedure 72. Dkt. No. 109. 3 Specifically, the Court directed that the County’s “production of CIRB reports, CIRB 4 records, and 93 emails listed in the County’s privilege log” was stayed. Id. at 2. The Court 5 directed that the stay would “automatically expire on the date of the District Court’s order 6 disposing of the Rule 72 motion,” and, if the District Judge affirmed the Discovery Order, 7 the County “must produce all documents no later than one week from the date of the 8 District Court’s order.” Id. 9 On September 6, 2023, the District Judge overruled the County’s objection to the 10 Discovery Order. Dkt. No. 131. As the County acknowledges, it was obligated to produce 11 the documents at issue, including the documents identified in its “Privilege Log Re 12 Emails,” by not later than September 13, 2023. See Dkt. No. 135 at 3. 13 On September 13, 2023, the County filed the instant motion for “clarification” 14 asserting that three documents (UIN Nos. 4-6) in its Privilege Log Re Emails and one 15 document (UIN No. 38) erroneously listed in its Supplemental Privilege Log Re CIRB- 16 Related Records include communications between the San Diego Sheriff’s Department and 17 County Counsel. Dkt. No. 135 at 3. The County “suggests that the Court extend protection 18 to the select items specifically to County Counsel . . . .” Dkt. No. 135 at 5. Plaintiffs 19 oppose the motion. Id. at 5-6. 20 The Court held in its Discovery Order that the County failed to carry its burden to 21 establish that the attorney-client privilege applies to the documents identified in the 22 County’s “Privilege Log Re Emails” and directed the County to produce those documents 23 to Plaintiffs. Dkt. No. 97 at 12, 17. To the extent the County seeks clarification as to 24 whether the Discovery Order requires production of those documents, the answer is “yes.” 25 The Court ORDERS the County to produce UIN Nos. 4, 5, 6 and 38 to Plaintiffs by not 26 later than September 19, 2023. 27 / / / 28 / / / 1 To the extent the County is asking the Court to reconsider its Discovery Order 2 ||requiring production of UIN Nos. 4, 5, 6 and 38, the Court finds that the County has not 3 ||made the requisite showing to warrant reconsideration. See Sch. Dist. No. 1J, Multnomah 4 || Cnty., Or. v. ACandsS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (reconsideration appropriate 5 || only when the Court “(1) is presented with newly discovered evidence, (2) committed clear 6 || error or the initial decision was manifestly unjust, or (3) if there 1s an intervening change 7 controlling law’’) (citation omitted). 8 | IT IS SO ORDERED. 9 || Dated: September 18, 2023 _—_— 10 Tb hohe

12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28