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 DENYING EX PARTE 13 v. MOTION TO STAY AND DIRECTING SUBMISSION OF 14 COUNTY OF SAN DIEGO, et al. , DOCUMENTS FOR IN CAMERA 15 Defendants. REVIEW

16 [Dkt. No. 146] 17

19 Before the Court is the County Defendants’ Ex Parte Application for an Order 20 Staying the Court’s September 20, 2023 Discovery Order re Motion to Compel Pending 21 District Judge Review. Dkt. No. 146. 22 On September 20, 2023, the undersigned issued an order granting Plaintiffs’ motion 23 to compel CIRB Reports relating to in-custody suicides over a five-year period, finding the 24 County had not carried its burden to show that the documents were protected from 25 disclosure by the attorney-client, official information, deliberative process, or law 26 enforcement investigatory privileges, the work product doctrine, or HIPAA and similar 27 medical privacy statutes. See Dkt. No. 144 (hereafter the “September 20 Discovery 28 Order”). The County Defendants indicate they will move pursuant to Federal Rule of Civil 1 Procedure 72 to set aside the September 20 Discovery Order on or before October 4, 2023, 2 the same date by which they were ordered to produce the disputed CIRB Reports. See id. 3 at 27. 4 When considering whether to grant a stay, the Court applies a four-factor test: 5 “(1) whether the movant has made a showing of likelihood of success on the merits; 6 (2) whether the movant has made a showing of irreparable injury if the stay is not granted; 7 (3) whether the granting of the stay would substantially harm the other parties; and 8 (4) whether the granting of the stay would serve the public interest.” See In re Republic of 9 Ecuador, No. 10-MC-80087 CRB (NC), 2012 WL 13187177, at *2 (N.D. Cal. Mar. 30, 10 2012) (citing Nken v. Holder, 556 U.S. 418 (2009)). Having considered each of these 11 factors, the Court DENIES the Ex Parte Application. 12 First, the Court concludes the County Defendants are not likely to succeed on the 13 merits. On June 27, 2023, the Court granted Plaintiffs’ motion to compel production of the 14 CIRB Report and related documents pertaining to Joseph Morton’s death. Dkt. No. 97 15 (hereafter the “June 27 Discovery Order”). Thereafter, the District Judge overruled the 16 County Defendants’ Rule 72 objection to the June 27 Discovery Order. Dkt. No. 131. The 17 September 20 Discovery Order involves the same issues of attorney-client privilege raised 18 in the County Defendants’ unsuccessful challenge to the undersigned’s June 27 Discovery 19 Order. See Dkt. Nos. 105, 131. 20 Second, the Court finds that by applying targeted, appropriate redactions, the 21 potential injury to the County from disclosure of its assertedly privileged information is 22 ameliorated. Third, given the impending fact discovery cutoff and other deadlines that 23 were imposed after the County Defendants’ prior unsuccessful Rule 72 challenge, the Court 24 concludes that the other parties to the action would be unfairly and substantially prejudiced 25 by a stay. Fourth, the Court concludes that the public interest is not served by further delay 26 in the production of these documents. 27 The Court will, however, provide the County Defendants with a final opportunity to 28 propose specific and targeted redactions to communications they assert are protected by | attorney-client privilege. By not later than October 10, 2023, the County Defendants 2 submit to the undersigned its proposed redactions to the CIRB Reports for in camera 3 || review. 4 For the above reasons, the Ex Parte Application for an Order Staying the Court’s 5 September 20, 2023 Discovery Order [Dkt. No. 146] is DENIED. The September 20 6 || Discovery Order is hereby STAYED until further Order of this Court regarding the 7 || proposed redactions. 8 || IT IS SO ORDERED. 9 || Dated: October 3, 2023 _—_— 10 Tb Lh,

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