Vuz v. DCSS III, Inc.

• Court: District Court, S.D. California
• Decided: February 23, 2022
• Docket: 3:20-cv-00246
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Ashley R. VUZ, Case No.: 20-cv-0246-GPC-AGS 4 Plaintiff, ORDER ON DEFENDANTS’ DISCOVERY MOTION 5 v. (ECF 116 & 119) 6 DCSS III, INC., et al., 7 Defendants. 8 9 Federal Rule of Evidence 612 permits the opposing party to inspect writings used to 10 refresh a witness’s memory. But what if that writing is privileged? Does Rule 612 trump 11 the privilege? This discovery dispute turns on that question. 12 BACKGROUND 13 After plaintiff Ashley Vuz’s allegedly improper arrest, she called attorney Ryan 14 Graham for help. (See ECF 117, at 1.) Graham asked her to draft “a diary-like narrative of 15 the events . . . for the purpose of evaluating Plaintiff’s potential case.” (ECF 119-1, at 17; 16 see also ECF 117-1, at 2.) Vuz did so, gave those notes to Graham, and eventually hired 17 him as counsel. (ECF 117-1, at 1-2.) After Vuz’s criminal case was dropped, Graham 18 helped her bring this civil-rights suit. 19 At her deposition, Vuz said that she prepared for her testimony by reviewing the 20 narrative that she wrote for her attorney. (ECF 116-3, at 6-7.) When defendant County of 21 San Diego asked to inspect those notes, Vuz objected on privilege grounds. (ECF 116-1, 22 at 7.) The County moved for disclosure, and the Court ordered an in camera review. 23 DISCUSSION 24 To decide whether Vuz’s notes must be turned over, this Court must analyze the 25 interplay between Rule 612 and privilege. 26 A. Rule 612 27 If “a witness uses a writing to refresh memory,” the adverse party is typically 28 “entitled to have the writing produced at the hearing.” Fed. R. Evid. 612(a)&(b). When the 1 witness refreshes recollection with a writing “before testifying,” those notes must be 2 produced “if the court decides that justice requires [it].” Fed. R. Evid. 612(a)(2). “[J]ustice 3 requires” disclosure when there is “some evidence that a witness actually relied upon 4 documents in giving his testimony or that those documents somehow influenced his 5 testimony.” T & S Enters., L.L.C. v. Sumitomo Corp. of Am., No. 11CV1318-GPC MDD, 6 2012 WL 4845544, at *1 (S.D. Cal. Oct. 10, 2012). Compare id. at *2 (ordering disclosure 7 of a timeline after plaintiff admitted to reviewing it “to help [him] testify better”), and Hoot 8 Wine, L.L.C. v. McGladrey Fin. Process Outsourcing, No. 08CV1559, 2010 WL 3894966, 9 at *5 (S.D. Cal. Sept. 29, 2010) (granting discovery when it was “apparent to the Court that 10 [the witness] has refreshed her recollection by at least ‘scanning’ her report”), with United 11 States v. Bourseau, No. 03CV00907, 2005 WL 8173191, at *5 (S.D. Cal. Aug. 9, 2005) 12 (denying discovery because the defense “failed to ask [the witness] during her deposition 13 whether she had refreshed her memory by using any of the documents at issue,” preventing 14 the court from determining whether her testimony was “directly affected by the privileged 15 documents”). These principles apply equally to trials and depositions. See T & S Enters., 16 2012 WL 4845544, at *1 (citing Fed. R. Civ. P. 30(c) & Fed. R. Evid. 612). 17 Before her deposition, according to her testimony, Vuz “reviewed [her] notes that 18 [she] took at the time the incident occurred” so that she could “recall everything that had 19 happened, in the manner which it had happened.” (ECF 116-3, at 6, 13-14.) This testimony 20 confirms that Vuz not only relied on the notes to refresh her memory, but that they 21 influenced her testimony. Thus, Rule 612 requires disclosure, absent any countervailing 22 privilege concerns. See Thomas v. Euro RSCG Life, 264 F.R.D. 120, 122 (S.D.N.Y. 2010) 23 (granting disclosure when plaintiff reviewed her notes because it would “be very difficult 24 for [her] to recount all of the conversations”). 25 B. The Interplay Between Rule 612 and Privilege 26 Courts are divided on “how to reconcile Rule 612 . . . with attorney-client privilege 27 and work product protection.” Adidas Am., Inc. v. TRB Acquisitions LLC, 324 F.R.D. 389, 28 398 (D. Or. 2017). Some courts have treated Rule 612 as an absolute waiver of privilege. 1 See, e.g., United States v. 22.80 Acres of Land, 107 F.R.D. 20, 25 (N.D. Cal. 1985) 2 (“[Rule 612] permit[s] discovery of writings [because] . . . any privilege or work product 3 protection against disclosure is deemed waived as to those portions so reviewed.”); James 4 Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) (“[Courts] have generally 5 agreed that the use of protected documents to refresh a witness’[s] memory prior to 6 testifying constitutes a waiver of the protection.”). Many courts today, however, reject the 7 absolute-waiver approach and instead employ “a test that balances the interests promoted 8 by recognizing Rule 612 rights . . . against the burden those rights impose on work-product 9 and privilege protections.” 28 Charles Alan Wright & Arthur R. Miller, Federal Practice 10 & Procedure § 6188 (2d ed. 2021); see also Valvoline Instant Oil Change Franchising v. 11 RFG Oil, Inc., No. 12CV2079-GPC(KSC), 2014 WL 12026073, at *5 (S.D. Cal. May 20, 12 2014) (“[Courts] engage in a balancing test considering such factors as whether production 13 is necessary for fair cross-examination or whether the examining party is simply engaged 14 in a ‘fishing expedition.’” (citation omitted)). 15 Finally, some courts conclude that Rule 612 “was not meant to repeal the attorney 16 client relationship” in the first place. See Suss v. MSX Int’l Eng’g Servs., Inc., 212 F.R.D. 17 159, 164 (S.D.N.Y. 2002); see also Stamps.com, Inc. v. Endicia, Inc., No. CV 06-7499, 18 2008 WL 11338241, at *6 (C.D. Cal. Oct. 6, 2008) (denying a motion to compel documents 19 reviewed before a deposition, as there was “no indication that [plaintiff’s] review of 20 unredacted versions of any particular document constituted a waiver of privilege”). 21 This last view finds strong support from Supreme Court precedent on statutory 22 construction. “Statutes which invade the common law are to be read with a presumption 23 favoring the retention of long-established and familiar principles, except when a statutory 24 purpose to the contrary is evident.” Pasquantino v. United States, 544 U.S. 349, 359 (2005) 25 (alterations and citations omitted); see also United States v. Texas, 507 U.S. 529, 534 26 (1993) (“In order to abrogate a common-law principle, the statute must ‘speak directly’ to 27 the question addressed by the common law.”). Nothing in Rule 612 evinces an “evident” 28 1 Congressional intent to infringe upon attorney-client or work-product protections. So the 2 Court must presume that Rule 612 left those common-law principles unscathed. 3 In fact, the legislative history staunchly supports this conclusion. In 1974, the 4 Advisory Committee cautioned that “nothing” in Rule 612 should “be construed as barring 5 the assertion of a privilege with respect to writings used by a witness to refresh his 6 memory.” Fed. R. Evid. 612 advisory committee’s note to 1974 enactment. The Chair of 7 the relevant subcommittee that year likewise emphasized that Rule 612 “was not meant to 8 repeal the attorney-client relationship,” and it “does not wipe out . . . the law as it exists 9 regarding the privilege of attorney-client relationships, or their work products.” 120 Cong. 10 Rec. 2382 (1974). See also Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 386 n.1 11 (N.D. Cal. 1991) (“[W]e choose not to base our disposition of defendant’s motion on 12 doctrine emanating from Federal Rule of Evidence 612, in part because we are not satisfied 13 that any court has explained sufficiently how, in light of its legislative history . . . , this 14 Rule could be used to compel disclosure of communications that otherwise would be 15 privileged or protected as work product.”). 16 This Court will apply Rule 612 in a manner that conforms with these Supreme Court 17 precedents and the legislative history. Thus, “the relevant inquiry is not simply whether the 18 documents were used to refresh the witness’s recollection, but rather whether the 19 documents were used in a manner which waived the . . . privilege.” Suss, 212 F.R.D. at 164. 20 C. Privilege 21 The next question is whether Vuz’s notes are protected by attorney-client privilege.1 22 23 24

25 1 The Court does not address the issue of the work-product doctrine, as the work- 26 product analysis here rises and falls with the attorney-client privilege. That is, a party may 27 discover work-product materials if, among other things, they are “otherwise discoverable under Rule 26(b)(1)” (meaning, nonprivileged, relevant, and proportional). See Fed. R. 28 1 1. Governing Law 2 “In federal question cases . . . in which state law claims are also raised . . . , any 3 asserted privileges relating to evidence relevant to both state and federal claims are 4 governed by federal common law.” Soler v. Cnty. of San Diego, No. 14CV2470-MMA 5 (RBB), 2016 WL 11621299, at *9 (S.D. Cal. July 18, 2016). Vuz alleges both federal civil- 6 rights and state-law claims, so the Court will apply federal common law to any privilege 7 analysis. (See ECF 68, at 24-48.) The party resisting discovery “bears the burden of proving 8 that the withheld documents are protected by the attorney-client or work-product privileges 9 and that the privilege has not been waived.” Kirkpatrick v. Cty. of Oakland, Case 10 No. 20-cv-05843-JSC, 2022 WL 137628, at *1 (N.D. Cal. Jan. 14, 2022). 11 2. Attorney-Client Privilege 12 To determine if material is protected by the attorney-client privilege, the Ninth 13 Circuit applies an eight-part test: 14 (1) Where legal advice of any kind is sought (2) from a professional legal 15 adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance 16 permanently protected (7) from disclosure by himself or by the legal adviser, 17 (8) unless the protection be waived. 18 In re Grand Jury Investigation, 974 F.2d 1068, 1071 n.2 (9th Cir. 1992) (citation omitted). 19 The documents at issue are the notes that Vuz wrote under counsel Graham’s 20 direction. (ECF 117-1, at 2.) Vuz was a prospective client seeking legal advice from a 21 lawyer “in his capacity as such,” and her notes were made in confidence for the attorney 22 and related to the legal advice sought. See In re Grand Jury Investigation, 974 F.2d at 23 1071 n.2 (citation omitted); see also Coleman v. Sterling, No. 09-CV-1594-W (BGS), 24 2011 WL 13176815, at *5 (S.D. Cal. July 18, 2011) (noting that the privilege “extends to 25 preliminary consultation by a prospective client with a view to retention of the lawyer”). 26 So, unless Vuz waived the attorney-client privilege, her notes are “permanently protected.” 27 See In re Grand Jury Investigation, 974 F.2d at 1071 n.2. 28 1 3. Waiver 2 Did Vuz waive that privilege? Waivers may be express or implied. See United States 3 v. Sanmina Corp., 968 F.3d 1107, 1116-17 (9th Cir. 2020). An express waiver is when a 4 party “voluntarily disclos[es] privileged documents to third parties” or “otherwise shows 5 disregard for the privilege by making the information public.” Id. (citation omitted). 6 Because she never disclosed her notes to anyone but her attorney, Vuz did not expressly 7 waive privilege. 8 Defendants’ last hope, then, is the doctrine of implied waiver. A privilege is 9 impliedly waived when: “(1) [t]he party asserting the privilege acts affirmatively (2) to 10 place the privileged communications in issue between the party seeking discovery and 11 itself (3) such that denying access to the communication becomes manifestly unfair to the 12 party seeking discovery.” Sonix Tech. Co. Ltd v. Yoshida, No. 12CV380-CAB (DHB), 13 2015 WL 11199833, at *1 (S.D. Cal. July 13, 2015) (citation omitted). The doctrine 14 “prevent[s] a party from using the privilege as both a shield and a sword.” Sanmina Corp., 15 968 F.3d at 1117. “Mere disclosure of [an] underlying fact would not waive the privilege 16 or protection as to a communication containing that fact. . . . But revealing that a 17 communication contained that fact discloses the substance of the communication and, thus, 18 waives the privilege” as to that communication. Kintera, Inc. v. Convio, Inc., 219 F.R.D. 19 503, 511 (S.D. Cal. 2003); see, e.g., Sommer v. United States, No. 09CV2093, 2012 WL 20 28337, at *4 (S.D. Cal. Jan. 5, 2012) (ruling that plaintiff put a privileged communication 21 at issue by asserting what the expert said, which “implicitly waiv[ed] privilege”); cf. Bona 22 Fide Conglomerate, Inc. v. SourceAmerica, No. 314CV00751GPCDHB, 2016 WL 23 4361808, at *9 (S.D. Cal. Aug. 16, 2016) (holding that defendants’ privilege was not 24 waived because “it was [plaintiff, not defendant,] that initially placed the [privileged 25 defense materials] at issue by quoting from them” in their first amended complaint). 26 Vuz did not place the privileged material at issue here. In her deposition, she never 27 divulged the contents of her notes. (See generally ECF 116-3.) Nor did she attempt to use 28 them offensively to further her case, bolster her credibility, or assert a new claim. (Id.) She 1 ||answered some of the defense’s questions about her notes, while her attorney raised 2 || privilege objections to that line of examination. Because Vuz consistently tried to shield 3 ||her notes from disclosure—and never attempted to use them as a “sword”—she did not 4 ||impliedly waive the attorney-client privilege. Thus, disclosure is unwarranted. 5 CONCLUSION 6 Although Rule 612 would typically require disclosure of any writings used to refresh 7 ||a witness’s memory, it does not overcome the attorney-client privilege, which safeguards 8 || Vuz’s notes. So, defendants’ motion to disclose them is DENIED. 9 || Dated: February 22, 2022 10 — | 11 Hon. Andrew G. Schopler United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28