ESTATE OF SERNA v. COUNTY OF SAN DIEGO (2023)

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS

[Dkt. No. 141]

I.

INTRODUCTION

Elisa Serna died while in custody at Las Colinas Detention Facility. In this civil rights action arising from Serna's death, Plaintiffs move to compel production of: (1) 35 reports of the San Diego Sheriff's Department's Critical Incident Review Board (the “CIRB”) pertaining to inmates who died in Sheriff's Department custody for the time period November 1, 2015 to December 1, 2019; (2) a CIRB Report tracking spreadsheet; (3) the Internal Affairs investigation file relating to Serna's death; and (4) and an unredacted copy of an email chain involving defendant Friederike Von Lintig, M.D.

The County of San Diego (“County”) argues the 35 CIRB Reports and the spreadsheet are protected from disclosure by the attorney-client privilege, the work product doctrine, the official information privilege, the deliberative process privilege, the law enforcement investigatory privilege and privacy rights. The County similarly invokes the official information privilege and privacy rights to resist disclosure of the Internal Affairs file. Finally, the County and defendants Coast Correctional Medical Group (“CCMG”), Von Lintig and Mark O'Brien (collectively, the “CCMG Defendants”) oppose production of the emails involving Von Lintig because they contain confidential medical information of third parties.

The Court has considered the arguments of counsel made in multiple rounds of briefing and at oral argument on August 8, 2023, and has conducted an in camera review of the disputed documents. After careful consideration, and on the record before it, the Court finds the County has not met its burden to establish the privileges it invokes apply to the CIRB Reports in their entirety, the CIRB spreadsheet or the Internal Affairs file. Further, the Court finds the privacy concerns raised by the County and the CCMG Defendants are adequately addressed by the operative Protective Order and limited redactions of personal information as described in this Order. The Court further concludes that 33 of the 35 CIRB Reports and the Internal Affairs file are relevant to Plaintiffs’ claims and proportional to the needs of the case.

II.

FACTUAL BACKGROUND

A. Serna's Death

As alleged in Plaintiffs’ Second Amended Complaint, Serna was admitted to the Las Colinas Detention Facility on November 6, 2019. Dkt. No. 34 at ¶ 22. She reported she was addicted to heroin and alcohol and that she had used heroin, alcohol and Xanax two hours before her booking. Id. at ¶¶ 23, 25. Serna went to the Las Colinas medical ward on November 6 and 7, where she was given Zofran and “advised to increase her fluid intake.” Id. at ¶ 26. Serna vomited for multiple consecutive days and had symptoms indicating dehydration, but she was not placed on withdrawal protocol and was “told to drink some more water.” Id. at ¶¶ 30-34.

On November 10, Serna was transferred to a Medical Observation Bed, where she was given medication for her withdrawal. Id. at ¶¶ 37-39. On November 11, beginning at 1:15 a.m., multiple medical personnel at Las Colinas observed Serna as she continued exhibiting symptoms of withdrawal and dehydration. Id. at ¶¶ 41-80. Plaintiffs allege medical personnel failed to treat Serna as she repeatedly suffered seizures, lost consciousness and fell to the ground. Id. at ¶ 75.

On November 11, at approximately 7:00 p.m., two jail personnel “watched as [Serna] suffered a seizure, struck her head and fell unconscious onto the floor of her cell.” Id. at ¶ 78. The personnel left the cell without providing any medical treatment. Id. at ¶ 80. Serna died on the cell floor shortly thereafter. Id. at ¶¶ 81-82.

Plaintiffs assert causes of action under 42 U.S.C. § 1983 against several individual defendants, as well as a cause of action under § 1983 against the County and CCMG pursuant to Monell v. Dep't of Soc. Serv. of the City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiffs also assert causes of action under California law for wrongful death, negligence and a survival claim.

B. Critical Incident Review Board

San Diego Sheriff's Department Policy and Procedure Manual Section 4.23 (“Section 4.23”) describes the CIRB's purpose and procedures:

The purpose of [the CIRB] is to consult with department legal counsel when an incident occurs which may give rise to litigation. The focus of the CIRB will be to assess the department's civil exposure as a result of a given incident. The CIRB will carefully review those incidents from multiple perspectives, including training, tactics, policies, and procedures with the ultimate goal of identifying problem areas and recommending actions so that potential liability can be avoided in the future.

Dkt. No. 153-2 at 11.¹ Section 4.23 requires the CIRB to review all “critical incidents,” which include “[i]n custody deaths, other than natural causes.” Id. at 12.

The CIRB consists of three voting members and two non-voting members. Id. at 11. The three voting members include Sheriff's Department Commanders from the Law Enforcement, Court Services, and Detention Services Divisions. Id. The two non-voting members are the Sheriff's Department Chief Legal Advisor and a Commander from Human Resources. Id.

Following an in-custody death, the Sheriff's Department's Homicide Unit conducts an investigation. Baranic Trans. at 28:7-9. In preparation for the CIRB meeting, Sheriff's Department personnel prepare a PowerPoint presentation summarizing the incident and the investigation. Baranic Trans. at 26:23-27:2; 108:20-23.

The CIRB's review consists of both a “presentation session” and a “closed session.” Dkt. No. 153-2 at 5; Baranic Trans. at 16:19-17:4. At the presentation session, “the investigators involved in the investigation of the critical incident will present facts and circumstances to the members of the CIRB.” Dkt. No. 153-2 at 12. CIRB members may question the investigators “regarding the specific facts and circumstances surrounding the critical incident.” Id. Baranic testified the presentation session “is where the information is presented to the board members, and we have the opportunity to ask questions of either the affected command or subject matter experts.” Baranic Trans. at 16:25-17:3.²

Following the presentation session, the CIRB meets in closed session. Only the five CIRB members and a Division of Inspectional Services Lieutenant acting as the “scribe” are present at the closed session. Id. at 78:14. As stated in Section 4.23, “[a]fter hearing from all necessary parties, the three Commanders will vote to make a determination as to whether or not a policy violation may exist.” Dkt. No. 153-2 at 12. If a majority of the three voting Commanders determine a policy violation may have occurred, the case is referred to Internal Affairs for further investigation. Id. If the majority does not find a potential policy violation, “the CIRB case will be forwarded to the Standards and Compliance Manager of the Division of Inspectional Services for the generation of a report, consistent with the Board's findings, at the conclusion of the CIRB.” Id. at 13.

Section 4.23 identifies two post-CIRB meeting requirements. First, for critical incidents involving a Sheriff's Department employee, the employee's Facility or Unit Commander must brief the employee “as to the results of the CIRB” review within seven days of the CIRB meeting. Id. Second, within 45 days of the CIRB review, the Department of Inspectional Services must “prepare a report summarizing the actions and conclusions of the board.” Id. The report “shall contain specific findings with regard to whether the review board found any policy violations, and training or policy issues, as well as what actions were taken by the department.” Id. The Lieutenant who served as the “scribe” prepares the CIRB Report. Baranic Trans. at 78:14. Baranic testified the CIRB Report may contain action items. Id. at 112:4-13. Under Section 4.23, the CIRB may also make “recommendations for training based on the analysis of critical incidents” as well as “proposed policy recommendations” if it identifies “policy issues of concern while reviewing a critical incident.” Dkt. No. 153-2 at 13. In addition to these requirements, Baranic testified that, in the days following the CIRB review, he “tend[s] to have a standing meeting with the Sheriff and Undersheriff, and I will brief them on the CIRBs.” Baranic Trans. at 112:1-3.

In February 2022, the California State Auditor issued a report regarding inmate deaths in San Diego County Jails. See https://www.auditor.ca.gov/pdfs/reports/2021-109.pdf (last accessed August 29, 2023). The report included a response from the San Diego County Sheriff's Department that includes the following regarding the CIRB:

As items of concern are identified during a critical incident, such as an in-custody death, the CIRB reviews focus with an eye toward what changes have already been implemented by the chain of command to remedy any deficiencies before the matter admitted to the CIRB for review, as well as any changes the chain of command may not have already identified and/or implemented to minimize the risk of a reoccurrence.

If the CIRB identifies any best practices or changes not previously identified and implemented by the change [sic] of command prior to this review, the CIRB is empowered to make such recommendations.

Id. at 103. Baranic testified this is “a purpose of CIRB but not the primary purpose of CIRB.” Baranic Trans. at 76:1-2.

III.

DISCUSSION

A. CIRB Reports and Spreadsheet (RFP Nos. 12 and 13)

Plaintiffs seek disclosure of 35 CIRB Reports pertaining to in-custody deaths at San Diego County jails from November 1, 2015 to December 1, 2019, and a spreadsheet listing the same CIRB Reports. The County asserts the attorney-client privilege, work product doctrine, official information privilege, deliberative process privilege, law enforcement investigatory privilege and third-party privacy concerns exempt the CIRB Reports from disclosure. The County further asserts the CIRB Reports are neither relevant nor proportional to the needs of the case irrespective of any privilege. The Court addresses each contention in turn.

1. Attorney-Client Privilege

a. General principles

Federal law applies to assertions of privilege in this federal civil rights action. See United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. “However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose” and “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002).³

The privilege “protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021). The elements of the privilege are:

(1) When legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are, at the client's instance, permanently protected (7) from disclosure by the client or by the legal adviser (8) unless the protection be waived.

Martin, 278 F.3d at 999. “The burden is on the party asserting the privilege to establish all the elements of the privilege.” Id. at 999-1000.

There is no dispute the County may invoke the attorney-client privilege for confidential communications between Sheriff's Department counsel and Sheriff's Department personnel so long as the County establishes that the communications meet the foregoing elements for privileged communications. See In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (“In civil suits between private litigants and government agencies, the attorney-client privilege protects most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.”). This is because “[a]ccess to legal advice by officials responsible for formulating, implementing and monitoring governmental policy is fundamental to promot[ing] broader public interests in the observance of law and administration of justice.” Id. at 419.

b. Prior rulings

At the outset, the Court acknowledges that multiple judges in this District (including the undersigned) have considered attorney-client privilege assertions as to CIRB Reports. In Bush v. Cnty. of San Diego, No. 15-cv-686-L-JMA, Dkt. No. 22 (S.D. Cal. Nov. 24, 2015), the court declined to compel production of a CIRB Report based on a declaration from then-Sheriff's Department Chief Legal Advisor Robert Faigin stating the Report “is a confidential communication involving the County's employees and Faigin, in his capacity as a legal advisor, and was prepared for the purpose of obtaining legal advice related to the subject incident.” Id. at 8. Similarly, in Estate of Ruben Nunez v. Cnty. of San Diego, No. 16-cv-1412-BEN-MDD, Dkt. No. 186 (S.D. Cal. Sept. 11, 2017), the court declined to compel production of a CIRB Report based on a declaration from Faigin stating that “the purpose of the [CIRB] meeting was to obtain legal advice in advance of potential litigation.” Id. at 3.

More recently, the Greer court applied the “primary purpose” test adopted by the Ninth Circuit in In re Grand Jury to CIRB investigations. Greer, 634 F. Supp. 3d. at 919-21. The Greer court conducted a detailed analysis of Section 4.23 and concluded “the objective evidence before the Court establishes the CIRB's primary purpose is investigative and remedial (activities generally not protected by the attorney-client privilege), and the County has not carried its burden of establishing the primary purpose of the twelve CIRB investigations at issue was obtaining legal advice.” Id. at 921. The District Judge affirmed that ruling and thereafter conducted an in camera review of the CIRB Reports at issue. Following the in camera review, the District Judge affirmed the prior ruling that the CIRB Reports were not privileged. See Dkt. No. 61-1 at 59 (transcript of February 8, 2023 hearing in Greer in which the District Judge concluded “the CIRB memoranda reports and documents are not privileged because their primary purpose is to determine training issues and recommend remedial measures in response to serious incidents that occur within the County jails, as opposed to giving or seeking legal advice from or by the chief legal officer”).

Finally, in Morton, this Court concluded that the County had not carried its burden to establish that the primary purpose of all the communications at the subject CIRB meeting was to seek or provide legal advice so as to render the entire CIRB Report privileged but that limited portions of the CIRB Report were properly redacted prior to the Report's disclosure to the plaintiffs. Morton v. Cnty. of San Diego, 21-cv-1428-MMA-DDL, 2023 WL 4243239, at *6 (S.D. Cal. June 27, 2023).

c. Application to the Present Dispute

Against this backdrop, the Court turns to the CIRB Reports at issue in this case. To justify its assertion of the attorney-client privilege as to the entirety of all 35 CIRB Reports, the County bears the burden to establish that each Report memorializes confidential communications between attorney and client that were “made for the purpose of giving legal advice.” In re Grand Jury, 23 F.4th at 1091; see also Chrimar Sys. Inc. v. Cisco Sys. Inc., No. 13-CV-01300-JSW(MEJ), 2016 WL 1595785, at *3 (N.D. Cal. Apr. 21, 2016) (attorney-client privilege extends to document that “memorializes and reflects legal advice rendered in a privileged conversation”). Given that the County asserts the privilege as to the entirety of each Report, the County must show that every communication memorialized in that Report was “made for the purpose of giving [or seeking] legal advice.” In re Grand Jury, 23 F.4th at 1091. The County has not met its burden.

The County points out the stated purpose of the CIRB is to “consult with department legal counsel when an incident occurs which may give rise to litigation” and “assess the department's civil exposure as a result of a given incident.” Dkt. No. 153-2 at 11. Baranic declares the CIRB's “primary purpose is risk management” with a “focus on potential litigation.” Id. at 3-4. At the evidentiary hearing, Baranic similarly testified the “sole purpose” of the CIRB is to examine critical incidents “from a liability standpoint.” Baranic Trans. at 83:24-25. He further testified that he CIRB Report is generated “to memorialize the discussions and [ ] any legal advice that was given during the CIRB process.” Id. at 90:8-9.

“Where the communication was made for dual-purposes, courts must determine ‘whether the primary purpose of the communication is to give or receive legal advice, as opposed to business ․ advice.’ ” Greer, 634 F. Supp. 3d at 917-18 (citing In re Grand Jury, 23 F.4th at 1091). In determining whether the CIRB Reports memorialize communications “made for the purpose of giving legal advice,” In re Grand Jury, 23 F.4th at 1091, the Court begins with the provisions of Section 4.23 that govern the CIRB process. As noted above, at the presentation session, “the investigators involved in the investigation of the critical incident will present facts and circumstances to the members of the CIRB.” Dkt. No. 153-2 at 12. Thereafter, the five CIRB members meet in closed session where “the three Commanders will vote to make a determination as to whether or not a policy violation may exist.” Id. In addition, the CIRB may make training recommendations and “proposed policy recommendations.” Id. at 13. Finally, Section 4.23 requires the preparation of a CIRB Report that “shall contain specific findings with regard to whether the review board found any policy violations, and training or policy issues, as well as what actions were taken by the department.” Id.

The requirements established by Section 4.23 – that the CIRB vote on the existence of policy violations, make findings as to any policy violations and “training or policy issues” and describe actions taken – exist independent of any legal advice that may be provided by the Chief Legal Advisor, who serves as a non-voting CIRB member. Stated another way, the CIRB could fulfill its duties under Section 4.23 to vote on policy violations and address training or policy issues absent any legal advice from the Chief Legal Advisor. See Fisher, 425 U.S. at 403, 96 S.Ct. 1569 (privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege”); Wisk Aero LLC v. Archer Aviation, Inc., No. 21-cv-2450-WHO (DMR), 2023 WL 2699971, at *4 (N.D. Cal. March 29, 2023) (“no privilege can attach to any communication as to which a business purpose would have served as a sufficient cause, i.e., any communication that would have been made because of a business purpose, even if there had been no perceived additional interest in securing legal advice”). That legal advice from the Chief Legal Advisor is not necessary for the CIRB to fulfill these duties significantly undermines the County's position that the Reports in toto are privileged, and weighs against a finding that the primary purpose of the CIRB meetings is to “give or receive legal advice.” In re Grand Jury, 23 F.4th at 1091.

The Court's in camera review of the 35 CIRB Reports further supports the conclusion that the primary purpose of the communications at the CIRB meetings was not to seek or receive legal advice such that the attorney-client privilege protects the entirety of each Report from disclosure. See United States v. Chevron Corp., No. C 94-1885 SBA, 1996 WL 444597, at *2 (N.D. Cal. May 30, 1996) (“The court may conduct an in camera review of withheld documents to allow the client to demonstrate to the court that the attorney-client privilege applies to segregable portions of the withheld documents.”). Certain of the CIRB Reports contain questions and statements by then-Chief Legal Advisor Robert Faigin.⁴ See, e.g., CSD-2461-2479. However, it is not apparent from the CIRB Reports themselves that these questions or statements constitute legal advice, and the County has not asserted that specific portions of the CIRB Reports contain legal advice.⁵ To be sure, the privilege applies to confidential “communications relating to” the seeking of legal advice, Martin, 278 F.3d at 999, which may include communications made by the client and communications made by the attorney that do not constitute legal advice per se. But the absence of readily identifiable legal advice contained in the CIRB Reports is nevertheless relevant to the Court's assessment of whether the primary purpose of the communications was to give or receive legal advice.

The Court credits Baranic's testimony that, from his perspective as the Chief Legal Advisor, his role in the CIRB is to provide legal advice. But the issue presented is whether the primary purpose of the communications at the CIRB meetings was to provide legal advice such that the 35 CIRB Reports are protected in their entirety by the attorney-client privilege. In re Grand Jury, 23 F.4th at 1091. As the Second Circuit explained, “[t]he predominant purpose of a communication cannot be ascertained by quantification or classification of one passage or another,” but “should be assessed dynamically and in light of the advice being sought or rendered, as well as the relationship between advice that can be rendered only by consulting the legal authorities and advice that can be given by a non-lawyer.” In re Cnty. of Erie, 473 F.3d at 420-21. Here, the rendering of legal advice is not necessary for the CIRB to fulfill the requirements of Section 4.23, and the CIRB Reports do not, on their face, contain legal advice provided by the Chief Legal Advisor. On this record, the County has not carried its burden to establish that the primary purpose of the communications at the CIRB meetings was to seek or provide legal advice. As such, the Court concludes the attorney-client privilege does not apply to the entirety of each CIRB Report at issue.

“[R]edaction is available for documents which contain legal advice that is incidental to the nonlegal advice that is the predominant purpose of the communication.” Id. at 421; see also Chevron Corp., 1996 WL 444597, at *2 (“[D]espite the overall nature of the document, the client may assert the attorney-client privilege over isolated sentences or paragraphs within a document.”). The County has not asserted that any portions of the CIRB Reports contain segregable, confidential attorney-client communications that should be redacted if the Court were to conclude the attorney-client privilege does not apply to the Reports in their entirety. As set forth below, the Court will provide the County with an opportunity to propose redactions to the CIRB Reports consistent with this Order.⁶

The Court has also reviewed the CIRB spreadsheet (Bates-stamped CSD-2650-2651) documenting each of the 35 CIRB proceedings at issue. There is no indication the spreadsheet itself is an attorney-client communication or memorializes any such communication, and the Court concludes the County has not met its burden to establish that the attorney-client privilege log applies to the CIRB spreadsheet.

2. Work Product Doctrine

a. General Principles

“The work-product doctrine is a qualified privilege that protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020). “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case, and protects both material prepared by agents for the attorney as well as those prepared by the attorney himself.” Id. The doctrine “upholds the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies – without their adversaries invoking the discovery process to pry into the litigators’ minds and free-ride off them.” In re Grand Jury, 23 F.4th at 1093; see also Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ․”).

“In circumstances where a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the ‘because of’ test is used.” United States v. Richey, 632 F.3d 559, 567–68 (9th Cir. 2011). “In applying the ‘because of’ standard, courts must consider the totality of the circumstances and determine whether the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.” Id. “The party asserting work product protection has the burden to demonstrate it applies to the information in question.” Greer, 634 F. Supp. 3d at 918.

b. Application to the Present Dispute

The work product doctrine applies if the County establishes that each of the 35 CIRB Reports “would not have been created in substantially similar form but for the prospect of litigation.” Richey, 632 F.3d at 568. Here, however, Section 4.23 requires the CIRB to review all “critical incidents,” which include “[i]n custody deaths, other than natural causes.” Dkt. No. 153-2 at 12. Section 4.23 applies to all “critical incidents” regardless of whether the County has received notice of litigation arising from the incident at issue. Baranic Trans. at 22:25-23:15. The Court therefore concludes the County has not met this burden because Section 4.23 mandates the CIRB review process for all critical incidents whether or not litigation is anticipated. See Kelly v. City of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987) (“Since police departments are under an affirmative duty, in the normal course of serving their public function, to generate the kind of information at issue here, the policies that inspire the work product doctrine are wholly inapplicable.”); Martin v. Evans, No. C 08-4067 JW MEJ, 2012 WL 1894219, at *5 (N.D. Cal. May 23, 2012) (overruling work-product objection to production of prison internal affairs reports where prison “fails to demonstrate how the reports were generated primarily for use in litigation or collected outside the regular course of business”); Greer, 634 F. Supp. 3d at 921-22 (finding County did not establish work product doctrine applied to CIRB reports).

3. Official Information Privilege

“Federal common law recognizes a qualified privilege for official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). “In determining what level of protection should be afforded by this privilege, courts conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995). This balancing approach is “moderately pre-weighted in favor of disclosure.” Id. The County bears the burden of establishing the official information privilege applies. Shiflett by and through Davenport v. City of San Leandro, No. 21-cv-7802-LB, 2023 WL 4551077, at *2 (N. D. Cal. July 13, 2023).

The party asserting the privilege must make a “substantial threshold showing.” Soto, 162 F.R.D. at 613. “[T]o fulfill the threshold requirement, the party asserting the privilege must submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit.” Id. The affidavit must include:

(1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, and (5) a projection of how much harm would be done to the threatened interests if disclosure were made.

Id. “If the nondisclosing party does not meet this initial burden, the court will order disclosure of the documents; if the party meets this burden, the court generally conducts an in camera review of the material and balances each party's interests.” Rogers v. Giurbino, 288 F.R.D. 469, 481 (S.D. Cal. 2012) (overruling privilege claim where defendant did not submit appropriate declaration).

The County asserts that Baranic's declaration makes the requisite “substantial threshold showing.” Dkt. No. 153 at 16. Baranic states he has reviewed all the CIRB Reports at issue. Dkt. No. 153-2 at ¶ 5. Although he does not specifically state the CIRB Reports are maintained in confidence, that is a reasonable inference from his repeated references to the confidential nature of the CIRB Reports (id. at ¶¶ 10, 15), and he previously testified that he maintains the Reports in his office. Baranic Trans. at 41:21-25. However, Baranic does not sufficiently address the third, fourth or fifth factors. Baranic focuses on the County's position that the CIRB Reports are subject to the attorney-client privilege, but that is a separate inquiry from “the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer.” Soto, 162 F.R.D. at 613. Nor does Baranic address how disclosure of the CIRB Reports subject to the existing Protective Order “would create a substantial risk of harm to significant governmental or privacy interests” or “how much harm would be done to the threatened interests if disclosure were made.” Id. This is insufficient to satisfy the County's burden to make a substantial threshold showing the official information privilege applies.

Even assuming the requisite showing were made, the County does not address the non-exhaustive factors used in balancing the parties’ respective interests.⁷ See Shiflett, 2023 WL 4551077, at **2-3 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973)). The Court has reviewed the 35 CIRB Reports and spreadsheet in camera and concludes these factors weigh in favor of disclosure under the Protective Order. There is no showing that disclosure will discourage citizens from giving the government information, the party seeking the information is not an actual or potential defendant in a criminal proceeding, there is no indication that the 34 CIRB Reports unrelated to Serna's death entail ongoing disciplinary proceedings, Plaintiffs’ suit is non-frivolous, there is no showing that this information is available to Plaintiffs from other sources and the information regarding other deaths is relevant to Plaintiffs’ Monell claims. Other factors arguably weigh against disclosure, including the potential for disclosure of identities of individuals who died in the jails and the potential that “government self-evaluation and consequent program improvement will be chilled by disclosure.” Kelly, 114 F.R.D. at 663. However, the absence of evidence from the County precludes a finding of any chilling effect beyond the generalized assertions that courts have found insufficient to deny disclosure under the official information privilege. Shiflett, 2023 WL 4551077, at *3 (collecting cases). And the operative Protective Order assuages any concern that information about nonparties would be disclosed outside of the litigation. The Court concludes the balancing analysis weighs in favor of disclosure of the CIRB Reports and spreadsheet to Plaintiffs under the Protective Order.

4. Deliberative process privilege

Federal law “shields from public disclosure confidential interagency memoranda on matters of law or policy.” Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988). This deliberative process privilege applies to documents that “reflect advisory opinions recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.” F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (hereafter “Warner”). The document “must be predecisional – i.e., it must have been generated before the adoption of a policy or decision,” and it “must be deliberative in nature, containing opinions, recommendation, or advice about ․ policies [or decisions].” Id. In assessing whether the document is deliberative in nature, the inquiry is “whether the requested information independently reflects the deliberative process itself” because “purely factual material that does not reflect deliberative processes is not protected,” and “[o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.” Shiflett, 2023 WL 4551077, at *4.

“The deliberative process privilege is a qualified one,” and “[a] litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure.” Warner, 742 F.2d at 1161. “Among the factors to be considered in making this determination are: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” Id. The Court may also consider “(5) the interest of the litigant, and ultimately society, in accurate judicial fact finding, (6) the seriousness of the litigation and the issues involved, (7) the presence of issues concerning alleged governmental misconduct, and (8) the federal interest in the enforcement of federal law.” N. Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003). The County bears the burden of establishing the deliberative process privilege applies to the 35 CIRB Reports and the CIRB spreadsheet. Shiflett, 2023 WL 4551077, at *2.

The County has not met its burden for multiple reasons.⁸ First, the County's position that the deliberative process privilege applies to the entirety of every CIRB Report is not well-taken. “Only those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.” Shiflett, 2023 WL 4551077, at *4. It is true that factual materials may be exempt from disclosure under certain circumstances. Nat'l Wildlife Fed'n, 861 F.2d at 1119 (“whenever the unveiling of factual materials would be tantamount to the publication of the evaluation and analysis of the multitudinous facts conducted by the agency, the deliberative process privilege applies”). However, the County simply asserts that “both the conclusions and the factual portions of the CIRB Reports are protected by the deliberative process privilege,” Dkt. No. 153 at 15, and does not explain how the factual materials contained in the CIRB Reports and spreadsheets are “tantamount to the publication of the evaluation and analysis of the multitudinous facts conducted by the agency.” Id.⁹

Second, even looking beyond the County's failure to justify the wholesale application of the privilege to the 35 CIRB Reports and the CIRB spreadsheet, and even assuming the privilege applies to all these documents, the County does not offer any argument or analysis as to whether Plaintiffs’ “need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure.” Warner, 742 F.2d at 1161. The County does not acknowledge the Warner factors, and its two-sentence argument pertains solely to the fourth factor: “if discoverable, the CIRB is necessarily going to be less forthcoming and thus less productive, and less productive means less positive change.” Dkt. No. 153 at 15. This generalized statement is insufficient to meet the County's burden.

Third, although the County's failure to meet its burden is dispositive, the Court has independently considered the Warner factors and concludes they support disclosure of the CIRB Reports and spreadsheet. The CIRB Reports are relevant to Plaintiffs’ Monell claim, as explained further below, and there is no indication that Plaintiffs can obtain information regarding other incidents relevant to the existence (or not) of a municipal policy that Plaintiffs must establish to prevail on that claim. As a party to this action, the County “is not an uninvolved entity that is being asked to disclose a typically confidential document for little reason.” Llera, 564 F. Supp. 3d at 920. And although disclosure of the CIRB Reports could potentially affect the willingness of CIRB participants to speak freely, there is no evidence in the record that disclosure of CIRB Reports pursuant to the protective order in this case would have such a chilling effect. See id. (holding deliberative process privilege did not prevent disclosure of Critical Incident Review Team report in federal civil rights case and concluding that fourth Warner factor did not support application of privilege, and noting “it is also entirely possible that if officers knew their reports would be public, they might be more thorough, accurate, deliberative, and candid ․”). As such, Plaintiffs’ need for the CIRB Reports and spreadsheet “override[s] the [County's] interest in non-disclosure,” Warner, 742 F.2d at 1161, and production pursuant to the Protective Order “will sufficiently protect [the County's] interests.” Al Otro Lado, Inc. v. Wolf, No. 3:17-CV-2366-BAS-KSC, 2020 WL 6449152, at *5 (S.D. Cal. Nov. 2, 2020) (overruling deliberative process privilege objection to production of documents).

5. Law enforcement investigatory privilege

“Although the Ninth Circuit has not expressly recognized the law enforcement privilege, several courts within this Circuit have acknowledged and applied it.” Lien v. City of San Diego, No. 21-cv-224-MMA-WVG, 2022 WL 134896, at *2 (S.D. Cal. Jan. 14, 2022). The privilege “is based on the harm to law enforcement efforts that might arise from public disclosure of investigatory files.” Id.

A party asserting the privilege must meet the following requirements:

(1) there must be a formal claim of privilege by the head of the department having control over the requested information, (2) assertion of the privilege must be based on actual personal consideration by that official, and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.

Roman v. Wolf, No. EDCV20-768-TJH(PVC), 2020 WL 6588399, at *2 (C.D. Cal. July 16, 2020). Thus, in Lien, the District Court found the privilege applied to internal documents maintained by the San Diego Police Department relating to “an ongoing, pending criminal prosecution” and “ongoing active criminal investigations” and affirmed the production of those documents to the civil action plaintiffs with redactions to information identifying those individuals. Lien, 2022 WL 134896, at **3-4.

The County again relies on Baranic's declaration to make the required showing and argues the CIRB Reports “consist of confidential communications between the Department and its attorneys following critical incidents and the potential resulting exposure.” Dkt. No. 153 at 17. But this is a repetition of the County's attorney-client privilege argument, and Baranic does not explain how disclosure of the CIRB Reports and spreadsheet subject to the existing Protective Order could cause “harm to law enforcement efforts” such as pending investigations or prosecutions. Lien, 2022 WL 134896, at *2. Nor does Baranic explain how redactions to specific portions of the CIRB Reports would be insufficient to protect the integrity of any unspecified investigations or prosecutions. See id. at **4-5 (upholding redactions to names of individuals subject to ongoing investigation and prosecution). For all these reasons, the County has not met its burden to establish the law enforcement investigatory privilege applies to the CIRB Reports and spreadsheet.

6. Privacy considerations

The CIRB Reports contain information regarding Sheriff's Department employees as well as confidential medical information regarding the individuals who died in Sheriff's Department custody. The County asserts privacy rights on behalf of both groups.

“Federal courts recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.” Carr v. Cnty. of San Diego, No. 19-cv-1139-JLS-MDD, 2020 WL 7074881, at *4 (S.D. Cal. Dec. 3, 2020). “Resolution of a privacy objection ․ requires a balancing of the need for the information sought against the privacy right asserted.” Soto, 162 F.R.D. at 616. “However, these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments.” Id. “[P]rivacy objections can be appropriately addressed by: (1) redacting any personal identifying information from the documents produced; and (2) producing documents under a protective order to minimize any invasion into the individual's privacy rights.” Stuart v. Cnty. of Riverside, No. 522CV701SPGMAR, 2023 WL 4826231, at *2 (C.D. Cal. June 15, 2023).

As explained below, the CIRB Reports contain information that is relevant to Plaintiffs’ Monell claim, and there is no showing this information is available to Plaintiffs through other means. Production of the CIRB Reports subject to the existing Protective Order will adequately protect the privacy interests of Sheriff's Department employees. To the extent the CIRB Reports contain personal identifiable information regarding Sheriff's Department employees (other than their names and titles) such as marital status, spouse names, children's names, driver's license numbers, Social Security numbers and home addresses, the County may redact that information. Stuart, 2023 WL 4826231, at **3-4.

As to the privacy rights of individuals who died in Sheriff's Department custody, the County correctly points out the Health Insurance Portability and Accountability Act (“HIPAA”) protects personal health information for 50 years after death. 45 C.F.R. § 160.103. HIPAA also provides that protected health information may be disclosed “[i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i). The existing Protective Order adequately protects these privacy concerns and any similar concerns falling under the California Confidentiality of Medical Information Act. See A.H. v. Cnty. of Los Angeles, No. CV 22-03671-SB (ASX), 2023 WL 3035349, at *4 (C.D. Cal. Jan. 19, 2023) (“Given the protective order in place, Court is likewise unpersuaded by Plaintiffs’ assertion that HIPAA bars disclosure of these records.”); Marsh v. Cnty. of San Diego, No. CIV. 05CV1568 JLS AJB, 2007 WL 3023478, at *3 (S.D. Cal. Oct. 15, 2007).

7. Relevance and proportionality

The Federal Rules of Civil Procedure permit a broad scope of discovery: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ․” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevance requirement of Rule 26.” FlowRider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15-cv-1879-BEN-BLM, 2016 WL 6522807, at *2 (S.D. Cal. Nov. 3, 2016).

Plaintiffs assert the CIRB Reports are relevant to their Monell claim against the County. To successfully establish Monell liability, a plaintiff must show: “(1) [the plaintiff] was deprived of a constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate indifference to [the plaintiff's] constitutional right; and (4) the policy was the moving force behind the constitutional violation.” Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). A municipal policy may be established by showing: (1) “a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity”; (2) “the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official government policy”; or (3) “an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992) (internal quotations omitted).

Plaintiffs allege the County had “a custom and practice” of, inter alia, “assuming a patient was seeking ‘secondary gain’ and denying patients medical care,” “not properly screening inmates for medical care or treatment,” “failing to communicate the medical needs of inmates between the medical staff and deputies,” and “not properly checking on the welfare of inmates, even those inmates known to have serious medical needs.” Dkt. No. 34 at ¶¶ 279-282. On the present record, Plaintiffs have adequately shown that information regarding other in-custody deaths contained in the CIRB Reports is “relevant to a claim or defense” for purposes of the Fed. R. Civ. P. 26(b) analysis. See Henry v. Cnty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997), as amended, 137 F.3d 1372 (9th Cir. 1998) (“post-event evidence is not only admissible for purposes of proving the existence of a municipal defendant's policy or custom, but is highly probative with respect to that inquiry”).

The County's reliance on Gordon v. Cnty. of Orange, 6 F.4th 961 (9th Cir. 2021), is misplaced for purposes of this motion to compel. Gordon held the District Court properly granted summary judgment on the plaintiff's Monell claim because “a single incident of unconstitutional activity is not sufficient to impose liability under Monell” and “the record lacks evidence of any other event involving similar conduct or constitutional violations.” Id. at 974. Gordon may be instructive should the County bring a future summary judgment motion and argue, as it does here, that Plaintiffs cannot establish liability for an unconstitutional custom or practice because the other incidents documented in the CIRB Reports are factually dissimilar to Serna's death. But the fact that the CIRB Reports, in the County's view, undermine Plaintiffs’ Monell claim does not render the Reports irrelevant for purposes of Rule 26(b). To the contrary, evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401 (emphasis added).

Having reviewed the 35 CIRB Reports in camera, all but two Reports contain information pertaining to other inmate deaths that is relevant and proportional to the needs of the case under Rule 26(b) regardless of whether that information ultimately supports Plaintiffs’ Monell claim or the County's defense thereto. However, the Court concludes that two of the CIRB Reports pertaining to inmates killed by other inmates are not relevant to Plaintiffs’ Monell claim. These documents, bearing Bates Nos. CSD-2593-2602 and CSD-2622-2630, shall not be produced.

B. Internal Affairs File (RFP No. 2)

Plaintiffs move to compel production of the Sheriff's Department's Internal Affairs file pertaining to Serna's death. The County contends the file is subject to the official information privilege and submits the declaration of Lieutenant Ruben Medina in support of its privilege assertion. Dkt. No. 153-1 at 4-7.

As noted above, the party asserting the official information privilege must properly invoke the privilege by making a “substantial threshold showing.” Kelly, 114 F.R.D. at 669. Medina's declaration fulfills the first two requirements in that he avers Internal Affairs files are confidential and he has personally reviewed the Internal Affairs documents relating to Serna's death. Dkt. No. 153-1 at 5, ¶ 2.

The remainder of Medina's declaration, however, proffers only generalized concerns regarding disclosure of information in Internal Affairs files. He states, “[d]isclosure of certain information about law enforcement personnel can jeopardize their safety and the safety of their families, and subject them to harassment or intimidation.” Dkt. No. 153-1 at 6, ¶ 3. Medina further declares “constructive and even negative criticism is sometimes necessary in evaluating the performance of one's subordinates” and that maintaining the confidentiality of Internal Affairs files “enhances critical and candid assessments and is vital to deputies, their superiors and the public.” Id. at ¶ 5. Further, he asserts general concerns regarding dissemination of Internal Affairs files, such as “discourag[ing] individuals from providing information” and “disrupt[ing] the vital day to day operations of the department.” Id. at ¶ 6.

These generalized concerns, untethered to the facts of this case, do not make the requisite substantial threshold showing to satisfy the third, fourth or fifth factors. As to the third factor – identification of the specific privacy interests that would be threatened with disclosure in this case – Medina provides broad statements about the risks of disclosure generally. But to satisfy this factor, the County “must specifically describe how disclosure of the requested documents in that particular case ․ would be harmful.” Soto, 162 F.R.D. at 614. Medina does not address the fourth factor in that he does not attempt to explain how disclosure pursuant to the Protective Order would create a substantial risk of harm to significant governmental or privacy interests. See Simon v. City of Los Angeles, No. 222CV01775SSSGJSX, 2023 WL 3402628, at *7 (C.D. Cal. Apr. 21, 2023) (granting motion to compel production of LAPD Internal Affairs records where declaration offered in support of official information privilege invocation “only generally asserts speculative harm that may result if officers’ private information is disclosed and has failed to explain why disclosure of responsive documents in this case would be detrimental if done pursuant to a carefully crafted protective order, such as the one already issued in this action”). Finally, Medina does not project the degree of harm that would be caused by disclosure to Plaintiffs of the Internal Affairs file relating to Serna's death.

Even if Medina's declaration were sufficient to make the requisite substantial threshold showing to assert the privilege, the County does not address the Court's obligation to balance the parties’ respective interests in determining whether the privilege should bar disclosure under the facts of this case. Shiflett, 2023 WL 4551077, at **2-3. The Court has reviewed the Internal Affairs file and concludes the relevant factors weigh in favor of disclosure under the Protective Order. Kelly, 114 F.R.D. at 663. As an initial matter, the investigation into Serna's death is relevant to Plaintiffs’ claims. Simon, 2023 WL 3402628, at *7. The County's contention that the Internal Affairs records will be inadmissible at trial does not carry the day, as “[i]nformation within th[e] scope of discovery need not be admissible to be discoverable.” Fed. R. Civ. P. 26(b)(1). Some of the information contained within the Internal Affairs file may be duplicative of materials already provided to Plaintiffs, but that possibility does not warrant denying Plaintiffs access to the file. The County's assertion that Plaintiffs have not shown a “compelling need for any Internal Affairs records” (Dkt. No. 153 at 20-21) misses the mark because “compelling need” is not the legal standard. The Internal Affairs file is relevant to Plaintiffs’ claims, and its production is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1).

Through Medina, the County requests an opportunity to redact personal information from the Internal Affairs file if the Court orders its production. Dkt. No. 153-1 at ¶ 10. The file does not appear to contain any personal information, only work addresses and phone numbers. Nevertheless, like the CIRB Reports, to the extent the Internal Affairs file contains contain employees’ personal identifiable information (other than names and titles) such as marital status, spouse names, children's names, driver license numbers, social security numbers and home addresses, the County may redact that information. Stuart, 2023 WL 4826231, at **3-4; Simon, 2023 WL 3402628, at *8 (compelling production of Internal Affairs records with redactions to personal information that defendant “reasonably determines is required to protect the privacy and security of law enforcement officers and third-parties, such as address, social security number, date of birth, medical information, and the like”).

C. Von Lintig Emails

The County produced to Plaintiff nine pages of email messages to and from Von Lintig (CSD-316-324). One email written by Von Lintig dated November 17, 2019, includes a discussion of medical treatment provided to six inmates, not including Serna (CSD-320-323). The County redacted the description of the medical treatment provided but not the six names.

Plaintiffs assert the type of treatment provided is relevant but that they do not need the six inmate names. At the August 8 hearing, counsel for CCMG and Von Lintig agreed redaction of the six names would satisfy their HIPAA and third-party privacy concerns.

To resolve this issue, Plaintiffs shall destroy all copies of CSD-316-324 in their position on or before September 6, 2023. Within one week of receiving confirmation from Plaintiffs that the documents have been destroyed, the County shall re-produce CSD-316-324 with the six inmate names redacted but with all other information unredacted, including the description of medical treatment.

IV.

CONCLUSION

For all the foregoing reasons, Plaintiffs’ motion to compel is GRANTED IN PART and DENIED IN PART as follows:

1. By not later than September 6, 2023, the County must submit for in camera review any proposed redactions to the CIRB Reports and the CIRB spreadsheet identified in its privilege log (excluding the CIRB Reports with Bates Nos. CSD-2593-2602 and CSD-2622-2630). The County must highlight the proposed redacted text for each Report.

2. By not later than September 6, 2023, the County must produce to Plaintiffs the Internal Affairs file relating to Serna's death.

3. By not later than September 6, 2023, Plaintiffs must destroy all copies of CSD-316-324 in their position. Within one week of receiving confirmation from Plaintiffs that the documents have been destroyed, the County shall re-produce CSD-316-324 with the six inmate names redacted but with all other information, including the description of medical treatment, unredacted.

IT IS SO ORDERED.

FOOTNOTES

1.   The Court draws the facts regarding the CIRB process from the declaration of Sheriff's Department Director of Legal Affairs and Chief Legal Advisor Michael Baranic, which includes Section 4.23. Dkt No. 153-2. The Court also draws from Baranic's testimony on April 24, 2023, in Morton v. Cnty. of San Diego, et al., 21-cv-1428-MMA-DDL, Dkt. No. 79 (“Baranic Trans.”), regarding the CIRB process and functions.

2.   Greer v. Cnty. of San Diego, 634 F. Supp. 3d 911 (S.D. Cal. 2022), describes the CIRB meeting as occurring in three stages, with a second stage involving a discussion between the CIRB members and Sheriff's Department subject matter experts. Id. at 915. The record in this case does not include information about that second stage, but that does not affect the Court's analysis.

3.   All citations are omitted unless otherwise noted.

4.   Faigin was the Chief Legal Advisor in November 2020 and attended the CIRB meeting in that capacity. Baranic assumed the Chief Legal Advisor role thereafter.

5.   Baranic asserts Faigin “regularly provided legal advice at the CIRB meetings” and provides “general examples” of the types of legal communications, but he does not reference portions of the CIRB Reports that contain legal advice. Dkt. No. 153-2 at ¶ 9.

6.   On August 25, 2023, the Court directed the County to submit for in camera review “its proposed redactions to the CIRB Reports at issue” if the Court were to conclude that the Reports are not protected from disclosure in their entirety. Dkt. No. 215. Thereafter, the Court granted the County's request to provide its proposed redactions after issuance of this Order. Dkt. No. 218.

7.   Those factors include: “(1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) The impact upon persons who have given information of having their identities disclosed; (3) The degree to which government self-evaluation and consequent program improvement will be chilled by disclosure; (4) Whether the information sought is factual data or evaluative summary; (5) Whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) Whether the police investigation has been completed; (7) Whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) Whether the plaintiff's suit is non-frivolous and brought in good faith; (9) Whether the information sought is available through other discovery or from other sources; [and] (10) The importance of the information sought to the plaintiff's case.” Kelly, 114 F.R.D. at 663.

8.   There is authority for the proposition that “the deliberative process privilege generally does not apply in civil rights lawsuits to protect from disclosure internal affairs documents, investigations, and records of witness/police officer statements, as these routinely generated communications are not designed to contribute to the formulation of important public policy.” Shiflett, 2023 WL 4551077, at *5. However, in the absence of controlling Ninth Circuit authority addressing this issue, the Court assumes the privilege applies. See Llera v. Las Vegas Metro. Police Dep't, 564 F. Supp. 3d 914, 918–19 (D. Nev. 2021) (“Because the deliberative process privilege is a privilege that the government can utilize to protect some deliberative material and the Court has not located any controlling authority stating that the privilege cannot be used in civil rights cases, the Court does not agree that it is inapplicable here.”).

9.   Baranic testified that “policy changes don't come out of CIRB,” and “[t]here's a procedure to change department policy, which accounts for 99 percent of the changes that occur.” Baranic Trans. at 83:11-17. This arguably weighs finding the deliberative process privilege applies to the CIRB Reports, but the parties did not address this portion of Baranic's testimony in their briefing, and the Court will not consider it in determining whether the County has met its burden to establish the privilege applies here.

David D. Leshner, United States Magistrate Judge