CAROLINA HIPSCHMAN ALEX HIPSCHMAN v. COUNTY OF SAN DIEGO (2024)

ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL

Currently before the Court is Plaintiffs' July 8, 2024 Motion to Compel Defendant County of San Diego to Provide Training Materials (“MTC”). ECF No. 81. On July 15, 2024, Defendant County of San Diego (“County”) filed an Opposition (“Oppo.”). ECF No. 85. Subsequently, the Court permitted Plaintiffs to file a Reply on July 24, 2024. ECF No. 93. After reviewing Plaintiffs' MTC, County's Oppo, Plaintiffs' Reply, and all supporting documents, the Court GRANTS Plaintiffs' Motion for the reasons set forth below.

RELEVANT BACKGROUND

On June 21, 2022, Plaintiffs initiated this action alleging, inter alia, that Defendants County of San Diego, Nidia Romero, Elizabeth Samuels, Jose Padilla, and Mary Shehee (“County Defendants”) violated their civil rights by improperly seizing their minor child from their possession without a warrant or probable cause. ECF No. 1. On December 8, 2022, Plaintiffs filed a first amended complaint (“FAC”). ECF No. 24. On January 3, 2023, the County filed a motion to dismiss Plaintiffs' FAC for failure to state a claim [ECF No. 32] which District Judge Anthony J. Battaglia granted in part and denied in part. ECF No. 44. On September 15, 2023, the County answered Plaintiffs' FAC. ECF No. 45. On October 30, 2023, the Court conducted an Early Neutral Evaluation Conference and Case Management Conference, and, on the same day, issued a Scheduling Order regulating discovery and all other pre-trial proceedings. ECF Nos. 49, 50.

On May 7, 2024, counsel for Plaintiffs, Stephen Daner, served Plaintiffs' Request for Production of Documents (“RPD”), Set Five and Person Most knowledgeable (“PMK”) Deposition, on the County. Daner Decl. at ¶ 1, ECF No. 81-2. On June 17, 2024, the County served its responses to Plaintiffs' RPDs which included two privilege logs. Id. at ¶ 3, Ex. D, E. On June 24, 2024, Mr. Daner transmitted a meet and confer letter regarding the County's allegedly deficient responses to Plaintiffs' RPD. Id. at ¶ 9, Ex. O. On June 26, 2024, Mr. Daner and counsel for the County, Jeffrey Miyamoto, met and conferred during an in-person deposition regarding the discovery dispute and withheld training materials. Id. On June 28, 2024, Mr. Daner contacted the Court via email to notify the Court that the dispute was ongoing. Id. at ¶ 10. A briefing schedule was issued. Id.

LEGAL STANDARD

The scope of discovery under the Federal Rules of Civil Procedure is defined as follows:

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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs the likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Typically, the relevance standard is broad in scope and “encompass[es] any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in a case.” Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017). Relevance, however, is not without limits. Id. The 2015 amendment to Rule 26(b) removed the phrase “reasonably calculated to lead to the discovery of admissible evidence” because it was often misconstrued to define the scope of discovery. Fed. R. Civ. P. 26(b)(1) advisory committee's notes (2015 amendment). Instead, to fall within the scope of discovery, the information must also be “proportional to the needs of the case,” requiring lawyers to “size and shape their discovery requests to the requisites of a case” while “eliminat[ing] unnecessary or wasteful discovery.” Fed. Civ. R. P. 26(b)(1); Cancino Castellar v. McAleenan, 2020 WL 1332485, at *4 (S.D. Cal Mar. 23, 2020) (quoting Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016)).

District courts have broad discretion to determine relevancy for discovery purposes. D.M. v. County of Merced, 2022 WL 229865, at * 2 (E.D. Cal. Jan. 26, 2022) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) and Surfvivor Media v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). District courts also have broad discretion to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must limit discovery where the party seeking the discovery “has had ample opportunity to obtain the information by discovery in the action” or where the proposed discovery is “unreasonably cumulative or duplicative,” “obtain[able] from some other source that is more convenient, less burdensome or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). Further, “[w]hen analyzing the proportionality of a party's discovery requests, a court should consider the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Cancino, 2020 WL 1332485, at *4 (citing Fed. R. Civ. P. 26(b)(1)).

Fed. Civ. R. P. 34 provides that a party may serve on another a request for production of documents, electronically stored information, or tangible things within the scope of Fed. Civ. R. P. 26(b). Fed. R. Civ. P. 34(a). Where a party fails to produce documents requested under Rule 34, the party propounding the request for production of documents may move to compel discovery. See Fed. R. Civ. P. 37(a). “The party seeking to compel discovery has the burden of establishing that its requests satisfy the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining, or supporting its objections.” Williams v. County of San Diego, 2019 WL 2330227, at *3 (citing Bryant v. Ochoa, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009)) (internal quotations omitted).

PLAINTIFFS' POSITION

Plaintiffs' RPD, Set Five, Nos. 94, 96, 98, and 100 request the County produce all documents, “memoranda, PowerPoint Presentations (in native form), lecture notes, letters, flyers, emails, communications, handouts, movies, and/or training materials” (hereinafter “training materials”) regarding documents given, or presentations made, to County social workers regarding their different responsibilities. MTC at 5; Daner Decl. at Ex. A. Plaintiffs' RPD for PMK deposition, Nos. 1, 3, 7, 10, 13, 17 request the County produce all documents the PMK reviewed for the deposition, as well as “[a]ny/all DOCUMENTS referring to, relating to, constituting and/or consisting of any/all training provided to the individual Defendants in this case” by the County relating to their responsibilities. Id., Daner Decl. at Ex. B. These responsibilities include use/implementation of the “Consent for Examination And Treatment of a Child form, the duty and obligation to be truthful to the Juvenile Court, policies and procedures relating to the detention of children from the custody of their parents, obtaining warrants authorizing the removal of children from their parents, and obtaining a warrant or court order authorizing the medical examination of a child.” Id.

Plaintiffs argue these training materials are relevant and discoverable as they relate to Plaintiffs' claims arising under 42 U.S.C. § 1983 and Monell v. Dep't of Social Services of New York, 426 U.S. 658 (1978). Specifically, Plaintiffs contend that these materials relate to the County's “training, or lack thereof, as the moving force behind the violation of the Plaintiff's constitutional rights which include “unwarranted seizure, deception in the presentation of evidence to the juvenile court, and unauthorized medical examinations.” MTC at 9. Plaintiffs assert that the County's withholding of relevant documents on the grounds that they are subject to attorney-client privilege and attorney work product privilege is improper and based on a boilerplate overbroad objection. In addition, the County has waived all privileges by previously disclosing some of these withheld training materials, or different iterations, in other lawsuits. Id.

THE COUNTY'S POSITION

The County contends that the Plaintiffs' MTC is untimely pursuant to the Court's Chambers rules and should not be considered by the Court. Oppo. at 5-7. In addition, the County contends that the materials related to training provided by the County are protected by attorney-client privilege. Id. at 8. Specifically, the County maintains that the trainings “involved the client, the County, acting by and through its employees, seeking legal advice from its counsel which was provided in confidence, with only employees present, and protected from disclosure.” Id. at 11, Miyamoto Decl. at ¶ 6. The County also maintains that the training materials are protected attorney-work product as the trainings were “presented for the explicit purpose of protecting the County from prospective litigation.” Id. at 12. Finally, the Plaintiffs failed to demonstrate that the County's voluntary document production in prior litigation waived the attorney-client or work product privilege. Id.

ANALYSIS

A. Timeliness

As an initial matter, the County argues that Plaintiffs' motion should be denied because it was purportedly filed more than 30 days after the event giving rise to the dispute in violation of this Court's Chambers Rules. Oppo. at 5-7.

Section V.E. of Judge Major's Chambers Rules provides, in part, that “[a]ll discovery motions must be filed within 30 days of the event giving rise to the dispute.” See https://www.casd.uscourts.gov/judges/major/docs/Chambers Rules Civil.pdf. Here the County claims that the Plaintiffs were initially made aware of the dispute over the production of training materials, and the assertion of privileges over these materials, in the County's responses to Plaintiffs' second set of RPD that were served on February 26, 2024. Oppo. at 5-6, Miyamoto Decl., Ex. B. The County asserts that the current dispute is “simply part of the same ongoing dispute” unchanged since the County first objected to the request for training materials in February.

Plaintiffs' motion is not untimely as the requests Plaintiffs made in February are not the same requests the Plaintiffs made in May even if the response by the County was the same. In the initial requests in February, Plaintiffs were seeking training materials relating to the County's policies and procedures focusing on parental rights and were not directed to any specific County employee or class of employees. Miyamoto Decl., Ex. B at 21-25. In the current request served in May, Plaintiffs are seeking training materials relating to the County's training specifically presented to social workers with regard to their responsibilities.

While there is some potential overlap in that the same training materials provided may respond to both requests, the Court does not find that the two disputes are so substantially similar to warrant denial of Plaintiffs' motion as untimely.

B. Relevancy

Plaintiffs argue that the RPDs seek relevant information to their Monell claim and are narrowly tailored to the claims alleged. MTC at 8-9. Specifically, they contend that their requests are narrowly tailored to the training materials which are linked to the claims of “unwarranted seizure, deception in the presentation of evidence to the juvenile court, and unauthorized medical examinations. Id. In addition, the Plaintiffs argue that the County's failure to train their employees, which in turn allegedly caused a constitutional violation, can form the basis for Monell liability “where the failure to train amounts to deliberate indifference to peoples' rights.” Id. at 13-14 (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006).

The County does not specifically address Plaintiffs' claims regarding relevancy. Regardless, the Court finds that the Plaintiffs' RPDs seek relevant information. “[A] municipal defendant can be held liable because of a failure to properly train its employees only if the failure reflects a ‘conscious’ choice by the government.” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 793 (9th Cir. 2016). “In other words, the government's omission must amount to a ‘policy’ of deliberate indifference to constitutional rights.” Id. “A plaintiff can satisfy this requirement by showing that the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers․can reasonably be said to have been deliberately indifferent to the need.” Id. at 793-94 (quotation marks and citation omitted). The Court finds that the training of County social workers, along with the corresponding materials, is relevant to the Plaintiffs' Monell claim seeking to hold the County liable under a municipal liability theory.

C. County Defendants' Objections

1. Boilerplate Privilege Objections

Plaintiffs argue that the County's attorney-client and attorney work product privilege objections are “[b]oilerplate objections” that “are insufficient to assert a privilege.” MTC at 10. Specifically, Plaintiffs contend that the Defendant “has the burden to prove all elements essential to invoking any privilege.” Id. citing Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987). The Court will discuss the individual objections in more detail below.

2. Attorney-Client Privilege

The County objected to the RPDs in part because the requests sought information that they claim was protected from disclosure by attorney-client privilege. Daner Decl. at Ex. B, C. As an initial matter, the Court must point out that applicable case law requires the Court to undertake a specific factual analysis of the underlying basis for the assertion of the privilege. Here, however, the declaration of defense counsel provides only a conclusory two sentence statement with no factual analysis or reference to the information contained in any of the withheld material.¹

The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice. The party asserting the attorney-client privilege has the burden of establishing the relationship and privileged nature of the communication. The attorney-client privilege exists where: (1) legal advice of any kind is sought (2) from a professional legal 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 permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. See United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (internal citations and quotation marks omitted). Here, the County bears the ultimate burden of proving the privilege applies. United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009) (citing United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000)).

Plaintiffs argue that County Counsel are “akin to corporate ‘in-house’ counsel” and the fact that County Counsel “created and/or administered the training materials” does not shield the training materials from disclosure. MTC at 7 (citing United States v. ChevronTexaco Corp, 241 F.Supp.2d 1065, 1076 (N.D. Cal. 2002); A.A. v. County of Riverside, 2016 WL 11954845, at *7 (C.D. Cal. Aug. 8, 2016). As the County correctly notes, the cases relied upon by Plaintiffs provide only persuasive value “as the Ninth Circuit has yet to give clear direction on this issue.” Oppo. at 8.

Plaintiffs cite four cases to support their position that the attorney-client privilege “does not apply to training materials that apply agency policy to general factual scenarios, present generic, non-specific descriptions of situations officials may encounter in the field, or teach about the laws they enforce and the constitutional statutory constraints they must follow.” MTC at 11-12 (citing ACLU of N. Cal. V. FBI, 146 F.Supp.3d 1161 (N.D. Cal. 2015) rev'd on other grounds, 881 F.3d 776 (9th Cir. 2018); ACLU of San Diego & Imperial Counties v. U.S. Dep't of Homeland Sec. I, 2017 WL 9500949 (C.D. Cal. Nov. 6, 2017); Amadei v. Nielsen, 2019 WL 8165492 (E.D.N.Y Apr. 17, 2019); A.A. v. County of Riverside, 2016 WL 11954845.

In ACLU of N. Cal. V. FBI, the district court overruled attorney-client privilege objections to materials that were prepared by legal counsel for the agency that included educational and training resources that “explain[ ] ․ a decision already reached or a policy already adopted.” Id. at 1170. The court rejected the idea that a document that consisted of hypotheticals about what an agent “may encounter in the field” and does not contain any specific case information falls into the category of attorney-client privileged information. Id. at 1168. Where the ”Government has not demonstrated that the document contains any fact-specific legal advice,” the document cannot be withheld under attorney-client privilege. ACLU of San Diego & Imperial Counties I, 2017 WL 9500949, at *11.

The County attempts to distinguish these cases by arguing that the cases do not establish a principle that training materials are not subject to attorney-client privilege and by discussing the specific facts of each case. Oppo. at 8-10. The County asserts that the instant case is more analogous to two cases involving national security training materials presented to FBI and CIA agents by in-house counsel. Id. at 10-12 (citing Freedom of the Press Found. v. United States Dep't of Justice, 241 F.Supp.3d 986, 993 (N.D. Cal. 2017); Nat'l Sec. Counselors v. Cent. Intelligence Agency, 206 F.Supp.3d 241, 285-86 (D.D.C. 2016). The Court finds the reasoning in the Plaintiffs' cases more persuasive and applicable to this case.

As an example, the County argues that ACLU of San Diego & Imperial Ctys I is distinguishable because the training materials at issue in that case were “just general summaries of the applicable law” and here, the County's training materials “apply [the applicable law] to specific scenarios for the purpose of avoiding prospective litigation.” Oppo. at 9; Miyamoto Decl. ¶ 6. However, the cited declaration is conclusory and provides no specific details regarding the training materials, contains no citations to or explanation of specific portions of any of the withheld documents that contain actual legal guidance, and does not describe the actual contents of the withheld documents. The County did not provide the withheld documents but the Court has reviewed the withheld documents provided by Plaintiffs ² and notes that the PowerPoint [see Daner Decl., Ex. F] is a lengthy presentation that appears to contain a significant amount of material that does not constitute legal advice and does not present specific laws applied to specific scenarios. The declaration of County's counsel is far too vague and lacks proper citation for the Court to determine that the materials withheld fall under the attorney-client privilege.

The Court notes that the County's cases also support the Court's decision. In Freedom of the Press Foundation, the defendant, the United States Department of Justice (“DOJ”), withheld only seven slides from a PowerPoint presentation asserting attorney-client privilege. Freedom of the Press Found., 241 F.Supp.3d at 1001-02. The portions they withheld “contained legal advice from the [DOJ Office of General Counsel] to FBI employees.” Id. at 1002. In contrast, in this case, the County seeks to withhold the entire PowerPoint presentations and does not identify specific slides that contain fact-specific legal advice.

The Court finds the declaration of counsel for the County is insufficient to establish the applicability of the attorney-client privilege as it is a conclusory statement without any specific details or references to any of the PowerPoint presentations and training materials. Moreover, the Court's review of the presentations that were provided in previous litigation matters do not support County's position that the entirety of each document is protected by the attorney-client privilege. Finally, the Court notes that the County also seeks to withhold documents titled “Training: Court Report Writing” and “Training: Legal Liabilities” which appear to be updated or presented on a yearly basis. Daner Decl., Ex. E at 39. However, much like the PowerPoint presentations, County does not provide specific information regarding these documents, such as their purpose, how/why they change from year to year, or the specific legal advice they contain. Defense counsel's conclusory statement is insufficient.

Accordingly, the Court finds that County has failed to establish that the training materials they have withheld are protected by the attorney-client privilege and the Court OVERRULES the County's objections based on attorney-client privilege.

3. Attorney Work Product

Plaintiffs also argue that the attorney work product doctrine does not apply to general training materials. MTC at 14. The work product doctrine is not a privilege but a qualified immunity that “protects from discovery in litigation ‘mental impressions, conclusions, opinions, or legal theories of a party's attorney’ that were ‘prepared in anticipation of litigation or for trial.’ ” ACLU of N. Cal. v. U.S. Dep't of Justice, 880 F.3d 473, 483 (9th Cir. 2018) (quoting Fed. R. Civ. P. 26(b)(3)). “Shielding from discovery materials prepared ‘with an eye toward the anticipated litigation' protects the integrity of adversarial proceedings by allowing attorneys to prepare their thoughts and impressions about a case freely and without reservation.” Id. at 484.

In this matter, Plaintiffs argue that the purpose of general training materials is to “educate government officials on agency policies” which serves a “non-adversarial purpose and are not prepared in anticipation of litigation.” MTC at 14-15. In support of this argument, Plaintiffs submit some of the material that has been withheld because their counsel obtained these documents in separate litigation matters. Daner Decl. ¶¶ 5-6, Exs. F–I. One such document is a PowerPoint entitled “Advanced Critical Thinking for CWS Investigations,” which was mentioned above and appears to be a comprehensive training course for social workers and one of the authors credited in the County's privilege log is a social worker. Id., Ex. F at 41-147.

In response, the County again relies on the conclusory statement by counsel that the “explicit purpose of these trainings was to insulate the County from future litigation by training its employees to ensure their actions best protect the County from prospective litigation.” Oppo., Miyamoto Decl. ¶ 6. Again, the County does not provide any factual analysis of the presentations or identify specific facts contained in any slides that support their work product claim. The County also argues that the “materials were prepared and presented by attorneys for County employees to instruct them on how to protect the County from prospective litigation.” Id. However, as noted by Plaintiffs and not disputed by the County, social worker Christina Beck is credited with developing and administering the above referenced PowerPoint. Daner Decl., Ex. F. at 147. There is no factual support in defense counsel's declaration that any attorney presented these materials to County social workers.

It is possible that some of the training materials may contain attorney work product but the County did not provide any specific details as to why these documents are subject to attorney work product privilege. In ACLU v. US DOJ, the Ninth Circuit found that materials created by attorneys to provide an “internal DOJ resource manual for federal prosecutors,” that include lists of “relevant case law and cites case holdings” is not protected by attorney work product privilege because they more closely resemble “continuing legal education resources for DOJ attorneys.” ACLU of N. Cal, 880 F.3d at 488. Here, the documents that the Court can review appear to show a similar type of material in that these materials look to be educating the social workers on the law rather than preparing them for anticipated litigation. The declaration submitted by defense counsel fails to shed any light on how these documents were allegedly created in anticipation of future litigation. Moreover, the fact that the County seeks to withhold the entirety of these documents, without sufficient detail as to why, also weighs against finding attorney-work product privilege for these training materials.

The Court finds that the County has not established that these trainings have an “explicit purpose” to avoid prospective litigation and further finds that the primary focus appears to be to educate the social workers on their duties and obligations rather than preparing them for litigation. See ACLU of San Diego & Imperial Ctys. V. US DOJ, 2017 WL 9500949, at * 11 (“A failure to comply with [ ] the guidance in [a training course] could just as easily—if not far more often—result in legal proceedings[.] But that does not mean that all government legal training given by an attorney is exempt from disclosure as attorney work product simply because a failure to comply with it could have legal repercussions.”)

Accordingly, the Court OVERRULES the County's objections based on attorney work product privilege.

D. Waiver

Plaintiffs argue that the County waived attorney-client privilege and work product privilege as to all the withheld training materials because the County voluntarily produced them in prior lawsuits. MTC at 16-17. Voluntary disclosure of privileged communications constitutes waiver of the privilege for all communications on the same subject. Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981). The County responds that “Plaintiffs may be correct that the Ninth Circuit recognizes waiver for documents already released, but ‘only for those documents released’.” Oppo. at 14 (citing Mobil Oil Corp. v. U.S. EPA, 879 F.2d 698, 701 (9th Cir. 1989). The County asserts that if the Court finds waiver, only the specific iterations of the reports that were previously produced should be ordered to be produced in this case. Id.

Plaintiffs have shown that the County voluntarily disclosed some of the documents at issue here to Plaintiffs' law firm who were representing different plaintiffs in a separate cases involving similar allegations and causes of action. Specifically, Plaintiffs' counsel, The Law Offices of Shawn A. McMillan, APC, were attorneys of record for the plaintiffs in Pope v. County of San Diego, et al., S.D. Cal. Civil Case No. 3:21-cv-1102-JO-MMP (“Pope”). Daner Decl. at ¶ 5. In response to a request for production in the Pope matter, the County of San Diego produced copies of the PowerPoint presentation entitled “Advanced Critical Thinking CWS Investigations 2019,” along with an “Investigations Refresher.” Id. The County does not dispute that this PowerPoint presentation is same PowerPoint presentation listed in the County's privilege log. Daner Decl., Ex. D at 35, Ex. F.

Plaintiffs' counsel was also counsel of record for the plaintiffs in Garcia v. County of San Diego, et al., S.D. Cal. Civil Case No. 3:15-cv-0189-JLS-NLS (“Garcia”). The County acknowledges that “certain iterations of ‘Court Report Writing’ ” (“CRW”) and “Legal Liabilities” (“LL”) were produced to the Garcia plaintiffs. Oppo. at 14. The County explains that of the six iterations of the CRW withheld in this case, only two were produced in Garcia and none of the LL iterations withheld in this case were produced in Garcia. Id.; see also Daner Decl., Ex. E at 39.

The Court finds that the County expressly waived these privileges when it voluntarily disclosed the documents in previous cases without being ordered to do so by a court. Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (“Disclosures that effect an express waiver are typically within the full control of the party holding the privilege; courts have no role in encouraging or forcing the disclosure – they merely recognize the waiver after it has occurred.”) Here, where the County previously voluntarily turned over these documents to the Plaintiffs' counsel, “the privilege is gone, and the litigant may not thereafter reassert it to block discovery of the information and related communications by his adversaries.” Id.

The Court also finds that Defendant has waived these privileges as to the other iterations of the CRW and LL documents. Subject matter waiver involves the “voluntary disclosure of the content of a privileged attorney communication [which] constitutes waiver of the privilege as to all other such communications on the same subject.” United States v. Sanmina Corp., 968 F.3d 1107, 1117 (9th Cir. 2020) (citing Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981.) Once more, because the County does not provide any details or fact-specific analysis in its opposition or counsel's declaration, the Court cannot find that the County has established that the unproduced iterations are not covered by the subject matter waiver. The information provided in the County's privilege log indicates that the listed documents are either updated versions of the same documents covering the same or similar content or the exact same document that is presented each year to a new audience with a new presentation date. The County does not provide any information regarding the various iterations and therefore there is no evidence to support any conclusion other than that these documents involve the same subject matter. Moreover, the County cites to no authority establishing that different iterations of the same document are not subject to waiver based on the subject matter.

Accordingly, the Court finds that the County has waived the applicable privileges as to the documents previously produced and as to other iterations of the documents previously produced because, based on the limited information available to the Court, they involve the same subject matter.

CONCLUSION

For the reasons set forth above, Plaintiffs' Motion is GRANTED. The County must produce documents bate stamped CSD00908-1014 set forth the in the April 12, 2024 privilege log in its native “.ppt” and or “.pptx” formal and all documents set forth in the June 27, 2024 privilege log. The responsive documents must be produced to Plaintiffs by August 8, 2024.

FOOTNOTES

1.   Defense counsel's declaration states “[t]he County's training materials at issue in the instant motion were prepared and presented by members of the County Counsel's office to County Employee's for the purpose of mitigating or avoiding prospective future litigation. These training materials are not general summary of the applicable law but provide specific legal advice to County employees on how to act to best limit the chance of future litigation.” Miyamoto Decl. at ¶ 6.

2.   Plaintiffs' counsel obtained in other litigation some of the documents that are being withheld in this case based on privilege. MTC at 16; Daner Decl., Exhs. F, K. As discussed in Section D below, the prior voluntary production of these documents waived the attorney-client and attorney work product privileges asserted in this case.

Hon. Barbara L. Major United States Magistrate Judge