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Ninth Circuit:
Media Lawyers Must Be Ordered to Return, Destroy Reports
Majority Says Attorney-Client Privilege Shields Statements From Public Disclosure Where Primary Purpose Of Board Is to Assess Liability Relating to Incidents; Koh Dissents
By Kimber Cooley, associate editor
News organizations’ attorneys in possession of reports by a county oversight board relating to non-natural deaths and serious injuries occurring within the San Diego County jails must be ordered to return or destroy them, the Ninth U.S. Circuit Court of Appeals declared yesterday, in a 2-1 decision.
Finding that the primary purpose of the county’s Critical Incident Review Board (“CIRB”) is analyzing, in cooperation with legal counsel, liability exposure following a “critical incident,” the court held that the documents are shielded by the attorney-client privilege and should not have been disclosed, even though an earlier attempt, by way of a petition for writ of mandamus, to halt the disclosure was summarily denied by a different panel of the court.
The question arose after the San Diego Union Tribune LLC, Prison Legal News, and Voice of San Diego moved to intervene in a civil rights lawsuit brought by a former inmate in the San Diego Central Jail, Frankie Greer, who claims he suffered severe injuries during his time in custody. The media companies sought access to reports by CIRB, obtained by Greer in discovery, relating to twelve in-custody deaths.
District Court’s View
District Court Judge Jinsook Ohta of the Southern District of California overruled the county’s objections to Greer’s requests for the reports based on privilege, saying the board “serves multiple purposes unrelated to obtaining legal advice,” citing the committee’s commitment to improving the jail system’s policies and procedures.
Ohta also pointed to comments made by then-Chief Legal Advisor for the San Diego County Sheriff’s Department Robert P. Faigin (now serving as the executive director of a review board for the County of Orange) that having an attorney on the committee had the benefit of “cloak[ing]” the board discussions in privilege. The judge rejected what she styled as an effort to “immunize documents from disclosure by simply involving an attorney in the investigation.”
She ordered that the reports be provided to Greer, subject to an attorney-eyes-only protective order, and that any filings relating to the documents be made under seal.
San Diego County petitioned the Ninth Circuit for a writ of mandamus seeking vacatur of the order compelling production of the CIRB documents. On Jan. 6, 2023, the court summarily denied mandamus relief in an order signed by Senior Circuit Judge Richard R. Clifton and Circuit Judges Kim McLane Wardlaw and Gabriel P. Sanchez.
Greer, who later settled with the county for $7.75 million, relied on portions of the CIRB reports in the litigation and he filed the documents with the court, conditionally under seal, in keeping with Ohta’s instructions.
The judge granted the news organizations’ requests to intervene and unseal the reports by oral ruling and ordered the parties to “meet and confer regarding proposed redactions.”
On July 11, 2023, a written order was entered, reflecting certain stipulated redactions, and Ohta declared that “[a]fter forty-eight (48) hours from the date of this Order, the Court will file a redacted version of the CIRB Discovery that will be publicly available.” She denied the county’s motion for a stay pending appeal.
In an order signed by Circuit Judges Sandra S. Ikuta and Daniel P. Collins on July 12, 2023, the Ninth Circuit granted the county’s motion to stay, pending appeal, Ohta’s order unsealing the documents. However, the intervenors had already received the CIRB discovery under an attorney-eyes-only protective order so that the parties could discuss redactions.
Ninth Circuit’s View
In an opinion authored by Senior Circuit Court Judge Susan P. Graber, and joined in by Circuit Judge Consuelo M. Callahan, the court reversed the order and remanded with instructions that the media companies be ordered to return and/or destroy the CIRB documents because they were protected by the attorney-client privilege. Circuit Judge Lucy H. Koh dissented.
Graber wrote:
“Here, the CIRB reports contained in the record meet the criteria for attorney-client privilege….[T]here is no contention that the Chief Legal Advisor was absent from any of the meetings memorialized in the reports. In each instance, areas of potential liability for the inmate’s death were discussed. In most instances, counsel participated actively by asking questions designed to understand and, where appropriate, by highlighting areas of potential liability.”
The media companies argue that the appeal is moot because “the alleged harm from disclosure has already occurred.” Unpersuaded, she said:
“Because we can order the district court to direct Intervenors’ counsel and Plaintiff’s counsel to return or destroy their copies of the CIRB documents, particularly given that they received non-redacted versions, effective relief remains available. The County thus ‘[has] a concrete interest…in the outcome of [this] litigation.’ ”
Primary Purpose
Graber noted that “[i]n this circuit, ‘the primary-purpose test applies to attorney-client privilege claims for dual-purpose communications’ ” and opined that “[t]he CIRB serves more than one purpose.”
The jurist reasoned:
“In deciding that the primary purpose of the CIRB, and the documents it generates, is not to obtain legal advice, the district court made two significant legal errors. First, avoiding future legal liability is not necessarily just an ‘investigative and remedial’ purpose….When something goes terribly wrong at a jail—such as a non-natural in-custody death or a serious injury—the jail reasonably expects a lawsuit, such as the one here, to follow….The jail also reasonably wishes to understand not only its liability for what already happened but also options for avoiding future liability-creating incidents. A lawyer’s recommendations on both liability for past events and avoidance of future liability-creating events constitute legal advice.”
She continued:
“Second, the court erred by relying on the purported motive of the CIRB’s creator to dress non-privileged communications in privileged garb…. He recommended participation by a legal advisor as part of a CIRB because a ‘legal advisor brings risk/liability perspective to the discussion’—a classic function of legal advice. The district court seized on the additional phrase that including a legal advisor ‘potentially provides the ability to protect the confidentiality of the discussion under the cloak of the attorney-client privilege.’…[C]ontextually it is clear that the author used the noun ‘cloak’ in the neutral sense of ‘something that envelops.’ ”
Adding that “[t]hose two legal errors fatally infected the court’s determination,” she concluded that “[e]ven if we consider the court’s ‘primary purpose’ conclusion as a finding of fact that we review only for clear error, the court’s finding is ‘illogical, implausible, [and] without support in the record.’ ”
No Waiver
As to the media companies’ argument that the privilege was waived because the county disclosed the reports to third parties without listing them on the privilege log, she wrote:
“[T]he County identified the Chief Legal Advisor as the only recipient of the disputed CIRB reports because he was, in fact, the only recipient. As his sworn declaration asserted, CIRB reports are ‘sent to me only and [are] maintained in a confidential file system in the legal affairs unit….’ Additionally, CIRB reports were not distributed to anyone outside the Department except the State Auditor. There is no evidence in the record to the contrary.”
Graber noted that “[w]ith respect to the question whether the attorney-client privilege applies to a particular communication, our court has stated two different standards of review.”
She pointed to the 2021 Ninth Circuit case of In re Grand Jury, which held that the question of whether the privilege applies to documents presents “a mixed question of law and fact which this court reviews independently and without deference to the district court,” and a 2020 decision in U.S. v. Sanmina Corp. as declaring that clear error applies to a trial court’s factual findings on the topic.
The judge said that “[w]e need not try to reconcile our precedents here, because our conclusion would be the same under either standard of review” and, in a separately filed concurring opinion, argued that “[t]his case…is not a good vehicle for taking up this issue en banc.”
Koh’s Dissent
Koh agreed with the majority’s mootness analysis but wrote:
“Whether the attorney-client privilege applies here presents a straightforward question of fact: Was the primary purpose of the Critical Incident Review Board (“CIRB”) process to seek legal advice…? The district court made the factual finding that the primary purpose of the CIRB process was…to improve the operation of the County’s jails. This factual finding was not clearly erroneous but…was supported by ample evidence in the record….”
She continued:
“The cases cited by the majority to suggest that a de novo standard may be applicable…did not involve the question of how a district court’s findings about the primary purpose of a communication should be reviewed….I disagree with the majority that applying a deferential standard of review to this primary-purpose determination is inconsistent with the more general rule that application of the attorney-client privilege to a particular communication presents a mixed question reviewed de novo….Determinations of ‘basic or historical fact…are reviewed for clear error….Identification of the primary purpose of a communication fits comfortably within the realm of the purely factual.”
Koh added:
“[I]n my view, we do not even need to reach the question of what the primary purpose of the CIRB reports may have been because the County failed to properly assert the privilege. The County failed to identify all of the individuals who received the CIRB reports and who attended the relevant CIRB meetings on its privilege log, despite a direct order from the court to identify the reports’ recipients. Without this information the court below could not properly assess whether all elements of the privilege were established. By failing to provide it, the County waived the privilege.”
The case is Greer v. County of San Diego, 23-55607.
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