Anderson v. Marsh, 312 F.R.D. 584

On Oct. 27, 2012, CHP Officer John Marsh pursued a speeding vehicle that crashed; Marsh fired two shots, injuring the driver, who later died; plaintiffs (surviving family) sued under 42 U.S.C. § 1983 alleging excessive force and related claims.
Plaintiffs sought production of (1) an immediate commander’s memorandum of findings and (2) a policy/procedures evaluation report prepared during the departmental investigation, and sought testimony from Sgt. DeChamplain about his opinions in those reports.
Defendants produced redacted versions and withheld unredacted materials, asserting attorney–client privilege and work-product protection; they also designated materials as confidential and asked to file them under seal.
The court conducted in camera review and heard argument; it considered relevance to the Fourth Amendment excessive-force claim and whether federal privilege law or state law governs.
The magistrate judge concluded the reports and the supervisor’s opinion are relevant and not protected by attorney–client privilege or the work-product doctrine, ordered production of unredacted reports, and required further deposition of Sgt. DeChamplain; the sealing request was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Relevance of supervisor opinions and internal investigation reports to excessive-force claim	Opinions about policy compliance are relevant to reasonableness and whether force was necessary	Supervisor opinion is not relevant to Fourth Amendment analysis	Relevant — supervisor findings may inform the reasonableness inquiry and are discoverable
Attorney–client privilege over commander memorandum and policy/procedures report	Reports are ordinary investigatory materials and not privileged	Reports were submitted to general counsel and labeled confidential; privilege applies	Not privileged — created for administrative fact-finding, disclosed to involved employees, and not primarily for legal advice
Work-product protection for the reports	Reports not prepared primarily because of litigation and are routine; if dual-purpose, they are not protected	Prepared in anticipation of litigation or for counsel review, so protected	Not protected — routinely prepared regardless of litigation; defendants failed to show primary purpose was anticipation of litigation
Sealing of discovery and deposition transcripts	Confidential designation and protective order justify sealing	Need to protect attorney communications and work product; parties agreed to seal	Denied — party designation alone insufficient; good-cause showing required and not made

Terry v. Ohio, 392 U.S. 1 (Sup. Ct. 1968) (Fourth Amendment reasonableness framework)
Graham v. Connor, 490 U.S. 386 (Sup. Ct. 1989) (reasonableness standard for use of force)
Hickman v. Taylor, 329 U.S. 495 (Sup. Ct. 1947) (work-product doctrine origins)
Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005) (federal privilege law governs in federal-question cases with pendent state claims)
In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992) (scope of attorney–client privilege)
Richey, 632 F.3d 559 (9th Cir. 2011) ("because of" test for dual-purpose documents and work-product analysis)
Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988) (burden on privilege claimant)
Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (presumption of public access to judicial records)
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) (good-cause standard for sealing discovery attached to nondispositive motions)
Phillips v. Gen. Motors Corp., 307 F.3d 1206 (9th Cir. 2002) (presumption of public access to discovery materials)