The Estate of Ruben Nunez v. County of
3:16-cv-01412
S.D. Cal.Sep 11, 2017Background
- This is a discovery dispute in a civil case arising from the death of Ruben Nunez; plaintiffs seek production of a Critical Incident Review Board (CIRB) report.
- Plaintiffs served Request for Production (Set Two) No. 37, seeking CIRB and related incident reports from the County of San Diego.
- County identified a CIRB report but withheld it as attorney-client privileged.
- County submitted a declaration from Robert P. Faigin, Chief Legal Advisor for the Sheriff’s Department, stating the CIRB’s purpose is to consult with legal counsel when incidents may give rise to litigation and that the report is maintained confidentially in counsel’s office.
- Plaintiffs argued the CIRB report is akin to an internal investigative report (citing Anderson v. Marsh) and thus not privileged because Procedure § 4.23 permits referral to Internal Affairs.
- The court found Faigin attended the CIRB meeting, the CIRB was convened to obtain legal advice, and the CIRB report was prepared for that purpose and kept confidential, so privilege applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CIRB report is protected by attorney-client privilege | The CIRB report is like an internal investigative report and not privileged; Procedure § 4.23 allows Internal Affairs referral | CIRB exists to obtain legal advice; report was prepared and kept confidential by counsel and for litigation guidance | Privilege upheld; CIRB report protected from disclosure |
Key Cases Cited
- United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) (articulates elements of attorney-client privilege)
- United States v. Martin, 278 F.3d 988 (9th Cir. 2002) (privilege elements and strict construction)
- Anderson v. Marsh, 312 F.R.D. 584 (E.D. Cal. 2015) (internal investigative report not privileged when created by non-attorney for investigative, not legal, purposes)