Estate of Amilcar Perez Lopez et al v. Suhr et al

Northern District of California, cand-4:2015-cv-01846

Order by Magistrate Judge Jacqueline Scott Corley denying {{99}} Discovery Letter Brief.(jsclc1S, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ESTATE OF AMILCAR PEREZ LOPEZ, Case No.15-cv-01846-HSG (JSC) ET AL., 8 Plaintiffs, ORDER DENYING PARTIES' MOTION 9 TO COMPEL v. 10 Re: Dkt. No. 99 GREG SUHR, et al., 11 Defendants. 12 Northern District of California United States District Court 13 Plaintiff and Defendants seek certain documents from non party San Francisco District 14 Attorney's Office. After considering the parties' written submission, the Court concludes that oral 15 argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b) and DENIES the parties' motion to 16 compel documents from the District Attorney except for the 3D Forensics animation. 17 1. The District Attorney has met its burden of establishing that his memoranda 18 summarizing witness interviews are protected work product. See Hickman v. Taylor, 329 U.S. 19 495, 511 (1947). The District Attorney's evidence shows that the interviews were done in 20 anticipation of potential criminal charges. (Dkt. No. 99-1 ¶ 3.) The Court finds that they "would 21 not have been generated but for the pendency or imminence of litigation." Kelly v. City of San 22 Jose, 114 F.R.D. 653, 659 (C.D. Cal. 1995). The parties' reliance on Anderson v. Marsh, 312 23 F.R.D. 584 (E.D. Cal. 2015) is misplaced. In Anderson, the court distinguished between two types 24 of investigations of officer-involved shootings: "a criminal investigation and a departmental 25 investigation." Id. at 590. The court held that the documents created as part of the departmental 26 investigation by non-attorneys were not entitled to attorney-client or work product protection. Id. 27 at 951-53. Here, in contrast, the sought-after documents were generated by the District Attorney 28 as part of a criminal investigation, that is, in anticipation of criminal litigation. Miller v. Pancucci, 1 141 F.RD. 292 (C.D. Cal. 1992) is likewise distinguishable as it involved discoverability of a 2 police department's internal affairs section which conducts "complete, objective investigations 3 and for making fair, impartial evaluations of complaints against police department personnel." Id. 4 at 303. The court found that such investigations are conducted regardless of whether litigation is 5 anticipated. Id. Not so here. The District Attorney's evidence establishes that the interviews 6 were conducted in anticipation of potential criminal charges. 7 Although not argued by the parties, fact work product is discoverable upon a showing of 8 substantial need and that the party cannot discover the information on his own without undue 9 hardship. No such showing has been made here. 10 2. The District Attorney shall produce the 3D Forensics animation of the incident to 11 the parties. While it may be publicly available on YouTube, the District Attorney's production 12 will eliminate any issues as to authenticity. Northern District of California United States District Court 13 3. The District Attorney has met his burden of showing that the use of force expert 14 report prepared at the direction of the District Attorney in anticipation of litigation is attorney 15 work product. See S.E.C. v. Reyes, No. C06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. Mar. 16 30, 2007) ("When experts serve as litigation consultants, the work-product privilege generally 17 applies to materials reviewed or generated by them in that capacity.") The parties argue, however, 18 that the District Attorney waived that privilege by heavily quoting from the expert's report in the 19 District Attorney's "Summary of Investigation and Legal Analysis of the Fatal Shooting of 20 Amilcar Perez-Lopez" and then making that Summary publicly available. The Court agrees. 21 Although not provided by the parties, the Court located the Summary online. 22 http://sfdistrictattorney.org/sites/default/files/Document/FOLSOM%20STREET%20SUMMARY 23 %20AND%20ANALYSIS_0.pdf (visited August 16, 2017). The disclosure of the expert's 24 conclusion online for everyone to view constitutes a waiver of work product protection. See Great 25 Am. Assur. Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1092 (N.D. Cal. 2009). 26 The deliberative process privilege does not apply. The District Attorney has not submitted 27 an affidavit that satisfies the required showing. See United States v. Ellis, No. 13-cr-001818- 28 PJH(DMR), 2017 WL 1164172 (N.D. Cal. March 29, 2017). It cannot make that showing since 2 1 the report's conclusion, and thus the expert's impressions and mental processes, has been publicly 2 disclosed. 3 This Order disposes of Docket No. 99. 4 5 IT IS SO ORDERED. 6 Dated: August 16, 2017 7 8 JACQUELINE SCOTT CORLEY 9 United States Magistrate Judge 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3