Angelica R. Untalan v. Warren A. Stanley, et al Case No. CV 19-7599-ODW (JEMx) United States District Court, C.D. California Filed December 10, 2020 Counsel Donald Webster Cook, Donald W. Cook Law Offices, Los Angeles, CA, Nisha Kashyap, Los Angeles, CA, for Plaintiff. Donna M Dean, CAAG - Office of Attorney General California Department of Justice, Los Angeles, CA, for Defendants Warren A. Stanley, Joseph Farrow, Tariq D. Johnson, Jonathan Cochran, Joseph Zagorski, Justin Vaughan, Paola Trinidad. McDermott, John E., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF'S MOTION TO COMPEL NON-PARTY CHP TO PRODUCE ITEMS IT CLAIMS ARE PRIVILEGED (Docket No. 89) *1 Before the Court is a Motion To Compel Production of Items Responsive to Subpoena Duces Tecum and Listed in Privilege Log (“Motion”), filed by Plaintiff Angelica Untalan (“Plaintiff” or “Untalan”). (Dkt. 89, 89-1.) The Motion and Local Rule 37 Joint Stipulation were filed on November 24, 2020. (Dkt. 89.) Plaintiff filed a Supplemental Memorandum on December 1, 2020. (Dkt. 90.) Defendants did not file a Supplemental Memorandum. The Court DENIES the Motion in part as to the original February 25, 2020 privilege log and ORDERS additional briefing on timeliness and in camera review of emails in the Amended and Second Amended Privilege Logs. Background Plaintiff served a Rule 45 subpoena on non-party California Highway Patrol (“CHP”) on January 2, 2020. (Dkt. 89-1 at 30, Dean Decl., ¶ 3, Ex. A.) The subpoena sought production of “Any and all WRITINGS (defined by Cal. Evid. Code § 250) authorized or issued by the CHP, regarding the impact on CHP policy by either or both decisions in Brewster v. Charlie Beck, 859 F.3d 1194 (9th Cir. 2017), and Sandoval v. County of Sonoma, 912 F.3d 509 (9th Cir. 2018).” Id. On January 13, 2020, CHP served an objection to the above request based on attorney-client privilege. (Id., Ex. B.) No objection was made on grounds of the work-product doctrine or deliberative process privilege. (Id.) CHP did not provide a privilege log with its objection. (Id.) On February 25, 2020, CHP served a privilege log (the “original privilege log”) identifying 5 emails subject to attorney-client privilege, two of which also were subject to the work-product doctrine. (Id. at 31, ¶ 5, Ex. G.) The privilege log did not state that the 5 emails were protected by the deliberative process privilege. (Id.) More recently, in searching for documents responsive to discovery requests in another similar case, CHP located additional documents responsive to the subpoena in this case. (Id., ¶ 7.) CHP served an Amended Privilege Log on October 19, 2020, the discovery cutoff date, identifying 11 new emails, 8 of which were subject to the deliberative process privilege with the remainder subject to attorney-client privilege and the work-product doctrine. (Dkt. 89-1 at 27, Cook Decl., ¶ 5, Ex. C.) Plaintiff received a Second Amended Privilege Log containing two additional emails subject to the deliberative process privilege on November 3, 2020. (Id. at 28, ¶ 8, Ex. F.) Thus, the Second Amended Privilege Log contains 10 emails subject to the deliberative process privilege, four of which also were subject to the attorney-client privilege. (Dkt. 89-1 at 32, Ex. F.) In total, the Second Amended Privilege Log contains 23 emails, 18 of which are in dispute. (Id.) The other 5 are items kept at CHP's Central Los Angeles Office and are not subject to the attorney-client, work-product doctrine or deliberative process privilege. Because the Amended Privilege Log and Second Amended Privilege Log were served on or after the discovery cutoff date, the parties agreed that Plaintiff could bring this Motion. (Id. at ¶ 8.) On the parties' stipulation, the District Court granted a limited extension of the discovery cutoff date. (Dkt. 82.) Timeliness *2 Plaintiff argues that the privileges asserted by CHP in the original February 25, 2020 privilege log were waived because the log was produced over a month after the response to the January 2, 2020 subpoena was due. Defendants in turn contend that Plaintiff's challenge to the original privilege log is untimely. The Court agrees. Plaintiff's November 24, 2020 Motion was filed well after the October 19, 2020 discovery cutoff date. Plaintiff's counsel asserts that he never received the original February 25, 2020 privilege log before the close of discovery. (Dkt. 89-1 at 27, Cook Decl., ¶ 4; at 28, ¶ 28.) Defendants, however, have produced a Declaration of Service by U.S. mail under oath dated February 25, 2020 that the CHP's privilege log in response to subpoena was served. (Dkt. 89-1 at 76, Ex. G.) The Court has no reason to doubt the Declaration that the log was mailed nor does the Court doubt that Plaintiff's counsel did not receive it. Plaintiff's counsel, however, concedes that defense counsel advised him at a February 6, 2020 meet and confer that CHP intended to provide a privilege log in regard to its January 13, 2020 responses to the January 2, 2020 subpoena. (Dkt. 89-1 at 27, ¶ 4.) Yet counsel never followed up or raised the issue with defense counsel or told defense counsel he had never received a log. Plaintiff argues that the discovery cutoff extension should allow her to pursue her challenge but defense counsel states she did not agree to extend the discovery cutoff date to allow Plaintiff to challenge the original February 25, 2020 privilege log. (Dkt. 89-1 at 31-32, ¶ 8.) The Court concurs, as there was no reason why CHP would or should agree otherwise as it did nothing wrong in the mailing of the February 25, 2020 privilege log. The District Court's extension order specifically provides that the discovery cutoff date is extended to December 18, 2020 for the limited purpose of enabling Plaintiff to challenge documents in the Amended and Second Amended privilege logs. (Dkt. 82.) It does not mention the original February 25, 2020 privilege log. Thus, the Motion is DENIED as to any challenge to the February 25, 2020 privilege log. The only remaining emails at issue are the 11 emails reflected in the Amended and Second Amended Privilege Logs. Plaintiff argues that the privileges asserted in those logs were waived because they were untimely. The original February 25, 2020 privilege log was served eight months before the discovery cutoff date. The Amended and Second Amended Privilege Logs, responding to the same January 2, 2020 subpoena, were not served until or after the discovery cutoff date. Defense counsel explains, “Recently, after searching for documents responsive to discovery requests in another, similar action filed by Plaintiff's attorneys in state court, CHP located additional documents responsive to the subpoena in this case.” (Dkt. 89-1 at 31, ¶ 7.) This limited explanation is insufficient to address Plaintiff's challenge to the timeliness of the two privilege logs. CHP fails to explain why it did not find the additional emails, which were in its possession, at the time it produced the February 25, 2020 privilege log. CHP also fails to offer any justification why its late production should not result in waiver. The Court assumes that CHP did a broader search of additional servers or more custodians or more search terms but the unanswered question is why CHP did not conduct this broader search in February. The Court ORDERS additional briefing accompanied by a declaration under oath regarding the searches done in February and more recently in regard to the Amended and Second Amended Privilege Logs, sufficient for the Court to determine whether CHP's search in February was reasonable and adequate. CHP shall provide this briefing and declaration by December 15, 2020. Plaintiff may file a response by December 18, 2020. In Camera Review The Court ORDERS CHP to produce the 13 emails remaining at issue forthwith to the Court for in camera inspection and in any event no later than Monday, December 14, 2020. In order for the deliberative process privilege to apply, documents must be “pre-decisional” and “deliberative.” FTC v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The Court does not believe it can make an informed ruling about whether CHP's emails are pre-decisional and deliberative without conducting an in camera review of those documents. Also, Captain Lane's Declaration indicates that the documents subject to the deliberative process privilege establish that CHP's vehicle impound policy “did not need to be revised” after the decisions in Brewster and Sandoval. (Dkt. 89-1 at 34-35, ¶ 8.) The Declaration, however, does not indicate the reasons for the decision, when it was made and by whom. Deliberative process materials generally are of limited relevance and not necessary to a Court's review because the “reasonableness of the agency's action is judged in accordance with its stated reasons.” Allegheney Def. Project v. U.S. Forest Serv., 423 F.3d 215, 231 (3d Cir. 2005) (emphasis added); Ad Hoc Metals Coal v. Whitman, 227 F. Supp. 2d 134, 143 (D.D.C. 2002) (“Judicial review of agency action should be based on an agency's justifications, not the pre-decisional process that led us to the final articulated decision”). The Court further notes that “purely factual materials are generally not protected by the [deliberative process] privilege.” Coalition For A Sustainable Delta v. Koch, 2009 WL 3378974*8 (E.D. Cal.). The Court finds it odd that all emails in all these privilege logs were withheld in their entirety, rather than produced with redactions. The same applies to emails withheld for attorney-client privilege. See Advanced Cardiovascular Sys., Inc. v. C. R. Bard, Inc., 144 F.R.D. 372, 374 (N.D. Cal. 1992) (“what the privilege presumptively protects from discovery is specific communications between client and counsel, not the relevant underlying facts, data or information.”) Last, there is precious little information provided to demonstrate the application of the work-product privilege. CHP may wish to carefully review its Amended and Second Amended Privilege Logs before submitting them to the Court. Defendants *3 CHP observes that Defendants are sued in their individual capacities — not their official capacities — and CHP is not a party to the action. (JS 23:18-19.) CHP argues that Defendants are not on the emails subject to the deliberate process privilege nor did they participate in the decision making. Thus, Defendants assert that none of the documents purportedly protected by the deliberative process privilege are relevant to the question of whether any individual defendant violated Plaintiff's constitutional rights. Defendants' argument, however, goes to the merits and is beyond this Court's authority to address. The Court here is concerned only with discovery. Defendants claim qualified immunity as their defense and the emails are relevant and discoverable on that issue.