Dunsmore v. State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, et al., Case No.: 20-cv-406-AJB-DDL 12 Plaintiffs, SECOND SUPPLEMENTAL 13 v. ORDER RE PLAINTIFFS’ MOTION TO FILE DOCUMENTS 14 SAN DIEGO COUNTY SHERIFF’S UNDER SEAL DEPARTMENT, et al., 15 Defendants. Dkt. No. 797 16 17 On May 14, 2025, the undersigned issued an Order finding “the attorney- 18 client privilege applies to the CIRB Report information contained in the expert 19 reports of Gary Raney, Kelly Ramsey and Pablo Stewart” under Greer v. Cnty. of 20 San Diego, 127 F.4th 1216 (9th Cir. 2025). Dkt. No. 915. The undersigned also 21 found the “present record is insufficient to determine whether the privilege applies 22 to the CIRB Report information contained in the expert report of Jeffrey Keller,” 23 and ordered the County to file a supplemental brief explaining “why the CIRB report 24 pertaining to the in-custody death of Raymond Dix is privileged.” Dkt. No. 915 at 6. 25 Chief Legal Advisor of the San Diego County Sheriff’s Office, Michael Baranic, 26 timely filed a declaration. Dkt. No. 919 (“Baranic Decl.”). For the reasons 27 discussed below and in its previous Order, the Court finds Mr. Keller’s expert report 28 contains information from CIRB Reports that is privileged under Greer. 1 The Court discussed the holding in Greer and the factual background of this 2 case in detail in its previous Order. Dkt. No. 915 at 3-4. In relevant part, the Ninth 3 Circuit noted the CIRB’s stated purpose is “to consult with department legal 4 counsel when an incident occurs which may give rise to litigation” and that “the 5 County’s current and former Chief Legal Advisors both averred that consulting with 6 counsel is the primary purpose of the CIRB.” Greer, 127 F.4th at 1226. The Ninth 7 Circuit concluded: 8 Here, the CIRB reports contained in the record meet the criteria for attorney-client privilege. Department Policy required the Chief Legal 9 Advisor to be part of the CIRB, and there is no contention that the Chief 10 Legal Advisor was absent from any of the meetings memorialized in the reports. In each instance, areas of potential liability for the inmate's 11 death were discussed. In most instances, counsel participated actively 12 by asking questions designed to understand and, where appropriate, by highlighting areas of potential liability. . . . In short, both the 13 participants in the CIRB and its critics consistently viewed the primary 14 purpose of the CIRB as assessing legal liability for a past event and avoiding legal liability for future similar events. The district court's ruling 15 to the contrary was erroneous. 16 Id. 17 Accordingly, in its previous Order, the Court “read[] Greer to hold the Chief 18 Legal Advisor’s presence at a CIRB meeting renders the ensuing CIRB Reports 19 privileged in [their] entirety regardless of whether the Chief Legal Advisor actively 20 participates in the meeting.” Dkt. No. 915 at 5-6. The Court’s in camera review of 21 documents indicated that neither the Chief Legal Advisor nor the Deputy Chief 22 Legal Advisor attended the CIRB meeting pertaining to the death of Raymond Dix 23 that is referenced in Jeffrey Keller’s report; instead, Heidi Williams from “CIRB 24 BOARD LEGAL” attended. Id. at 6. 25 Mr. Baranic’s declaration demonstrates Ms. Williams’ presence at the CIRB 26 meeting likewise renders the ensuing CIRB Report privileged in its entirety. 27 Specifically, Ms. Williams “was an attorney licensed to practice law in the State of 28 California and employed by the Sheriff’s Office as Sheriff’s Legal Advisor.” Baranic 1 ||Decl. 7 8. Mr. Baranic “designated Ms. Williams to take [his] place as Sheriff's 2 ||Legal Advisor at the September 20, 2023, CIRB meeting regarding Raymond Dix’s 3 custody death,” as was Mr. Baranic’s practice when he was off work. /d. □ 9. 4 ||“Ms. Williams was responsible to fill the same role and maintain the same 5 || confidentiality with regard to the meetings, communications and CIRB reports.” /d. 6 || 10. Therefore, the Court finds that under Greer, the attorney-client privilege 7 ||applies to the CIRB Report information contained in the expert report of Jeffrey 8 || Keller. 9 10 IS SO ORDERED. 11 || Dated: May 22, 2025 12 Tbr! Lhe 13 ‘Hon. DavidD.Leshner □□□ 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28