Summary
The Ninth Circuit Court of Appeals reversed the district court's order compelling the production of documents from the County of San Diego's Critical Incident Review Board (CIRB), holding that they are protected by the attorney-client privilege. The court found that the primary purpose of the CIRB meetings was to assess legal liability and avoid future litigation, satisfying the primary-purpose test for privilege. Additionally, the panel held that the appeal was not moot despite the County's prior production of the documents, as effective relief could still be granted by ordering their return or destruction.
Topics
Practice areas
Questions Presented
- Whether the attorney‑client privilege applies to the CIRB documents.
- Whether the County waived the attorney‑client privilege.
- Whether the appeal is moot after the County produced the documents.
- What remedy is appropriate for privileged documents that have been produced.
Holdings
- The attorney‑client privilege protects the CIRB documents at issue.
- The County did not waive the privilege.
- The appeal is not moot.
- The district court’s order is reversed and the case remanded with instructions to require the return or destruction of the privileged CIRB documents.
Key quotations
“A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” (at 15)
“We hold that the attorney‑client privilege protects the CIRB documents at issue here and, therefore, reverse.” (at 1)
Factual background
Frankie Greer, a former inmate, sued the County under 42 U.S.C. §1983 for injuries suffered in jail. During discovery he sought documents from the County’s Critical Incident Review Board (CIRB). The County claimed the documents were protected by the attorney‑client privilege. After settlement, media intervenors sought to unseal the documents.
Procedural history
The district court ordered production of CIRB documents, found them not privileged, and denied the County’s attempts to protect them. Intervenors later moved to intervene and to unseal the documents. The County appealed.
Remand instructions
Require the district court to order intervenors’ counsel and plaintiff’s counsel to return or destroy all copies of the CIRB documents.