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Cynthia Sommer v. United States of America

September 22, 2011


The opinion of the court was delivered by: Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court


Plaintiff Cynthia Sommer filed suit against various defendants, including the District Attorney, Bonnie Dumanis ("Dumanis"), and a former Deputy District Attorney, Laura Gunn ("Gunn"), alleging Defendants violated her civil rights by investigating, arresting, and charging her with murder despite knowing or having had reason to know that the evidence against her was false and fabricated. (Doc. No. 1 at ¶¶ 64-65.) Pending before the Court is Plaintiff's motion to compel Defendants Dumanis and Gunn (herein collectively "Defendants") to produce certain documents identified on their privilege log. (Doc. No. 82.) Plaintiff seeks to compel production of documents being withheld by Defendants on the basis of the attorney-client privilege, work product immunity, and prosecutorial immunity. Having considered the parties' briefs and accompanying submissions, pursuant to Civil Local Rule 7.1(d)(1) the Court finds this matter suitable for disposition on the papers submitted.


Plaintiff Cynthia Sommer initiated this action by filing a Complaint September 24 ,2009. (Doc. No. 1). Plaintiff has claims for: (1) violation of 42 U.S.C. § 1983 and (2) violation of the Federal Tort Claims Act ("FTCA"). Plaintiff alleges the following.

In February of 2002, her husband, Todd Sommer, a 23-year old Sergeant in the United States Marine Corps, died of a cardiac arrhythmia. (Doc. No. 1 at ¶ 1.) Todd Sommer collapsed in the early morning of February 18, 2002, and was pronounced dead at the hospital approximately half an hour Id. at ¶¶ 12-13. Dr. Stephen L. Robinson performed an autopsy and concluded that Todd Sommer had died of cardiac arrhythmia but did not find any signs of poisoning. Id. at ¶¶ 14-18. Dr. Robinson forwarded the report to Dr. Brian D. Blackbourne, then the Chief Medical Examiner for the County of San Diego and he agreed with Dr. Robinson that Todd Sommer had died of natural causes. Id. at ¶ 19. Dr. Blackbourne issued a death certificate which identified the manner of death as natural and the probable cause of death as cardiac arrhythmia of undetermined etiology. Id.

Plaintiff further alleges that despite the results of the autopsy and the Medical Examiner's opinion, "Defendants refused to accept those results and embarked upon an investigation intended to find criminal conduct" by Plaintiff. Id. at ¶ 21. Plaintiff alleges that Defendants were "[d]esperate for any evidence to justify their continued investigation" and sent tissue samples to the Environmental Division of the Armed Forces Institute of Pathology ("AFIP"). Id. at ¶ 23. AFIP "purportedly found extremely high levels of arsenic in two of six tissue samples," which Plaintiff contends showed that "the samples were negligently or intentionally contaminated" because "arsenic is ubiquitous." Id. at ¶ 24. Plaintiff alleges all of the tissue samples, as well as Todd Sommer's blood and urine, "should have shown high levels of arsenic" if the test results were accurate. Id. Plaintiff alleges Jose Centeno, the lab director, "believed that the two tissue [samples] that tested positive for arsenic had likely been contaminated, possibly coming into contact with arsenic . . . ." Id. Plaintiff alleges Defendants knew or should have known that AFIP was not a competent testing facility and that Defendants chose the lab because they knew "a competent testing facility would conclusively prove that Todd Sommer did not die of arsenic poisoning." Id. at ¶ 25.

Plaintiff also alleges "[d]uring their investigation prior to Mrs. Sommer's arrest, Defendants consulted with several qualified independent forensic toxicologists . . . . [who] refused to concur in the results of the testing performed by AFIP [because] the results were demonstrably false." Id. at ¶ 29. Plaintiff alleges Defendants Dumanis and Gunn "knew or should have known during the investigation . . . that there was no evidence" that Plaintiff killed Todd Sommer but that they "believed that a high-profile arrest and conviction would serve their personal goals and make the D[istrict] A[attorney's] O[ffice] famous." Id. at ¶¶ 32- 34. Plaintiff alleges Dumanis and Gunn convinced Wagner, who had left his position as head of AFIP to become the Chief Medical Examiner for the County of San Diego during the Sommer investigation, to change the death certificate to homicide. Id. at ¶ 35.

Plaintiff alleges Wagner "knew or should have known that the AFIP test results were corrupt, false, and possibly fabricated," especially in light of an email exchange between Wagner and Centeno, the scientist who conducted the test. Id. at ¶ 36. Plaintiff alleges Wagner emailed Centeno to ask for an explanation of the high level of arsenic found in two samples while the other four samples and Todd Sommer's blood and urine were negative and that Centeno replied that he did not have a good explanation and suspected the tissue samples had become contaminated. Id. Plaintiff also alleges Wagner knew or should have known that the test results were fabricated, but nonetheless changed Todd Sommer's cause of death to cover up the problems at AFIP and avoid "public embarrassment" and protect his "professional image." Id. at ¶ 39.

Plaintiff was arrested and charged with murdering Todd Sommer on November 30, 2005, and convicted of her husband's murder on January 30, 2007. Id. at ¶ ¶ 49-50. On November 30, 2007, her conviction was overturned and she was granted a new trial. Id. at ¶ 52. Before a new trial took place, additional tissue samples were located, and Defendants had these additional samples "tested at a highly respected private testing facility in Canada." Id. at ¶ 54. Plaintiff alleges that "[n]one of the tissue samples showed the presence of any arsenic whatsoever . . . . prov[ing] . . . Mrs. Sommer had been convicted of a crime that had never occurred." Id. On April 17, 2008, Plaintiff was released from custody. Id. at ¶ 56.

In support of Plaintiff's claim for violation of § 1983, Plaintiff alleges the "State Defendants," including Dumanis and Gunn, "knew or had reason to know that the results of the testing conducted by AFIP Environmental were corrupt, false, fabricated, and completely lacking in credibility." Id. at ¶ 64. Plaintiff alleges the State Defendants "knew or should have known that the deliberate fabrication of false evidence . . . would result in [Plaintiff's] wrongful arrest, incarceration, and subsequent conviction Id. at ¶ 65. Plaintiff alleges the state defendants acted with "malice and with the intent to vex, annoy, and harass Plaintiff" and to "inflict severe emotional distress" on her. Id. at ¶ 67. Plaintiff alleges the District Attorney's Office and the Medical Examiner's Office "had a policy and custom of using, authorizing, ratifying, and/or covering up the use of corrupt, false, and fabricated evidence during their investigations." Id. at ¶ 68.

In support of her claim for violation of the Federal Tort Claims Act, Plaintiff alleges agents and employees of the United States "negligently or intentionally used fabricated or contaminated evidence they knew or should have known was corrupt, false, and completely lacking in credibility" against Plaintiff. Id. at ¶ 79. Plaintiff alleges this constitutes "fraud, negligence, false imprisonment, assault, battery, defamation, intentional and negligent infliction of emotional distress, and invasion of privacy." . at ¶ 81.

I. Plaintiff's Motion to Compel

In her motion to compel, Plaintiff argues that Defendants should be compelled to produce documents responsive to her request for production of documents, set one, served on July 16, 2010. (Doc. No. 83-1 at 2; Decl. Barber, Doc. 83-2, Ex. A.) In the alternative, Plaintiff seeks an in-camera review of the documents Defendants are withholding. (Id.) Plaintiff made 39 requests for production and apparently seeks to compel Defendants to produce any responsive document withheld on the basis of attorney-client privilege, work product immunity, or prosecutorial immunity. (Id.) Defendants privilege log consists of 43 items withheld from production. (Doc. No. 83-2, Ex. C.) Significantly, Defendants are withholding Plaintiff's criminal prosecution files on the basis that the documents are protected work product. (Id.) Defendants also argue that Plaintiff's requests call for disclosure of criminal prosecution strategy that is protected from discovery by absolute quasi-judicial immunity. (Doc. No. 83-2, Ex. B.) Defendants privilege log consists of 43 items withheld from production. (Id. at Ex. C.)

Plaintiff argues that the documents being withheld contain information that will reveal Defendants "true motive for bringing criminal charges against her" and are necessary to prove that "Defendants conspired to fabricate evidence to charge Plaintiff with [murder]." (Doc. No. 83-1 at 3-4.) Specifically, Plaintiff identifies that the documents relating to proof of charges, evaluation of the matter, investigative information, and inferences drawn from interviews are relevant to her claims as well as to Defendants' defenses. (Id. at 4-5.)

On August 18, 2010, in response to Plaintiff's request for production of documents, set one, Defendants produced a log of privileged documents. (Decl. Barber ISO Mot. Compel, Doc. No. 83-2, Ex. C.) The privilege log identifies the bates number of the withheld document along with a description of the document and the nature of the privilege being asserted. Defendants originally asserted the attorney-client privilege for two documents, the attorney work product immunity doctrine for 42 documents, and made one objection to production based on the personal privacy rights on the part of potential Superior Court jurors that completed questionnaires during the jury selection process. (Id.) In addition, Defendants argue that it is withholding a number of documents because they bear on areas protected by prosecutorial immunity and thus are shielded from discovery. (Doc. No. 89 at 5.) In their opposition to Plaintiff's motion to compel, Defendants state that on April 8, 2011, they produced many of the documents listed on their privilege log.*fn1 Yet, other than the documents identified by Bates Nos. DA/ME007056-DA/ME007066, Defendants did not specify the documents produced.

Discovery Standard

The Federal Rules allow for broad discovery in civil actions: "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). This provision is liberally construed to provide wide-ranging discovery of information necessary for parties to evaluate and resolve their dispute. Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1995). In ...

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