The opinion of the court was delivered by: Hon. Bernard G. SkomalU.S. Magistrate Judge United States District Court
ORDER: (1) REQUIRING PRODUCTION OF PLAINTIFF'S UN-REDACTED FEE STATEMENTS FOR IN CAMERA REVIEW; (2)DENYING DEFENDANT UNITED STATES OF AMERICA, COUNTY DUMANIS'S MOTION TO COMPEL OF SAN DIEGO MEDICAL EXAMINER'S PRODUCTION DOCUMENTS OFFICE, GLENN N. WAGNER, COUNTY OF SAN DIEGO DISTRICT ATTORNEY'S [Doc. No. 82.] OFFICE,
Plaintiff Cynthia Sommer filed suit against various defendants, including the District Attorney, Bonnie Dumanis ("Dumanis"), alleging Dumanis 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 Dumanis's motion to compel Plaintiff to produce certain documents identified as privileged. (Doc. No. 82.) Dumanis seeks to compel production of documents being withheld on the basis of the attorney-client privilege and work product 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. 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. 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. 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 . . . ."
Accordingly, 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.
"During 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. 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. 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.
In addition, 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. 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. Although Wagner knew or should have known that the test results were fabricated, he 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. "None 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. 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.
Thus, 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 also 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 ¶
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. This constitutes "fraud, negligence, false imprisonment, assault, battery, defamation, intentional and negligent infliction of emotional distress, and invasion of privacy." Id. at ¶
III. DUMANIS'S MOTION TO COMPEL
In her motion to compel, Dumanis argues that Plaintiff should be compelled to produce documents responsive to her request for production of documents, set one, served on September 22, 2010. (Doc. No. 82-1 at 2; Doc. No. 82-5, Ex. A.) According to Dumanis, Plaintiff identified 1,945 pages of documents in 36 categories as privileged from discovery. (Doc. No. 82-1 at 2.) Dumanis requests that the documents identified on the privilege log be produced. (Id.) Specifically, Dumanis seeks to compel Plaintiff to produce documents responsive to request nos. 4-9; 12,13; 19-21; 25-27; 34-36; 38-41; and 44-46. (Id.) Dumanis also seeks un-redacted versions of documents Plaintiff produced in support of her claim for attorney's fees as economic damages. (Id; Doc. No. 82-5, Ex. F.)
Dumanis contends that the documents being withheld contain the following relevant information:
(1) documents supporting Plaintiff's claims for economic damages; (2) documents related to arsenic poisoning and speciation; (3) documents addressing fabrication of false evidence; (4) documents relating to Plaintiff's criminal defense attorney Robert Udell; (5) documents relating to Plaintiff's criminal defense attorney Allen Bloom; (6) documents relating to testing Todd Sommer's biological tissues; (7) discovery in the criminal case; (8) criminal investigation material; (9) and character evidence research. (Doc. No. 82-1.) Dumanis primarily argues that Plaintiff implicitly waived her right to assert attorney-client privilege and work product immunity by filing claims that cannot be refuted unless defendants are provided with the privileged materials. (Id.) In addition, Dumanis contends that Plaintiff failed to timely and adequately assert the privilege with respect to: (1) redacted attorney's fees statements and (2) the communications between Plaintiff's defense investigator or counsel and an expert witness, Alphonse Poklis. (Id.)
In her opposition to Dumanis's motion to compel, Plaintiff states that upon further review of email communications between her criminal defense attorney and expert witnesses in the criminal case, she would produce "communications and reports to the extent they were to or from the testifying expert and relate to the subject matter of their testimony in the criminal proceeding." (Doc. No. 91 at 2.) Thus, many of the communications between Plaintiff's investigator or counsel and Mr. Poklis are no longer at issue for the purpose of this motion to compel.
In addition, Plaintiff contends: (1) there is no support for Dumanis's claim that Plaintiff impliedly waived the attorney-client privilege and work product immunity by filing an action alleging defendants 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; (2) Dumanis has not demonstrated that any of Plaintiff's work product qualifies for an exception such that the Court should order disclosure; and (3) her privilege claims were adequately and timely asserted. (Id.)
A. THE ATTORNEY-CLIENT PRIVILEGE'S APPLICATION TO ...