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Edward Olvera, Carla De Rose, Individually and As v. County of Sacramento


January 27, 2012



Plaintiffs brought this civil rights case against defendants the County of Sacramento, the Department of Health and Human Services ("DHHS"), and numerous DHHS employees based on an investigation by Child Protective Services ("CPS") and the initiation of dependency proceedings and removal of a minor child from the family home. Presently before the court is defendants' request for reconsideration by the district court of the magistrate judge's ruling on plaintiffs' motion to compel testimony relating to staffing meetings.

I. Factual and Procedural Background

Plaintiffs and spouses Edward Olvera and Carla De Rose

(the "Olveras") are licensed marriage and family therapists and are the natural parents of one of the minor children plaintiffs and are the adoptive parents of the remaining six minor children plaintiffs. (Third Am. Compl. ("TAC") ¶¶ 37-38.) In 2006, the Olveras began a therapeutic program in their home for adopted children suffering from severe emotional, psychological, and behavioral disorders in which the children lived in their home and received treatment and education. (Id. ¶ 46.) In November 2007, the Olveras purchased a larger home and enrolled more children in their full-time, in-home program. (Id. ¶ 49.) Prior to beginning the program, the Olveras allegedly contacted California's Community Care Licensing Division and were told that permits were not required to run their program. (Id. ¶¶ 46-48, 52-54.)

Beginning on December 19, 2008, defendant Jeanine Lopez, an employee of the CPS unit of DHHS, began an investigation of the Olveras' program. (Id. ¶¶ 69, 71.) During the investigation, Lopez and other DHHS employees allegedly conducted aggressive interviews of the minor children and ultimately pursued a juvenile dependency case against the Olveras and the minor children without justification. (Id. ¶¶ 73, 138-40.) Defendants also allegedly removed one of the minor children from the Olveras' home without conducting an adequate investigation and submitted false allegations, false evidence, and misrepresentations in and omitted exculpatory evidence from documents submitted to the juvenile court. (Id. ¶ 141.)

On October 17, 2011, plaintiffs filed a motion to compel the testimony of any person that attended staffing meetings and to disallow objections to such testimony based on attorney-client privilege. (Docket No. 54.) Plaintiffs contend that decisions regarding the materials ultimately included in warrant applications presented to the court are central to their complaint and allege that these decisions were made during the staffing meetings. (Pls.' Mot. to Compel at 4:3-16 (Docket No. 68).) Defendants objected to plaintiffs' motion and argued that all communications made during the staffing meetings were covered by attorney-client privilege because the purpose of the meetings was to receive legal advice. To this end, defendants argued that "[t]here were no non-privileged communications which occurred during any staffing meeting." (Defs.' Opp'n to Pls.' Mot. to Compel at 52 (Docket No. 68).)

On December 14, 2011, at the hearing on the motion to compel that was held in front of the Magistrate Judge, defense counsel agreed that it was "not [his] position that just having an attorney there at any meeting would render all communications subject to the attorney/client privilege . . . ." (Dec. 14, 2011, Hearing at 2:11-13 (Docket No. 80).) Defense counsel explained that "[i]f it's about facts, if it was about decisions, if it was about things that were considered, I think I would agree that that would be fair game." (Id. at 9:5-8.)

Following the hearing, the Magistrate Judge held that objections based on attorney-client privilege would be disallowed for testimony regarding the staffing meetings. (Docket No. 74.) The Magistrate Judge noted that "[a]lthough defendants disavow reliance on the advice of counsel as an affirmative defense, defendants contend that the decision to proceed with the warrant applications at issue in this case was constitutional. That decision was made during meetings which defendants now seek to shield from disclosure." (Dec. 15, 2011, Order at 2:6-10.) The Magistrate Judge also found that "[t]he evidence submitted by plaintiffs in support of the motion to compel appears to be sufficient to establish a prima facie case of civil conspiracy to deprive plaintiffs of their constitutional rights to familial association." (Id. at 2:21-23.) On December 29, 2011, defendants filed the instant request for reconsideration of the Magistrate Judge's Order compelling testimony.

II. Discussion

Where a magistrate judge's order addresses a

non-dispositive matter, a district judge shall modify or set aside "any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). A magistrate judge's pre-trial discovery orders are generally considered non-dispositive. Santos v. Quebecor World Long Term Disability Plan, No. 1:08-CV-565, 2009 WL 1362696, at *1 (E.D. Cal. May 14, 2009). "[A] magistrate's order is 'clearly erroneous' if, after considering all of the evidence, the district court is left with the definite and firm conviction that a mistake has been committed." Yent v. Baca, No. 01-10672, 2002 WL 32810316, at *2 (C.D. Cal. Dec. 16, 2002). "[T]he order is 'contrary to law' when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Id. "The reviewing court may not simply substitute its judgment for that of the deciding court." Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991). "In federal question cases, federal privilege law

applies." NLRB v. N. Bay Plumbing, Inc., 102 F.3d 1005, 1009 (9th Cir. 1996) (citing Fed. R. Evid. 501). Pursuant to the Federal Rules of Civil Procedure, a party is entitled to "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). The purpose of discovery is to remove surprise from trial preparation so that the parties obtain the evidence necessary to evaluate and resolve their dispute. Ragge v. MCA/Universal Studios, 165 F.R.D. 388, 391 (C.D. Cal. 2002).

"The burden of proving that the attorney-client privilege applies rests with the party asserting it." Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981). Federal Rule of Civil Procedure 26(b)(5) provides that the party claiming the privilege must "(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed --and do so in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(i)-(ii). Attorney-client privilege is established: "(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived . . . ." United States v. Plache, 913 F.2d 1375, 1379 (9th Cir. 1990) (quoting 8 Wigmore, Evidence § 2292 (1961)).

"Where a party raises a claim which in fairness requires disclosure of the protected communication, the privilege may be implicitly waived." Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). A court may find that attorney-client privilege is implicitly waived where: "(1) the party asserts the privilege as a result of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the privileged information at issue; and (3) allowing the privilege would deny the opposing party access to information vital to its defense." Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)). Defendants argue that they have not raised an affirmative defense based on advice of counsel. Courts in other cases, however, have found implied waiver of attorney-client privilege in instances in which the magic words "advice of counsel" are not used but where the circumstances underlying an affirmative defense necessarily rely on otherwise privileged material. See, e.g., Roehrs v. Minn. Life Ins. Co., 228 F.R.D. 642, 646-47 (D. Ariz. 2005) (finding implied waiver of attorney-client privilege where information obtained from counsel was used in decisionmaking process that defendant claimed was made in good faith); In re G-I Holdings Inc., 218 F.R.D. 428, 433 (D.N.J. 2003) (finding implied waiver of attorney-client privilege where defendants defended their actions as based on a "reasonable basis," "reasonable cause," and "good faith," when the decisionmaking included consulting an attorney).

Defendants have conceded that communications during the staffing meetings in which counsel was not a participant are not covered under attorney-client privilege. (Reply to Pls.' Opp'n to Defs.' Mot. for Recons. at 1:25-2:1.); see also N. Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1127 (N.D. Cal. 2003) ("[T]he mere attendance of an attorney at a meeting does not render everything done or said at that meeting privileged." (quoting Marten v. Yellow Freight System, Inc., No. 96-2013-GTV, 1998 WL 13244, at *7 (D. Kan. Jan. 6, 1998))). The remaining question is therefore whether the Magistrate Judge committed clear error or ruled contrary to law when she held that legal advice offered by counsel at the staffing meetings was not covered by attorney-client privilege.

The crux of plaintiffs' claim is that the decision to proceed with warrant applications in this case was unconstitutional. Although the parties' versions of events differ semantically, both appear to agree that the determination to pursue a warrant application was made during the staffing meetings. (See, e.g., Pls.' Opp'n to Defs.' Mot. for Recons. at 6:17-19 ("[T]he primary purpose for the staffings . . . was to make a 'determination' on the DeRose-Olvera family . . . ."); Reply to Pls.' Opp'n to Defs.' Mot. for Recons. at 3:6-8 ("Accordingly, the 'determination' after consultation with County Counsel, was to initiate legal action to request that the Court take jurisdiction of the minors.")). Defendants argue that the decision to proceed with the warrant application was constitutional and have raised an affirmative defense of good faith. (See, e.g., Answer to Am. Compl. by Cnty. of Sacramento at 13:11-12, 14:10-11 (Docket No. 36).) Defendants claim that their decision to proceed with the warrant application was based on the subjective and allegedly reasonable evaluation of the relevant facts and the law. This evaluation necessarily incorporates what defendants learned from county counsel. Defendants cannot both claim that the decisionmaking process was reasonable and took into consideration the allegedly exculpatory evidence and prevent plaintiffs from investigating how this decision was made. For plaintiffs to be able to respond to defendants' affirmative defense, it is critical that they be able to investigate the subjective good faith beliefs and mental states of those defendants responsible for issuing the warrants. Having elected to assert a good faith defense, defendants must live with the consequences. Accordingly, as defendants implicitly waived attorney-client privilege with respect to communications made during the staffing meeting, the Magistrate Judge's December 15, 2011, Order, compelling testimony, was not clearly erroneous or contrary to law.*fn1

IT IS THEREFORE ORDERED that defendants' request for reconsideration by the District Court of the Magistrate Judge's

December 15, 2011, Order be, and the same hereby is, DENIED.

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