The opinion of the court was delivered by: Hon. Nita L. StormesU.S. Magistrate Judge
ORDER DETERMINING JOINT MOTION FOR DISCOVERY DISPUTE NO. 1, GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO COMPEL
[Doc. No. 92]
The parties ask this court to determine a discovery dispute regarding the applicability of certain privileges and protections to subpoenaed documents. For the following reasons, the court determines the discovery dispute and grants in part and denies in part Plaintiff's motion to compel.
This civil rights case was filed by a civilian military criminal defense investigator who alleges that the Naval Criminal Investigative Service (NCIS) violated her first amendment rights by issuing a blanket directive banning her from entering the courtroom at the Marine Corps Recruit Depot (MCRD). She also alleges claims under the Federal Tort Claims Act (FTCA) for intentional infliction of emotional distress, battery, malicious trespass, abuse of process and false imprisonment because NCIS harassed and retaliated against her for her work for criminal defendants in their cases. NCIS denies the allegations and says they were conducting a legitimate investigation into Plaintiff's improper use of government credentials to get on base at Camp Pendleton.
In initial disclosures, defendant NCIS produced documents related to the investigation of Plaintiff. The information included documents provided by NCIS and other entities to the U.S. Attorney's Office for the Southern District of California (USAO), and identified a former Assistant United States Attorney, Rees Morgan, as a potential witness. NCIS stated, "Rees Morgan, formerly an AUSA, U.S. Attorney's Office, Southern District of California, advised NCIS on the criminal prosecution of Plaintiff, [and was] involved in the issuance of a citation to Plaintiff. Mr. Morgan is no longer with the U.S. Attorney's Office."
Plaintiff issued a deposition subpoena for Rees Morgan. To prepare for that deposition, Plaintiff also issued a subpoena duces tecum on the custodian of records for the USAO seeking all notes, memoranda, communications or other documents, whether internal or external, concerning plaintiff Carolyn Martin, which were created pursuant to any criminal investigation of her.*fn1 The USAO responded that it has seven categories of documents regarding Plaintiff, and has agreed to produce these four categories of documents:
* NCIS Reports of Investigation ("ROIs");
* Pleadings from the instant case;
* Evidence received pursuant to a grand jury subpoena; and
* Communications between NCIS agents and the various AUSAs assigned to the USAO case.
The USAO, however, has refused to produce these categories of documents:
* AUSAs' research and attorney notes; and,
* Communications between attorneys within the USAO.
The parties also disagree about the discoverability of Mr. Morgan's impressions about Plaintiff's investigation.