[00:00:00] Speaker 04:
This side has 15 minutes.

[00:00:02] Speaker 04:
Good morning.

[00:00:03] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
Jeff Michalowski for the County of San Diego.

[00:00:07] Speaker 00:
I'd like to reserve three minutes.

[00:00:10] Speaker 04:
We see how that goes.

[00:00:11] Speaker 04:
But anyway, this may go more orderly.

[00:00:14] Speaker 00:
OK.

[00:00:15] Speaker 00:
Well, this case involves, I think, an important issue.

[00:00:18] Speaker 00:
But it's actually a very specific issue.

[00:00:22] Speaker 00:
We're not here to talk about disclosures of police investigation materials, generally, or to talk about sheriff's departments.

[00:00:29] Speaker 00:
having any heightened protections for their internal materials.

[00:00:34] Speaker 00:
We're here to talk about a very narrow category of documents, the curb reports, critical incident review board reports, which the county contends are privileged in work product and as well confidential.

[00:00:47] Speaker 00:
And I want to begin by being very specific about what these reports are not.

[00:00:51] Speaker 04:
Well, let me ask you this, just as a starting point.

[00:00:54] Speaker 04:
California Senate Bill 519 went into effect in July, making critical incident reports like the ones at issue here subject to public inspection.

[00:01:04] Speaker 04:
Does SB 519 change the stakes of this appeal at all?

[00:01:12] Speaker 00:
Potentially in only a very modest way, because SB 519 applies to records that are

[00:01:20] Speaker 00:
maintained by a local detention facility.

[00:01:22] Speaker 00:
Here, the records are maintained by the chief legal counsel.

[00:01:27] Speaker 00:
It refers to records relating to investigations.

[00:01:32] Speaker 00:
Curb reports are not investigatory.

[00:01:36] Speaker 00:
They're communications with counsel for the purpose of mitigating risk.

[00:01:39] Speaker 04:
What do you call them, CERB or Curb?

[00:01:41] Speaker 04:
What do you call them?

[00:01:42] Speaker 00:
Critical Incident Review Board.

[00:01:43] Speaker 04:
You're saying CERB.

[00:01:44] Speaker 04:
What's that?

[00:01:45] Speaker 04:
How do you call that?

[00:01:46] Speaker 00:
The acronym?

[00:01:47] Speaker 00:
Yeah.

[00:01:48] Speaker 00:
C-I-R-B.

[00:01:50] Speaker 00:
Okay.

[00:01:52] Speaker 03:
Wait, you're asserting that the Serbs are not investigations?

[00:01:57] Speaker 03:
I mean, let's just quote, let's just go through them, my goodness.

[00:02:00] Speaker 03:
These are investigatory.

[00:02:03] Speaker 03:
They're asking like, you know, did he, you know, report as diabetic or not?

[00:02:08] Speaker 03:
I mean, let's just go through.

[00:02:09] Speaker 03:
How can you say these are not investigatory after an inmate has died in custody?

[00:02:14] Speaker 00:
The investigation into the underlying facts are conducted separately and prior to the curb meetings.

[00:02:21] Speaker 00:
The findings from those are presented to the curb board for consideration and discussion.

[00:02:26] Speaker 03:
Yes, there's follow up questions asked by the curb participants and by the curb purpose and is only looking at institutionally what happened and how can we remedy this make any changes that would prevent that type of inmate death from occurring.

[00:02:42] Speaker 00:
I'm not prepared to say that that's the only piece of this.

[00:02:46] Speaker 00:
There are multiple purposes for the curb reports.

[00:02:49] Speaker 00:
Yes, we're looking at the facts.

[00:02:50] Speaker 00:
Yes, we're looking at policy and training, but the overarching purpose, the entire reason we're there is to be thinking about risk mitigation and have that conversation.

[00:02:59] Speaker 04:
Well, let me ask you this.

[00:03:00] Speaker 04:
Do you have to do curb reports?

[00:03:02] Speaker 04:
Is that required anywhere?

[00:03:04] Speaker 00:
No.

[00:03:06] Speaker 04:
Okay, so if a court were to say that, or now that it says that they're now public reports, is the county's response gonna be, we're not doing this anymore?

[00:03:19] Speaker 00:
Let me back up a step because I think I've made a slight misstatement.

[00:03:22] Speaker 00:
Are they required?

[00:03:23] Speaker 00:
They're not required by law, okay?

[00:03:25] Speaker 00:
Okay.

[00:03:26] Speaker 00:
Are they required by policy?

[00:03:28] Speaker 00:
Yes, they are required by a sheriff's department policy.

[00:03:31] Speaker 04:
All right, but you could change that.

[00:03:32] Speaker 04:
You can change that policy if now

[00:03:35] Speaker 04:
the law, if SB 519 says, okay, we're going to be able to look at them, you can say, okay, we're going to do this differently now because we're not going to turn this over.

[00:03:45] Speaker 04:
But I have a question.

[00:03:47] Speaker 04:
So at the time that you're doing these, this prior to SB 519, it's my understanding that everyone thought they were confidential.

[00:03:59] Speaker 04:
Is that right?

[00:04:01] Speaker 04:
Okay, in terms of ... All right, and they only happen when there's a critical incident, meaning something bad has basically happened, right?

[00:04:12] Speaker 04:
You don't do them on every case.

[00:04:14] Speaker 00:
Correct.

[00:04:15] Speaker 00:
Only when an exceptionally high risk of litigation is present due to the incident being critical.

[00:04:22] Speaker 04:
So, what confidentiality, now my understanding in this, admittedly, if officers, let's say they kill someone, or someone dies in their custody, they could be subject to, what do you call it, an internal affairs investigation?

[00:04:39] Speaker 04:
Which is separate from this, right?

[00:04:42] Speaker 00:
It would be a homicide investigation in the case of death, and it's separate.

[00:04:45] Speaker 04:
Okay.

[00:04:46] Speaker 04:
So, I mean, technically an officer can be charged with homicide after someone dies.

[00:04:51] Speaker 04:
in their custody or they shoot someone that they shouldn't have shot or any number of things.

[00:04:57] Speaker 04:
But my understanding is officers as part of their jobs, if something happens and people want to talk to them, they have to talk or they get fired, right?

[00:05:11] Speaker 04:
Officers don't have a choice of whether they talk to internally.

[00:05:16] Speaker 04:
Is that correct?

[00:05:18] Speaker 04:
It sounds correct, Your Honor, it wasn't briefed, so I can't... The way I'm trying to understand that is I think when officers, when they're questioned by people in their department about what happened, I think that there's some peace officer's Bill of Rights or something.

[00:05:35] Speaker 04:
Well, I think they have to talk or they get fired, and if they do talk,

[00:05:39] Speaker 04:
Isn't there something that it can't be used against them in a criminal prosecution?

[00:05:44] Speaker 04:
I'm just trying to figure out, everyone going into this thought what they were saying was confidential.

[00:05:49] Speaker 04:
Now, after this order, it clearly isn't, and could any information in there be used against officers to prosecute them or anything along those lines?

[00:06:02] Speaker 04:
How does that work?

[00:06:03] Speaker 00:
Again, Your Honor, that wasn't briefed.

[00:06:06] Speaker 00:
I think it's a legitimate concern.

[00:06:08] Speaker 04:
Well, it just seems to me if you promise people confidentiality and they come in and you only do these after something bad has happened and everyone thinks you're trying to figure, you might be making recommendations about different training.

[00:06:23] Speaker 04:
You might be, you know, you might be doing certain things, but mainly you've identified this as something you could be sued for.

[00:06:33] Speaker 04:
And if your officers are doing something they shouldn't be doing, you don't want them to continue doing it.

[00:06:39] Speaker 04:
But on the other hand, there's a legal analysis that's overseeing all of this and how you respond.

[00:06:48] Speaker 04:
And you've promised people confidentiality.

[00:06:50] Speaker 04:
But now this order changes that, right?

[00:06:52] Speaker 00:
You've promised people confidentiality, and that promise was reasonable.

[00:06:57] Speaker 00:
It was reasonable for them to believe that.

[00:06:59] Speaker 00:
because there were two judicial decisions by district court judges saying that they were privileged and confidential.

[00:07:06] Speaker 00:
Backing up one step as to the consequences of 519, even if 519 converts these into non-confidential documents, it doesn't negate privilege, so we'd still have to do the privilege analysis.

[00:07:21] Speaker 00:
That would override 519 because 519, all it says is these types of reports

[00:07:28] Speaker 00:
can be pursued via the California Public Records Act.

[00:07:33] Speaker 00:
The California Public Records Act doesn't require production of documents that are privileged.

[00:07:38] Speaker 00:
So that takes us back to our first argument regarding the privileged nature of these documents.

[00:07:44] Speaker 03:
But someone just helping you avoid liability is not necessarily giving you attorney-client privilege information, right?

[00:07:52] Speaker 03:
I mean, isn't that what an in-ray grand jury said?

[00:07:54] Speaker 03:
Look, tax accountants who are preparing your tax documents, I mean, obviously they want to help you do it legally, so there's no liability, criminally, civilly, correct?

[00:08:04] Speaker 03:
But that's not privileged.

[00:08:06] Speaker 03:
and you can't insert a lawyer in that process to immunize it from the privilege.

[00:08:11] Speaker 03:
So how is just someone helping you avoid liability turning that communication into an attorney-client privilege one?

[00:08:20] Speaker 00:
Well, the issue here I don't think is just trying to avoid liability.

[00:08:25] Speaker 00:
It's having an environment in which people can communicate their concerns, have them vetted by counsel,

[00:08:32] Speaker 00:
and counsel can identify and issue spot any legal concerns and then make recommendations for remediation.

[00:08:38] Speaker 00:
I think if we look through those.

[00:08:40] Speaker 03:
Right, so it seems like when you said the individual death investigation is done separately, that seems like that would be the prime discovery in any Section 1983 case that would subsequently try to bring a wrongful death action, right?

[00:08:53] Speaker 03:
It would be that deep interviews with everyone involved about what happened that caused that inmate death.

[00:09:00] Speaker 03:
This process seems like a more remedial.

[00:09:03] Speaker 03:
We are an agency.

[00:09:04] Speaker 03:
We want to identify what happened and we want to make any changes that we should to our procedures, to our training.

[00:09:10] Speaker 03:
However, it seems like this one is trying to do good government.

[00:09:17] Speaker 03:
Right, and so why wouldn't transparency in that process, I understand your point that people may feel a little bit less free to be frank, but on the other hand, you have another compelling concern is that transparency also promotes and facilitates good government and accountability.

[00:09:41] Speaker 00:
Yes, Your Honor, so the purpose of these curb meetings isn't just good government, it's not just improving practices

[00:09:47] Speaker 00:
It's doing so in a legally compliant way.

[00:09:50] Speaker 03:
Well, you know, when you talked about when the curb is done, it seems different than what you have in your actual, I'm looking at the chief counsel's critical incident review board creation and refinement document.

[00:10:03] Speaker 03:
ER 366 is what I'm looking at.

[00:10:06] Speaker 03:
And it says, how should incidents be selected for review?

[00:10:10] Speaker 03:
It says the most commonly included items are in custody deaths other than by natural causes, uses of deadly force by department employees, and pursuits resulting in injury requiring hospital admittance or major property damage.

[00:10:24] Speaker 03:
So I didn't see anything.

[00:10:25] Speaker 03:
You said, oh no, this is only done for exceptionally high risk of litigation.

[00:10:29] Speaker 03:
That's actually not how it's phrased.

[00:10:32] Speaker 00:
In this document, if you look at the policy, the city or county sheriff's department policy, the procedures section, which is a two ER 264, that outlines the circumstances that will trigger a curb process.

[00:10:50] Speaker 00:
That's in custody deaths, that's high pursuit chases, which do in fact lead to a lot of litigation.

[00:10:56] Speaker 00:
The items that are included in that list are there because of the risk of litigation.

[00:11:01] Speaker 02:
Rob, fix it.

[00:11:03] Speaker 02:
When you're finished with this, I have a question for you.

[00:11:06] Speaker 02:
But please complete your answer to Judge Koh first.

[00:11:09] Speaker 00:
The reason that these events are included in the list of triggering events for curb process is because they present a heightened risk of litigation.

[00:11:23] Speaker 00:
And the best evidence we have of that

[00:11:25] Speaker 00:
is this case involves 11 curb processes.

[00:11:29] Speaker 00:
And those took place before litigation was even threatened, I believe, except one case.

[00:11:36] Speaker 00:
We did have a demand letter at that point.

[00:11:39] Speaker 00:
But of those 11 where a curb process was triggered,

[00:11:42] Speaker 00:
Eight of those actually, in fact, led to litigation.

[00:11:45] Speaker 00:
So we have a really good track record of understanding which events are likely to lead to litigation and then convening all the relevant stakeholders to talk about the issue and to avoid risk.

[00:11:58] Speaker 02:
My question is whether our decision has to be or ought to be curb wide.

[00:12:09] Speaker 02:
And by that, I mean the following.

[00:12:11] Speaker 02:
Each meeting or each incident that leads to this process is different and the process itself is different.

[00:12:26] Speaker 02:
I suppose at least theoretically, it's possible that in some instances, the lawyer says nothing and offers no opinions and really is just a fly on the wall on something that doesn't turn out to be legal.

[00:12:41] Speaker 02:
And in other instances, the lawyer might be the main event.

[00:12:47] Speaker 02:
You know, we have this demand letter and here's how I want to respond and, you know, the typical lawyer client meeting.

[00:12:57] Speaker 02:
So is this something that has to be decided item by item or can it be and should it be decided generically?

[00:13:09] Speaker 00:
Your Honor, I think it should be decided on in an omnibus fashion because the unifying purpose of these curb processes

[00:13:18] Speaker 00:
is always the same, is to convene the relevant stakeholders to exchange candid feedback from the folks on the ground and legal counsel.

[00:13:28] Speaker 00:
And let me answer this with an illustration.

[00:13:31] Speaker 00:
So if a client calls an attorney and says, you know, I've got this issue, here are all the facts, what do you think?

[00:13:42] Speaker 00:
And the attorney says, I think you should do X, Y, and Z.

[00:13:45] Speaker 00:
for legal reasons, that's very clearly legal advice.

[00:13:49] Speaker 00:
If the attorney says, I've considered that and I have no concerns, that's also an attorney-client communication.

[00:13:57] Speaker 00:
Variant number three, if the attorney hears that information and says, I'm gonna have to think about that, I'm gonna get back to you, that's an attorney question.

[00:14:06] Speaker 02:
What if the attorney says this isn't a legal question at all, it's a policy question for management entirely?

[00:14:14] Speaker 00:
That's an interesting hypothetical.

[00:14:18] Speaker 00:
If you're looking at it from the perspective of the attorney, then that sounds like it's not an attorney-client communication.

[00:14:26] Speaker 00:
But attorney-client communications are, of course, communications between an attorney and a client.

[00:14:30] Speaker 00:
And we also need to consider the perspective of the client.

[00:14:34] Speaker 00:
Client sometimes doesn't know if something is legal or not, believes in good faith that it may be, and that's why they go to the attorney.

[00:14:41] Speaker 00:
and we want to afford, we want to encourage that, right?

[00:14:44] Speaker 00:
If we think that a deputy, if a deputy has a concern that they might be confronting a legal issue and they're not sure, we want to err on the caution and encourage them to go to their counsel on that.

[00:14:59] Speaker 04:
Okay.

[00:15:00] Speaker 04:
Any further questions?

[00:15:01] Speaker 04:
No, thank you.

[00:15:02] Speaker 04:
All right.

[00:15:03] Speaker 04:
We've used a lot of your time, so I'll give you two minutes for rebuttal.

[00:15:07] Speaker 04:
Thank you.

[00:15:11] Speaker 01:
Good morning, Your Honors.

[00:15:13] Speaker 01:
Good morning.

[00:15:14] Speaker 01:
May it please the court?

[00:15:15] Speaker 01:
I'm James Davis, appearing on behalf of intervenors, the San Diego Union Tribune, voice of San Diego, and Prison Legal News.

[00:15:25] Speaker 02:
Counsel, before you even get started, I'd like to present you with a hypothetical.

[00:15:31] Speaker 02:
For our purposes, it's hypothetical, but it's something that, as when I was practicing law, I was a management-side labor lawyer.

[00:15:40] Speaker 02:
It's based on real events.

[00:15:42] Speaker 02:
Let's say a company has a policy that anytime there's an injury in the factory, they convene a meeting with all the appropriate managers and the lawyer.

[00:15:52] Speaker 02:
And the lawyer comes out to the plant and

[00:15:59] Speaker 02:
And part of the purpose of this is to figure out, should we make an offer to this person who's been injured?

[00:16:06] Speaker 02:
What's our legal liability?

[00:16:09] Speaker 02:
And by the way, how do we prevent this from happening?

[00:16:11] Speaker 02:
Should we change the machinery?

[00:16:13] Speaker 02:
Should we do different procedures?

[00:16:16] Speaker 02:
And so on and so forth.

[00:16:18] Speaker 02:
Is that entire

[00:16:20] Speaker 02:
event protected by the attorney-client privilege, even though part of the discussion is forward-looking and designed to avert future liability through non-legal recommendations.

[00:16:40] Speaker 01:
I would say if providing legal advice in those communications is the primary purpose of those communications,

[00:16:49] Speaker 01:
then yes, it would be privileged.

[00:16:52] Speaker 02:
And why isn't that the case here?

[00:16:53] Speaker 02:
I mean, as the auditor said, for example, that the ultimate goal is to avoid potential liability in the future.

[00:17:02] Speaker 02:
That's the purpose.

[00:17:03] Speaker 02:
And it's certainly listed as one of the purposes.

[00:17:09] Speaker 02:
If we have to pick only one, why isn't that the one?

[00:17:13] Speaker 01:
Well, that's what the policy states.

[00:17:15] Speaker 01:
The policy of CURB does say that its goal is to assess potential liability.

[00:17:21] Speaker 01:
But the question before this court is, what is being communicated in these documents?

[00:17:28] Speaker 01:
Is the primary purpose of these communications to solicit or provide legal advice?

[00:17:36] Speaker 01:
Now, the district court conducted an in-camera review of these CURB reports.

[00:17:42] Speaker 01:
And it found that legal advice was not the primary purpose.

[00:17:47] Speaker 01:
It found that legal advice was a tertiary goal of these communications.

[00:17:52] Speaker 01:
It found that legal advice was an incidental goal of these communications.

[00:17:58] Speaker 04:
And I... Well, I guess... I have a hard time seeing why that would be a factual determination, just because if you look at the whole thing, and if there are magic words or whatever, but everyone's told that it would be confidential,

[00:18:11] Speaker 04:
The department policy requires the reports, but the policy was made because of the high likelihood of events to generate lawsuits.

[00:18:21] Speaker 04:
I just have a hard time seeing how we can parse this in the way that you want to and why anyone would ever ... If I were the lawyer after this, I'd say, well, let's just get rid of this curb because

[00:18:38] Speaker 04:
Now we're going to have to create something separate, and I'm going to have to say at the beginning of this, this is legal advice and the whole thing.

[00:18:47] Speaker 04:
But I don't think the police departments started this out of the goodness of their hearts or whatever.

[00:18:54] Speaker 04:
They're worried about lawsuits.

[00:18:56] Speaker 04:
And that's exactly why when people die in your custody or you shoot and kill someone, they have an unusual job.

[00:19:04] Speaker 04:
And there's going to be a lawsuit.

[00:19:07] Speaker 04:
Well, I would say- You kill people at work.

[00:19:09] Speaker 04:
That's what officers end up doing, and sometimes it's found to be legitimate.

[00:19:16] Speaker 04:
Sometimes there are cases where officers get charged with homicide out of it, and there's certainly a lot of 1983 things that come out of it.

[00:19:24] Speaker 04:
I have a hard time.

[00:19:27] Speaker 04:
You can tell me this is not a dog, but it sure looks like a dog here.

[00:19:32] Speaker 01:
I don't believe that.

[00:19:35] Speaker 01:
the overarching goal of these communications of these meetings of these documents was to assess potential liability.

[00:19:43] Speaker 01:
The district court made a factual finding which is reviewed for clear error that the primary purpose of these documents is to determine training issues and recommend remedial measures.

[00:19:55] Speaker 01:
That was stated at the hearing on the county's motion for summary judgment.

[00:19:59] Speaker 01:
It's 1ER71.

[00:20:02] Speaker 01:
So I think we're starting at an incorrect premise that

[00:20:04] Speaker 01:
The goal of these documents, the goal of these communications was to assess civil liability.

[00:20:11] Speaker 01:
And I would also like to mention.

[00:20:14] Speaker 03:
But I guess the thing we're struggling with is, when is advice to your client about how to improve their policies and procedures?

[00:20:24] Speaker 03:
Is that ever legal advice?

[00:20:26] Speaker 01:
Well, I think what the county is trying to do in these curb meetings is determine whether a county employee

[00:20:34] Speaker 01:
violated a county policy.

[00:20:37] Speaker 01:
It's an administrative.

[00:20:38] Speaker 04:
But you don't have a curb unless something bad has happened, right?

[00:20:41] Speaker 04:
This isn't just like I'm the police chief and I say, let's just have a meeting and talk about how we can do better.

[00:20:49] Speaker 04:
The curb happens when something bad has happened, right?

[00:20:53] Speaker 04:
Correct.

[00:20:54] Speaker 04:
That's what instigates it.

[00:20:56] Speaker 04:
Correct.

[00:20:58] Speaker 04:
I mean, how do you tell an officer when they have to come in about they've killed someone and whether

[00:21:04] Speaker 04:
that they don't, and the lawyer sitting in there, that it's not legal, and they're told it's being confidential.

[00:21:13] Speaker 04:
How can you convert that into, let's just decide how we could have trained you better, officer, before you killed someone?

[00:21:21] Speaker 01:
Here's the thing about this case, is that the county had numerous opportunities to present the district court with specific, narrow, tailored redactions of

[00:21:32] Speaker 01:
legal advice being solicited or provided.

[00:21:36] Speaker 01:
And it decided not to do so because it believed the entirety of the curb documents were privileged, including- That goes back to Judge Koh's question and back to my hypothetical.

[00:21:49] Speaker 02:
When I had those meetings with clients, and I would say things like, well, what if you had a

[00:21:57] Speaker 02:
A supplemental training session in the such and such department because it seems like there's this injury, but you know, last year you had another injury in the same department.

[00:22:07] Speaker 02:
So what if you had more training on that machinery or

[00:22:13] Speaker 02:
What if you had thought about more breaks during the day so people don't get tired?

[00:22:20] Speaker 02:
That's not strictly legal advice, but I would have been horrified if that entire meeting had not been protected by the attorney-client privilege because the genesis of it is potential liability right now

[00:22:36] Speaker 02:
And how do we avoid legal liability in the future?

[00:22:39] Speaker 02:
And it seems to me that both of those are covered by the attorney-client privilege.

[00:22:45] Speaker 02:
Why is that wrong?

[00:22:47] Speaker 01:
If the primary purpose of that meeting in your hypothetical is to provide legal advice, then it is privileged.

[00:22:57] Speaker 01:
But that is not the case with curb here.

[00:23:00] Speaker 04:
And I want to note that the- Well, would a training issue trigger a curb?

[00:23:06] Speaker 04:
Excuse me?

[00:23:07] Speaker 04:
Just like we want to do better training, does that trigger a curb?

[00:23:12] Speaker 04:
No, it doesn't.

[00:23:14] Speaker 04:
Someone getting shot, someone getting injured, those are the things that trigger a curb.

[00:23:19] Speaker 04:
So right there, you're starting with, we have a legal problem.

[00:23:23] Speaker 04:
That triggers the curb.

[00:23:25] Speaker 04:
Is the lawyer there the whole time?

[00:23:28] Speaker 01:
The lawyer, the attorney, Mr. Fagan, with respect to these documents, was present.

[00:23:34] Speaker 01:
That's correct.

[00:23:35] Speaker 01:
The whole time?

[00:23:36] Speaker 01:
I believe so.

[00:23:37] Speaker 04:
Because they have phases, I guess, what they do.

[00:23:39] Speaker 04:
And he's at every single phase.

[00:23:41] Speaker 04:
I believe so.

[00:23:42] Speaker 04:
And are the people promised confidentiality before they go into it?

[00:23:47] Speaker 04:
I don't believe so, because we ... Do you think the officers had any ... They'd think it's going to be given to the Tribune?

[00:23:58] Speaker 01:
Not necessarily, but I would mention that there are two points to that.

[00:24:03] Speaker 01:
One, there was a district court opinion.

[00:24:07] Speaker 01:
I believe in 2014, holding, and this is before Nunez and Bush, which held that curb reports were discoverable.

[00:24:15] Speaker 01:
And then you had Nunez and Bush, which held that they weren't.

[00:24:18] Speaker 01:
And then you had a string of subsequent district court opinions holding that they are not privileged, they're not work product, and they're discoverable.

[00:24:27] Speaker 01:
But also, the original plaintiff, Mr. Frankie Greer, submitted a declaration authored by David Myers, who was the

[00:24:37] Speaker 01:
sheriff county captain, sheriff county commander in the sheriff's department for eight years.

[00:24:45] Speaker 01:
And he said he was never told that these materials would need to be kept confidential.

[00:24:51] Speaker 01:
He kept them in unlocked storage boxes that were left them on desk where janitors could see them.

[00:24:58] Speaker 01:
He moved into a superior's office whom he replaced and found them in sitting in unlocked

[00:25:06] Speaker 01:
drawers.

[00:25:08] Speaker 01:
So I don't think it's correct to start— Did Mr. Grewer think that he could give them to you?

[00:25:17] Speaker 01:
Excuse me?

[00:25:18] Speaker 04:
Would Mr. Grewer think that those—if you showed up and said, I would like all your curb reports, would he think that, that he could give you all the curb reports?

[00:25:27] Speaker 01:
I don't know the answer to that question.

[00:25:29] Speaker 01:
Okay.

[00:25:33] Speaker 01:
But I want to go back to

[00:25:36] Speaker 01:
what the district court did in this case, privilege was litigated on so many occasions.

[00:25:43] Speaker 01:
And ultimately, the district court conducted an in-camera review of these documents, looked at all of them, 344 pages.

[00:25:51] Speaker 01:
It found factually that among the entire body of these documents, there were small snippets of legal advice.

[00:26:00] Speaker 01:
And the test before the district court was, what is the primary purpose

[00:26:05] Speaker 01:
not of curb, of the body curb, but of these communications.

[00:26:12] Speaker 04:
So do we have to defer to the district court's conclusion that the primary legal process was, the primary reason was not legal?

[00:26:22] Speaker 04:
Do we have to defer to that?

[00:26:24] Speaker 04:
Is that what you're saying?

[00:26:25] Speaker 01:
I think that needs to be clear air for the district court's determination to be overturned.

[00:26:30] Speaker 01:
I believe that as a factual finding, the court

[00:26:33] Speaker 01:
The district court looked through these documents.

[00:26:36] Speaker 01:
What is being communicated here?

[00:26:39] Speaker 01:
Is it legal advice?

[00:26:40] Speaker 01:
Is legal advice being solicited?

[00:26:43] Speaker 01:
No, these are efforts to identify, did an employee violate a company policy?

[00:26:51] Speaker 01:
And what follow-up actions do we need to take to remediate that issue?

[00:26:56] Speaker 02:
Well, what do you think the consequence is for litigation if someone has violated company policy?

[00:27:02] Speaker 02:
It seems to me that that is part of the legal analysis as well.

[00:27:11] Speaker 02:
To go back to my example, if the injury resulted from the supervisor telling someone to do something that was forbidden by policy,

[00:27:24] Speaker 02:
you know, really increases the legal liability for that event.

[00:27:29] Speaker 02:
So I really have a hard time saying that they are segregable in that way.

[00:27:37] Speaker 03:
But wouldn't federal rule of evidence 407, which makes subsequent remedial measures inadmissible, deal with this?

[00:27:45] Speaker 03:
You cannot bring in this evidence to prove negligence, culpable conduct, design defect, manufacturing defect.

[00:27:55] Speaker 03:
Rule 407

[00:27:56] Speaker 03:
says that if a defendant tries to make remedial measures to improve their processes, that's not admissible.

[00:28:03] Speaker 03:
So wouldn't that take care of this issue?

[00:28:05] Speaker 01:
Yes, that's a good point.

[00:28:06] Speaker 02:
The question to me isn't whether it's admissible.

[00:28:09] Speaker 02:
The question is whether the discussion is legal advice or part of legal advice.

[00:28:16] Speaker 02:
And maybe the lawyer would say, you have a lot of liability here because you didn't follow policy.

[00:28:27] Speaker 02:
And if you fix it, you won't be liable later because of the federal rules, which is also legal advice.

[00:28:36] Speaker 02:
So I guess my point isn't really whether it's admissible.

[00:28:39] Speaker 02:
It's whether the discussion of following policy or failing to follow policy is wrapped up in the search for determination about liability.

[00:28:54] Speaker 03:
But in Ray Grand Jury said that the test is the significant purpose test, and the Supreme Court dismissed a cert petition on that.

[00:29:03] Speaker 03:
So if legal advice is a purpose, that can still coexist with these other purposes being the significant or primary purpose, which means we would still not find clear error here.

[00:29:17] Speaker 01:
That's correct.

[00:29:18] Speaker 01:
That's correct.

[00:29:18] Speaker 01:
But I would like to discuss the hypothetical you're raising about

[00:29:21] Speaker 01:
a hypothetical situation where you have discussions about a policy violation and the legal implications of such a policy violation.

[00:29:33] Speaker 01:
That's not what happened here.

[00:29:35] Speaker 01:
There were no legal discussions about implications of legal liability for these things.

[00:29:42] Speaker 01:
So I really think that the court made a

[00:29:50] Speaker 01:
very careful factual finding on numerous occasions because this issue of privilege was litigated time and time and time again.

[00:29:59] Speaker 01:
And it found, based on the myriad other non-legal goals of CURB, public statements by former Sheriff Gore, Mr. Fagan himself, that

[00:30:14] Speaker 01:
that CURB is a body dedicated to promoting transparency, building trust within the community, self-improvement.

[00:30:22] Speaker 01:
And then in the CURB documents, the CURB documents themselves, it scoured these documents to find legal advice, and it found small snippets, small snippets that were insufficient to override its factual determination that legal advice was not

[00:30:41] Speaker 01:
not the primary purpose of these communications.

[00:30:46] Speaker 04:
All right.

[00:30:46] Speaker 04:
Any additional questions?

[00:30:49] Speaker 04:
No, thank you.

[00:30:51] Speaker 04:
Yes.

[00:30:51] Speaker 04:
No, thank you.

[00:30:52] Speaker 03:
Thank you, Your Honor.

[00:30:52] Speaker 03:
Okay.

[00:30:53] Speaker 04:
Thank you for your argument.

[00:30:55] Speaker 04:
All right.

[00:30:55] Speaker 04:
Two minutes for rebuttal.

[00:31:03] Speaker 00:
Three brief points, Your Honors.

[00:31:05] Speaker 00:
There was a question as to whether this court needs to defer to the district court's finding that legal advice was not the primary purpose of the curb process.

[00:31:17] Speaker 00:
The court does not need to defer.

[00:31:19] Speaker 00:
It can review that de novo because it was based on an analytical error which was falsely equating.

[00:31:26] Speaker 00:
I guess it's rather falsely severing discussions of policy, training, and remediation

[00:31:34] Speaker 00:
and saying that those per se cannot be legal.

[00:31:38] Speaker 00:
It looked at the subject matter rather than the purpose.

[00:31:42] Speaker 00:
The privilege analysis turns on purpose.

[00:31:44] Speaker 00:
So that was a legal error by the district court.

[00:31:48] Speaker 00:
If this court disagrees and finds that it's a clear error test, the county should still win because we have three declarations saying that the overarching primary purpose of this is legal.

[00:31:59] Speaker 00:
We have the policy that says it's legal.

[00:32:02] Speaker 00:
And when you review those, as I'm sure you already have, the curb supports themselves.

[00:32:06] Speaker 03:
Yeah, let's talk about it.

[00:32:07] Speaker 03:
Look at the background summary.

[00:32:09] Speaker 03:
It says, a decedent has been in sheriff's custody since this date for these charges.

[00:32:14] Speaker 03:
During a security check, they were found dead.

[00:32:17] Speaker 03:
Jail medical staff responded.

[00:32:19] Speaker 03:
How is that privileged?

[00:32:21] Speaker 03:
This just very factual, what time they came into custody, what their charges were.

[00:32:26] Speaker 03:
the time of death.

[00:32:28] Speaker 03:
If you look through a lot of these documents, that's what they talk about.

[00:32:32] Speaker 03:
And I've looked at every single legal advisor Fagan's statement.

[00:32:37] Speaker 03:
And I just don't see, he's asking about how do we change the policy.

[00:32:41] Speaker 03:
I just don't see legal advice in all of these statements, or any of these statements from what I see.

[00:32:47] Speaker 03:
These look like remedial measures.

[00:32:49] Speaker 03:
You're trying to change policy.

[00:32:51] Speaker 03:
They don't talk about really specific cases.

[00:32:53] Speaker 03:
It's more about how does that process work.

[00:32:56] Speaker 03:
You know, when someone comes back from jail, do they get special attention?

[00:33:00] Speaker 03:
It's all process.

[00:33:02] Speaker 03:
It's agency process.

[00:33:05] Speaker 00:
I think you have to look at the nature of that attorney-client relationship on a practical level, which is that if an attorney in a meeting with law enforcement commanders citing cases and statutes and using legalese, that's not the most effective form of lawyering.

[00:33:22] Speaker 00:
What the attorney in that room needs to do is be

[00:33:24] Speaker 00:
responsive to the actual operational concerns and overlay his understanding of the legal landscape over those realities.

[00:33:32] Speaker 03:
So inmate time of death, criminal charges for which the inmate is incarcerated, that's all privileged.

[00:33:39] Speaker 03:
How can that be privileged?

[00:33:41] Speaker 03:
That's public record, right?

[00:33:42] Speaker 03:
What this person was charged with.

[00:33:45] Speaker 03:
How is that privileged?

[00:33:46] Speaker 03:
Because you're saying, as an entire, per se, curb, everything is privileged.

[00:33:51] Speaker 03:
And that's what's in here.

[00:33:53] Speaker 03:
There's a lot of public record information in here.

[00:33:55] Speaker 00:
And that information would be discoverable through other means.

[00:33:59] Speaker 00:
The facts that it's in the curb reports doesn't convert the facts into privileged information.

[00:34:05] Speaker 00:
Those facts can't be concealed.

[00:34:07] Speaker 00:
But the overall communication is still privileged, even the factual portions of it.

[00:34:12] Speaker 00:
So same deal.

[00:34:14] Speaker 00:
client sends an email to an attorney and says, here's the factual write-up, here's, let me give you the full narrative of what happened, what do you think?

[00:34:22] Speaker 00:
And attaches documents.

[00:34:24] Speaker 00:
That entire communication is privileged even though it does contain facts that could be discovered through other means.

[00:34:30] Speaker 03:
So you're saying the county never redacts and discloses publicly available public record information in even a privileged document?

[00:34:41] Speaker 03:
That seems highly unusual.

[00:34:42] Speaker 00:
I can only speak to the curb records, your honor, and that's the process with respect to the curb records.

[00:34:49] Speaker 00:
It's a very sensitive process.

[00:34:53] Speaker 00:
The county contends that the entirety of those communications is privileged, so redaction wouldn't solve the problem.

[00:35:00] Speaker 03:
Why not?

[00:35:02] Speaker 03:
I mean, I guess I'm really shocked to hear that the county would not disclose publicly available public record information

[00:35:13] Speaker 00:
That information, it won't to the extent.

[00:35:15] Speaker 03:
But I've never heard that.

[00:35:16] Speaker 03:
Well, you can get it elsewhere.

[00:35:18] Speaker 03:
Therefore, I don't have to unredact public record information.

[00:35:22] Speaker 03:
I don't know if.

[00:35:26] Speaker 04:
Well, I guess what I'm seeing your argument to be is that's all part of how the legal advice was determined.

[00:35:35] Speaker 04:
However, if you had a request for a public document that you could send separate and apart from curb,

[00:35:43] Speaker 04:
But you don't want to release anything in the curb report that was part of the legal advice.

[00:35:48] Speaker 04:
Is that what you're saying?

[00:35:49] Speaker 00:
That's exactly what I'm saying, Your Honor, and I think that's quite typical that an entire attorney-client communication will be withheld without redactions rather than ... Because every attorney-client communication is going to have some piece of information that is not

[00:36:05] Speaker 00:
Strictly privileged, time stamp on an email, small talk at the beginning of the email.

[00:36:10] Speaker 04:
Well, I guess if you take it further, if you disclose that it was in the report, then later what you're faced with is that you had knowledge of that.

[00:36:21] Speaker 04:
Essentially, it's that the employer had knowledge of something when they were seeking legal advice.

[00:36:32] Speaker 04:
Correct.

[00:36:34] Speaker 03:
At a minimum, doesn't the county make privilege logs?

[00:36:37] Speaker 03:
Privilege logs would provide the date of any meeting, who was present, and you create those privilege logs.

[00:36:45] Speaker 03:
And you're saying even privilege log information would not be

[00:36:49] Speaker 03:
That's what I'm hearing from you.

[00:36:52] Speaker 00:
That's correct.

[00:36:53] Speaker 00:
To the extent that it's in the communication, it won't be redacted.

[00:36:56] Speaker 00:
That information can be supplied through the privilege logs, the date, the time, that sort of information.

[00:37:02] Speaker 00:
That's in the record.

[00:37:03] Speaker 03:
Because it's privileged, in your view.

[00:37:05] Speaker 00:
The facts aren't privileged.

[00:37:07] Speaker 00:
The communication is.

[00:37:08] Speaker 00:
To the extent that the fact is contained within a privileged communication, the privilege carries to it, although it can be discovered through other means.

[00:37:20] Speaker 04:
Okay.

[00:37:20] Speaker 04:
Thank you both for your argument.

[00:37:22] Speaker 04:
Um, the court's gonna take a 10 minute recess and then we'll hear the last case on calendar.

[00:37:26] Speaker 04:
Thank you.

[00:37:27] Speaker 04:
Thank you.