Judge: William D. Claster, Case: 18-00983799, Date: 2022-09-30 Tentative Ruling

California Department of Justice's Notice of Motion and Motion for Reconsideration Re: Plaintiffs' Motion to Compel ROA 521

 

Interested party California Department of Justice (“AG”) moves for reconsideration of the Court’s July 22, 2022 order compelling Todd Spitzer, in his official capacity as Orange County District Attorney (“OCDA”), to produce documents.

For the reasons set forth below, the Court finds the motion is properly before it.  However, the Court needs additional information before it can rule on the motion.  To that end, the parties should be prepared to discuss the questions set forth below at the hearing.  Depending on the answers, the Court may decide to invite supplemental briefing.

I.            Propriety of Motion

Plaintiffs argue the AG’s motion is an improper motion for reconsideration, or not even a motion for reconsideration at all, and should be denied on that basis alone.  The Court disagrees.

A.           Untimely or Improper Motion for Reconsideration

 

CCP § 1008(a) provides: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”

The time for a “party affected by the order” to move for reconsideration is “10 days after service upon the party of written notice of the entry of the order.”  The AG was never served written notice of entry of the 7/22 order.  (Chern Decl. (included in ROA 521), ¶ 3.)  As a result, the 10-day clock never started.  Plaintiffs appear to take the position that because the AG isn’t party to this case, they weren’t required to serve written notice of the order (or the moving papers, etc.).  This may be true, but it’s not responsive to the AG’s argument.  Whether or not the AG is a party to the case, it is a “party affected by the order.”  For the 10-day clock to start, it had to be served with written notice of entry of the order. 

The AG also points to “new or different facts [or] circumstances” that weren’t present earlier.  At the 7/22 hearing, the Court specifically said it would consider the AG’s objections even though the AG hadn’t appeared:

MR. BREIDENBACH:  I think better posed is, I can let [the AG] know what happened today, and if they want to submit an objection, they can, and you can entertain it.

THE COURT:  Okay, all right.  If they have an objection, we’ll look at it.  (Beck Decl., Ex. A, at p. 42.)

The AG’s diligence (or lack thereof) before the hearing notwithstanding, the Court said at the hearing that it would consider objections submitted by the AG.  This is a new fact that justifies a motion for reconsideration.

In addition, while raised by neither party, the Court notes that it retains the “ability, on its own motion to reconsider its prior interim orders so it may correct its own errors.”  (Le Francois v. Goel (2005) 35 Cal.4th 1094.)

B.           Not a Motion for Reconsideration, but Untimely Objections

 

Plaintiffs argue this motion isn’t a motion for reconsideration at all, but an untimely attempt to raise discovery objections in the first instance.  The Court disagrees that this is grounds to deny the motion.  If the motion is, in some sense, not really one for reconsideration, the Court stated at the hearing that it would consider the AG’s objections.  The Court will not let potential mis-captioning of the papers prevail over its statement that it would consider the AG’s objections. 

Plaintiffs also suggest these objections are untimely because the AG could and should have raised them previously.  Per the briefing on the original motion, and per the declarations in support of this motion, the AG relied on OCDA to raise these objections on its behalf.  The Court therefore does not consider the objections to be untimely or waived on this basis.  In any event, the Court notes that the order rejecting the AG’s attempt to rely on OCDA was never served on the AG, and the AG filed the present motion less than a month after the order.

II.          Further Questions

The parties should be prepared to address the following questions at the hearing.  The Court may order supplemental briefing as well.

Regarding the Official Information Privilege:

  1. How many documents are at issue for the official information privilege?  The notice of motion and supporting declarations list numerous documents over which the AG asserts the official information privilege “and/or” the work product privilege, but the supporting memorandum appears to list only four documents to which the official information privilege applies.

 

  1. Assuming only four documents at issue, what specifically about these four documents supports applying the privilege?  Because the AG’s investigation has been closed for over three years, the Court questions whether general references to the integrity of the investigation or the potential for undermining the mission of law enforcement are sufficient for the AG to meet its burden.

 

  1. At page 13 of their opposition memorandum, Plaintiffs write: “Information regarding the AG’s investigation of the OCDA’s use of jailhouse informants is vital to proving Plaintiffs’ case. The AG’s investigation is relevant to [several topics that are important to the case].”  (Emphasis added.)  Do Plaintiffs contend this information is “vital,” or that it is simply “relevant”?  Because the Court must balance interests in analyzing the official information privilege, the potential difference between “vital” and “relevant” may matter.

 

  1.  Separately from arguments about the confidentiality of law enforcement investigation files, the AG notes that as to jail/prison and inmate records, “the state has a valid interest in maintaining the confidentiality of such records to ‘(1) protect individuals, including informants inside and outside of prison, (2) ensure institutional security, and (3) encourage candor and complete disclosure of information concerning inmates from both public officials and private citizens.’”  (People v. Landry (2016) 2 Cal.5th 52, 73.)  Why isn’t the protective order in this case sufficient to address the specific issue of these records, particularly when Plaintiffs represent that they have no interest in knowing the identity of any particular informants, victims, or other witnesses? Would redacting names from documents address the AG’s concerns?

 

Regarding the Work Product Privilege:

As with the Court’s original ruling on the work product privilege, the Court does not intend to rule on whether any particular document is privileged at this time.  Rather, as with the parties’ requests on the original motion, the Court will rule only on the broad question of whether the AG may assert the work product privilege at all over the documents at issue.

  1. The AG states in its reply papers that it conducted a “criminal investigation related to the use of informants at the Orange County Jail.”  (Reply at p. 5.)  Did the AG investigate the Orange County District Attorney’s Office? Over what period of time?

 

  1. Per ¶ 5 of the Ragland Declaration, some portion of the documents at issue are unrelated to the AG’s investigation of the CI program.  Do Plaintiffs seek discovery of these unrelated documents?  If so, what is Plaintiffs’ basis for arguing the work product doctrine is waived as to these documents?  As OCDA pointed out in its papers on the original motion, it often works together with the AG’s office on matters such as criminal appeals.