UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FRANKIE GREER, No. 23-55607

Plaintiff, D.C. No. and 3:19-cv-00378- JO-DEB SAN DIEGO UNION TRIBUNE, LLC; PRISON LEGAL NEWS; VOICE OF SAN DIEGO, OPINION

Intervenors-Appellees, v. COUNTY OF SAN DIEGO,

Defendant-Appellant, WILLIAM GORE, Sheriff; ALFRED JOSHUA, M.D.; BARBARA LEE; MACY GERMONO; FRANCISCO BRAVO; CHRISTOPHER SIMMS; MICHAEL CAMPOS,

Defendants.

Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding 2 GREER V. COUNTY OF SAN DIEGO

Argued and Submitted August 14, 2024 San Francisco, California

Filed February 10, 2025 Before: Susan P. Graber, Consuelo M. Callahan, and Lucy H. Koh, Circuit Judges.

Opinion by Judge Graber; Concurrence by Judge Graber; Partial Dissent by Judge Koh

SUMMARY *

Attorney-Client Privilege

The panel reversed the district court’s order to unseal documents from the County of San Diego’s Critical Incident Review Board (“CIRB”) that had been produced in an underlying civil rights action, and remanded with instructions to return and/or destroy the disputed documents because they were protected by the attorney-client privilege. Frankie Greer brought an action against the County of San Diego under 42 U.S.C. § 1983, alleging that he suffered serious injuries while incarcerated in the San Diego Central Jail. During discovery, he sought the production of documents related to in-custody deaths from the County’s CIRB meetings. The CIRB’s stated purpose is to consult * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GREER V. COUNTY OF SAN DIEGO 3

with legal counsel when an incident occurs which may give rise to litigation, identify problem areas, and recommend remedial action to avoid future liability. The district court found that the requested documents were not protected by the attorney-client privilege because the CIRB serves multiple purposes unrelated to obtaining legal advice from counsel. The district rejected efforts to immunize documents from disclosure simply because an attorney was involved in an incident investigation. After Greer settled his claims with the County, various media organizations successfully moved to intervene for the purpose of unsealing the CIRB documents that had been produced in the litigation. The panel held that the appeal was not moot even though the County had elected to produce the purportedly privileged CIRB documents. Because the panel could order the district court to direct intervenors’ counsel and plaintiff’s counsel to return or destroy their copies of the CIRB documents, particularly given that they received non-redacted versions, effective relief remained available. The panel held that the attorney-client privilege applied to the disputed CIRB documents. The district court erred in determining that obtaining legal advice was not the primary goal of the CIRB meetings memorialized in the underlying reports. A lawyer’s recommendations on both liability for past events and avoidance of future liability-creating events constitute legal advice. Both the participants in the CIRB and its critics consistently viewed the primary purpose of the CIRB as assessing legal liability for a past event and avoiding legal liability for future similar events. The panel further rejected intervenors’ alternative argument that even if the attorney-client privilege applied, the County waived that privilege by, among