*1 Non-party Rachelle Helm Dean (“Dean”), Chief Deputy District Attorney for the County of Ventura, brings this Motion to Quash a Deposition Subpoena served on her by Plaintiff Keisha Morehead (“Plaintiff”). (Dkt. No. 49.) The underlying action is a civil rights case where Plaintiff alleges excessive force and municipal liability claims against the City of Oxnard, Oxnard Police Department, Officer Leah Castellano (in both her individual and official capacity), and Officer Kevin Fessler (in both his individual and official capacity) (“Defendants”).[1] The subpoena at issue centers around a “Complaint Request Evaluation” (“Declination Memo”) that was produced to Plaintiff by Defendants as part of Defendants' initial disclosures. (Dkt. No 56-1, Ex. B at 10.) The Declination Memo memorializes Dean's decision not to charge Plaintiff with assaulting officers Leah Castellano and Kevin Fessler (“Officer Defendants”).

On November 29, 2022, Dean filed a motion to quash the deposition subpoena (“Motion”) served by Plaintiff on Dean. (Dkt. No. 49.) The court, on its own motion, set the hearing to January 4, 2023. (Dkt. No. 50.) On December 14, 2022, Defendants filed a notice of joinder to the Motion. (Dkt. No. 53.) Plaintiff filed her redacted Opposition to the Motion on December 20, 2022 (“Opposition”). (Dkt. No. 55-2.)[2] Dean filed her Reply Brief (“Reply”) on December 23, 2022. (Dkt. No. 59.)

On January 4, 2023, the Court held a hearing on Dean's Motion to Quash Plaintiff's Subpoena. At the hearing, Plaintiff expounded the scope of testimony she intends to seek at Dean's deposition. Based on Plaintiff's representations, the Court understands the following list to be the clearest categories of testimony she seeks to depose Dean on. First, Plaintiff explained that she seeks to depose Dean on whether any “backroom discussions” occurred before Dean drafted the Declination Memo, and whether those discussions influenced it. Second, Plaintiff seeks to explore the process behind the Declination Memo's creation, i.e. were any assistant District Attorneys involved in reviewing materials that influenced the memo, whether Dean spoke with other members of the District Attorney's office who had past interactions with the Defendants, and other facts that would shed light on the Declination Memo. Third, Plaintiff explained that she seeks to question Dean regarding whether Dean's own past interactions with Defendants influenced her decision in the Declination Memo. And fourth, Plaintiff seeks to depose Dean about whether the Officer Defendants' bodycam footage influenced Dean's charging decision. Additionally, Plaintiff stressed that she does not seek to question Dean regarding why Dean chose not to charge Plaintiff; rather, Plaintiff seeks to question Dean regarding why Dean opined on Defendants' conduct in the Declination Memo. Defendants' and Dean's counsel explained that Defendants have already provided verified discovery responses that address Plaintiff's questions regarding interactions between Dean and any Defendants. In response, Plaintiff argued that a deposition of Dean was still necessary, as Dean's testimony could either corroborate or impeach Defendants' discovery responses.

I. LEGAL STANDARDS

*2 Federal Rule of Civil Procedure 26(b)(1) permits discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” considering various factors. “The Federal Rules of Civil Procedure distinguish between parties and non-parties in establishing available discovery devices.” Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146, 1158 (9th Cir. 2010).[3] Rule 45 provides the exclusive method of discovery on non-parties. Thompson v. Gonzales, 2016 WL 5404436, at *8 (E.D. Cal. Sept. 27, 2016) (citing Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975)). A non-party is subject to, and will be required to comply with, a valid, properly served Rule 45 subpoena. Id. at *8 n.11.

The scope of discovery allowed under a Rule 45 subpoena is the same as that permitted by Rule 26. Much v. Gessesse, 339 F.R.D. 625, 629 (C.D. Cal. 2018); Fed. R. Civ. P. 45 Advisory Comm.'s Note (1970) (“[T]he scope of discovery through a subpoena is the same as that applicable to ... other discovery rules.”). Additionally, Rule 45 provides that “[o]n timely motion,” a subpoena must be modified or quashed if it “requires disclosure of privileged or other protected matter, if no exception or waiver applies,” or if the subpoena “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv).

On a motion to quash subpoena, the moving party has the burden of persuasion under Rule 45(c)(3), but the party issuing the subpoena must demonstrate that the discovery sought is relevant. See, e.g., Green v. Baca, 226 F.R.D. 624, 653-54 (C.D. Cal. 2005) (citing Night Hawk Ltd. v. Briarpatch Ltd., L.P., 2003 WL 23018833, *8 (S.D.N.Y. Dec. 23, 2003)); Penn-star Ins. Co. v. Thee Aguila, Inc., 2022 WL 17224661, at *2 (C.D. Cal. Aug. 22, 2022). A court will first analyze whether the party issuing the subpoena has demonstrated that the discovery sought is relevant before determining if the moving party has met its burden. See,e.g., Dale Evans Parkway 2012, LLC v. Nat'l Fire & Marine Ins. Co., 2016 WL 7486606, at *4 (C.D. Cal. Oct. 27, 2016).

II. ANALYSIS

Plaintiff served the subpoena at issue because Plaintiff “seeks Dean's deposition testimony because of Dean's own statements concerning the conduct of the arresting officers—not Dr. Morehead—which Dean included in a ‘Complaint Request Evaluation’ that Defendants produced as part of the instant litigation.” (Dkt. No. 56-1 at 1.) The Declination Memo at issue was produced to Plaintiff by Defendants as part of Defendants' initial disclosures. (Dkt. No 56-1, Ex. B at 10.) In response, Dean argues that her motion to quash should be granted “pursuant to Federal Rules of Civil Procedure, rule 45(d)(3)(A)(iii) because deposing her would require her to disclose her confidential attorney-work product with respect to her decision not to prosecute plaintiff for her battery upon the two Oxnard police officers.” (Dkt. No. 49 at 2.)

A. The Declination Memo's Relevance

*3 As a threshold matter, the Court must determine if the Declination Memo itself is relevant to the parties' claims and defenses. Given that Rule 26(b)(1) allows discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” the Court finds that the Declination Memo is relevant. Defendants offered Dean's Declination Memo to Plaintiff as an initial disclosure because Defendants “may use [it] to support their claims and defenses.” (Dkt. No 56-1, Ex. B at 5.) See Withers v. eHarmony, Inc., 2010 WL 11520197, at *1 (C.D. Cal. Apr. 1, 2010) (citing Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004)) (initial disclosures should provide facts and information relevant to the litigation). Defendants have put the Declination Memo at issue by producing it in their initial disclosures, making it relevant. See, e.g., Dale Evans Parkway, 2016 WL 7486606, at *4 (subpoenaed documents were relevant where party seeking to quash subpoena had already made arguments regarding the documents, which put them at issue in the litigation). Additionally, the Declination Memo is relevant to the extent it relates to Defendants' Affirmative Defenses. (Dkt. No. 13 at 5-8.) The Court agrees that Plaintiff is entitled to depose Dean regarding the Declination Memo itself, including the investigation and the facts underlying its conclusions.

Dean asserts that any deposition regarding the memo is shielded by the attorney work product doctrine and deliberative process privilege. (Dkt. Nos. 49-1 at 3-4, 59 at 4.) The Court finds that Dean has not met her burden to establish the Declination Memo is protected by either the work product protection or the deliberative process privilege. Defendants waived those protections for the Declination Memo when they offered the Declination Memo to Plaintiff as part of Defendants' initial disclosures. “The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived.” United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020) (quoting United States v. Nobles, 422 U.S. 225, 239, 95 S. Ct. 2160, 2170 (1975)). Defendants offered Dean's Declination Memo in their initial disclosures, signifying Defendants “may use [it] to support their claims and defenses.” (Dkt. No 56-1, Ex. B at 10.) “Courts in this circuit have held that the work product privilege ‘may be waived, for example, when an attorney attempts to use the work product as testimony or evidence, or reveals it to an adversary to gain an advantage in litigation.’ ” Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 11630961, at *8 (C.D. Cal. Dec. 1, 2017) (quoting United States v. Reyes, 239 F.R.D. 591, 508 (N.D. Cal. 2006)). Furthermore, courts in this district have held that the work-product protection was waived in similar circumstances. See, e.g., Id. at *8 (holding that party waived work product protections over communications with a third-party once they had used those communications in the litigation for their benefit); Yaroshinsky v. City of Los Angeles, 2020 WL 6048177, at *5 (C.D. Cal. Sept. 15, 2020) (holding that statements by third-party attorney were not protected by work product doctrine because their disclosure to plaintiff acted as an express waiver, which was inconsistent with the principle of the work product doctrine in maintaining secrecy).

The same waiver principle applies to Dean's argument that the Declination Memo is protected by the deliberative process privilege. For that privilege to apply, “the evidence must be both pre-decisional and deliberative.” Id. (quoting Carter v. U.S. Dep't of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002)). “A predecisional document is a part of the deliberative process, if the disclosure of [the] materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.” Id. (quoting Assembly of California v. U.S. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)). However, any claim that the Declination Memo's disclosure would undercut the ability of the District Attorney's office to engage in candid deliberations before making a prosecutorial decision is undercut by the fact the Defendants produced the memo to Plaintiff as part of Defendants' initial disclosures. Under similar circumstances, courts in this district have held that the deliberative process privilege was waived. Id. at *6. So too here. Finally, neither of Dean's briefs address waiver. The Court finds Dean has not met her burden to quash a deposition of Dean regarding the Declination Memo. Accordingly, Plaintiff may depose Dean regarding the Declination Memo.

B. Proposed Questioning Regarding Dean's Subjective Opinions of Defendants' Conduct

*4 The Court identifies several sub-categories of testimony that Plaintiff seeks from Dean based on the parties' briefing. The first sub-category relates to Plaintiff deposing Dean regarding her subjective opinions on the Officer Defendants' conduct the night of the arrest. It is not clear whether Plaintiff actually seeks to depose Dean regarding Dean's own subjective opinions on the Officer Defendants' conduct towards Plaintiff. Plaintiff's Opposition states that “it is highly unorthodox for a prosecutor to include the types of comments as did Dean regarding the arresting officers' conduct toward the would-be defendant when formulating a formal charging decision.”

(Dkt. No. 56-1 at 12.) Plaintiff's Opposition also states that “Plaintiff seeks Dean's deposition testimony because of Dean's own statements concerning the conduct of the arresting officers,” (id. at 1), and “Dean's testimony is also relevant under Rule 26 in that it bears on the statements and actions of the arresting officers contained in their incident reports that they possessed probable cause to detain and arrest Plaintiff because she ‘punched at’ an officer.” (Id. at 13.)

Specifically, Dean argues the following:

To the extent that Plaintiff does seek to depose Dean regarding Dean's own subjective opinions on the Officer Defendants' conduct, the Court agrees with Dean that such testimony would not be relevant. Plaintiff's excessive force claim will ultimately depend on whether Defendants' conduct was reasonable in light of various factors. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). It is for the ultimate finder of fact to determine whether Defendants' conduct was reasonable. Dean's own opinions on that topic are not only irrelevant, but would usurp the fact finder's role by making legal conclusions. Accordingly, Plaintiffs are precluded from deposing Dean on her own subjective opinions regarding the legal issues asserted in the Complaint.

C. Proposed Questioning Regarding Conversations Between Dean and Defendants

The second sub-category of potential testimony relates to any discussions Dean had with the Defendants regarding the events of Plaintiff's arrest. Plaintiff argues that the Declination Memo “reasonably begets investigation of whether Dean had any contact with the Oxnard Police Department regarding a concern that the officers acted improperly such that those remarks would need to be memorialized in a Declination Memo.” (Dkt. No. 56-1 at 2.) Plaintiff further argues that “[if] such collusive discussions took place, the nature of that dialogue and any admissions made during those discussions are critical to Plaintiff's ability to prove her claims.” (Id. at 18.) Dean only offers the same response to this category of questions as she did to the first sub-category.

The Court finds that Plaintiff's proposed questions from this category are relevant to the litigation. Such questions would further “any party's claim or defense” for several reasons. First, Dean's testimony on this topic will reflect the facts underlying the Declination Memo. Second, Dean's testimony could develop facts regarding Defendant Oxnard Police Department's knowledge of the incident and whether, as Plaintiff alleges, they sought to shield the Officer Defendants from scrutiny. Third, Dean's discussions with the Officer Defendants could produce facts related to the events of the night the officers arrested Plaintiff. Fourth, testimony on this topic could go towards Plaintiff's municipal liability claim. Finally, the Court agrees with Plaintiff's arguments at the hearing that questioning regarding Dean's past interactions with Defendants may elicit relevant testimony. See Mazzeo v. Gibbons, 2010 WL 11629639, at *3 (D. Nev. Feb. 2, 2010) (allowing deposition of third-party district attorney to go forward where it would elicit relevant factual information related to Plaintiff's claims).

D. Proposed Questioning on Miscellaneous Topics

*5 The third sub-category of questioning Plaintiff proposes involves several miscellaneous avenues of questioning. Plaintiff's Opposition argues that she is entitled to depose Dean on the following non-exhaustive topics:

(Dkt. No. 56-1 at 13. ) Dean's Reply only offers the same response to this category of questions as she did to the first and second sub-categories of questioning.

The Court finds that Plaintiff has not met her burden in establishing that any of these topics are relevant to the litigation. The Court is not convinced that these questions, or others along similar lines, relate to the Plaintiff's excessive force claim, her municipal liability claim, or to any of Defendants' affirmative defenses. Nor does Plaintiff delineate which claim or defense these topics relate to.

Dean's Motion to Quash Plaintiff's Deposition Subpoena is GRANTED IN PART AND DENIED IN PART. Plaintiff may depose Dean on the Declination Memo itself, including the investigation and facts upon which its conclusion are based. Plaintiff may not depose Dean on her subjective opinions regarding the legal issues in the Complaint, or any other listed topics unrelated to the Declination Memo.

IT IS SO ORDERED.

Initials of Clerk kh