*1 Before the Court are two motions: (1) defendants County of San Bernardino (“County”), San Bernardino County Sheriff's Department (“SBSD”), John McMahon (“McMahon”), Shannon D. Dicus (“Dicus”), Trevor Strand (“Stand”), and Daniel Popa's (“Popa”) (collectively, “Defendants”) Motion for Reconsideration of the Court's November 16, 2023 Ruling on Motion to Quash (“Reconsideration Motion” or “Reconsideration Mot.”), Electronic Filing Number (“ECF No.”) 104, and (2) plaintiff Julius Taylor's (“Plaintiff”) Motion for Contempt against Non-Party Witness Lynette Marie Grulke (“Contempt Motion” or “Contempt Mot.”), ECF No. 113.

After reviewing the parties' and non-party the County of San Bernardino District Attorney's Office's (the “SBDA” or the “DA”) arguments, for the reasons set forth in this Order, the Court: (1) DENIES Defendants' Reconsideration Motion; (2) DENIES Plaintiff's Contempt Motion; and (3) GRANTS IN PART AND DENIES IN PART non-party SBDA's objections to the subpoena (the “Subpoena”) issued by Plaintiff to non-party witness SBDA Deputy District Attorney Lynette Marie Grulke (“Ms. Grulke”).

A. Procedural History

On December 14, 2021, Plaintiff filed a civil rights complaint (“Complaint” or “Compl.”) under 42 U.S.C. § 1983 (“§ 1983”). ECF No. 1, Compl. The operative complaint is Plaintiff's Fourth Amended Complaint (“FAC”), filed on October 23, 2023. ECF No. 91, FAC. In the FAC, Plaintiff alleges violations of his First and Fourteenth Amendment rights arising from a July 8, 2021 incident during which a SBSD deputy shot and injured Plaintiff. Id. at 6-7. On October 30, 2023, Defendants answered the FAC (“Answer”). ECF No. 96, Answer.

On September 25, 2023, Plaintiff served the Subpoena on non-party Ms. Grulke commanding Ms. Grulke to appear for deposition on October 27, 2023. ECF No. 86-1, Declaration of Michelle R. Prescott in Support of Defendants' Motion to Quash (“Prescott MTQ Decl.”) at ¶ 3. The Subpoena requested that Ms. Grulke produce documents: (1) “evidencing a communication made or received that shows [Ms. Grulke's] involvement in all matters pertaining to the shooting incident of July 8, 2021”; (2) “related to the findings of the July 8, 2021 shooting”; and (3) “related to any meetings had or observed pertaining to the July 8, 2021 shooting[.]” Id.

On October 4, 2023, Defendants served objections to the Subpoena arguing that the deposition subjects Ms. Grulke to “undue burden” and that the subpoenaed documents are protected by the attorney-client privilege and work product doctrine. Id. at ¶ 4. On October 9, 2023, the SBDA served Plaintiff with objections to the Subpoena (“Objections”). See ECF No. 103-1. On October 18, 2023, Defendants filed a Notice of Motion to Quash, ECF No. 85, and a Joint Stipulation Pursuant to LR 37-2 Regarding Defendants' Motion to Quash Subpoena of Lynette Grulke (“Motion to Quash” or “MTQ”). ECF No. 86. Attached to the Motion to Quash were the Objections served by the SBDA on October 9th. ECF No. 86-1, Prescott MTQ Decl., Ex. E at 27-30.

*2 On November 16, 2023, the previously assigned Magistrate Judge issued an Order (1) Granting and Denying in Part Defendants' [MTQ] and (2) Denying Plaintiff's Motion to Compel (“MTQ Order”). ECF No. 101. In the MTQ Order, the Court held: (1) Defendants did “not establish that the subpoenaed documents are protected by the attorney client privilege” because Defendants failed to “identify which specific documents have been withheld” on that basis and offered “no evidence supporting a conclusion that an attorney-client relationship existed between Ms. Grulke and Defendants or that Defendants had a reasonable expectation of confidentiality in their communications with Ms. Grulke,” id. at 4; (2) Defendants did not establish that the work product protection applied to the subpoenaed documents because “Defendants offered no specific facts ... establishing that the subpoenaed documents were prepared ‘by or for’ a party to the instant litigation” or “prepared ‘as an aid in possible future litigation,’ ” id. at 5 (citations omitted); and (3) Defendants failed to establish the official information privilege applied because “Defendants fail[ed] to provide any argument with respect to [the privilege's] applicability,” id. While the Court ordered Ms. Grulke to respond to the Subpoena for documents, it granted Defendants' Motion to Quash the deposition noticed to Ms. Grulke because “Plaintiff [did] not show[ ] deposing Ms. Grulke would provide relevant information that Plaintiff cannot obtain from her production of the subpoenaed documents.” Id.

On November 30, 2023, the SBDA and Ms. Grulke filed their Notice of Objections to Deposition Subpoena of and Production of Document by Lynette Grulke (“Filed SBDA Objections”). ECF No. 103, File SBDA Objections. This document included the Objections that were served on Plaintiff on October 9, 2023, ECF No. 103-1, as well as a privilege log regarding the documents that were being withheld, ECF No. 103-3, Privilege Log. The Privilege Log appears to have been provided for the first time on November 30, 3023. See ECF Nos. 103-1 and 103-3. On the same day, Defendants filed the instant Reconsideration Motion regarding the MTQ Order. ECF No. 104. On December 6, 2023, Plaintiff filed his opposition to the Reconsideration Motion (“Reconsideration Opp'n”), ECF No. 106, and Defendants filed their reply in support of the Motion for Reconsideration (“Reconsideration Reply”), ECF No. 109. On December 27, 2023, Plaintiff filed his Contempt Motion. ECF No. 113.

This matter was then re-assigned to the current Magistrate Judge, ECF No. 105, and on December 28, 2023, the Magistrate Judge held a hearing on Defendants Reconsideration Motion, in which the SBDA argued that its Objections to the Subpoena were a sufficient response under Federal Rule of Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 45, and Plaintiff must therefore file a motion to compel to enforce the Subpoena. See ECF No. 116, Mot. for Reconsideration Transcript at 12. In light of this argument, the Court ordered additional briefing on: (1) whether “the objection raised by the DA's office ... was the triggering event for [Plaintiff] to file a motion to compel or was th[e objection] procedurally insufficient”; and (2) “if the objections were raised appropriately, were the objections substantively and temporally appropriate,” with regard to the deliberative process, official information, and any other privileges raised. Id. at 17-18.

On January 17, 2024, Plaintiff filed his “Supplement to the [Reconsideration Motion]” (“Plaintiff's Supplemental Brief” or “Pl.'s Suppl. Br.”). ECF No. 119. On February 7, 2024, the SBDA filed its “Further Briefing Re: Rule 45 of the Federal Rules of Civil Procedure, Pursuant to the Honorable Court's Order on December 28, 2023” (“DA's Brief” or “DA's Br.”). ECF No. 120. On February 20, 2024, Plaintiff filed his supplemental opposition (“Supplemental Reply” or “Suppl. Reply”). ECF No. 121.

B. The Parties' Arguments

“Defendants request reconsideration of the [MTQ Order] insofar as it overrules the objections to production of documents based on the attorney-client privilege, work product doctrine, and official information privilege.” ECF No. 104, Reconsideration Mot. at 9. Defendants assert that the Court did not consider the County and the SBDA's Objections served on Plaintiff on October 9, 2023, which “assert the attorney-client privilege.” Id. at 15. In support of their Reconsideration Motion, Defendants also offer the Declaration of Ms. Grulke (“Grulke Declaration”), arguing that the SBDA's Objections and Grulke Declaration present “new material facts [that] were previously unavailable” regarding the attorney-client relationship between the SBDA and the County. Id.

*3 Second, Defendants contend the Grulke Declaration and the Declaration of Simon Umscheid (“Umscheid Declaration”) (together, the “SBDA Declarations”), the District Attorney “who oversees the Officer Involved Shooting Unit” (“OIS”), also establish that the subpoenaed documents are protected by the work product doctrine because the documents were generated “to prepare a defense of anticipated litigation, e.g. the very lawsuit now before the Court.” Id. at 17-18.

Third, Defendants contend the official information privilege also bars discovery of the subpoenaed documents because: (1) Ms. Grulke attests her legal analysis of “whether the shooting was justified ... and whether criminal liability should attach” and the attendant “ ‘legal conclusions, opinions, mental impressions ... are all part of [the SBDA's] deliberative process,’ ” id. at 20; (2) Mr. Umscheid avers the documents at issue included “ ‘internal, pre-decisional notes, drafts, and communications amongst the officer-involved shooting team,’ ” id.; and (3) the SBDA Declarations establish the harm that would result from disclosure, id. at 21-22.

Fourth, Defendants argue Plaintiff has not established a “substantial need” for the subpoenaed information because Plaintiff only asserts that “Ms. Grulke's legal evaluation could ‘confirm’ or ‘contradict’ the statements of [Defendants],” but “(1) DDA Grulke has confirmed she conducted no witness interviews; (2) such double-hearsay is of no evidentiary value and inadmissible at trial; (3) a party's desire to defeat privilege merely in order to gain ‘corroboration’ or ‘impeachment’ evidence is not a substantial need.” Id. at 24.

Plaintiff argues “Defendants did not produce the privilege log or declaration back when they first objected to the deposition [S]ubpoena, but now seek to introduce them and call them ‘new material facts’ to get around” the Court's MTQ Order. ECF No. 106, Reconsideration Opp'n at 5. Specifically, Plaintiff argues: (1) Defendants “failed to show reasonable diligence as [the Central District of California] Local Rule (“Local Rule” or “L.R.”) 7-18 demands” because “[t]he purported new material facts ... were entirely within the Defendants' control to produce and argue before the Court entered [the MTQ] Order,” id. at 6 (emphasis in the original); (2) “the Defendants' [Reconsideration Motion] is just a rehash of the arguments that the Court has already considered and properly rejected,” id.; (3) “Local Rule 7-18 is clear that ‘[n]o motion for reconsideration may in any manner repeat any oral or written argument ...,’ ” id. at 7 (emphasis in the original).

Plaintiff also argues that Defendants lack standing to seek any further relief because the County is not the SBDA's client. Id. at 8. That is because “the district attorney represents the People of the State of California; it serves and represents the public's interests ... The San Bernardino County [DA] cannot stand in a position where it is defending the same entity[, the County,] that inflicted harm on a member of the public that it represents.” Id.

Further, Plaintiff asserts neither the attorney-client privilege nor the work product doctrine apply here. Id. at 9-12. Plaintiff argues there is nothing new about the fact that the SBDA's “legal analysis [was] conducted to see whether or not the [SBDA's] Office will file criminal charges,” which the Court was aware of when it issued the MTQ Order. Id. at 10. Since the SBDA's investigation was with respect to possible criminal charges, the underlying documents constitute documents generated in the ordinary course of business and were not prepared by or for a party to this litigation. Id. at 11-12.

*4 Moreover, Plaintiff argues the official information and deliberative process privileges are inapplicable. First, Plaintiff asserts “[c]ourts have held that the deliberative process privilege is inappropriate for use in civil rights cases against police departments” because the privilege “should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy.” Id. at 12 (internal quotation marks and citations omitted). Second, Plaintiff argues that Defendants have not made a showing of how disclosure of the subpoenaed documents would harm a government or privacy interest. Id. at 13. Specifically, Plaintiff points out Defendants only offer a conclusory statement that disclosure of the subpoenaed documents “would cause a ‘chilling effect’ on future officer-involved shooting investigations,” without explaining how that interest outweighs Plaintiff's interest in discovering the documents at issue. Id. at 14.

In the Reply, Defendants first argue that Local Rule 7-18(b) does not require “reasonable diligence,” but the emergence of new material facts, and the facts that emerged from the SBDA's Objections and the SBDA Declarations were not within the County's control, or known to the County, when they submitted their Motion to Quash. ECF No. 109, Reply at 6-7. Defendants emphasize that the County and the SBDA's Office are independent, stating that “the District Attorney is an agent of the State of California and not the County when fulfilling its criminal investigation/prosecution function” and that is why “the County sought counsel from the [SBDA] to have a third party agency provide an independent legal analysis of potential liability.” Id. at 7.

Defendants also argue they have standing to challenge the Subpoena because they assert a “ ‘personal right or privilege’ in [the] information sought by [the] [S]ubpoena,” and Plaintiff lacks standing to raise any “conflict of interest” argument because Plaintiff is a “stranger to the attorney-client relationship” between the County and the SBDA's Office. Id. at 9 (citations omitted). Defendants assert the SBDA's “dual roles in its investigative and prosecutorial functions for the State do not disqualify that office from providing legal advice to the County” and “Plaintiff's argument would mean that the County could never request or receive confidential legal advice from the [SBDA] as to anticipated claims against the County.” Id. at 11.

Additionally, Defendants contend that the “new facts” asserted in the SBDA Declarations and privilege log establish an attorney-client relationship between the County and the SBDA's Office because Ms. Grulke and Mr. Umscheid state that the SBDA conducted a “ ‘legal analysis’ to evaluate whether the shooting was ‘justified’ and whether ‘criminal liability should attach.’ ” Id. Defendants contend these statements also establish that the documents generated during the SBDA's “legal analysis” are protected by the work product doctrine. Id. at 13.

As to the official information privilege, Defendants argue “[t]his is not a matter of seeking internal affairs records of an officer's disciplinary history, or prior complaints by the public about officer misconduct. Rather, disclosure of the materials in question would interfere with” the SBDA's ability to provide “a legal analysis of anticipated litigation arising out of an officer-involved shooting.” Id. at 15.

Finally, Defendants contend Plaintiff has not established substantial need for the documents because Plaintiff asserts the documents “may confirm or contradict witness interviews,” but Ms. Grulke did not conduct any witness interviews. Id. at 15. Defendants claim Plaintiff must demonstrate more than just seeking “corroborative evidence.” Id.

The SBDA argues that the SBDA's Objections were “sufficient to protect [it, as a] non-party from production and that the demanding party can only overcome the objection by filing a motion to compel.” ECF No. 120, DA's Br. at 2. The SBDA asserts, the burden now shifts to Plaintiff to establish good cause and relevance for the documents sought, which Plaintiff has failed to do. Id. at 4.

*5 Moreover, the SBDA argues its objections are temporally and substantively appropriate because: (1) the SBDA served Plaintiff with Objections within 14 days of receiving the Subpoena, as required by Rule 45, and cured any defects in the Objections by following up with a privilege log and Notice of Objections in late November, id. at 4-6; (2) “[u]nbeknownst to the [SBDA] a motion hearing ... was held in which the [C]ourt ordered [Ms.]Grulke via Defendants' counsel to comply with the subpoena for ... documents” and “it was clear the [C]ourt did not know that the [SBDA] timely objected under Rule 45,” id. at 6; (3) even if the SBDA's response to the Subpoena was untimely, there is no waiver because the SBDA “acted in good faith” and the “subpoena exceeds the bounds of fair discovery because it is overbroad, places an undue burden on a non-party to produce documents ... and seeks disclosure of privileged documents[,]” id. at 8.

The SBDA next argues its substantive objections are appropriate that were included in its Filed SBDA Objections. As to the deliberative process and official information privileges, the SBDA asserts it “did not engage in any fact-finding role” and “[t]he documents created by the [SBDA] are clearly pre-decisional and contain opinion, recommendations, and advice about prosecutorial decisions[.]” Id. at 10. Specially, “[t]he [SBDA's] various drafts and emails amongst the OIS team in reaching a decision regarding whether criminal liability should be attached to the officers is not important to Plaintiff's claims.” Id. at 12. The SBDA contends any factual material underlying its decision-making process can be obtained from the SBSD and the factual material contained in other documents cannot be separated from the SBDA's legal analysis reflected in those documents. Id. at 10. Further, the SBDA contends Plaintiff cannot overcome either privilege because disclosure of the information sought would “hamper the agency's ability to freely conduct internal discussions and debate over myriad legal implications” of “current and future officer-involved shootings.” Id. at 13.

As to the work product doctrine, the SBDA argues that the subpoenaed documents were created “in anticipation of potential litigation against the officers” and the work product privilege applies where “a plaintiff attempt[s] to subpoena a third-party attorney's work product that was prepared in anticipation of litigation against the same defendant in plaintiff's suit.” Id. (citations omitted). As to attorney-client privilege, the SBDA asserts that Ms. Grulke was providing legal advice to the District Attorney regarding criminal liability, the SBDA “has not disclosed these privileged internal communications with the Defendant County or Sheriff, and thus the internal communications “were made in confidence with government attorneys acting in their capacity as legal advisers.” Id. at 14.

Plaintiff contends that the SBDA's Objections did not require Plaintiff to move to compel under Rule 45 because the SBDA's Objections were “boilerplate objections,” and while Plaintiff waited until the deposition date, Defendants moved to quash. ECF No. 119, Pl.'s Suppl. Br. at 2. Plaintiff also points out that Ms. Grulke did not move to quash or modify the subpoena, which the SBDA could have done under Rule 45(d)(3). ECF No. 121, Suppl. Reply at 3. In particular, the Plaintiff argues the SBDA “failed to file anything to identify any interests that required the documents to be withheld,” and “only offered boilerplate objections that did not indicate which documents were protected nor by which privilege.” ECF No. 119, Pl.'s Suppl. Br. at 3. Plaintiff further asserts “[t]he [p]rivilege [l]og and the [d]eclarations they added to the [Reconsideration Motion] were missing from their initial objections” and the SBDA “failed to invoke the [o]fficial [i]nformation [p]rivilege or [d]eliberative [p]rocess [p]rivilege claims” in their Objections. Id. at 5. According to Plaintiff, because the SBDA's office “did not properly object to the requested items ... Plaintiff was not obligated to file a [m]otion to [c]ompel” and their objections are substantively insufficient. Id. at 4.

A. General Legal Standards Regarding Third Party Discovery

*6 A party may obtain from a non-party to the litigation by serving a subpoena pursuant to Rule 45. Non-parties and third parties “are subject to the same discovery obligations ... under [Rule] 45, including the obligation to respond to subpoenas for documents and testimony.” United States v. Acad. Mortg. Corp., 968 F.3d 996, 1006 (9th Cir. 2020) (citing Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774, 779 (9th Cir. 1994)). Although the general scope of discovery for parties and non-parties is the same, courts may consider non-party status when determining whether discovery restrictions are necessary. See Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980) (“[T]here appear to be quite strong considerations indicating that discovery would be more limited to protect [non-]parties from harassment, inconvenience, or disclosure of confidential documents.”) (citation and internal quotation marks omitted).

Specifically, the “scope of discovery permitted by subpoena under Rule 45 is the same as that permitted under Rule 26,” that is, “a party may obtain discovery of any matter this is relevant to a claim or defense and that is ‘proportional to the needs of case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.’ ” In re Rule 45 Subpoenas Served on Joseph Perez by Alvin Allen, No. 20-mc-80191-VKD, 2020 WL 7056024, at *2 (N.D. Cal. Dec. 2, 2020) (citing Rules 26(b)(1), 45). Relevancy, for purposes of discovery, “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Nguyen v. Lotus by Johnny Dung Inc., No. 8:17-cv-01317-JVS-JDE, 2019 WL 3064479, at *1 (C.D. Cal. June 5, 2019) (internal citations and quotation marks omitted).

Rule 45 permits a person commanded to produce documents to object to the subpoena within 14 days of it being served or before compliance is required, whichever is earlier. Fed. R. Civ. P. 45. The nonparty may also “move to quash or modify the subpoena before the requested date for production of documents under Rule 45(d)(3).” HI.Q, Inc. v. ZeetoGroup, LLC, No. MC 22CV1440-LL-MDD, 2022 WL 17345784, at *5 (S.D. Cal. Nov. 29, 2022). “A nonparty that fails to timely and properly object to a subpoena generally waives any objection it may have had.” Id. However, “[i]f a nonparty serves timely objections to a subpoena ... the issuing party must obtain an order from the district court where compliance is required compelling production or inspection pursuant to Rule 45(d)(2)(B)(i).” Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 494, 494 & n.5 (9th Cir. 1983)).

Pursuant to Rule 45(g), “a court may hold in contempt a person who fails ‘without adequate excuse’ to obey a subpoena or order related to it.” Id. “Timely served objections may constitute an ‘adequate excuse’ for not responding to a subpoena[.]” Id.

B. Attorney-Client Privilege and Work Product Doctrine

“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney[.]” Upjohn, 44 U.S. at 395. Whether information is covered by the attorney-client privilege is determined by an eight-part test:

Sanmina, 968 F.3d at 1116 (quoting U.S. v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010)). A “ ‘party asserting the attorney-client privilege has the burden of establishing the [existence of an attorney-client] relationship and the privileged nature of the communication.’ ” Graf, 610 F.3d at 1156 (quoting United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)). This means that the “party asserting the privilege bears the burden of proving each essential element.” Id. (citations and internal quotation marks omitted).

Relatedly, the “work product doctrine is a qualified protection limiting discovery of ‘documents and tangible things’ prepared by a party or his or her representative in anticipation of litigation or trial.” Jones v. Hernandez, 322 F.R.D. 411, 412 (S.D. Cal. 2017) (citing Admiral Ins. Co. v. U.S. Dist. Court for Dist. Of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989)). The party claiming work product protection bears the burden of establishing that the work product doctrine applies. United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). “A party may obtain discovery of work product only on a showing of ‘substantial need’ and an inability to obtain equivalent information from other sources.” Hernandez, 322 F.R.D. at 412 (quoting Fed. R. Civ. P. 26(b)(3)(A)(ii)). “Even when a court orders disclosure of work product, ‘it must protect against disclosure of the mental impressions, conclusion, opinions, or legal theories of a party's attorney or other representative concerning the litigation.’ ” Id. (quoting Fed. R. Civ. P. 26(b)(3)(B)). These materials—otherwise known as “opinion” work product—represent the “core types of work product” that the doctrine was designed to protect. Id. (citing Republic of Ecuador v. Mackay, 742 F.3d 860, 870 n.3 (9th Cir. 2014)).

C. Deliberative Process Privilege

In Hongsermeier v. Commissioner of Internal Revenue, 621 F.3d 890, 904 (9th Cir. 2010), the Ninth Circuit provided the following guidance regarding the deliberative process privilege:

As further explained by another Magistrate Judge in this District:

United States ex rel. Poehling v. UnitedHealth Grp., Inc., No. CV 16-8697 MWF (SSx), 2018 WL 8459926, at *9 (C.D. Cal. Dec. 14, 2018). Further, “[a]gencies seeking to invoke the deliberative process privilege commonly do so through a combination of privilege logs that identify specific documents, and declarations from agency officials explaining what the documents are and how they relate to the decisions.” N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 309 (D.D.C. 2009).

D. Official Information Privilege

“ ‘Federal common law recognizes a qualified privilege for official information,’ ” which may include government personnel files. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992) (quoting Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990)). “In order to determine whether personnel files sought are privileged, courts must weigh potential benefits of disclosure against potential disadvantages; if the latter is greater, the official information privilege may bar discovery.” Id. at 299-300 (citation omitted). Such balancing “should be conducted on a case-by-case basis, determining what weight each relevant consideration deserves in the fact-specific situation that is before the Court.” Id. at 300 (citing Kelly, 114 F.R.D. 653, 663 (N.D. Cal. 1987)).

This “balancing test has been moderately pre-weighted in favor of disclosure,” which is consistent with the well-established notions that “ ‘the burden of proving all elements essential to invoking any privilege [is] on the party seeking its benefits,’ ” that “ ‘privileges are to be narrowly construed, and that doubts about their applicability are to be resolved in favor of disclosure.’ ” Id. (quoting Kelly, 114 F.R.D. at 662).

Factors to be considered in determining whether the official information privilege applies include but are not limited to: (1) “the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information”; (2) “the impact upon persons who have given information of having their identities disclosed”; (3) whether “the plaintiff's suit is non-frivolous and brought in good faith”; (4) “whether the information sought is available through other discovery or from other sources”; and (5) the “importance of the information sought to the plaintiff's case.” Kelly, 114 F.R.D. at 663 (citation omitted).

There are, however, very specific procedural requirements those who seek to invoke the official information privilege must satisfy before the Court will apply this balancing test to determine the discoverability of government information, which are as follows.

A “party who receives a discovery request must, within the time permitted by rule to respond or object, serve and file an objection that invokes the official information privilege by name.” Pancucci, 141 F.R.D. at 300 (citing Kelly 114 F.R.D. at 669). “The [asserting] party must set forth this objection separately in response to each discovery question or request that would reach material covered by the privilege” and “must sufficiently identify the documents so as to afford the requesting party an opportunity to challenge the assertion of privilege.” Id. (citations and internal quotation marks omitted) (emphasis added).

*9 Additionally, “the party must submit, at the time it files and serves its response to the discovery request, a declaration or affidavit, under oath or subject to the penalty of perjury, from the head of the department which has control over the matter.” Id. (citing Kerr v. U.S. Dist. Court for Northern Dist. of Calif., 511 F.2d 192, 198 (9th Cir. 1975)) (emphasis added). This affidavit or declaration must contain:

Id. (quoting Kelly, 114 F.R.D. at 672). A “general claim of harm to the public interest” is not sufficient to “overcome the burden placed on the party seeking to shield material from disclosure.” Id. (citation and internal quotation marks omitted).

“Once these objections are received, the requesting party is then required to make a good faith showing as to whether the asserted privilege should be sustained.” Id. at 301 (citing Kelly, 114 F.R.D. at 670). “If that party should determine access to the information is outweighed by the state's necessity of confidentiality, then pursuit of such documents should cease.” Id. (citation omitted). “If the requesting party determines, however, that the privilege should not be sustained, then he must confer with counsel for the agency and explain the bases for his conclusion and try to reach an agreement.” Id. (citation omitted). “At this point, the parties could avoid the hassle of a discovery dispute with a well-tailored protective order.” Id.

After careful review of the parties' briefing for the Reconsideration Motion, Plaintiff's Contempt Motion, the supplemental briefing, and relevant law, the Court finds that: (1) because Plaintiff failed to move to compel, the Contempt Motion fails; (2) Defendants lack standing to bring the Reconsideration Motion; and (3) the objection based on the attorney client privilege were timely and operate to protect a subset of the documents the SBDA is currently withholding.

A. Because Plaintiff Failed to Move to Compel, the Contempt Motion Fails.

Plaintiff contends that because the SBDA “did not properly object to the requested items ...Plaintiff was not obligated to file a [m]otion to [c]ompel.” ECF No. 119, Pl.'s Suppl. Br. at 4. However, Plaintiff cites no authority supporting this argument. Further, Plaintiff's argument that the SBDA could have also moved to quash misinterprets Rule 45. See id. at 4 (“It was incumbent upon the DA's Office to move to quash the subpoena ....”).

*10 Under Rule 45, the subpoenaed party has the option to either respond with objections or move to quash or modify the subpoena. Fed. R. Civ. P. 45(d)(2)(A), (3)(A). The Ninth Circuit has clearly stated once a subpoenaed party serves the issuing party with objections, it is “not obligated to produce the subpoenaed documents, or even to search for them, until [the issuing party] obtain[s] an order directing compliance.” Pennwalt, 708 F.2d at 494 (emphasis added). Further, an “order denying the motion to quash” without prejudice “is not such an order.” Id. If the issuing party “fail[s] to obtain an order directing compliance with its subpoena duces tecum, [the subpoenaed party's] noncooperation could not be deemed a contempt under Rule 45(f).” Id.

Here, the SBDA “served [the O]bjections upon Plaintiff on October 9, 2023,” within the 14-day period required by Rule 45. ECF No. 120, DA's Br. at 5. While the Court will address the merits of the Objections later in this Order, the adequacy of any of the objections raised in the DA's response would have normally been determined by the Court upon Plaintiff moving to compel. Thus, Plaintiff's arguments regarding the sufficiency of the DA's Objections are irrelevant to Plaintiff's obligation to first move to compel before filing a motion for contempt.

Additionally, that the “non-party [has the burden] to demonstrate that a subpoena should be modified or quashed” does not change the fact that the party issuing the subpoena must first move to compel. See ECF No. 121, Suppl. Reply at 2 (citations and internal quotation marks omitted). The burden to prove a claim of privilege would only come into play if the SBDA elected to move to quash in lieu of standing on its Objections. See DeLorme v. Big Think Capital, Inc., No. 2:23-mc-00037-FLA-MAR, 2023 WL 8125766, at *2 (C.D. Cal. Oct. 18, 2023) (“The recipient of a Rule 45 subpoena has several options: he or she may elect to comply with the subpoena, move to quash ... [or] object ....”). Because it was incumbent on Plaintiff to move to compel once the SBDA served its Objections, and Plaintiff failed to do so, a finding of contempt is not appropriate. Accordingly, Plaintiff's Contempt Motion is DENIED.

B. Defendants Lack Standing to Quash the Subpoena, and thus the Reconsideration Motion Fails.

Plaintiff correctly argues that Defendants lack standing because Ms. Grulke conducted a legal analysis with respect to the July 8, 2021 incident as the Deputy District Attorney “and such analysis was done to determine if the officers would be subject to criminal liability for their actions in the shooting.” ECF No. 106, Reconsideration Opp'n at 8 (emphasis added). Defendants assert that the SBDA conducted its legal analysis “to prepare for the defense of anticipated litigation; e.g., the very lawsuit now before the Court,” ECF No. 104, Reconsideration Mot. at 18, and thus they have standing because they “assert[ ] a personal right or privilege in [the] information sought by [the] Subpoena,” ECF No. 109, Reconsideration Reply at 9. Defendants' argument fails because the record does not support that the County sought legal advice from the SBDA or otherwise had a right or privilege with respect to the documents produced by the SBDA's criminal investigation.

It is not enough to merely assert an interest in subpoenaed documents to have standing; Defendants must prove they have a “personal right or privilege” in the information sought. See California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Cal. Feb. 18, 2014) (“[P]laintiff has made no showing that any responsive documents prepared by [the non-parties] include documents prepared for plaintiff or by plaintiff's counsel. Having failed to make the necessary showing, the court finds that plaintiff lacks standing to move to quash the subpoenas ....”). Defendants' case law is inapposite because in those cases the party asserting an interest in the subpoenas directed at a non-party proved they had a personal right in the information sought. See Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 974 (C.D. Cal. 2010) (party had standing to quash a subpoena because the “individual has a personal right in information in his or her profile and inbox on a social networking site”); Sines v. Kessler, Case No. 18-mc-80080, 2018 WL 3730434, at *9 (N.D. Cal. Aug. 6, 2018) (party had “standing to move to quash [a third party subpoena] on her own behalf with respect to her own personal information”); Chevron Corp. v. Donzinger, No. 12-mc-80237 CRV, 2013 WL 4536808, at *5 (N.D. Cal. Aug. 22, 2013) (“Ownership of the email addresses gives the Doe movants a personal stake in the outcome of this dispute [over a third party subpoena], and therefore standing to quash the subpoenas for those thirty-two email addresses.”).

*11 Defendants offer no explanation as to how they have a personal right or privilege in the underlying documents except an assertion that they sought a legal analysis from the SBDA with respect to this litigation. This argument appears dangerously close to being frivolous and misleading as the SBDA's analysis was only provided internally for purposes of determining potential criminal liability. Nowhere in the record does the SBDA state that its office conducted a legal analysis of the officer-involved shooting to provide legal advice to the County, or that the SBDA and the County have any attorney-client relationship. Rather, Ms. Grulke attested “[m]y role in reviewing officer-involved shootings is to provide a legal analysis and to ascertain whether, according to law, the officer-involved shooting was justified or unjustified and whether or not criminal liability attaches.” ECF No. 103-2, Grulke Decl. at ¶ 6 (emphasis added); see also ECF No. 103, Notice of Objections at 3 (“DDA Grulke then provided her legal opinion and advice regarding criminal liability to District Attorney Jason Anderson in the form of a criminal liability assessment memorandum.”) (emphasis added). To remove any doubt, the SBDA confirms:

ECF No. 120, DA's Br. at 14 (emphasis added). In sum, Defendants cannot assert an interest in the subpoenaed documents because the documents were never prepared for it, and nor have they offered any explanation as to how the DA's criminal investigation into the officer-involved shooting implicates Defendant's “personal right or privilege.”

The Court fails to see how the instant case is any different from Doubleday v. Ruh, 149 F.R.D. 601, 605 (E.D. Cal. 1993), where the defendant Sacramento County sought to quash a subpoena to the district attorney's office for records regarding the criminal prosecution of the plaintiff. There, the court found the county had no standing because “it is clear that in order for an entity to claim the immunity on behalf of its lawyers' work it must have the right to claim the immunity in the first instance, i.e. the lawyers must have created the work product for the [c]ounty,” but the “plaintiff in the prior litigation was ‘the People of the State of California’ ” and “it cannot be held that the [DA] or the County of Sacramento is synonymous with the ‘People.’ ” Id. at 606. Likewise, here, the SBDA's legal analysis as to potential criminal liability was done on behalf of the People of California, and in no way was prepared for or by Defendants.

Therefore, Defendants lack standing to challenge the Subpoena[1], and the Reconsideration Motion is DENIED.

C. NON-PARTY SBDA's OBJECTIONS TO THE SUBPOENA

Although the Court will not consider the merits of Defendants' Reconsideration Motion, Plaintiff and the SBDA presented their arguments in the supplemental briefing regarding the SBDA's objections to the Subpoena. In the interest of sparing the parties more briefing and the Court's resources on this issue, the Court addresses the SBDA's objections to the Subpoena.

The SBDA provided its Objections within the 14-day period required by Rule 45. However, Plaintiff contests that the SBDA timely provided a description of the “nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim” as required by Rule 45(e)(2)(A). ECF No. 119, Pl.'s Suppl. Br. at 5.

*12 Non-party SBDA is correct to point out that while Rule 45 requires objections to be served within 14 days of receiving a subpoena, “[a] privilege log may follow within a reasonable time” after serving the objections. ECF No. 120, SBDA's Br. at 5 (citations and internal quotation marks omitted). That is because “[o]ne problem presented by Rule 45([e])(2)(A) is that it fails to provide any guidance as to when the claim of privilege or work product must be asserted by the person subpoenaed.” Wright & Miller, 9A Fed. Prac. & Proc. Civ. § 2464 (3d ed.). While “a person responding to a subpoena should at least assert any claim of privilege within the 14 days provided by Rule 45(c)(2)(B),” “the investment of time necessary to review all responsive documents for privileged materials ... does not lend itself to the limited fourteen (14) day time period” and “[a] full privilege log may follow ‘within a reasonable time,’ or if more time is needed an extension may be sought from the trial court.” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. Nov. 7, 2002) (citing In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir. 1998)).

Here, the SBDA has provided authority supporting its position that its subsequent production of privilege log and Notice of Objections shortly after Defendants' Motion to Quash satisfied its obligations under Rule 45. ECF No. 120, SBDA's Br. at 5. While Plaintiff protests that “[t]he [p]rivilege [l]og and the [d]eclarations [the SBDA] added to their [Reconsideration Motion] were missing from their initial objections,” Plaintiff cites no authority stating that this was improper. As such, the Court finds that the SBDA's Objections followed by the subsequent privilege log rendered the SBDA's Objection timely.

However, Plaintiff also argues that “the [O]bjections the [SBDA] served on October 9, 2023 failed to invoke the Official Information Privilege or Deliberate Process Privilege.” ECF No. 119, Pl.'s Suppl. Br. at 5. The SBDA appears to have raised these objections for the first time in their Notice of Objections filed on November 30, 2023, after the Court issued its MTQ Order. ECF No. 103, Notice of Objections.

“Failure to serve timely [a particular ground for an] objection[ ] waives all ground for [that] objection, including privilege” because Rule 45 “ ‘require[s] the recipient of a subpoena to raise all objections at once, rather than in staggered batches, so that discovery does not become a ‘game.’ ” McCoy, 211 F.R.D. at 385 (emphasis added) (citing In re DG Acquisition Corp., 151 F.3d at 81 (finding that a party that had a “reasonable basis” for asserting a privilege at the time objections were served, “should have raised the privilege at that time”)). Not only did the SBDA serve these objections well after the 14 day period set out in Rule 45, but it also failed to follow the procedural requirements to assert the official information privilege by: (1) failing to “within the time permitted by the rule to respond or object, serve and file an objection that invokes the official information privilege by name”; (2) failing to “set forth this objection separately in response to each discovery question”; and (3) failing to submit with the initial Objections “a declaration or affidavit, under oath or subject to the penalty of perjury, from the head of the department” regarding the basis for asserting the privilege. See Hereford v. City of Hemet, Case No. 5:22-cv-00394-JWH-SHK, 2023 WL6813740, at *9 (C.D. Cal. Sept. 14, 2023) (internal quotations marks and citations omitted).

Further, while the SBDA responds that untimely objections may still be considered upon a showing of good cause, the Court declines to find that such “unusual circumstances” apply here. See McCoy, 211 F.R.D. at 385. For the reasons set out subsequently in this Order, the Court does not find the Subpoena “overbroad on its face [or that it] exceeds the bounds of fair discovery,” id., as is required to find good cause. Thus, because the SBDA did not raise the official information or deliberative process privileges when it served its Objections, it waived these privileges.

*13 Even if the SBDA's information privilege and deliberative process privilege assertions were timely, they would still would not prevent disclosure. The SBDA only argues the disadvantage of disclosure would be to have a “chilling effect” on the SBDA's “internal process of debate” and undermine “the public's trust in the measured decisions reached by the [SBDA].” ECF No. 119, DA's Br. at 11, 13. “While the [SBDA] has identified the potential perils that could result generally from the disclosure of the OIS files, it has failed to provide specific information about the governmental and privacy interests that would be jeopardized by the disclosure of documents sought in this case.” Boyd v. City and Cnty. of San Francisco, No. C-04-5459 MMC (JCS), 2006 WL 1141251, at *4 (N.D. Cal. May 1, 2006) (finding, among other things, that the official information privilege did not prevent disclosure of a prosecutorial file in a civil rights and wrongful death lawsuit arising from the shooting of a civilian by San Francisco police officers).

Moreover, although Kelly, 144 F.R.D. 653, involved police internal affairs documents, the Court finds it instructive here with respect to the deliberative process privilege. The SBDA's “chilling effect” argument is “empirically unsupported and debatable,” in part, because disclosure holds government officials accountable to the public for their decisions, encourages more candor, and ensures “thorough, more accurate and better reasoned” decision-making. See id. at 665. Because “privileges operate in derogation of the truth finding process, and since the policies that inform federal civil rights statutes are profoundly important,” particularly here where it involves the shooting a minor by police, the SBDA's “empirically unsupported and debatable assumptions” do not outweigh the gravity of the Plaintiff's interest in vindicating his civil rights.

Therefore, the SBDA's official information and deliberative process privilege objections are not only waived as timely, but are substantively insufficient.

Plaintiff bears the burden of establishing the discovery it seeks is both relevant and proportionate to the needs of the case under Rule 26(b)(1), which also defines the proper scope of discovery from a non-party under Rule 45. See Hi.Q, 2022 WL 17345784, at *13 (citing Gonzalez v. Google, 234 F.R.D. 674, 679 (N.D. Cal. 2006)). Here, Plaintiff argues that the Court has already held that “[i]t is undisputed that Ms. Grulke was involved in a subsequent investigation of the July 8, 2021 incident.... Documents related to Ms. Grulke's investigation of the July 8, 2021 incident are, therefore, relevant to Plaintiff's claims arising from the July 8, 2021 Incident.” ECF No. 106, Reconsideration Opp'n at 5. While the SBDA counters that it was not involved with any fact-finding role, see ECF No. 119, SBDA's Br. at 11, the Court finds the underlying factual documents presented to it by the SBSD and the recitation of those facts in any internal documents to be relevant and proportional to Plaintiff's claims.

As to undue burden, the SBDA's Objections raised a boilerplate objection that Plaintiff's requests were “vague, ambiguous, overbroad, and unduly burdensome.” See ECF No. 103-1, Objections at 1-2. However, these objections “amount to nothing more than generalized labels” that were “not tailored to specific requests and are repeatedly copied verbatim,” and thus “tantamount to no objections at all.” Hi.Q, 2022 WL 17345784, at *14 (noting that nonparty objections under Rule 45 are “subject to the same requirements facing a party objecting under Rule 34, including the same prohibition on general or boilerplate objections and requirements that the objections must be made with specificity.”).

To the extent Plaintiff could obtain these same documents from Defendants, does not preclude the ability to get them from another source, which may or may not contain information that Defendants may or may not have provided. Therefore, the Subpoena's requests are relevant and proportional to the needs of the case, and not unduly burdensome, as they relate to documents or portions of documents that contain factual material related to the allegations in this case.

*14 As to the work product doctrine, the SBDA argues “[a]lthough the [SBDA] is a non-party, work product protection should be extended to the [SBDA's] documents because they were prepared exclusively for the purpose of possible litigation concerning the incident at issue in this lawsuit.” ECF No. 119, SBDA's Br. at 13. While the SBDA cites one case quashing a subpoena directed at “a third-party attorney's work product that was prepared in anticipation for litigation against the same defendant in plaintiff's suit,” id., “many courts have found the work-product privilege unavailable when a prosecutor in a prior criminal investigation later objects to discovery by a litigant in a related and subsequent civil lawsuit,” Ostrowski v. Holem, No. 02 C 50281, 2002 WL 31956039, at *3 (N.D. Ill. Jan. 21, 2002) (collecting cases).

That is because “the deputy district attorneys cannot assert the [work product] immunity because they are not parties to the present litigation, nor are they ‘representative of’ a party in this litigation for whom the work product was prepared.” Doubleday, 149 F.R.D. at 606. Thus, “[h]ere, as in Doubleday, the files at issue are prosecutorial files maintained by the District Attorney. The [SBDA] is not a party to this litigation and therefore, the work product doctrine does not apply.” Boyd, 2006 WL 1141251, at *4 (N.D. Cal. May 1, 2006) (denying the San Francisco's district attorney's motion to quash plaintiffs' subpoena in a civil rights and wrongful death lawsuit arising from the shooting of a civilian by San Francisco police officers); see also Perrin v. Cnty. of Riverside, EDCV, 08-595-LLP (SSx), 2010 WL 11556698 (C.D. Cal. Mar. 12, 2010) (same).

As to the attorney-client privilege, the SBDA claims that Ms. Grulke was providing legal advice to the District Attorney, ECF No. 119, SBDA's Br. at 14. Specifically, Ms. Grulke states in her earlier declaration that she: (a) was “to provide a legal analysis and to ascertain whether, according to law, the officer-involved shooting was justified or unjustified and whether or not criminal liability attaches,” ECF No. 103-2, Grulke Dec. at 2; (b) reviewed materials “provided by the Sheriff,” id.; (c) “did not engage in a[ ] [factual] investigation of the incident,” id.; and (d) noted that the “final memorandum (with minimal redactions) reflecting [the DA's] decision regarding criminal liability is publicly available [but] ... [a]ny and all pre-decisional documents and communications belonging to the District Attorney have been kept confidential and are privileged and protected materials,” id. at 3.

The SBDA relies on Aroeste v. United States, No. 22-CV-682-AJB-KSC, 2023 WL 5246345, at *8 (S.D. Cal. Aug. 16, 2023) to argue that government agencies may claim attorney-client privilege when they seek advice from government lawyers. Aroeste involved a non-attorney government agent, an “IRS field agent conducting an audit of third-party taxpayers,” requesting the advice of “a staff attorney with the IRS's Office of Chief Counsel.” Id. at *2.

Applying the eight-part test set out in Sanmina, 986 F.3d at 1116, the Court finds that the advice provided by Ms. Grulke to the DA was protected by the attorney client privilege and those portions contained in any responsive documents may be redacted. Specifically: (1) was “to provide a legal analysis and to ascertain whether, according to law, the officer-involved shooting was justified or unjustified and whether or not criminal liability attaches,” ECF No. 103-2, Grulke Dec. at 2; (2) Ms. Grulke is a DDA and assigned to the OIS who is “assigned to review the officer-involved shooting involving the Plaintiff,” id.; (3) Ms. Grulke analyzed the material related to the shooting, which comprised “legal conclusions, opinions, mental impressions” related to the officer involved shooting, id. (4) Ms. Grulke noted that all pre-decisional material was made in confidence to the DA, id. at 3; (5) the DA has maintained the pre-decisional material in confidence, thought he final agency decision is publicly available, id. at 3; and (6-8) these “pre-decisional documents and communications belonging to the District Attorney have been kept confidential and are privileged and protected materials,” id. at 3.

*15 Therefore, the DA's attorney-client privilege arguments are well taken and all investigative material received by the SBDA's office that was not created by the SBDA shall be provided within fourteen(14) days of the issuance of this order. Additionally, any materials that fall within the pre-decisional materials identified by the SBDA shall be produced, but those portions that contain any legal advice shall be redacted, within fourteen(14) days of the issuance of this order. An updated privilege log shall be provided with this production. This material may be provided pursuant to the Stipulated Protective Order already in place in this case. See ECF No. 26, Stipulated Protective Order.

For the reasons stated above, the Court holds: (1) Defendants' Reconsideration Motion is DENIED; (2) Plaintiff's Contempt Motion is DENIED; and (3) non-party SBDA's objections to the Subpoena are GRANTED IN PART AND DENIED IN PART and the materials shall be provided in accordance within the previously set out schedule.

IT IS SO ORDERED.