Hernandez v. County of Monterey

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION JESSE HERNANDEZ, et al., on behalf of themselves and all others similarly Case No. 13-cv-02354-BLF situated, Plaintiffs, ORDER GRANTING MOTION FOR 9 PERMISSIVE INTERVENTION AND v. CLARIFICATION OR MODIFICATION 10 OF PROTECTIVE ORDER; AND COUNTY OF MONTEREY, et al., VACATING HEARING SET FOR 11 DECEMBER 2, 2021 Defendants.

12 [Re: ECF 693] 14 Plaintiffs in a separate action pending in this district, Estate of Rafael Ramirez Lara, et al.

15 v. County of Monterey, et al. (“Lara”), No. 21-cv-02409-PJH, have filed a Motion for Permissive Intervention in the present action, Hernandez, et al. v. County of Monterey, et al. (“Hernandez”), No. 13-cv-02354-BLF. The proposed intervention would be for the limited purpose of clarifying or modifying the protective order in Hernandez to permit the Lara plaintiffs to obtain records produced in Hernandez that pertain to the Lara plaintiffs’ decedent, Rafael Ramirez Lara (“Lara”), who was a Hernandez class member. The Motion for Permissive Intervention is opposed by Hernandez defendants County of Monterey, Monterey County Sheriff’s Office, and California Forensic Medical Group, Inc. (“CFMG”).1 23 The Court finds the motion suitable for decision without oral argument and VACATES the hearing set for December 2, 2021. See Civ. L.R. 7-1(b). The Motion for Permissive Intervention is GRANTED for the reasons discussed below.

1 It appears from the Lara plaintiffs’ papers that CFMG, the Monterey County Jail’s health care 1 I. BACKGROUND 2 Hernandez was filed in May 2013 to challenge the medical care, mental health care, safety, and disability access provided to inmates at the Monterey County Jail. See Compl., ECF 1. On December 22, 2014, the judge then assigned to the case, Magistrate Judge Paul S. Grewal, approved the parties’ amended stipulated protective order (“Protective Order”). See Protective Order, ECF 401. The Protective Order allows the parties to designate as “Confidential Information” any documents or materials that contain (a) proprietary information, (b) security- sensitive information, (c) confidential personal information, or (d) information reasonably believed to be protected from disclosure pursuant to law. Id. ¶ 1. The Protective Order restricts access to Confidential Information to the Court and its staff; Defendants and their staff; Plaintiff and Defense experts; Neutral experts; and Plaintiff and Defense counsel and their staff. Id. ¶ 10.

12 However, the Protective Order provides that it does not “preclude Plaintiffs’ counsel from reviewing with the Plaintiffs his or her own Jail medical and/or custody records.” Id. 14 In August 2015, Magistrate Judge Grewal approved a Settlement Agreement requiring changes in Monterey County Jail policies and practices. See Final Approval Order, ECF 494.

16 Hernandez thereafter was reassigned to the undersigned judge. See Reassignment Order, ECF 550. In November 2017, this Court issued an order addressing Plaintiffs’ motion to enforce the Settlement Agreement. See Order Granting in Part and Denying in Part Plaintiffs’ Motion to Enforce Settlement Agreement, ECF 619. Among other things, Plaintiffs asserted that Monterey County was unreasonably denying Class Counsel and court-appointed monitors access to the records of Monterey County Jail inmates treated at Natividad Medical Center (“Natividad”). See id. at 5. Plaintiffs sought those records for targeted individuals and defined groups of individuals for the purpose of determining whether Defendants were complying with their obligations under the Settlement Agreement. See id. at 7. Monterey County expressed concern that such production would violate federal and state laws. See id. at 5-6.

26 This Court determined that it had authority to order production of the records in question to Class Counsel and court-appointed monitors. See Order Granting in Part and Denying in Part warranted, the Court balanced the privacy interests of individual inmates against Plaintiffs’ interest in ensuring Defendants’ compliance with the Settlement Agreement and court orders. See id. at 6-7. The Court concluded that production of inmate records was necessary to permit Class Counsel and neutral monitors to confirm that Defendants were living up to the Settlement Agreement. See id. at 7. However, the Court declined to issue a blanket order requiring Natividad to produce any and all records requested by Class Counsel or the monitors. See id. The Court instead stated that it would consider requests for records on case by case basis, and that record requests could be presented by stipulation of the parties or by administrative motion if the parties could not agree to production of specific records. See id. at 7-8. Pursuant to this process, the Court has approved numerous stipulated requests for production of records as to specific inmates. See, e.g., Stipulation and Order, ECF 628; Stipulation and Order, ECF 647; Stipulation and Order, ECF 649; Stipulation and Order, ECF 662.

13 Lara was a Hernandez class member. See Rifkin Decl. ¶ 3, ECF 695. He died in the Monterey County Jail on December 22, 2019. See id. ¶ 2. The Lara plaintiffs, Lara’s estate and his three adult children, retained attorney Lori Rifkin to help them discover the circumstances of Lara’s death. See id. Ms. Rifkin contacted Class Counsel in the Hernandez case, who obtained Lara’s records pursuant to a stipulated request to the Court under the procedure discussed above.

18 See id. ¶¶ 3-4. However, Class Counsel declined to provide Lara’s records to the Lara plaintiffs on the basis that doing so would violate the Hernandez Protective Order. See id. ¶ 5. The Lara plaintiffs were able to obtain some records from CFMG and by means of a Public Records Act request to Monterey County, but they were unable to obtain the remainder of Lara’s custody file, including an incident report relating to his death. See id. ¶¶ 6-9.

23 On April 2, 2021, the Lara plaintiffs filed the Lara action against Monterey County and others, alleging that Lara died after compulsively drinking excessive amounts of water as a result of untreated schizophrenia. Lara Compl. ¶ 1, ECF 1 in Case No. 21-cv-02409-PJH. On April 30, 2021, the Lara plaintiffs filed the present Motion for Permissive Intervention for the purpose of clarifying or modifying the Hernandez Protective Order so that they may obtain Lara’s records 1 II. LEGAL STANDARD 2 Federal Rule of Civil Procedure 24(b), governing permissive intervention, provides in relevant part that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. 5 P. 24(b)(1)(B). Where permissive intervention is sought to litigate a claim on the merits under Rule 24(b), the movant must show: “(1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the movant’s claim or defense and the main action.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992).

9 While “the primary focus of Rule 24(b) is intervention for the purpose of litigating a claim on the merits,” Rule 24(b) also permits intervention for the purpose of seeking modification of a protective order. Beckman, 966 F.2d at 472-73. When permissive intervention is sought for that purpose, factor (1) of the traditional test does not apply, as “an independent jurisdictional basis is not required.” Id. at 473. With respect to factor (3), “the importance of access to documents prepared for similar litigation involving the same parties satisfie[s] the commonality requirement of 24(b).” Id. 16 The Ninth Circuit “strongly favors access to discovery materials to meet the needs of parties engaged in collateral litigation.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003) (citing Beckman, 966 F.2d at 475). “[T]he collateral litigant must demonstrate the relevance of the protected discovery to the collateral proceedings and its general discoverability therein.” Id. at 1132. The court issuing the protective order also “must weigh the countervailing reliance interest of the party opposing modification against the policy of avoiding duplicative discovery.” Id. at 1133.

23 III. DISCUSSION 24 The Lara plaintiffs seek to intervene in Hernandez for the limited purpose of clarifying or modifying the Hernandez Protective Order so that they may obtain Lara’s records that were produced in Hernandez. The Lara plaintiffs argue two bases for obtaining those records. First, they assert that they are entitled to the records under the plain language of the Hernandez entitled to Lara’s records under the Hernandez Protective Order, that order should be modified to allow them access to the records. The Lara plaintiffs have submitted a proposed Complaint in Limited Intervention alleging these alternative bases for relief. See Proposed Compl. in Intervention, ECF 693-1.

5 Hernandez defendants County of Monterey, Monterey County Sheriff’s Office, and CFMG oppose the motion to intervene, arguing that the records may be obtained through discovery in the Lara case, and that the present motion is an inappropriate attempt to “by-pass normal discovery processes.” Monterey Opp. at 2, ECF 697.

9 As an initial matter, the Lara plaintiffs properly may seek permissive intervention for purposes of clarifying or modifying the Hernandez Protective Order to allow them access to Lara’s records that were produced in Hernandez. See Beckman, 966 F.2d at 472-73. Defendants’ opposition to the motion based on the asserted impropriety of “by-pass[ing] normal discovery processes” ignores the Ninth Circuit’s holdings in Beckman and Foltz, cited above. In those cases, the Ninth Circuit expressed a strong preference for granting motions to intervene brought by litigants in collateral cases who seek discovery produced in the main case. See Foltz, 331 F.3d at 16 1131 (citing Beckman, 966 F.2d at 475). The Ninth Circuit observed that “[a]llowing the fruits of one litigation to facilitate preparation in other cases advances the interests of judicial economy by avoiding the wasteful duplication of discovery.” Id. (citing Beckman, 966 F.2d at 475).

19 Applying the standards set forth in Beckman and Foltz, this Court has no difficulty in finding that permissive intervention and modification of the Protective Order are appropriate here.

21 The Court begins its analysis with the traditional test for permissive intervention, with the caveat that the Ninth Circuit has held that the first factor does not apply when intervention is sought for the purpose of modifying a protective order: (1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the movant’s claim or defense and the main action. See Beckman, 966 F.2d at 473. With respect to the second factor, the Court concludes that motion is timely because the Lara action was filed less than two months ago, on April 2, 2021. With respect to the third factor, the Court finds that the commonality requirement plaintiffs’ decedent, Lara, was a class member. Accordingly, permissive intervention is appropriate here.

3 Turning to the merits of the Lara plaintiffs’ request for clarification or modification of the Protective Order, the Court is not persuaded that the Lara plaintiffs are entitled to Lara’s records under the plain language of the Protective Order. The Lara plaintiffs rely on language in the Protective Order providing that “[n]othing in this Protective Order will preclude Plaintiffs’ counsel from reviewing with the Plaintiffs his or her own Jail medical and/or custody records.”

8 Protective Order ¶ 10, ECF 401. That language contemplates communications between Class Counsel and a named plaintiff in Hernandez or, perhaps, a class member of Hernandez, regarding that inmate’s own records. Nothing in the language suggest that it authorizes Class Counsel’s disclosure of records to the family of a deceased inmate. Thus in the Court’s view, the Lara plaintiffs read this provision of the Protective Order too broadly.

13 However, the Court concludes that the Lara plaintiffs have demonstrated that modification of the Protective Order is warranted to allow them access to Lara’s records that were produced in Hernandez. Applying the relevant factors articulated by the Ninth Circuit, the Court finds that the Lara plaintiffs have established “the relevance of the protected discovery to the collateral proceedings and its general discoverability therein.” Foltz, 331 F.3d at 1132. The records clearly are relevant to the Lara action and generally are discoverable in that action. Defendants do not dispute the records’ relevance or discoverability. Indeed, Defendants’ primary opposition argument is that the records are discoverable in Lara and should be obtained through the discovery process in that case. The Court also finds that any countervailing reliance interest of Defendants is slight and is outweighed by the policy of avoiding duplicative discovery. See id. at 1133.

23 Defendants have not articulated any prejudice that would result from allowing the Lara plaintiffs access to the records in question. To the extent that Defendants relied on the Protective Order, and on limitations subsequently imposed by the Court with respect to disclosure of Natividad records, to protect inmates’ privacy interests, the inmate in question is deceased and the records are sought by his own estate and family. Accordingly, the Court finds that any interest Defendants may have 1 In summary, the Court finds it appropriate to allow the Lara plaintiffs to intervene and to || modify the Hernandez Protective Order to grant the Lara plaintiffs access to Lara’s records that were produced in Hernandez. The Lara plaintiffs will be subject to the restrictions of the || Hernandez Protective Order. This ruling is consistent with the Ninth Circuit’s direction in Foltz that, “Where reasonable restrictions on collateral disclosure will continue to protect an affected || party’s legitimate interests in privacy, a collateral litigant’s request to the issuing court to modify an otherwise proper protective order so that collateral litigants are not precluded from obtaining || relevant material should generally be granted.” Foltz, 331 F.3d at 1132.

9 In granting the Lara plaintiffs’ motion, this Court makes no comment on what may or may || not be discoverable or admissible in the Lara case. Those determinations are for the Lara court.

11 See Foltz, 331 F.3d at 1133 (“If the protective order is modified, the collateral courts may freely || control the discovery processes in the controversies before them without running up against the 13 protective order of another court.”).

14 |) Iv. ORDER 15 (1) The Lara plaintiffs’ motion to intervene is GRANTED; 16 (2) The Lara plaintiffs SHALL file their proposed Complaint in Limited Intervention 17 in this case as soon as is practicable; 18 (3) The Hernandez Protective Order is hereby MODIFIED to grant the Lara plaintiffs 19 access to Lara’s medical and custody records, including any incident report or 20 document relating to his death, that were produced in the Hernandez case; 21 (4) The hearing set for December 2, 2021 is VACATED; and 22 (5) This order terminates ECF 693.

24 || Dated: May 27, 2021 han hat Chr aman BETH LABSON FREEMAN 26 United States District Judge