Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.720 Page 1 of 22 1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 2 JAMES M. CHADWICK, Cal. Bar. No. 157114 3 MATTHEW G. HALGREN, Cal Bar No. 305918 501 West Broadway, 19th Floor 4 San Diego, California 92101-3598 Telephone: 619.338.6500 5 Facsimile: 619.234.3815 6 Email: jchadwick@sheppardmullin.com mhalgren@sheppardmullin.com 7 Attorneys for Non-Party Journalist 8 KELLY LYNN DAVIS 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 11 12 CHASSIDY NESMITH, ET AL., Plaintiffs, 13 14 v. 15 COUNTY OF SAN DIEGO, ET AL., Defendants. 16 17 18 Case No. 15-cv-00629-JLS-AGS OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO’S MOTION TO COMPEL NON-PARTY JOURNALIST KELLY DAVIS TO APPEAR AT DEPOSITION AND PRODUCE DOCUMENTS Date: February 2, 2018 Time: 4:00 p.m. Courtroom: Suite 5160 Hon. Andrew G. Schopler, U.S. Magistrate Judge 19 20 21 22 23 24 25 26 27 28 SMRH:485227108.2 Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.721 Page 2 of 22 TABLE OF CONTENTS 1 2 Page 3 INTRODUCTION ................................................................................................................. 1  4 BACKGROUND ................................................................................................................... 1  5 DISCUSSION ........................................................................................................................ 2  6 I.  7 8 9 10 DAVIS IS PROTECTED BY THE REPORTER’S PRIVILEGE UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION ........ 2  A.  The First Amendment Protects Reporters from Compelled Disclosure .......... 2  B.  Davis Has Standing to Invoke the Journalist’s Privilege ................................ 3  C.  The County Has Failed to Meet Its Burden of Demonstrating a Compelling Need to Overcome Davis’s Privilege .......................................... 3  11 12 13 14 15 16 17 18 19 20 21 22 23 26 27 The County has not demonstrated that it has exhausted all reasonable alternative sources .............................................................. 4  2.  The County has not demonstrated that the information it seeks in not cumulative .................................................................................. 6  3.  The County has not demonstrated that the information it seeks is clearly relevant to an important issue in the litigation ..................... 7  a.  Evidence of suicide rates is not offered or admissible for the truth of the matter asserted, so Davis’s testimony is not needed ................................................................................. 7  b.  Evidence of the articles as being in the public realm, and hence constituting evidence of notice, cannot be refuted by the testimony the County seeks ............................................ 8  II.  DAVIS IS ALSO PROTECTED UNDER A FEDERAL COMMON LAW REPORTER’S PRIVILEGE BASED ON CALIFORNIA LAW AND FEDERAL RULE OF EVIDENCE 501................................................................... 11  III.  DAVIS HAS NOT IMPLIEDLY WAIVED HER PRIVILEGE ............................. 14  IV.  THE COUNTY’S ARGUMENT REGARDING TESTIFYING EXPERT DISCOVERY IS MERITLESS ................................................................................ 16  24 V.  25 1.  VI.  IT WOULD BE UNDULY BURDENSOME FOR DAVIS TO COMPLY WITH THE SUBPOENA ......................................................................................... 16  DAVIS IS ENTITLED TO COST OF MOTION SANCTIONS ............................. 17  CONCLUSION.................................................................................................................... 18  28 SMRH:485227108.2 -i- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.722 Page 3 of 22 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 AFMS LLC v. United Parcel Serv. Co. 105 F. Supp. 3d 1061 (C.D. Cal. 2015) ..................................................................... 7, 16 5 Branzburg v. Hayes 6 408 U.S. 665 (1972) ................................................................................................. 11, 12 7 Bursey v. United States 466 F.2d 1059 (9th Cir. 1972)........................................................................................ 11 8 9 Delaney v. Superior Court 50 Cal. 3d 785 (1990)..................................................................................................... 14 10 11 Green v. Baca 226 F.R.D. 624 (C.D. Cal. 2005) ..................................................................................... 7 12 Jaffee v. Redmond 13 518 U.S. 1 (1996) ............................................................................................... 11, 12, 13 14 Jimenez v. City of Chicago 733 F. Supp. 2d 1268 (W.D. Wash. 2010) ......................................................... 5, 6, 8, 17 15 16 Lewis v. United States 517 F.2d 236 (9th Cir. 1975).......................................................................................... 13 17 18 Michael v. Estate of Kovarbasich No. 15-00275-MWF, 2015 WL 8750643 (C.D. Cal. Dec. 11, 2015) ............................ 15 19 Mitchell v. Superior Court 20 37 Cal. 3d 268 (1984)..................................................................................................... 14 21 New York Times Co. v. Superior Court 51 Cal. 3d 453 (1990)..................................................................................................... 14 22 23 Riley v. City of Chester 612 F.2d 708 (3d Cir. 1979) ........................................................................................... 13 24 25 Shoen v. Shoen 48 F.3d 412 (9th Cir. 1995)............................................................................ 1, 3, 7, 8, 10 26 Shoen v. Shoen 27 5 F.3d 1289 (9th Cir. 1993)................................................................................ 2, 3, 4, 12 28 SMRH:485227108.2 -ii- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.723 Page 4 of 22 1 In re Stratosphere Corp. Sec. Litig. 183 F.R.D. 684 (D. Nev. 1999) ........................................................................................ 4 2 3 Tennenbaum v. Deloitte & Touche 77 F.3d 337 (9th Cir. 1996)............................................................................................ 13 4 Trammel v. United States 5 445 U.S. 40 (1980) ......................................................................................................... 11 6 Von Saher v. Norton Simon Museum of Art at Pasadena 592 F.3d 954 (9th Cir. 2010)............................................................................................ 9 7 8 Wright v. Fred Hutchinson Cancer Research Ctr. 206 F.R.D. 679 (W.D. Wash. 2002) .................................................................. 5, 6, 7, 17 9 Other Authorities 10 11 Black’s Law Dictionary ......................................................................................................... 6 12 Cal. Const. Article I, § 2(b) ................................................................................................. 14 13 Fed. R. Civ. Proc. 37(a)(5)(B) ..................................................................................................................... 17 14 45(c) ............................................................................................................................... 17 15 Fed. R. Evid. 16 501 .................................................................................................................. 1, 11, 13, 14 17 Gregg Leslie, What’s up with Wyoming and the reporter’s privilege?............................... 13 18 NEWS MEDIA & THE LAW, Reporters Committee for Freedom of the Press, Fall 2008, https://www.rcfp.org/browse-media-law-resources/news19 media-law/news-media-and-law-fall-2008/whats-wyoming-and-reporters20 p ...................................................................................................................................... 13 21 NEWS MEDIA & THE LAW, Reporters Committee for Freedom of the Press, Summer 2011, https://www.rcfp.org/browse-media-law-resources/news22 media-law/news-media-law-summer-2011/number-states-shield-law23 climbs; ............................................................................................................................ 13 24 United States Constitution First Amendment .................................................................... 2, 3 25 26 27 28 SMRH:485227108.2 -iii- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.724 Page 5 of 22 1 2 INTRODUCTION Recognizing that “routine court-compelled disclosure of research materials poses a 3 serious threat to the vitality of the newsgathering process,” the Ninth Circuit has 4 established a rigorous privilege that journalists may invoke to avoid testifying or producing 5 documents. Shoen v. Shoen (“Shoen II”), 48 F.3d 412, 415 (9th Cir. 1995). Parties who 6 wish to compel disclosure from journalists must meet a heavy burden of demonstrating 7 that they have an “exceptional” need for the information sought. Id. In this case, the 8 County of San Diego (“County”) seeks to compel disclosure from non-party journalist 9 Kelly Davis (“Davis”). The County, however, has not met and cannot meet its burden. 10 Additionally, non-party journalists in California, including Davis, are entitled to an 11 absolute privilege against compelled disclosure in civil cases under Federal Rule of 12 Evidence 501. Furthermore, there is no basis for the County’s suggestion that Davis “may 13 have impliedly waived her privilege.” Therefore, the Court should deny the County’s 14 motion to compel. 15 16 BACKGROUND On November 15, 2017, the County served Davis with subpoenas for testimony at a 17 deposition and a demand for documents. (ECF 57-2 at 4–16.) On December 4, 2017, 18 counsel for Davis sent to the County objections to the subpoenas. (ECF 57-2 at 18–21.) 19 Counsel for Davis also sent to the County as a letter explaining why Davis was exempt 20 from compelled disclosure under the journalist’s privilege and further explaining that the 21 subpoenas imposed an undue burden on Davis in light of her health. (ECF 57-2 at 23–29.) 22 On December 12, 2017, counsel for Davis and the County met and conferred. (See 23 ECF 57-2 at 38.) Counsel for the County offered to prepare a stipulation and indicated 24 that, if Plaintiff’s counsel agreed to the stipulation, then the County would withdraw its 25 subpoena. (Id.) The County’s proposed stipulation provided that Davis would be 26 precluded from testifying and that her articles and research could not be admitted into 27 evidence for any purpose. (ECF 57-2 at 34–36.) 28 SMRH:485227108.2 -1- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.725 Page 6 of 22 1 On December 19, 2017, counsel for Davis sent a letter to counsel for the County 2 explaining that Plaintiff’s counsel was willing to agree to the County’s stipulation provided 3 that the stipulation included a proviso that Davis’s articles could be used “for the limited 4 purpose of proving that the allegations made in the articles were in the public realm at the 5 time of the articles’ publication and not for the purpose of proving the truth of the 6 allegations.” (ECF 57-2 at 40, 44.) Counsel for the County did not respond to counsel for 7 Davis’s December 19, 2017 communication or make any effort to further negotiate a 8 resolution, instead electing to file the instant motion to compel on January 3, 2018. 9 DISCUSSION 10 I. DAVIS IS PROTECTED BY THE REPORTER’S PRIVILEGE UNDER THE 11 FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION 12 A. The First Amendment Protects Reporters from Compelled Disclosure 13 The Ninth Circuit has recognized that protecting journalists from compelled 14 disclosure is critical to the functioning of a free press, regardless of whether or not a 15 subpoena seeks confidential information. Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 16 1993) (“Shoen I”). 17 18 19 20 To the extent that compelled disclosure becomes commonplace, it seems likely indeed that internal policies of destruction of materials may be devised and choices as to subject matter made, which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment. In addition, frequency of subpoenas would not only preempt the otherwise productive time of journalists and other employees but measurably increase expenditures for legal fees. 21 Id. at 1295 (quoting United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 22 1988)). Compelled disclosure of non-confidential information also poses “the threat of 23 administrative and judicial intrusion into the newsgathering and editorial process” and “the 24 disadvantage of a journalist appearing to be an investigative arm of the judicial system or a 25 research tool of government or of a private party.” Shoen I, 5 F.3d at 1294–95 (quoting 26 LaRouche Campaign, 841 F.2d at 1182). 27 Accordingly, the Ninth Circuit recognizes that journalists have a “qualified 28 privilege against compelled disclosure.” Shoen I, 5 F.3d at 1292. “Once the privilege is SMRH:485227108.2 -2- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.726 Page 7 of 22 1 properly invoked, the burden shifts to the requesting party to demonstrate a sufficiently 2 compelling need for the journalist’s materials to overcome the privilege.” Id. at 1296. 3 B. Davis Has Standing to Invoke the Journalist’s Privilege 4 “[W]hen facts acquired by a journalist in the course of gathering the news become 5 the target of discovery, a qualified privilege against compelled disclosure comes into 6 play.” Shoen I, 5 F.3d at 1292. Furthermore, “[t]he journalist’s privilege is designed to 7 protect investigative reporting, regardless of the medium used to report the news to the 8 public.” Id. at 1293. The information Davis gathered for the purpose of reporting on jail 9 suicides in the weekly news publication San Diego CityBeat falls within the core of 10 material protected under the privilege. The County does not dispute, nor could it dispute, 11 that Davis has standing to invoke the privilege. The burden therefore falls on the County 12 “to demonstrate a sufficiently compelling need” to overcome Davis’s privilege. Id. at 13 1296. 14 C. The County Has Failed to Meet Its Burden of Demonstrating a Compelling 15 Need to Overcome Davis’s Privilege 16 “[T]he process of deciding whether the privilege is overcome requires that ‘the 17 claimed First Amendment privilege and the opposing need for disclosure be judicially 18 weighed in light of the surrounding facts, and a balance struck to determine where lies the 19 paramount interest.’ ” Shoen v. Shoen, 48 F.3d 412, 415 (9th Cir. 1995) (quoting Shoen I, 20 5 F.3d at 1292–93) (“Shoen II”). A party may only compel disclosure from a non-party 21 journalist if it can demonstrate that the information it seeks is “(1) unavailable despite 22 exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly 23 relevant to an important issue in the case.” Shoen II, at 415. 24 Under this standard, “compelled disclosure is the exception, not the rule” Id. at 25 416. “[I]n the ordinary case the civil litigant’s interest in disclosure should yield to the 26 journalist’s privilege. Indeed, if the privilege does not prevail in all but the most 27 exceptional cases, its value will be substantially diminished.” Id. (quoting Zerilli v. Smith, 28 656 F.2d 705, 712 (D.C. Cir. 1981)). The County’s threadbare motion fails to demonstrate SMRH:485227108.2 -3- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.727 Page 8 of 22 1 that this is an exceptional case. The County has no compelling need to obtain disclosure 2 from Davis. 3 1. 4 5 The County has not demonstrated that it has exhausted all reasonable alternative sources The County subpoenaed two categories of information from Davis: (1) information 6 regarding Davis’s assessment in her news articles of how the San Diego County jail 7 system’s mortality and suicide rates compared with rates in other jail systems, and 8 (2) copies of any communication she may have had with individuals who work for the 9 Morris Law Firm regarding jail mortality and suicide rates and the suicides of specific 10 inmates discussed in her reporting. (ECF 57-2 at 13–14 (NOL Ex. A).) The County has 11 not demonstrated that it has exhausted all reasonable alternative sources of this 12 information. 13 As to the first category, the County claims that it needs to explore “Davis’ analysis, 14 motivations, and basis for her opinions.” (ECF 57-1 at 7.) In attempting to justify this 15 claims, the County asserts that it needs data about mortality and suicide rates in San Diego 16 County jails compared to other counties. The County itself is a “patently available other 17 source” for this data. Shoen I at 1297. If the County wishes to compare its rates with 18 those in other counties, then those counties are readily available alternative sources. Those 19 counties or the cities they include would also be able to provide the County with the 20 breakdown of data it seeks between county and city jail facilities. Thus, this assertion does 21 not provide a basis for the County’s motion. See, e.g., In re Stratosphere Corp. Sec. Litig., 22 183 F.R.D. 684, 687 (D. Nev. 1999) (denying motion to compel disclosure of how 23 journalist made calculations when there was “no clear or specific showing that the 24 information sought is not obtainable from other sources, or that Plaintiffs have exhausted 25 other potential sources”). 26 The County also claims that “Davis’ decision to use specific factors and statistics 27 when setting forth her opinions is not incorporated in [the] articles” attached to the SAC, 28 and that it therefore needs to compel her to explain how she calculated the death rates. SMRH:485227108.2 -4- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.728 Page 9 of 22 1 (ECF 57-1 at 7.) However, this assertion is simply false. The first article attached to the 2 SAC specifically states that it used the model provided by the Bureau of Justice Statistics 3 (BJS) at the U.S. Department of Justice. (ECF 19-1 at 13.) The article also explained why 4 Davis selected the BJS model over the model preferred by the County. (ECF 19-1 at 14.) 5 Morever, the County does not need data from Davis to challenge her conclusions. As 6 explained, it has other sources for the information on which any such challenge would be 7 based. 8 The County also says that it wants to ask Davis about quotations included in her 9 articles. (ECF 57-1 at 7.) It does not even bother to identify which quotations it 10 purportedly needs to assess. In any event, those quotations are all attributed. If the County 11 can justify why it might need the information, it can find out from the sources what they 12 told her. See, e.g., Jimenez v. City of Chicago, 733 F. Supp. 2d 1268, 1272 (W.D. Wash. 13 2010) (“Defendants have not deposed Plaintiff or any other party regarding the documents 14 and communications between [the journalist] and Plaintiff. . . . By failing to depose 15 Plaintiff, Defendants failed to exhaust all reasonable alternative sources for the privileged 16 information they seek.”). 17 With regard to information regarding any communication Davis may have had with 18 individuals who work for the Morris Law Firm, there is also an obvious alternate source: 19 the individuals who work for the Morris Law Firm. The County does not discuss this 20 category of information in its motion, and it therefore does not even begin to meet its 21 burden of demonstrating that it has exhausted all other sources. See, e.g., Wright v. Fred 22 Hutchinson Cancer Research Ctr., 206 F.R.D. 679, 682 (W.D. Wash. 2002) (“Defendants 23 seek copies of correspondence between the Seattle Times and the plaintiffs in this case. 24 They have not, however, sought to depose plaintiffs regarding these communications and 25 have therefore not exhausted all reasonable alternative sources.”) 26 27 28 SMRH:485227108.2 -5- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.729 Page 10 of 22 1 2. 2 3 The County has not demonstrated that the information it seeks in not cumulative Evidence is “cumulative” if it “supports a fact established by the existing evidence.” 4 Black’s Law Dictionary, “Cumulative Evidence,” (10th ed. 2014). In the reporter’s 5 privilege context, information is also cumulative if a party already has information that 6 would accomplish the same purpose or if it could obtain information that would 7 accomplish the same purpose from an unexhausted source. Jimenez, 733 F. Supp. 2d at 8 1273 (“The information [Defendants] seek from [the journalist] is cumulative unless they 9 can demonstrate that alternative means of procurement will provide insufficient results.”). 10 The sum total of the County’s efforts to meet its burden of demonstrating that the 11 information it seeks is noncumulative is its conclusory statement that “[t]he information 12 sought by the subpoenas is not cumulative and it is only available from Davis.” (ECF 57-1 13 at 6.) The County asserts that it interprets data differently than Davis does, but it provides 14 no declarations or other evidence support this bald assertion. (Id.) The County provides 15 no argument as to why it couldn’t prove whatever it wishes to prove about its jail mortality 16 rates using other evidence and performing its own calculations. The County’s unsupported 17 assertion cannot possibly qualify as meeting its burden of proving that the evidence it 18 seeks from Davis is not cumulative. 19 As to why communications between Davis and individuals who work for the Morris 20 Law Firm are not cumulative, the County is silent. The fact that it hasn’t exhausted 21 available sources is sufficient to deny its motion. Wright, 206 F.R.D. at 682 (defendants 22 failed to meet their burden of proving evidence sought was not cumulative because “[u]ntil 23 defendants have exhausted the other potential sources for this information, it is impossible 24 to evaluate the need for any additional discovery”). Even if it were not, copies of any 25 communications regarding jail mortality and suicide rates and the suicides of specific 26 inmates would clearly be cumulative of data the County already has (or can readily obtain) 27 on these subjects. 28 SMRH:485227108.2 -6- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.730 Page 11 of 22 1 3. 2 3 The County has not demonstrated that the information it seeks is clearly relevant to an important issue in the litigation “In order to overcome a claim of journalist’s privilege, the party seeking discovery 4 bears a far heavier burden in establishing relevance than is applicable in the normal 5 discovery context.” Wright, 206 F.R.D. at 682. “[T]here must be a showing of actual 6 relevance; a showing of potential relevance will not suffice.” Shoen II, 48 F.3d at 416. 7 In attempting to explain why the information it seeks is relevant, the County states: 8 In order to successfully defend against Davis’ conclusions and opinions that San Diego had a higher number of suicides than similarly populated counties and that her articles put the County on notice of a pattern of alleged constitutional violations, it is essential that the County understand what variables Davis did or did not take into account while writing her articles. 9 10 11 (ECF 57-1 at 7.) The County is talking about two distinct subjects: (1) whether San Diego 12 in fact had a higher number of suicides than other counties, and (2) whether the articles put 13 the County on notice of possible constitutional violations. These subjects present different 14 issues, which are dealt with in turn. 15 a. 16 17 Evidence of suicide rates is not offered or admissible for the truth of the matter asserted, so Davis’s testimony is not needed First, the County claims that it needs to “defend against Davis’ conclusions and 18 opinions that San Diego had a higher number of suicides than similarly populated 19 counties.” In other words, the County wishes to dispute the truth of statements made in a 20 newspaper article comparing suicide rates. However, “[i]t is axiomatic to state that 21 newspaper articles are by their very nature hearsay evidence and are thus inadmissible if 22 offered to prove the truth of the matter asserted.” AFMS LLC v. United Parcel Serv. Co., 23 105 F. Supp. 3d 1061, 1070 (C.D. Cal. 2015), aff’d, 696 F. App’x 293 (9th Cir. 2017); see 24 also Green v. Baca, 226 F.R.D. 624, 638 (C.D. Cal. 2005) (“Plaintiff seeks to introduce 25 two Los Angeles Times articles regarding over-detentions at the Los Angeles County Jail. 26 . . . To the extent plaintiff intends to offer the articles for the truth of the matter asserted, 27 they clearly constitute hearsay.”). Thus, under the rules of evidence, Davis’s articles are 28 inadmissible to prove the truth of the statements contained in the articles. Because the SMRH:485227108.2 -7- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.731 Page 12 of 22 1 articles are inadmissible to prove the truth of the comparative suicide rates, the County’s 2 assertion that it needs Davis’s testimony to defend against these assertions in the articles is 3 baseless, and the testimony it seeks from Davis is irrelevant. 4 The irrelevance of the information the County seeks is underscored by what 5 transpired during the meet and confer process. The County proposed a stipulation that 6 would have excluded Davis’s articles and testimony from use in the case for any purpose. 7 (ECF 57-2 at 34–36.) Plaintiff’s counsel was willing to agree to the entire stipulation, 8 including the exclusion of Davis’s testimony, as long as the stipulation included a proviso 9 that Davis’s articles could be used “for the limited purpose of proving that the allegations 10 made in the articles were in the public realm at the time of the articles’ publication and not 11 for the purpose of proving the truth of the allegations.” (ECF 57-2 at 44.) Accordingly, 12 the County had the opportunity to secure a stipulation confirming what the rules of 13 evidence already provide. There was no circumstance under which the County would have 14 occasion to “defend against Davis’ conclusions and opinions.” 15 The County does not explain why it is essential that it be able to refute the accuracy 16 of statements that could never properly be offered for their truth. This is an entirely 17 collateral issue and is not “clearly relevant to an important issue in the case,” as is 18 necessary to overcome the reporter’s privilege. Shoen II, 48 F.3d at 416; see also id. at 19 418. To the extent the County seeks Davis’ testimony merely to impeach her articles, its 20 motion must be denied. Jimenez, 733 F. Supp. 2d at 1273 (Nowhere in their response do 21 Defendants explain how the documents relate to this civil rights claim. The only explicit 22 relevance claimed (the impeachment of a third party) is merely collateral to Plaintiff’s 23 lawsuit.”). 24 b. Evidence of the articles as being in the public realm, and hence 25 constituting evidence of notice, cannot be refuted by the testimony 26 the County seeks 27 Second, the County says that it wants to defend against Plaintiff’s assertions that 28 Davis’s “articles put the County on notice of a pattern of alleged constitutional violations.” SMRH:485227108.2 -8- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.732 Page 13 of 22 1 (ECF 57-1 at 7.) In its order denying Defendant’s motion to dismiss the SAC, the Court 2 stated: 3 4 5 6 7 To attribute deliberate indifference to a government entity, a plaintiff must show that “policymakers are on actual or constructive notice that a particular omission in their training program causes [the government entity’s] employees to violate citizens’ constitutional rights.” When a plaintiff alleges that failing to properly train employees is the moving force behind a constitutional violation, it is “ordinarily necessary” to show a “pattern of similar constitutional violations by untrained employees” to establish the requisite notice. 8 (ECF 25 at 9 (citation omitted) (quoting Connick v. Thompson, 563 U.S. 51, 61–63 9 (2011).) The Court further explained, “The SAC also incorporates a series of news articles 10 detailing instances of suicide in County jails and the County’s overall high suicide rate, all 11 of which, taken together with the County’s actually confronting these suicides as they 12 occurred, could plausibly have given policymaking County officials notice of a pattern of 13 deliberate indifference to inmates’ suicidal ideations by County employees.” (ECF 25 at 14 12.) Thus, the Court concluded that Davis’s articles could be considered for the notice 15 they might have provided to the County the of the allegations contained in the articles. 16 Newspaper articles are often judicially noticed for purposes of proving notice, even 17 when a party could not possibly depose an article’s author: “Courts may take judicial 18 notice of publications introduced to ‘indicate what was in the public realm at the time, not 19 whether the contents of those articles were in fact true.’ ” Von Saher v. Norton Simon 20 Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (quoting Premier Growth 21 Fund v. Alliance Capital Mgmt., 435 F.3d 396, 401 n.15 (3d Cir.2006)). The proviso that 22 Plaintiff’s counsel sought echoed this very language. (ECF 57-2 at 44 (“except for the 23 limited purpose of proving that the allegations made in the articles were in the public realm 24 at the time of the articles’ publication and not for the purpose of proving the truth of the 25 allegations.”.) It is indisputable that Davis’s articles were published and that the 26 allegations made in the articles were in the public realm. That is the only purpose for 27 which the articles would have been used under the stipulation, and no information that the 28 SMRH:485227108.2 -9- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.733 Page 14 of 22 1 County could now obtain from Davis could possibly have any impact on what was in the 2 public realm at the time of the articles’ publication. 3 The County contends that, if Plaintiff is going to use Davis’s articles as evidence 4 that the County had notice of the allegations in the articles in the past, then the County 5 needs to be able to depose Davis in the present to better understand the evidence 6 underlying the allegations in the articles. (ECF 57-1 at 7.) This argument turns the 7 concept of notice on its head. Plaintiff seeks to use the articles to prove what the County 8 knew in the period leading up to the victim’s suicide. If the County had information in its 9 possession at the time of the suicide that caused it to question or disregard the articles, then 10 it can offer that evidence. By contrast, obtaining more information after the fact cannot 11 possibly illuminate what the County knew at the time of the suicide. 12 The Court acknowledged this when it declined to consider allegations in the SAC 13 that related to facts arising after the victim’s suicide. It held that these facts were 14 “irrelevant to whether the County was deliberately indifferent because they occurred after 15 Kris’ suicide, and could not have therefore provided notice of a suicide problem as it 16 pertains to Kris.” (ECF 25 ar 12.) Thus, compelled disclosure of Davis’s testimony 17 cannot be justified. See Shoen II, 48 F.3d at 417 n.1 (finding information not clearly 18 relevant to an important issue because “the extent of [Plaintiff’s] knowledge about the 19 murder at the time of the . . . interviews [with the journalist]—which began a year after the 20 bulk of the alleged libels—sheds little light on the extent of his knowledge or disregard for 21 the truth at the time he made the [alleged libels]”). Any improved understanding of 22 Davis’s articles that the County would gain by deposing her now is irrelevant to what it 23 had notice of then. It is patently obvious that any information the County might obtain 24 from Davis is not “clearly relevant to an important issue in the case.” Shoen II, 48 F.3d at 25 416. 26 The County has failed to meet its burden of demonstrating any of the three elements 27 it must prove in order to overcome Davis’s qualified reporter’s privilege. Accordingly, the 28 Court should deny the County’s motion to compel. SMRH:485227108.2 -10- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.734 Page 15 of 22 1 II. DAVIS IS ALSO PROTECTED UNDER A FEDERAL COMMON LAW 2 REPORTER’S PRIVILEGE BASED ON CALIFORNIA LAW AND 3 FEDERAL RULE OF EVIDENCE 501 4 Just three years after the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 5 665 (1972), Congress enacted Rule 501 of the Federal Rules of Evidence (“Rule 501”), 6 which provides that privileges in federal cases “shall be governed by the principles of the 7 common law as they may be interpreted by the courts of the United States in the light of 8 reason and experience.” Fed. R. Evid. 501. In enacting Rule 501, “Congress manifested 9 an affirmative intention not to freeze the law of privilege” but to “leave the door open to 10 change.” Trammel v. United States, 445 U.S. 40, 47 (1980). Rule 501 thus requires 11 federal courts to “continue the evolutionary development of testimonial privileges.” Id. 12 The Supreme Court established the analytic framework for evaluating federal 13 common law privileges under Rule 501 in Jaffee v. Redmond, 518 U.S. 1 (1996), which 14 recognized a federal privilege for communications between psychotherapists and their 15 patients despite the absence of any federal legislation. The Court identified the central 16 question as being whether the privilege at issue “‘promotes sufficiently important interests 17 to outweigh the need for probative evidence,’” based on “‘reason and experience.’” Id. at 18 9-10 (quoting Trammel, 445. U.S. at 51). The Court identified three factors to be 19 considered: (1) whether important public and private interests would be served by 20 recognition of the privilege; (2) the evidentiary cost of recognizing a privilege; and 21 (3) whether similar protections were afforded by the states. Id. at 10–13. The application 22 of these factors supports the conclusion that there is an absolute reporter’s privilege that 23 protects Davis from compelled disclosure in this case. 24 The reporter’s privilege serves important public and private interests. As this 25 Circuit has recognized, protections for the press serve the critical public function of 26 making sure that the public is kept informed. “Freedom of the press was not guaranteed 27 solely to shield persons engaged in newspaper work from unwarranted governmental 28 harassment. The larger purpose was to protect public access to information.” Bursey v. SMRH:485227108.2 -11- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.735 Page 16 of 22 1 United States, 466 F.2d 1059, 1083–84 (9th Cir. 1972); see also Branzburg, 408 U.S. at 2 681 (recognizing that “without some protection for seeking out the news, freedom of the 3 press could be eviscerated”). Thus, as with the privilege at issue in Jaffee, this Court 4 should recognize that the reporter’s privilege serves “a public good of transcendent 5 importance.” 518 U.S. at 11. 6 The second factor identified in Jaffee is also satisfied, because the vital interests 7 served by the reporter’s privilege outweigh the potential evidentiary costs. As noted in the 8 preceding section, there is an important public interest in protecting the press from 9 compelled disclosure of unpublished information obtained in the course of newsgathering, 10 even though not obtained in confidence: “‘The compelled production of a reporter’s 11 resource materials can constitute a significant intrusion into the newsgathering and 12 editorial processes. Like the compelled disclosure of confidential sources, it may 13 substantially undercut the public policy favoring the free flow of information that is the 14 foundation for the privilege.’” Schoen I, 5 F.3d at 1294, quoting United States v. 15 Cuthbertson, 630 F.2d 139, 147 (3d Cir.1980). 16 Therefore, as in Jaffee, in the absence of a privilege, both communications between 17 reporters and their sources and the ability and willingness of reporters to engage in 18 newsgathering “would surely be chilled,” which would result in fewer communications 19 and less discoverable evidence. 518 U.S. at 11–12. This would undoubtedly harm the free 20 flow of information to the public and the decline in discoverable information would “serve 21 no greater truth-seeking function than if it had been spoken and privileged.” Id. 22 The third factor looks to whether there is a consensus among the states in favor of 23 recognizing the privilege. Here, most strikingly, there is an overwhelming consensus 24 among the states about the reporter’s privilege. Of the 50 states, all but one—Wyoming, 25 which has not weighed in on the issue—have recognized a reporter’s privilege in some 26 context and the majority of these states have enacted state shield laws codifying the 27 28 SMRH:485227108.2 -12- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.736 Page 17 of 22 1 privilege.1 As in Jaffee, the “the existence of a consensus among the States indicates that 2 ‘reason and experience’ support recognition of the privilege.” 518 U.S. at 13. Where such 3 consensus exists, “[d]enial of the federal privilege therefore would frustrate the purposes 4 of the state legislation,” which “would have little value” if it “would not be honored in a 5 federal court.” Id. The failure here to recognize an absolute federal privilege in civil cases 6 would undermine and thwart state law privileges and the newsgathering processes they are 7 designed to protect because journalists, like Davis, cannot know whether they will be 8 subpoenaed in state court or federal court, and there is no principled reason why they 9 should be deprived of fundamental protections simply because an action is brought under 10 federal law. 11 Additionally, in determining whether a reporter’s privilege should be recognized 12 under Rule 501, this Court should look to the treatment afforded reporters under California 13 law. See, e.g., Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996) (in 14 determining federal law of privilege, courts “may also look to state privilege law—here, 15 California’s—if it is enlightening.”); Lewis v. United States, 517 F.2d 236, 237 (9th Cir. 16 1975) (“In determining the federal law of privilege in a federal question case, absent a 17 controlling statute, a federal court may consider state privilege law.”). In recognizing a 18 federal common law reporter’s privilege, the Third Circuit looked to Pennsylvania’s state 19 reporter’s privilege statute for guidance: “The interests behind the Pennsylvania statute and 20 the federal common law in this regard are congruent, each stemming from an independent 21 base of authority but both leading to protection of the vital communication role played by 22 the press in a free society.” Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979). 23 24 25 26 27 28 1 See Number of states with shield law climbs to 40, THE NEWS MEDIA & THE LAW, Reporters Committee for Freedom of the Press, Summer 2011, https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-lawsummer-2011/number-states-shield-law-climbs; Gregg Leslie, What’s up with Wyoming and the reporter’s privilege?, THE NEWS MEDIA & THE LAW, Reporters Committee for Freedom of the Press, Fall 2008, https://www.rcfp.org/browse-media-law-resources/newsmedia-law/news-media-and-law-fall-2008/whats-wyoming-and-reporters-p. SMRH:485227108.2 -13- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.737 Page 18 of 22 1 This Court should likewise look to California law for guidance on the application of the 2 privilege because the interests behind the federal common law reporter’s privilege and 3 California law are congruent. 4 California’s shield law, which is embodied in the state’s constitution, provides in 5 relevant part that a journalist “shall not be adjudged in contempt by [a court] . . . for 6 refusing to disclose any unpublished information obtained or prepared in gathering, 7 receiving or processing of information for communication to the public.” Cal. Const. Art. 8 I, § 2(b). California’s shield law applies to any unpublished information, even if it was not 9 gained in confidence. See Delaney v. Superior Court, 50 Cal. 3d 785 (1990). In a civil 10 action in which information is sought from a non-party journalist, as in this case, the 11 California shield law provides absolute protection against compelled disclosure of any 12 unpublished information. New York Times Co. v. Superior Court, 51 Cal. 3d 453, 461 13 (1990) (“We find nothing in the shield law’s language or history to suggest the immunity 14 from contempt is qualified such that it can be overcome by a showing of need for 15 unpublished information within the scope of the shield law.”). See also Mitchell v. 16 Superior Court, 37 Cal. 3d 268, 274 (1984) (“[s]ince contempt is generally the only 17 effective remedy against a non-party witness, the California enactments grant such 18 witnesses virtually absolute protection”). 19 In accordance with Rule 501, the Court should recognize a common law privilege 20 commensurate in scope with the California shield law. The application of this privilege is 21 not only permitted but required under Rule 501, as construed by the Supreme Court. 22 Having recognized the privilege, the Court should apply it to the County’s subpoena and to 23 this motion to compel, which would then be absolutely barred, regardless of any dubious 24 showing of need. 25 III. DAVIS HAS NOT IMPLIEDLY WAIVED HER PRIVILEGE 26 The County makes a highly speculative suggestion that Davis has disclosed 27 unpublished information to Plaintiff’s counsel. The grounds for the County’s assertion are 28 two paragraphs and one footnote in the complaint (each of which is reproduced three SMRH:485227108.2 -14- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.738 Page 19 of 22 1 times, for a total of nine instances). The cited paragraphs and footnotes deal exclusively 2 with raw numbers of the suicides in jails in San Diego, Los Angeles, and Orange Counties 3 in specific years. 4 Davis does not know on what articles or information Plaintiff was relying when he 5 made these allegations. Davis Decl. ¶ 4. This data is available from a host of sources, 6 including the counties themselves and published news articles. See Davis Decl. Ex. A 7 (discussing suicides in San Diego County jails); Davis Decl. Ex. B (discussing suicides in 8 San Diego and Orange County jails); Davis Decl. Ex. C (discussing suicides in San Diego 9 County jails); Davis Decl. Ex. D (discussing suicides in San Diego and Los Angeles 10 County jails); Davis Decl. Ex. E (discussing suicides in San Diego, Los Angeles, and 11 Orange County jails). The County has not provided any direct evidence that this 12 information was communicated by Davis to Plaintiff or his counsel, and it clearly could 13 have been obtained from a variety of sources other than Davis. The burden is on the 14 County to prove a waiver. Therefore, the County has failed to establish any waiver. 15 Even if Davis had personally provided to Plaintiff’s counsel all of the information 16 in the paragraphs and footnotes in question, however, that would only be evidence that she 17 had waived her privilege as to that information by informally publishing it. See Michael v. 18 Estate of Kovarbasich, No. 15-00275-MWF, 2015 WL 8750643, at *5 (C.D. Cal. Dec. 11, 19 2015) (holding that releasing some information to parties did not result in a waiver of 20 journalist’s undisclosed information). And, regardless of where Plaintiff’s counsel 21 obtained that information, it has now been fully disclosed to the County because it is 22 printed in the complaint. 23 Ayala v. Ayers, the case on which the County relies to support its proposition that a 24 journalist can impliedly waive privilege, was based on the idea that one party shouldn’t be 25 allowed to have information that the other party doesn’t have. 668 F. Supp. 2d 1248, 1250 26 (S.D. Cal. 2009) (“In the interests of fairness, a journalist/author should not be permitted to 27 disclose information to advance the interests of one litigant and then invoke the journalist’s 28 privilege to prevent discovery of this same information by another litigant.”). The County SMRH:485227108.2 -15- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.739 Page 20 of 22 1 now has access to all of the information in the complaint, so there is no further information 2 for it to discover. Moreover, in Ayala, there was undisputed evidence of a direct 3 disclosure. 668 F. Supp. 2d at 1249. As explained above, there is no such evidence in this 4 case. 5 IV. THE COUNTY’S ARGUMENT REGARDING TESTIFYING EXPERT 6 DISCOVERY IS MERITLESS 7 The County makes a throw-away argument that it is entitled to compel disclosure 8 from Davis because she is akin to a testifying expert. Davis is emphatically not a 9 testifying expert. Unlike expert testimony, the statements made in Davis’s articles are 10 hearsay and are not admissible to prove the matters asserted therein. AFMS, 105 F. Supp. 11 3d at 1070. The proper response to hearsay evidence is to object to it, not to issue a 12 subpoena that will only generate more hearsay. 13 V. IT WOULD BE UNDULY BURDENSOME FOR DAVIS TO COMPLY 14 WITH THE SUBPOENA 15 Davis has been reporting on jail deaths for more than five years, and her research 16 regarding this subject is spread across several computers and countless files and 17 notebooks. She is a freelance journalist and does not have the support of a staff to collect 18 the documents that would be necessary to comply with the County’s subpoena. She 19 estimates that culling the requested documents would take several days and would cause 20 considerable stress. Davis Decl. ¶ 1. 21 If that weren’t burden enough, Davis suffers from stage IV breast cancer. It is 22 important to her treatment program and recovery that she minimize stress and that she 23 receive sufficient rest. It is her assessment that collecting and producing the documents 24 requested by the County would raise her stress to an unacceptable level, would impede her 25 ability to receive sufficient rest due to the considerable amount of time and effort involved, 26 and would impair her treatment program and recovery. Davis Decl. ¶ 2. 27 Furthermore, as a participant in a clinical trial, she has little control over when her 28 frequent medical appointments are scheduled. Her availability to attend a deposition SMRH:485227108.2 -16- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.740 Page 21 of 22 1 would be difficult for her to predict, and it would be burdensome for her to do so. Davis 2 Decl. ¶ 3. Taken in combination, all of the circumstances mean that complying with the 3 County’s subpoena would impose an undue burden on Davis. Accordingly, the Court 4 should deny the County’s motion to compel as unduly burdensome pursuant to Federal 5 Rule of Civil Procedure 45(c). 6 VI. DAVIS IS ENTITLED TO COST OF MOTION SANCTIONS 7 Pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), “If [a] motion [to compel] 8 is denied, the court . . . must, after giving an opportunity to be heard, require the movant, 9 the attorney filing the motion, or both to pay the party or deponent who opposed the 10 motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. 11 But the court must not order this payment if the motion was substantially justified or other 12 circumstances make an award of expenses unjust.” 13 Davis is entitled to her reasonable expenses, including attorney’s fees. Such fees 14 are routinely awarded to journalists who successfully oppose motions to compel, including 15 when the motions are brought by municipal entities. See, e.g., Jimenez v. City of Chicago, 16 733 F. Supp. 2d at 1274; Wright, 206 F.R.D. at 683 (“Even though production has not been 17 compelled, defendants’ motion imposed a burden on the Seattle Times with very little legal 18 justification.”). Counsel for Davis carefully explained the journalist’s privilege to Counsel 19 for the County and even worked to facilitate an agreement between the County and 20 Plaintiff, but the County nevertheless filed a baseless and unnecessary motion to compel. 21 The County’s motion was not substantially justified. In fact, it was and is completely 22 unjustified. Sanctions are therefore warranted. 23 24 25 26 27 28 SMRH:485227108.2 -17- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-JLS-AGS Document 62 Filed 01/19/18 PageID.741 Page 22 of 22 1 2 CONCLUSION For the foregoing reasons, the Court should deny the County’s motion to compel. If 3 the court has any questions, counsel for Davis would appreciate the opportunity to address 4 them at an oral argument. 5 6 Dated: January 19, 2017 7 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 8 By 9 10 11 /s/ Matthew G. Halgren James M. Chadwick Matthew G. Halgren Attorneys for KELLY LYNN DAVIS 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:485227108.2 -18- Case No. 15-cv-00629-JLS-AGS OPPOSITION TO MOTION TO COMPEL Case 3:15- mqomhww~oomqamhww~o Document 62-1 Filed 01/19/18 PageID.742 Page10f3 SHEPPARD, MULLIN, RICHTER HAMPTON LLP A Limited Liability Partnership Including Professional Corporations JAMES M. CHADWICK, Cal. Bar. No. 157114 MATTHEW G. HALGREN, Cal Bar No. 305918 501 West Broadway, 19th Floor San Diego, California 92101-3598 Tele hone: 619.338.6500 Facsnnile: 619.234.3815 Email: mhalgren@sheppardmullin.com Attorneys for Non-Party Journalist KELLY LYNN DAVIS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No. CHASSIDY NESMITH, ET AL., DECLARATION OF KELLY DAVIS Plaintiffs, IN SUPPORT OF OPPOSITION TO DEFENDANT COUNTY OF SAN MOTION TO COMPEL NON -PARTY JOURNALIST KELLY DAVIS TO APPEAR AT DEPOSITION V. COUNTY OF SAN DIEGO, ET AL., AND PRODUCE DOCUMENTS Defendants. Date: February 2, 2018 Time: 4:00 pm. Courtroom: Suite 5160 Hon. Andrew G. Schopler, U.S. Magistrate Judge SMRHI485227075-1 DECLARATION OF KELLY DAVIS RE: OPPOSITION TO MOTION TO COMPEL Case 3:154. Document 62-1 Filed 01/19/18 PageID.743 Page20f3 I, Kelly Davis, hereby declare the following: 1. I have been reporting on jail deaths for more than ?ve years, and my research regarding this subject is spread across several computers and countless ?les and notebooks. I am a freelance journalist and do not have the support of a staff to collect the documents that would be necessary to comply with the County?s subpoena. I estimate that culling the requested documents would take several days and would cause considerable stress. 2. I suffer from stage IV breast cancer. It is important to my treatment program and recovery that I minimize stress and that I receive suf?cient rest. It is my assessment that collecting and producing the documents requested by the County would raise my stress to an unacceptable level, would impede my ability to receive suf?cient rest due to the considerable amount of time and effort involved, and would impair my treatment program and recovery. 3. Furthermore, as a participant in a clinical trial, I have little control over when my frequent medical appointments are scheduled. My availability to attend a deposition would be dif?cult to predict, and it would be burdensome for not certain on what articles Plaintiff was relying When he made the allegations contained in paragraphs 74, 85, 97, 107, 123, and 134 and footnotes 1, 2, and 3 of his Second Amended Complaint. Data regarding the number of suicides in various county jail systems is available from a host of sources, including the counties themselves and published news articles. Attached as exhibits to this declaration are examples of articles from which Plaintiff might have taken the cited information. 5. Diego City Beat on April 23, 2014 titled ?People Are Still Dying in San Diego County Attached hereto as Exhibit A is an article I wrote that was published by San Jails.? The article discusses suicides in San Diego County jails. 6. Diego City Beat on July 16, 2014 titled ?An Interview with the Sheriff? 3 Chief Medical Attached hereto as Exhibit is an article I wrote that was published by San Of?cer.? The article discusses suicides in San Diego and Orange County jails. -1- SMRHI435227075-1 DECLARATION OF KELLY DAVIS RE: OPPOSITION TO MOTION TO COMPEL Case 3:15-cv-00629-J LS-AGS Document 62-1 Filed 01/19/18 PageID.744 Page 3 of 3 1 7. Attached hereto as Exhibit is an article I wrote that was published by San 2 Diego City Beat on December 22, 2014 titled ?San Diego County Sets a Dubious Record 3 for Jail Deaths.? The article discusses suicides in San Diego County jails. 4 8. Attached hereto as Exhibit is an article I wrote that was published by the 5 San Diego Union-Tribune on April 13, 2015 titled ?Marine?s Widow Sues Over Jail 6 Death.? The article discusses suicides in San Diego and Los Angeles County jails. 7 9. Attached hereto as Exhibit is an article I wrote that was published by the 8 San Diego Union-Tribune on December 16, 2015 titled ?Suicides Still Plague County 9 Jails.? The article discusses suicides in San Diego, Los Angeles, and Orange County jails. 10 I declare under penalty of perjury under the laws of the United States of America 11 that the foregoing is true and correct, and that I executed this declaration on January 19, 12 2018 in San Diego, California. 14 KELLY LYNN DAVIS -2- DECLARATION OF KELLY DAVIS RE: OPPOSITION TO MOTION TO COMPEL People are still dying in San Diego County jails - San Diego CityBeat Page 1 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.745 Page 1 of 13 Newsletter Signup NEWS & OPINION Submit Your Event CULTURE GALLERY Find A Paper MUSIC Search Advertise Custom Contact Us FOOD & DRINK SPECIAL ISSUES FREE STUFF EVENTS NEIGHBORHOODS ARCHIVE April 23, 2014 12:00 AM People are still dying in San Diego County jails We update our reporting on deaths behind bars by Kelly Davis Print http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 2 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.746 Page 2 of 13 When Dennis Lane drove his truck into a concrete pillar at Grossmont Hospital last December, he told police he'd blacked out. His mother, Elaine, believes her mentally ill son, who'd been taken to a psychiatric hospital in October by friends and again in November by police, was trying to get help. Regardless, he was put in jail for destruction of property and died there exactly one month after his arrest. Lane is one of five people who've died in San Diego County jails so far this year, following 12 deaths in 2013. To put those two numbers into perspective, between 2007 and 2012, the county jail system averaged 10 deaths a year, resulting in San Diego having a jail mortality rate far surpassing the national average and the highest inmate mortality rate of California's 10 largest counties, as we reported in our 2013 series, "60 Dead Inmates." Lane's was the second death of 2014, coming 10 days after a suicide in San Diego's Central Jail. According to the medical examiner's report, Lane died from an "acute gastrointestinal hemorrhage." A chronic alcoholic earlier in life, the 62-year-old had been sober for three decades, his mom said. Alcohol abuse and hepatitis C had done damage to his liver, the autopsy http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 3 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.747 Page 3 of 13 found, but not to the point of it being end-stage disease. Elaine Lane says her son Dennis needed to be in a psychiatric facility, not jail, where he died on Jan. 28. Photo by Kelly Davis The dinner table at Elaine Lane's mobile home in Santee is strewn with paperwork about Dennis—most of it handwritten notes detailing her son's recent mental decline. "Dennis taken to Grossmont Hospital," she wrote on Oct. 5. "Psychiatrist interviewed, told [Dennis' friend] Chris she saw all she needed to know. Transferred to API"—Alvarado Parkway Institute, a psychiatric hospital in La Mesa, where he stayed for eight days. Elaine said that every five years, Dennis seemed to spiral out of control. In the last dozen years, he'd twice—in 2002 and 2007—been committed to Patton State Hospital, an inpatient psychiatric facility, after being found incompetent to stand trial. The 2007 case, stemming from Dennis threatening a friend and the friend's wife with toy guns, resulted in a stint at Atascadero State Hospital. On Dec. 13, two weeks before Dennis drove his truck into Grossmont Hospital, his mother sent a letter to the judge who'd overseen his 2007 case. "You, your honor, are my last hope," she wrote. "He needs to be in a locked mental hospital." http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 4 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.748 Page 4 of 13 On Jan. 9, a judge ordered that Dennis be evaluated by a psychiatrist to determine whether he was fit for trial. That exam was scheduled for Feb. 4. Elaine visited her son at the Central Jail a few days before he died. "He was screaming, clawing, begging me to get him out of there," she said. On Jan. 27, she received a letter from Dennis with a sketch he'd drawn of himself and this written under it: "25 day no meds. They are killing me. Please call API. Help!!!" According to his autopsy report, Dennis had Trazodone in his system, a drug used to treat depression and anxiety. Elaine said this wasn't one of the medications her son had been taking prior to his arrest. According to the medical examiner's report, Lane was having seizures two days before he died and visited a jail doctor less than 24 hours before his death. The report doesn't state the purpose of the visit; it says only that on the way to the appointment, Lane "became uncooperative and was trying to sit on the floor." When he made a threatening move toward deputies, the report says, he was placed in a headlock and handcuffed. Marc Stern, an expert in correctional healthcare and former Health Services Director for the Washington State Department of Corrections, reviewed Lane's autopsy for CityBeat. Stern said that the altercation with police wouldn't have caused the gastrointestinal http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 5 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.749 Page 5 of 13 bleeding that killed him. But, Stern noted that the autopsy doesn't identify the source of the bleeding—only that Lane's intestines were filled with blood. "There are questions that still need to be answered," Stern said. "What was the nature of the [medical] visit, and what was the source of the bleeding?" The autopsy says that the sheriff's deputy who interviewed Lane's cellmate told a medical-examiner investigator that the cellmate described Lane as being "in intensive pain" from 4 to 5 a.m. that morning. The report says Lane and his cellmate were seen in their cell at 8:53 a.m. during a routine check. The report doesn't say what they were doing at that point—whether they were in their bunks or elsewhere in the cell. During another routine check at 9:51 a.m., Lane, who'd been assigned to the top bunk, was found on the cell floor, dead. Lividity—skin discoloration that happens after a person dies—had set in, the report notes, meaning he'd been dead at least 15 to 20 minutes. Here, information from the cellmate would seem critical: Did Lane fall from his upper bunk? Did the cellmate call for help? Was the cellmate even there? The report doesn't say. CityBeat sent questions to the Medical Examiner's office. In an email, Mike Workman, a county spokesperson, said the Medical Examiner's office http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 6 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.750 Page 6 of 13 stands by both Lane's autopsy report and a second report CityBeat asked about. "They reflect the typical thorough autopsy examinations by our office's doctors and the on-scene investigations needed to help the office's doctors make cause and manner of death determinations," Workman wrote. That other autopsy report is on Dervin Bowman. The 50-year-old was found hanging in his cell on Nov. 17, 2013, but still alive. He was taken to UCSD Medical Center, where, on Nov. 23, his family made the decision to remove him from life support. The medical examiner's report notes that Bowman had been placed in a cell equipped for people with disabilities, though he wasn't disabled. The cell included a moveable chair. The report suggests that this allowed Bowman, who was nearly 6 feet tall, to affix a bed sheet to an overhead fire sprinkler and hang himself. "Several apparent suicide notes" were found in his cell, the report says. Jason Shanley, who talked to CityBeat on behalf of Bowman's family, who lives in Milwaukee, first met Bowman in 2005. Shanley said his friend had a difficult life—he'd grown up in a foster home and later struggled with addiction—and had tried many times to pull his life together. But complicating matters was a 1985 charge for sexual assault—Bowman, then 22 and in prison for burglary, had taken part in the rape of an inmate who'd molested a child. That crime haunted him for the rest http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 7 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.751 Page 7 of 13 of his life. He was repeatedly arrested for failure to register as a sex offender; he was frequently homeless. Though it's not clear from his court file when he was required to start wearing a GPS device, he was arrested in 2011 for removing it, as well as for failing to register. "Mr. Bowman does not want to live life in and out of prison," his public defender wrote to a judge, hoping to get her client probation instead of jail time. Bowman's last arrest was for a parole violation. He'd told his mom that he was going to stop attending his parole-mandated classes, Shanley said. The last time the two talked, Bowman described a psychological evaluation he was forced to undergo to determine if he was sexually attracted to children. "He said, I can't take it. This is crazy. Who do these people think I am?'" Shanley recalled. "He told his mom the night before he went back to jail, I can't go back to this program. I can't do it.'" Sheriff's Commander John Ingrassia said Bowman had been in and out of jail several times in the past year for parole violations. "Guys who are coming in a lot, I think they just say enough's enough. It's hard for the staff to recognize." He said deputies who knew Bowman took his death pretty hard. http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 8 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.752 Page 8 of 13 "They had been interacting with him a lot recently, and they didn't see that one coming." If Bowman was intent on killing himself, Ingrassia questioned whether having access to the moveable chair that allowed him to reach the fire sprinkler made a difference—the majority of inmates who commit suicide tie a sheet or item of clothing to a bed post or door handle and lean forward, strangling themselves. Regardless, Ingrassia said he's been looking into having retractable fire sprinklers installed in the Central Jail, similar to what's been installed at the new Las Colinas women's jail in Santee. Of the more than six-dozen autopsy reports CityBeat has reviewed, Bowman's is one of only three, and the only suicide, that doesn't include any information in the section that describes an inmate's medical and social history. In the case of a suicide, that information, which is based on jail records and interviews with family members, would usually include whether the person had expressed suicidal ideations to family or jail staff, had ever tried to commit suicide or had been prescribed psychotropic medication. For Bowman, the medical examiner's report says only, "The decedent's medical history was undetermined." Neither was Bowman's case turned over to the Citizens Law Enforcement Review Board (CLERB)—an independent oversight body charged with investigating deaths in custody that aren't ruled natural by the Medical Examiner's office, or natural deaths for which there are extenuating circumstances—until CityBeat http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 9 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.753 Page 9 of 13 asked about it two weeks ago. "Unfortunately, through an oversight on our part, CLERB was not notified," Sheriff's spokesperson Jan Caldwell said in an email. "This was not an intentional oversight. New parameters have been put into place to ensure this doesn't happen again." As CityBeat reported last year, there were a number of deaths in 2009 and 2010 about which CLERB wasn't notified, prompting the board to send the Sheriff's Department a letter, demanding that a notification process be codified in the department's policies and procedures manual. The sheriff denied the request but assured that no more cases would slip through the cracks. Bowman's was the fifth suicide in county jails in 2013. While experts caution that it's important to look at jaildeath data over a number of years and not focus on deaths within any one year, those five deaths coupled with the fact that two people have committed suicide so far this year show an alarming trend. According to data we collected for our jail-deaths series, Orange County, which has a slightly larger jail population than San Diego County, averaged 1.3 suicides per year between 2007 and 2012. For that same six-year period, San Diego County's average was double that, or 2.6 suicides annually. To put that into perspective, Los Angeles County, with a jail population nearly four times the size of San Diego's, averaged only four suicides per year between 2007 and 2012. http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 10 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.754 Page 10 of 13 On March 1 of this year, Kristopher Nesmith hanged himself in the Vista Detention Center. Three months earlier, the 21-yearold former Marine had stabbed a man and attacked another. He was being held for attempted murder. Kristopher Nesmith Photo via Facebook The Medical Examiner's office told CityBeat that Nesmith's autopsy report isn't yet complete. Dan Leib, an attorney hired by Nesmith's family to investigate his death, said jail staff knew he was suicidal. "The question is, did they provide the appropriate level of safeguards and care?" Leib said. "If you're going to deprive somebody of their liberty and take them into custody, you're agreeing to certain obligations to keep them safe." This isn't the first time the Vista Detention Center has been accused of not taking a suicidal inmate seriously. In January, the family of Robert Lubsen filed a lawsuit alleging that jail medical staff failed to note that the 26-year-old, who was struggling with drug addiction, had ligature marks around his neck when he was http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 11 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.755 Page 11 of 13 booked, the result of a suicide attempt in a holding cell at California State University, San Marcos, where he'd been arrested for trying to steal a computer. The lawsuit says that jail staff "received a tip" that Lubsen "was a risk to himself" but failed to act on it, despite a policy that says "all reports of suicidal behavior are to be taken seriously." Lubsen, who was initially placed in a lower-level cell when he was booked, was moved to a second-floor cell. The next morning, when cell doors opened to allow inmates access to a common area, Lubsen climbed onto a walkway railing, leaned over and fell, headfirst, to the concrete floor below. Email kellyd@sdcitybeat.com or follow her on Twitter at @citybeatkelly. NEWS SAN DIEGO INMATE DEATHS 60 DEAD INMATES JAIL DEATHS SAN DIEGO COUNTY SHERIFF\'S DEPA by Kelly Davis April 23, 2014 12:00 AM RELATED http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 12 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.756 Page 12 of 13 RSS Courtesy of SPRUNG Making sense of the new homeless plans Comments Type subject here... Home News & Opinion Culture Music Food & Drink Events Neighborhoods Gallery Special Issues Free Stuff Archive About Us Contact Us Advertise Privacy Policy Find a Paper © San Diego City Beat 2017. All Rights Reserved Built with Metro Publisher™ http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 People are still dying in San Diego County jails - San Diego CityBeat Page 13 of 13 Case 3:15-cv-00629-JLS-AGS Document 62-2 Filed 01/19/18 PageID.757 Page 13 of 13 http://sdcitybeat.com/news-and-opinion/news/people-still-dying-san-diego-county-jails/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 1 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.758 Page 1 of 12 Newsletter Signup NEWS & OPINION Submit Your Event CULTURE GALLERY Find A Paper MUSIC Search Advertise Custom Contact Us FOOD & DRINK SPECIAL ISSUES FREE STUFF EVENTS NEIGHBORHOODS ARCHIVE July 16, 2014 12:00 AM An interview with the sheriff's chief medical officer Dr. Alfred Joshua talks about reducing deaths in San Diego County jails by Kelly Davis Print http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 2 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.759 Page 2 of 12 On July 3, 36-year-old Hector Lleras hanged himself in San Diego County's Central Jail, the fifth inmate to commit suicide this year. With his death, 2014 tied 2013's five inmate suicides—itself a high number for a jail system that, since 2007, has seen three suicides a year, on average. Last year, 12 inmates died in custody, a number that's nearly been matched by this year's 11 deaths. Last November, Dr. Alfred Joshua became the chief medical officer for the Sheriff's Department's Detentions Services Bureau, replacing Dr. Earl Goldstein, who retired in 2013 after more than a decade in the position. Joshua, who declined to give his age, attended medical school at State University of New York, Syracuse, and earned an MBA from UC Irvine. Prior to joining the Sheriff's Department, he was the senior medical officer in charge of healthcare reform at Tri-City Hospital and served as medical director for Volunteers of America. He's board certified in emergency medicine and, to maintain his skills, picks up four to six shifts a month at a local emergency room (he declined to say which one). Joshua came in not only amid an increasing number of in-custody deaths, but also facing the challenges of AB 109, the state law aimed at reducing prison over crowding by sentencing certain offenders to county jails instead of state custody. Prior to AB 109, the average stay for a San Diego County jail inmate was two http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 3 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.760 Page 3 of 12 months, the maximum stay one year; now, some inmates are serving sentences of three to four years or longer. Last week, Joshua sat down with CityBeat to talk about policy changes he's made and strategies he'd like to implement to not only reduce the number of inmate deaths, but also improve inmate welfare overall. Shortly after being hired, Joshua undertook a review of "all clinical policies, clinical programs, disease management, hospitalizations and mortality data," he said. His review of inmate deaths had him pulling files going as far back as January 2004. He wouldn't say whether the number of suicides—or number of deaths overall—indicate a problem, only that each case gets a thorough review with procedural changes in mind. "Every death is taken very, very seriously," he said. "We have a very stringent process of reviewing how these events occurred and what we can do to prevent anything going into the future." Since March 2013, CityBeat's run a series of stories on deaths in San Diego County jails. A 2012 report by the Bureau of Justice Statistics (BJS)—the research and analysis arm of the U.S. Department of Justice—revealed that the county had the secondhighest inmate death rate among California's large jail systems. Using the same formula as the BJS, which allows for comparisons with other populations (the annual number of deaths divided by a jail system's average daily population and expressed as per 100,000 http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 4 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.761 Page 4 of 12 inmates), CityBeat found that between 2007 and 2012, the county's inmate death rate had only increased. There are two ways to measure a jail system's inmate-death rate: using the average daily population or using total annual bookings. This chart shows how San Diego County fares among California's seven largest counties using both formulas for the year 2013. Counties for which there is only one bar had no suicides. Graphic by Lindsey Voltoline In our initial story, the Sheriff's Department took issue with our use of the BJS formula, arguing that we should have used annual bookings and not the average daily population because, theoretically, each person who enters the jail is at risk of dying. Using this metric, San Diego County fares much better, because, for various reasons, the jails here book a disproportionately high number of inmates—annual bookings are close to 90,000. By comparison, Los Angeles County booked roughly 137,000 inmates last year but had an average daily population (ADP) three times the size of San Diego's. Orange County's 2013 ADP was 6,690, compared with San Diego's 5,556, but O.C. booked 61,801 inmates, compared with San Diego's 89,577. "The more people who are booked and released," we wrote, "the better the [mortality] rate looks." http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 5 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.762 Page 5 of 12 And, as Lindsey Hayes, an expert on jail suicides, has noted, jail systems tend not to complain about the BJS formula until their mortality rate comes under scrutiny. Joshua took issue with CityBeat's use of the BJS methodology for the same reason as the department did last year: It's not just who's in jail on any given day, but whom the jails are going to see that year that needs to be considered. And, it's a group of people who, largely, haven't taken care of themselves. "So, you're looking at that many people that are cycling through our system every given year with a whole myriad of past medical problems, past psychiatric problems and then all the other issues," he said. This week, the county Medical Examiner's office released its annual report, showing that suicides are up countywide. Since 1988, only twice has the suicide rate been higher. Joshua said this could explain the uptick in suicides in county jails. Jails are a microcosm of society, he said, and folks who suffer from the things that might lead to suicide—mental illness, addiction—are more likely to end up in jail. San Diego, though, isn't the only county to see a recent increase in general-population suicides. There were no suicides in Orange County jails in 2013 and only one each in 2011 and 2012, despite that county seeing an increase in its overall suicide rate. Trends are similar in Riverside County, which also had no suicides in its jails last year. http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 6 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.763 Page 6 of 12 Joshua emphasized that his focus is bigger than what happens to folks while they're in custody. Incarceration is associated with an overall reduced life expectancy, and inmates, research has found, are at a higher risk of death—from suicide, drug overdose and chronic health conditions— shortly after they're discharged. "I'm, like, let's take a much more long-term view on these individuals," Joshua said. "Let's look at a lot more integrative potential into the community. Let's try to make them as successful on the front end as the back end." One area that Joshua's overhauled is when and how inmates are prescribed medication. Last November, 100,000 narcotic pills were dispensed in San Diego County jails. In June, that number was 42,000. "And that was with aggressive physician education; that was with a policy that basically said that they're counseling the inmates, asking about substance-abuse history, all that stuff. That was about making sure that if [inmates] were caught trying to sell it to somebody else, those behaviors were stopped immediately." Of the 72 inmate deaths CityBeat looked at between 2007 and 2013, 10 were the result of either intentional or accidental drug overdose. In many of those cases, prescription drugs were involved, either alone or in combination with illegal drugs. One example is Christopher Blenderman, a 40- year-old with a history of psychiatric issues who was found dead on Sept. 7, 2012, from a lethal combination of meth, heroin, http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 7 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.764 Page 7 of 12 antidepressants and anti-anxiety medication, some of which had been prescribed to him while some hadn't. His cellmate told a deputy that Blenderman had been hoarding medication. And in its September 2009 review of the death of James Phillips, the county's Citizens Law Enforcement Review Board, which investigates suspicious in-custody deaths, found that other inmates had helped Philips hoard the antidepressant Doxepin. The jail has a zero-tolerance policy when it comes to hoarding and selling medications, Joshua said, and will discontinue a medication, or find another method of delivery—liquid form or crushed pills—if an inmate's caught. "It's not that they're completely going cold-turkey," he assured. The revamped drug policy also takes into account what happens when inmates leave jail, especially those with mental illness who receive psychotropic medications in custody—more than one-third of the jail population—but then discontinue taking them after discharge. "Most of these individuals, when they're off their medications, they're likely to get into trouble," Joshua said. "And then we see them, we stabilize them, they go right back out." Making sure inmates get hooked up with community clinics so there's continuity in care is something http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 8 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.765 Page 8 of 12 Joshua's working on with the county's Probation Department. "For inmates, it should be simple regimens; they should have the least amount of side effects... and then cost is another thing," he said "You put them on very expensive medications in here—great, we stabilize them and they can't afford them when they get out." Joshua said that suicide-prevention policies are also being examined. Currently, when an inmate expresses the intent to commit suicide, he's put into a safety cell. The restricted environment and constant monitoring means that inmates often won't admit suicidal thoughts to jail staff, or will claim to be doing better when they're really not. Since 2008, at least two inmates killed themselves shortly after being removed from suicide watch, CityBeat found Joshua said the Sheriff's Department is looking at whether there can be an intermediate step in that process—"like a step-down unit," he said, between an inmate being placed in a normal cell and a safety cell. In 2008, CLERB's investigation of the suicide of 21year-old Adrian Correa—a schizophrenic who'd threatened suicide in the past—identified significant gaps in how information regarding at-risk inmates was being communicated between guards and support staff. The board advised the Sheriff's Department to include briefings during shift changes and implement a checklist system so deputies could better keep track of suicidal inmates. http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 9 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.766 Page 9 of 12 It took the Sheriff's Department nearly two years to respond to CLERB's recommendation. When it did, Goldstein, Joshua's predecessor, dismissed CLERB's findings and downplayed the problem of suicides, saying that during a two-year period—July 1, 2007, through June 30, 2009—only four inmates had killed themselves (his count was off by two). "It is not practical to add these systems to the current program," Goldstein wrote. Joshua declined to comment on policies under Goldstein, but said that better communication among staff—not only deputies, but anyone who comes in contact with an inmate—is one of the suicideprevention strategies he's focusing on. "One of the triggers for further evaluation by mentalhealth providers would be when an inmate deviates from what they normally do," he said. "So, housekeeping, those who pass out meals, would be trained to recognize those behaviors." Staff would also be trained to look for triggers— an inmate who seems troubled after a phone call, family visit or a bad day in court. Joshua also wouldn't discuss specific cases with CityBeat but emphasized that the Sheriff's Department is examining "all aspects" of suicide prevention, down to the sheets that inmates fashion into nooses—hanging is the leading method of jail suicide. "But I think the most important thing from a medical http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 10 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.767 Page 10 of 12 standpoint is: How do we get them away from the moment that they feel hopeless?" he said. In his review of inmate deaths, Joshua found that for every completed suicide, there were 11 attempted suicides. "So, in 11 cases, our deputies are successful, our medical staff are successful in stopping these individuals and identifying these individuals—and these 11 attempts don't go into how many people we've preidentified and taken out of that whole equation," he said. "We always know we can get better. In every situation and every month I've been here, that's what we've been driving towards." Write to kellyd@sdcitybeat.com and editor@sdcitybeat.com. NEWS 60 DEAD INMATES JAIL DEATHS by Kelly Davis July 16, 2014 12:00 AM RELATED http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 11 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.768 Page 11 of 12 RSS Courtesy of SPRUNG Making sense of the new homeless plans Comments Type subject here... Home News & Opinion Culture Music Food & Drink Events Neighborhoods Gallery Special Issues Free Stuff Archive About Us Contact Us Advertise Privacy Policy Find a Paper © San Diego City Beat 2017. All Rights Reserved Built with Metro Publisher™ http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 An interview with the sheriff's chief medical officer - San Diego CityBeat Page 12 of 12 Case 3:15-cv-00629-JLS-AGS Document 62-3 Filed 01/19/18 PageID.769 Page 12 of 12 http://sdcitybeat.com/news-and-opinion/news/interview-sheriff-s-chief-medical-officer/ 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 1 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.770 Page 1 of 10 Newsletter Signup NEWS & OPINION Submit Your Event CULTURE GALLERY Find A Paper MUSIC Search Advertise Custom Contact Us FOOD & DRINK SPECIAL ISSUES FREE STUFF EVENTS NEIGHBORHOODS ARCHIVE December 22, 2014 12:00 AM San Diego County sets a dubious record for jail deaths Will policy changes make a difference in 2015? by Kelly Davis Print http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 2 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.771 Page 2 of 10 It's likely no one will ever know for sure what happened to Jerry Cochran the night before he died. On the evening of Sept. 15, 2014, his girlfriend, Vella Rhinehart, called an ambulance to take Cochran to the emergency room—she was concerned about some swollen spider bites on his neck. They were homeless, and Cochran had trouble walking without assistance. The last time Rhinehart saw Cochran, he was in the back of the ambulance, his walker folded up next to him. He was wearing his medical-ID necklace that let folks know he was diabetic, she says. The EMT told her Cochran didn't need his wallet or medication; she told the EMT to tell the hospital to call her when Cochran was discharged—she'd find a way to come get him. "Nobody ever called," she says. "I called and called and called, and walked and walked"—up and down Fourth and Fifth avenues the next day, the path Cochran might have taken on his way back to their camp. Wednesday night, after two days of searching, Rhinehart got a phone call from her sister telling her Cochran had been arrested and died in jail. Since March 2013, CityBeat 's been reporting on deaths in San Diego County jails, a series http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 3 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.772 Page 3 of 10 prompted by our finding that the county had the highest inmate mortality rate of California's 10 largest jail systems between 2007 and 2012. During that period, the county averaged 10 deaths a year, with a high of 12 in 2009 and a low of eight in both 2007 and 2012. Twelve people died in 2013. This year, as of Dec. 19, 16 county-jail inmates have died. "Sixteen deaths in a one year period is a concern to us," wrote Sheriff's Cmdr. John Ingrassia in an email to CityBeat . He noted that several of those inmates were terminally ill— CityBeat counted four based on medical examiner's reports. He also noted that the Sheriff's Department books more people into jail than similarly sized counties due to different booking acceptance criteria—a point the Sheriff's Department's has made to us in the past to challenge our reporting. But, Ingrassia added, "we don't hide behind this figure as an excuse or justification for the number of jail deaths." "Our goal is to have zero inmate deaths," he wrote, "and we take each and every case very seriously." **** Cochran didn't make it beyond a Central Jail holding cell. On the morning of Sept. 16, he was arrested for trespassing only a few blocks from Scripps Mercy hospital, where Rinehart says he http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 4 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.773 Page 4 of 10 was taken ( CityBeat wasn't able to confirm this due to patient-privacy rules). He was wandering in and out of a chiropractor's office, "mumbling gibberish" about having lost his wallet, according to the medical examiner's report. At the jail's sally port, he refused to get out of the police car and had to be carried inside. Rhinehart believes his behavior was the result of him being without his medication and food for possibly a dozen hours. "He would have been like a 2-year-old," she says. Rhinehart doesn't know if Cochran was coherent enough to let the jail's medical staff know during intake that he was diabetic. She doesn't know if he was still wearing his medical-ID necklace—it wasn't among the items inventoried by the medical examiner. At around 12:30 p.m., less than two hours after he'd arrived at the jail, he fell face-forward off a bench. Paramedics were called, and he was taken to UCSD Medical Center, where he was pronounced dead at 2:15. The cause of death was diabetic ketoacidosis, a condition caused by an insulin shortage that's rarely fatal if treated immediately. Rhinehart says a sheriff's homicide detective told her that deputies "did nothing wrong." Ingrassia told CityBeat that a review of Cochran's death is scheduled for next month. http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 5 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.774 Page 5 of 10 Rhinehart's back in North Carolina, where she and Cochran are from, living with her sister. "I don't go out of my bedroom," she says. "I don't leave my bed. He was my life." **** During the six-year period CityBeat examined for its initial story, three lawsuits had been filed against the county over inmate deaths. By comparison, there have been three lawsuits filed in 2014 alone; last week, CityBeat confirmed that a claim's been filed in a fourth case, the precursor to a lawsuit. And, in November, a jury found the county liable in the death of Daniel Sisson, a 21year-old who was found dead in his jail cell on June 25, 2011, from an acute asthma attack made worse by heroin withdrawal. The county is appealing the $3-million verdict. One of the cases filed this year was by Anna Sandoval, whose husband, Ronnie Sandoval, died in the Central Jail on Feb. 23, the result of a drug overdose. He'd been arrested on Feb. 22 for methamphetamine possession. The medical examiner's report notes that during intake, Sandoval was observed to be sweating profusely. The lawsuit argues that despite obvious signs he was in distress, he was deprived of "life-saving medical attention." A response filed by the county argues, among other points, that Sandoval alone was responsible http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 6 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.775 Page 6 of 10 for his death. According to the medical examiner's report, during the intake screening, he denied ingesting drugs. "We don't know what Ronnie told the nurses, at least not yet," says Diana Adjadj, Anna Sandoval's attorney. Regardless, "there were objective signs" of possible overdose, Adjadj says. The limited records she's been able to get say that in addition to Sandoval's profuse sweating, he struggled to respond to questions during intake. At some point, he was removed from a general-population holding cell and put in a single cell, where he remained for nearly eight hours, a possible violation of California's Minimum Standards for Local Detention Facilities, which says that an inmate who's placed in a sobering cell isn't to be left there for longer than six hours without being evaluated. "They knew something was wrong with him," Adjadj says, "but instead of monitoring him, they isolated him in a holding cell." According to the medical examiner's report, at close to 1 a.m., a guard saw Sandoval slump over and fall to the ground in a seizure. Emergency personnel showed up 20 minutes later but were unable to transport him; he was declared dead at 2:15 a.m. **** http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 7 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.776 Page 7 of 10 In his email to CityBeat , Ingrassia noted that while there have been five suicides this year, none have happened since July, "which I believe is a positive sign that changes implemented by our new medical director, Dr. [Alfred] Joshua, and mandatory training received by our deputies are working." Joshua was hired in January, and CityBeat spoke with him in July about policy changes he'd made and strategies he planned to implement to reduce the number of inmate deaths. He was looking to implement a "step-down unit" for inmates who'd been taken off suicide watch. He also said staff would be trained to be more attentive to signs that might indicate mental distress, like the condition of an inmate's cell or whether someone was refusing meals. The two last suicides of 2014 highlight the need for these new approaches. Hector Lleras, 36, the fifth suicide of the year, twice told jail staff—first a nurse, then a deputy—that he was going to kill himself. On July 1, he was put in a safety cell and then released 24 hours later. Almost exactly 24 hours after that, he was found hanging in his Central Jail cell. Christopher Carroll, a mentally ill homeless man, was arrested on June 14 for disorderly conduct. A chronic alcoholic who, according to his family, suffered from serious mental illness, Carroll was http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 8 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.777 Page 8 of 10 placed in administrative segregation because, during previous jail stays, he'd been unable to get along with other inmates. His segregated status meant he was allowed out of his cell for only one hour every 48 hours. On June 18 at 11:45 a.m., Carroll inquired, via intercom, when he'd get his hour in the dayroom and was told it wasn't time yet. At 12:30, he was found with a noose around his neck, attached to the cell's top bunk. According to the medical examiner's report, he'd smeared blood on the wall of his cell. He'd urinated on the floor and food and feces were stuck to the ceiling. Carroll was only 5 feet tall and weighed 105 pounds. His family tried to help him, says his brother Ken, but he'd reject their offers. When he was lucid, he was funny and outgoing, "full of life," Ken says. "But mental illness just kept dragging him back in." Ken says the family wasn't able to get much information about Christopher's death. They didn't know, for instance, that he'd scrawled a suicide note on his cell wall. When CityBeat told Ken that Christopher had been placed in solitary confinement, he wondered if that's what pushed his brother to kill himself. "He just didn't like four walls," Ken said. "He couldn't stand four walls." http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 9 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.778 Page 9 of 10 Email kellyd@sdcitybeat.com or follow her on RSS Twitter at @citybeatkelly. NEWS JAIL DEATHS by Kelly Davis December 22, 2014 12:00 AM RELATED Courtesy of SPRUNG Making sense of the new homeless plans Comments Type subject here... Home News & Opinion Culture Music Food & Drink Events Neighborhoods Gallery Special Issues Free Stuff Archive About Us Contact Us Advertise Privacy Policy Find a Paper http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 San Diego County sets a dubious record for jail deaths - San Diego CityBeat Page 10 of 10 Case 3:15-cv-00629-JLS-AGS Document 62-4 Filed 01/19/18 PageID.779 Page 10 of 10 © San Diego City Beat 2017. All Rights Reserved Built with Metro Publisher™ http://sdcitybeat.com/news-and-opinion/news/san-diego-county-sets-dubious-record-jail-de... 1/19/2018 Marine's widow sues county over jail death - The San Diego Union-Tribune Page 1 of 5 Case 3:15-cv-00629-JLS-AGS Document 62-5 Filed 01/19/18 PageID.780 Page 1 of 5 Marine's widow sues over jail death By Kelly Davis, Special to the U-T APRIL 13, 2015, 6:00 AM The widow of a Camp Pendleton Marine who committed suicide in the Vista jail is claiming in a lawsuit that the staff was warned that her husband was likely to harm himself but failed to properly monitor him. Kristopher Nesmith, 21, was found unresponsive in his cell just before 7 a.m. on March 1, 2014. He had fashioned a noose from a bed sheet and attached it to a ceiling light fixture. The Medical Examiner’s report says Nesmith was last seen alive a little after 10 p.m. on Feb. 28. http://www.sandiegouniontribune.com/news/watchdog/sdut-lawsuit-jail-should-have-preve... 1/19/2018 Marine's widow sues county over jail death - The San Diego Union-Tribune Page 2 of 5 Case 3:15-cv-00629-JLS-AGS Document 62-5 Filed 01/19/18 PageID.781 Page 2 of 5 Kris Nesmith Nesmith was the second inmate to commit suicide in a San Diego County jail in 2014. The number grew to six before the year ended. By comparison, five inmates committed suicide last year in Los Angeles County jails, where the inmate population is more than three times the size of San Diego’s. The Sheriff’s Department declined to comment on the lawsuit but responded to questions about how its jails handle suicide threats. Spokeswoman Jan Caldwell said via email that when jail staff becomes aware that an inmate is suicidal, the inmate is immediately evaluated to determine whether he should be placed under observation or taken to the county’s emergency psychiatric unit. Caldwell said that in January, the Sheriff’s Department implemented a “suicide matrix” to help identify inmates at risk of killing themselves. “Inmates fitting a profile such as first time in custody, high-profile cases, prominent in the community, history of suicide attempts, recently convicted or sentenced to lengthy terms in prison etc.,” Caldwell said, “are placed in what we are calling high observation units.” Such inmates are checked every half hour, and get a visit with mental health staff at least daily, she said. “Inmates in these units are not issued sheets or clothing but are instead given a safety blanket and safety cell garment (tear resistant and difficult to utilize as a hanging instrument),” Caldwell said. Attorney Chris Morris, who filed the lawsuit on behalf of Nesmith’s wife, Chassidy Nesmith, and the couple’s infant son, Skyler, said such policies should already have been in place. “We know (Kris) was placed in normal clothing,” Morris said. “We know from his wife he was able to buy razors. We know that he was left with bed sheets to hurt himself with, hanging from a pipe, and that he’s not the first person to have died that way. http://www.sandiegouniontribune.com/news/watchdog/sdut-lawsuit-jail-should-have-preve... 1/19/2018 Marine's widow sues county over jail death - The San Diego Union-Tribune Page 3 of 5 Case 3:15-cv-00629-JLS-AGS Document 62-5 Filed 01/19/18 PageID.782 Page 3 of 5 “All of that is inadequate,” Morris said. “He should have been on suicide watch, and if that’s their suicide watch, it’s woefully deficient.” In March, Morris won a $3.2-million settlement for the family of Daniel Sisson, a Vista jail inmate who died from drug-withdrawal complications in 2011. According to the Nesmith lawsuit, a near-miss from a bullet at Camp Pendleton’s Camp Horno rifle range in April 2013 put Nesmith on a downward spiral. A few months later, he ended up in the brig, serving a fourmonth sentence for going AWOL and assaulting an officer. He was placed on suicide watch and monitored around the clock. Regardless, he tried three times to hang himself, the lawsuit says. On Nov. 29, 10 days after he was released from the brig, he tried to strangle Chassidy in a WATCHDOG restaurant parking lot, yelling that she wasn’t his wife. Onlookers called police, who arrested him Investigative tips for domestic violence. Nesmith was linked to two other assaults based on victim descriptions of his tattoos. Call or text 858-224-BARK BLOW THE WHISTLE At his arraignment, the judge set Nesmith’s bail at $2 million. Nesmith called his father, Scott Nesmith, that evening and told him he’d kill himself if he wasn’t bailed out. “There was something in his voice that I’d never heard before,” said his father, who lives in Beach Park, Illinois. Scott Nesmith said he called everyone who’d handed him a business card at his son’s arraignment — the public defender, the deputy district attorney handling the case, a Sheriff’s detective — and left messages saying he feared Kris was going to kill himself. While he was on another call, Tracy Prior, the deputy DA, left Scott a voicemail saying she’d notified Greg Basham, a supervising investigator for the DA’s office, and that Basham would “contact the jail and make the appropriate notifications.” The lawsuit says that Nesmith was never put on suicide watch. Jail medical records show that he’d been prescribed the anti-depressants Doxepin, Prozac and Trazodone and the anti-anxiety medication Prazosin. According to the Medical Examiner’s report, he had “sought psychiatric assistance several times while in custody.” Nesmith was in a single cell at the time of his death, but at some point he’d had a cellmate, his widow said. Richard Lichten, an expert in jail procedures, said that isolating a suicidal inmate increases the risk of selfharm. “The chances of somebody attempting suicide or completing suicide when they have a cellmate is far less probable than if they’re alone,” Lichten said. “Many times, other inmates will come to the aid of inmates who are suicidal and put out the help call.” http://www.sandiegouniontribune.com/news/watchdog/sdut-lawsuit-jail-should-have-preve... 1/19/2018 Marine's widow sues county over jail death - The San Diego Union-Tribune Page 4 of 5 Case 3:15-cv-00629-JLS-AGS Document 62-5 Filed 01/19/18 PageID.783 Page 4 of 5 Chassidy Nesmith, 29, of Escondido, said that during jail visits and her daily phone calls with her husband, he’d tell her he was going to kill himself. When she visited him, he’d make slashing gestures at his neck, she said. Because phone calls and visits are monitored by jail staff, she believed the threats would be taken seriously. “They should have protected him from himself,” she said. Nesmith’s preliminary hearing took place over two days, Feb. 27 and 28. Scott Nesmith said his son spent most of the two days in court staring straight ahead. The only time he made eye contact with his dad was when the public defender questioned one of the victims — who was carrying a metal barstool leg at the time of the altercation — about whether Nesmith might have attacked him in selfdefense. After the hearing on Feb. 28, Scott wrote to his son via the jail’s email system. A printout of the email was found on his bed. Scott offered his son what encouragement he could. “But this is the part I wish I hadn’t written,” Scott Nesmith said: “‘There is the possibility that you could get life.’” Scott Nesmith said his son’s problems started after he returned from a six-month deployment to South Korea in late 2012. A rifleman, he was readying to deploy to Iraq when President Obama ordered a troop withdrawal. The farm kid from Beach Park, who’d never been in trouble, started getting tattoos and swearing at his dad during phone calls, Scott said. After the incident at Camp Horno, and nearly four years in the Marines, Nesmith told his dad he wanted out. “‘Dad, I almost got my head blown off,’” Scott recalled his son saying. When he was brought back to base after going AWOL, he was labeled a deserter, Scott said. “Every time he turned around, somebody wanted to fight with him,” the father recalled. “They took a beautiful farm boy and they broke him.” Though Nesmith tried to kill himself in the brig and at one point, Scott said, was stripped of his clothes for two weeks, at least he was monitored. Morris questioned why Kris didn’t get the same level of monitoring at the Vista jail. “Compared to what happened in the brig — Velcro suit, padded cell, constant monitoring — none of that happened in Vista,” Morris said. Nesmith’s case isn’t the first time Vista jail staff have been accused of failing to properly monitor a suicidal inmate. On Feb. 6, 2013, Robert Lubsen, 26, jumped from the jail’s second tier and was removed from life support six days later. http://www.sandiegouniontribune.com/news/watchdog/sdut-lawsuit-jail-should-have-preve... 1/19/2018 Marine's widow sues county over jail death - The San Diego Union-Tribune Page 5 of 5 Case 3:15-cv-00629-JLS-AGS Document 62-5 Filed 01/19/18 PageID.784 Page 5 of 5 A lawsuit filed in January 2014 claimed jail staff failed to notice that Lubsen had ligature marks on his neck, which were visible in his booking photo. He’d been arrested on Feb. 5 for trying to steal computers at Cal State San Marcos and placed in a campus police department holding cell, where he tried to hang himself. The lawsuit claimed that another inmate tried to warn deputies that Lubsen was suicidal, but was ignored. Lawyers for the county argued that jail staff wasn’t liable for failing to determine that Lubsen was a suicide risk. In October, the county and Lubsen’s parents agreed to an $80,000 settlement. kellydaviswrites@gmail.com • Twitter @kellylynndavis Copyright © 2018, The San Diego Union-Tribune http://www.sandiegouniontribune.com/news/watchdog/sdut-lawsuit-jail-should-have-preve... 1/19/2018 Suicides still plague county jails - The San Diego Union-Tribune Page 1 of 4 Case 3:15-cv-00629-JLS-AGS Document 62-6 Filed 01/19/18 PageID.785 Page 1 of 4 Suicides still plague county jails By Kelly Davis DECEMBER 16, 2015, 5:35 PM View the photo gallery: Loss for Nishimoto family Jason Nishimoto was not supposed to have a sheet in his jail cell, or anything to hang it from. But he did. The 44-year-old, who’d been diagnosed with schizoaffective disorder, was supposed to be in a suicide watch cell with special safeguards under new policies from the San Diego County sheriff for people whose cases indicate red flags for taking their own lives. When the jail took Nishimoto in after a family disturbance in September, his mother, Rochelle Nishimoto of Vista, received reassurances in a phone call from a nurse. “‘OK, don’t worry mom, we’ll take good care of your son,’” Rochelle Nishimoto said she was told, shortly before her son carried out his suicide. Previously • Marine's widow sues over jail death • County pays $1M in girl's suicide The county instituted new policies and protocols this year in an effort to reduce such deaths, after six last year. The effort is partly to better care for inmates, and partly to save taxpayers from multi-million-dollar legal settlements that have resulted from jail deaths. The protocols seemed to pay off for the first half of 2015, but a rash of suicides in the fall have brought the total for 2015 to five so far. That number is significant in comparison to the other five largest jail systems in California. San Bernardino has had three jail suicides. Los Angeles and Santa Clara have had one each. And Orange and Sacramento counties have had none. Los Angeles County, with three times the jail population of San Diego, came to its single jail suicide this year after experiencing 10 in 2013. The drop in L.A. jail suicides is the result of a federal investigation — and a subsequent agreement with the U.S. Department of Justice — regarding treatment of mentally ill inmates, including suicide prevention. In September, L.A. County agreed to pay $1.6 million to the family of 21-year-old Austin Losorelli, a suicidal inmate who was transferred to a single-person cell where he hung himself. http://www.sandiegouniontribune.com/news/watchdog/sdut-jail-suicides-2015dec16-htmls... 1/19/2018 Suicides still plague county jails - The San Diego Union-Tribune Page 2 of 4 Case 3:15-cv-00629-JLS-AGS Document 62-6 Filed 01/19/18 PageID.786 Page 2 of 4 “This is costly for counties,” said Peter Eliasberg, legal director at the American Civil Liberties Union of Southern California. “Where there’s these warning signs and basic protective steps aren’t taken, counties can get slammed.” San Diego County started 2015 off with a jail suicide on Jan. 6, before its new protocols were fully implemented. Then for seven months, there were no suicides. On Aug. 18, Sergio Valenzuela, 20, was found hanging in his cell in the Central Jail. According to the medical examiner’s report, Valenzuela struggled with drug addiction and had previously been hospitalized for a suicide attempt. On Sept. 29, Martin Dozal, 38, killed himself at the George Bailey Detention Facility in Otay Mesa. Nicholas Medel committed suicide there on Nov. 8. Nishimoto’s trip to jail started with a suicide attempt. On Sept. 24, he swallowed a bottle of the prescription medication Klonopin. His mother found the empty medication bottle and called Jason’s brother, Adrian, who lived nearby. When the brother arrived, Nishimoto was trying to leave in his car. He picked up a shovel and threatened to hit his brother, who called 911. Family members said they told the dispatcher — and the deputies who arrested Nishimoto over the physical threats — about the suicide attempt and ongoing risk. His mother also told the jail psychiatric nurse who called the next day with questions about medication. Communication between arresting officers and jail staff about at-risk individuals is a big part of the county’s inmate suicide prevention protocol. In Nishimoto’s case, there appears to have been a lapse. “We told you, we told you, we told you,” Rochelle Nishimoto said. Nishimoto had never been to jail, and never been arrested, his mother said. He had attempted suicide in August as well, also with Klonopin, she said. He was treated at Tri-City Medical Center and put on suicide watch. After he was released, he seemed to be doing OK, she said. “We always got through hard spots before,” she said. The medical examiner’s report notes that at the time of his arrest in September, Nishimoto “made suicidal statements and stated he had consumed a large amount of pills.” Deputies took him to the emergency room at Tri-City, where he was cleared before being booked into jail. At the jail, the report says, Nishimoto was placed in a single-occupancy cell and allowed out only one hour a day, “with no other inmates allowed out of their cell at the same time.” The medical examiner’s report says Nishimoto was seen by a psychiatric nurse on Sept. 25 and had an appointment to see a psychiatrist on Sept. 27, the day he was found hanging in his cell. Attorney Chris Morris said he plans to file a lawsuit on Rochelle Nishimoto’s behalf. “If [Jason Nishimoto’s] treatment followed the new suicide matrix, then clearly the suicide matrix http://www.sandiegouniontribune.com/news/watchdog/sdut-jail-suicides-2015dec16-htmls... 1/19/2018 Suicides still plague county jails - The San Diego Union-Tribune Page 3 of 4 Case 3:15-cv-00629-JLS-AGS Document 62-6 Filed 01/19/18 PageID.787 Page 3 of 4 is not accomplishing its stated goal,” Morris told The San Diego Union-Tribune. WATCHDOG Investigative tips Earlier this year, Morris filed a lawsuit on behalf of the family of Kristopher Nesmith, a 21-year-old Marine who hung himself in the Vista jail in Call or text 858-224-BARK BLOW THE WHISTLE March 2014, reportedly after threatening suicide multiple times. Morris was the attorney who, this past March, won a $3.2 million settlement for the family of Daniel Sisson, a Vista jail inmate who died from drug-withdrawal complications in 2011. The San Diego Sheriff’s Department introduced its suicide prevention protocol in February. The changes were spearheaded by Dr. Alfred Joshua, who was hired in November 2013 as the department’s chief medical officer. In addition to better communication among jail staff and those who come into contact with inmates — other law enforcement agencies, court staff and medical providers — the protocol includes placing inmates flagged as a suicide risk in so-called “enhanced observation” modules, where cells have been stripped of any tie-off points to prevent hanging. Inmates are given tear-proof suicide smocks and blankets and newly added protective fencing prevents them from jumping off the second tier of two-tier modules. The sheriff has hired additional mental health clinicians, Joshua said, and is in the process of hiring more. In developing the program, Joshua said, sheriff's medical staff reviewed past inmate suicides and toured jails around the country that had successfully reduced their suicide rate, like Dallas, which had no inmate suicides for two years. Identifying at-risk inmates is the most important part of any suicide prevention program, said Lindsay Hayes, project director for the National Center on Institutions & Alternatives and an expert on in-custody suicides. “Jails do a very good job of keeping people alive — once they’re identified as suicidal,” Hayes said. “But that’s really not what suicide prevention is. Suicide prevention is the identification process.” It can take awhile for reforms to take hold, Hayes said, and even then, no program is perfect. “People slip through the cracks,” he said. “Sometimes even with a good program in place, bad outcomes happen.” Joshua, the jail’s medical director, said he couldn’t comment specifically on Nishimoto’s case. He said that if deputies or medical staff raise concern about an inmate being suicidal, that triggers further assessment to see if the inmate should be placed in a safety cell or enhanced observation module. Joshua said the sheriff's department is working with consultants to develop a training program to help staff better identify suicidal inmates. “As with any major change, training and consistent improvement in our process does not happen overnight,” he said, “but I am confident with the systems we have in place and the training program that is being developed, the identification and treatment of those at risk for suicide will be greatly enhanced.” Contact contributor Kelly Davis. http://www.sandiegouniontribune.com/news/watchdog/sdut-jail-suicides-2015dec16-htmls... 1/19/2018 Suicides still plague county jails - The San Diego Union-Tribune Page 4 of 4 Case 3:15-cv-00629-JLS-AGS Document 62-6 Filed 01/19/18 PageID.788 Page 4 of 4 Copyright © 2018, The San Diego Union-Tribune http://www.sandiegouniontribune.com/news/watchdog/sdut-jail-suicides-2015dec16-htmls... 1/19/2018 Case 3:15-cv-00629-JLS-AGS Document 62-7 Filed 01/19/18 PageID.789 Page 1 of 2 1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 2 JAMES M. CHADWICK, Cal. Bar. No. 157114 3 MATTHEW G. HALGREN, Cal Bar No. 305918 501 West Broadway, 19th Floor 4 San Diego, California 92101-3598 Telephone: 619.338.6500 5 Facsimile: 619.234.3815 6 Email: jchadwick@sheppardmullin.com mhalgren@sheppardmullin.com 7 Attorneys for Non-Party Journalist KELLY LYNN DAVIS 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 CHASSIDY NESMITH, ET AL., Plaintiffs, Case No. 3:15-cv-00629-JLS-AGS CERTIFICATE OF SERVICE v. COUNTY OF SAN DIEGO, ET AL., Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:485225074.1 Civil Action No. 3:15-cv-00629-JLS-AGS CERTIFICATE OF SERVICE Case 3:15-cv-00629-JLS-AGS Document 62-7 Filed 01/19/18 PageID.790 Page 2 of 2 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SANTA CLARA At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Diego, State of California. My business address is 501 4 West Broadway, 19th Floor, San Diego, CA 92101-3598. 3 5 On January 19, 2018, I served true copies of the following document(s) described as 6 OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO’S MOTION TO COMPEL NON-PARTY JOURNALIST KELLY DAVIS TO APPEAR AT DEPOSITION AND PRODUCE DOCUMENTS 7 8 9 10 11 DECLARATION OF KELLY DAVIS IN SUPPORT OF OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO’S MOTION TO COMPEL NONPARTY JOURNALIST KELLY DAVIS TO APPEAR AT DEPOSITION AND PRODUCE DOCUMENTS on the interested parties in this action as follows: crnorris@orris1awfirrnapc.com dpena@morrisIawfirmapc.com Christopher S. Morris Esq. 12 Danielle R. Pena, Esq. MORRIS LAW FIRM, APC 13 501 West Broadway, Suite 1480 San Diego, CA 92101 14 Telephone: (619) 826-8060 15 16 Ricky R. Sanchez, Senior Deputy Melissa M. Holmes, Senior Deputy 17 Fernando Kish, Senior Deputy COUNTY COUNSEL, COUNTY OF SAN DIEGO 18 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 19 Telephone: (619) 531- 4874 ricky.sanchez@sdcounty.ca.gov melissa.holmes@sdcounty.ca.gov fernando.kish@sdcounty.ca.gov 20 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the 21 document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. 22 Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. 23 I declare under penalty of perjury under the laws of the United States of America 24 that the foregoing is true and correct and that I am a member of the bar of this Court. 25 Executed on January 19, 2018, at San Diego, California. 26 27 /s/ Matthew G. Halgren Matthew G. Halgren 28 SMRH:485225074.1 Civil Action No. 3:15-cv-00629-JLS-AGS CERTIFICATE OF SERVICE