Rice v. City and County of San Francisco
- Laurel Beeler
- 3:19-cv-04250
- U.S. District Court · Northern District of California
- 3
In Rice v. City and County of San Francisco, Judge Beeler denied production of an expert’s draft report because disclosure was inadvertent and did not refresh recollection.
Allison Barton Rice and the City and County of San Francisco; the court denied Rice’s request to obtain the expert’s draft report.
What happened
Rice v. City and County of San Francisco concerns Allison Barton Rice’s request to have a rent-paying roommate in his below-market-rate condominium. The City and County of San Francisco denied permission under the purchase agreement, and Rice sued under the Fair Housing Act. During a remote deposition, the city’s expert accidentally reviewed an earlier draft of his report while Rice’s counsel displayed the final report.
Rice asked the court to require production of the draft, arguing that the city had waived protection for it and that the expert had used it to refresh his memory. The city argued that the disclosure was accidental and that the expert had not used the draft for that purpose. The court found no waiver and no refreshing of recollection.
Judge Laurel Beeler denied the motion to produce the draft report. The order addressed discovery of the report and did not decide the underlying Fair Housing Act claims.
The detailed version
- Rice v. City and County of San Francisco · No. 3:19-cv-04250
- Laurel Beeler
- Mar. 3, 2023
Background
The case concerns whether the City and County of San Francisco violated the Fair Housing Act by denying Allison Barton Rice’s disability-related request to have a rent-paying roommate in his below-market-rate condominium. The purchase agreement allowed leasing only with the city’s written permission, which the city denied. The city disputed Rice’s claims and retained a neuropsychologist as an expert.
Rice deposed the expert remotely. During the deposition, Rice’s counsel marked the expert’s report as an exhibit and shared it onscreen. The expert, who was reviewing a hard copy, was actually looking at an earlier draft rather than the final report. The city then recognized the mistake, and the expert clarified that the exhibit was his final report.
Analysis
The parties disputed whether the city had to produce the draft report. Rice argued that the city waived attorney-client privilege under Federal Rule of Evidence 502(b) and that the expert used the draft to refresh his recollection under Rule 612. The city argued that the disclosure was accidental and that the expert did not use the draft to refresh his recollection.
The court explained that draft expert reports are generally protected from discovery under Federal Rule of Civil Procedure 26(b)(4)(B). It found that the city did not intend to disclose draft expert opinions. Under Rule 502(b), an inadvertent disclosure does not waive privilege or protection when the holder took reasonable steps to prevent disclosure and promptly took reasonable steps to correct the error. The court found that the disclosure was inadvertent and that the city promptly took reasonable steps to rectify it.
The court also found that the expert had not used the draft report to refresh his recollection under Rule 612. Rice’s counsel asked the expert to refer to sections of the final report, and the expert said when he could not. The court held that this did not show that he had used the draft report to refresh his recollection.
Disposition
The motion to produce the draft report was denied. The order states that this disposed of ECF No. 129. Judge Laurel Beeler issued the order on March 3, 2023.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.