Sergio Cadavid v. Michael Harrison

Filing 218

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 216 (dml)

ani (State Bar No. 2111 O1)
FAIZMANIr APC
2 P.O. BOX 8727
Rancho Santa Fe, CA 92067
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Fax: [phone]
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CLERK, U.S. DISTRICT COURT

SEP - 5 2017
CENTRAL DISTRICT OF
CALIFORNIA
n w
BY
DEPUTY

Attorne for Petitioner
SERGI~ A. CADAVID

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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SERGIO A. CADAVID,

Case No.: CV 04-00289-BRO

(
AJW)

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Petitioner,
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ORDER
RANTING TIPULATED
PROTECTIVE ORDER

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WILLIAM SULLIVAN, Warden
Respondent.

Judge: Honorable Andrew J.
Wistrich

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GOOD CAUSE HAVING BEEN SHOWN, the stipulated protective order

19 submitted by the parties is hereby GRANTED.
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1. All information that is subject by law to the attorney-client, work-product

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privileges and/or Fifth Amendment privilege against self-incrimination, which may

22 include but is not limited to: (a) testimony, and any and all statements (sworn or
23 unsworn), regarding conversations and meetings between Petitioner and his trial
24 counsel Brenda A. Vargas(hereafter "trial counsel"), and other defense team members
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and experts, relating to the case of The People of the State of California v. Sergio

2 Alberto Cadavid, Superior Court Case No. VA056279 (such as statements about the
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27 nature of the charges, potential defenses, defense strategy, any consequences of
28 conviction,and willingness to plead to any offense);(b)declarations from trial counsel

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and defense team members, produced in this matter, or filed with, or otherwise

2 submitted,to this Court; and(c)testimony at the evidentiary hearing by Petitioner,trial
3 counsel, and any trial defense team member, shall be subject to the following
4 protection:
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a.

Said materials may be used by Respondent for the sole purpose of

6 litigating the instant federal habeas corpus case,and may not be used against Petitioner

7 f any other purpose,including any criminal retrial or sentencing that might occur;and
or
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b.

Respondent shall not disclose any ofthe materials or their contents to any

9 person or entity outside ofthe. California Department of Justice, excluding any expert
10 consultants/witnesses retained by a party for the express purpose of assisting in the
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resolution and adjudication ofthe claim or claims,the assertion ofwhich compelled the

12 limited waiver in the first place. Any such retained expert consultants or witnesses
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shall agree in writing to the terms of the protective order and shall be bound by it.

14 Respondent shall not disclose any protected materials or their contents to any other
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person or entity, including law enforcement personnel not employed by the California

16 Department of Justice, or criminal prosecutors not employed by the California
17 Department of Justice, without the express written permission of counsel for the
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petitioner or an order from this Court.
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Under Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003)(en bane)and

20 Lambright v. Ryan,698 F.3d 808(9th Cir. 2012), disclosure of privileged documents

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rom trial counsel's files and the files of other defense team members, as well as
22 privileged testimony and statements provided by trial counsel, any trial defense team
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member, and Petitioner, at a prehearing investigation, deposition, motion hearing, or

24 evidentiary hearing, does not constitute a waiver ofPetitioner's rights under the Fifth
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and Sixth Amendments for any other purpose, including a possible retrial or

2 resentencing.
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3.

Should the actual use of materials covered by the protective order occur

during the course of the instant litigation, so that the protected materials would
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1 normally become part ofthe public record, the court will balance the Petitioner's right
2 to confidentiality against principles of open courts, public trials, and judicial
3 accountability, in determining what, if any, additional protective measures are
4 warranted.
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4.

If the information to be used in this case could be used to Petitioner's

6 detriment in another case, including any criminal retrial, then the court will consider
7 further protective measures, such as sealing orders, closed courtroom proceedings,
8 redaction or other such measures that would be necessary to adequately protect the
9 petitioner's rights. If the information is technically privileged, but the prospect of
10 prejudice to the petitioner outside ofthis case is nevertheless unapparent,then no such
1 1 further protective measures will be employed, as the important interests in public
12 judicial proceedings will outweigh the need for additional protective measures. The i
13 evidence used shall be admitted in the normal course ofthe proceedings, and shall be
14 made part of the public record. It shall the be the burden of the party asserting the
15 privilege to demonstrate that inclusion of technically protected information in the
16 public record would be prejudicial.
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5.

Petitioner's limited waiver of the attorney-client and/or work product

18 privilege is not enlarged or negated by the inclusion ofprotected materials in the public
19 record. "The attorney-client privilege is a rule ofevidence." Wharton v. Calderon, 127
20 F.3d 1201, 1205 (9th Cir. 1997). Thus, the primary protection afforded by this
21 evidentiary privilege is to prevent the use of the evidence against the privilege holder
22 in ajudicial proceeding, not to preclude the mere disclosure ofthe material. Petitioner
23 shall still have the right to enforce and assert his privilege should there be an attempt
24 to use said materials to his detriment outside the confines of this specific case. This
25 rule is consistent with the current state of the law in California, where similar
26 information disclosed in the context of state collateral review proceedings is deemed
27 inadmissible in a criminal retrial. People v. Ledesma, 39 Cal. 4th 641 (2006).
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6.

This order shall remain in effect after the conclusion ofthe habeas.corpus

2 proceedings, and shall apply in the event ofa retrial ofall or any portion ofPetitioner's
3 criminal case. Any modification or vacation of this order shall only be made upon
4 notice to and an opportunity to be heard from both parties.
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IT IS SO ORDERED.

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DATED: ~ •S•~I~
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United States Magistrate Judge