Sergio Cadavid v. Michael Harrison

Filing 218

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

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ani (State Bar No. 2111 O1) FAIZMANIr APC 2 P.O. BOX 8727 Rancho Santa Fe, CA 92067 3 Phone: 310-926-1150 Fax: 619-923-2975 4 E-Mail: 1 5 CLERK, U.S. DISTRICT COURT SEP - 5 2017 CENTRAL DISTRICT OF CALIFORNIA n w BY DEPUTY Attorne for Petitioner SERGI~ A. CADAVID 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 11 SERGIO A. CADAVID, Case No.: CV 04-00289-BRO ( AJW) 12' Petitioner, 13 ORDER RANTING TIPULATED PROTECTIVE ORDER 14 15 16 WILLIAM SULLIVAN, Warden Respondent. Judge: Honorable Andrew J. Wistrich 17 18 GOOD CAUSE HAVING BEEN SHOWN, the stipulated protective order 19 submitted by the parties is hereby GRANTED. 20 1. All information that is subject by law to the attorney-client, work-product 21 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 25 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 6 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 - 1- 2:Q4~-cv-00289-BF~~,-AJW Document 216-1 Filed 08/31,1 Page 2 of 4 Page ID x:2498 .:~ 1 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: 5 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 8 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 11 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 13 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 15 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 18 19 petitioner or an order from this Court. 2 . 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 21 f 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 23 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 25 and Sixth Amendments for any other purpose, including a possible retrial or 2 resentencing. 6 27 28 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 -2- Cas 2:Q4-cv-00289-BF~ti,-AJW Document 216-1 Filed 08/31f ~ 7 Page 3 of 4 Page ID # :2499 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. 5 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. 17 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). 28 /// -3- C~s~ 2:04-cv-x0289-BF~u-AJW Document 216-1 Filed D8f31, ~T Page 4 of 4 P~c~e ID # :2500 1 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. 5 IT IS SO ORDERED. 6 DATED: ~ •S•~I~ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States Magistrate Judge

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