Michael Lamont Jones v. Jill Brown

Filing 89

ORDER RE: BITTAKERPROTECTIVE ORDER by Judge Otis D Wright, II (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CASE NO. CV 04-02748 ODW

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Pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), this

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Court enters the following Protective Order regarding: (1) documents and

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materials, including declarations, derived from the trial team or trial counsel files

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that Petitioner provides to Respondent during this habeas action; and (2) any

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reference to such documents or testimony in the parties' pleadings submitted to this

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Court.

MICHAEL LAMONT JONES,

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Petitioner,

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v.

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MICHAEL MARTEL, Warden,
California State Prison at San
Quentin,

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Respondent.

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DEATH PENALTY CASE
ORDER RE: BITTAKER
PROTECTIVE ORDER (Docket
No. 68)

To the extent that the Court will order the production of documents

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and discovery in this matter that Petitioner contends are subject to claims of

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privilege or protected from disclosure by the attorney work-product doctrine, and

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to the extent that this Court will order Petitioner's trial counsel's file, including the

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files of other defense team members, be produced to the Respondent, or Petitioner

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turns over such documents voluntarily, such materials shall be subject to this

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Protective Order and shall remain confidential and shall not be disclosed except as

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set forth herein.

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2.

Further, to the extent that this Court will order the taking of the

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depositions of trial counsel, other members of the defense team, Petitioner, and

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Petitioner's experts, such testimony disclosing attorney-client communications or

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work product shall be subject to this Protective Order and shall remain confidential

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and, shall not be disclosed except as set forth herein.
3.

The appropriateness of any measures to prevent the disclosure of the

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contents of materials subject to this Protective Order in connection with presenting

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evidence at any evidentiary hearing in this case will be separately addressed by the

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Court in connection with conducting any such hearing.

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4.

To the extent that either party intends to file all or any part of the

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material referenced herein as supporting evidence in this action, the party shall

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move the Court for an order to file such materials under seal, demonstrating with

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specificity, the need for the under seal filing.

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5.

All privileged documents and testimony subject to this Protective

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Order and produced to Respondent in this action may be used only for purposes of

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litigating this habeas corpus proceeding by: a) Petitioner and the members of the

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legal team, i.e., lawyers, paralegals, investigators, and support staff, assigned to

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Jones v. Martel by the Office of the Federal Public Defender, and persons retained

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by Petitioner's counsel to litigate this matter, including, but not limited to, outside

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investigators, consultants and expert witnesses; and (b) Respondent and the

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members of the legal team, i.e., lawyers, paralegals, investigators, and support

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staff, assigned to Jones v. Martel by the California Department of Justice, Attorney

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General's Office, and persons retained by Respondent's counsel to litigate this

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matter, including, but not limited to, outside investigators, consultants and expert

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witnesses. This Protective Order extends to members of the legal teams and all

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persons retained by the parties to litigate this matter. All such individuals shall be

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provided with a copy of this Protective Order.

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6.

Except for disclosure to the persons and agencies described in

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Paragraph 5, disclosure of the contents of the documents and testimony protected

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by this Protective Order and the documents and testimony themselves that are

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protected by this Protective Order shall not be made to any other persons or

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agencies, including, but not limited to, prosecutorial agencies and law enforcement

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personnel, without the Court's order. If Respondent contends that he needs to

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disclose materials protected by this Protective Order to outside prosecutorial

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agencies, outside law enforcement personnel, experts, consultants, deponents or

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witnesses in order to investigate or respond to Petitioner's habeas claims,

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Respondent shall provide to Petitioner's counsel (a) the identity of the individual/s

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to whom access is going to be provided, and (b) Respondent's reasons therefor.

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Petitioner shall notify Respondent within three court days of his non-opposition or

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objection to Respondent's proposal. If Petitioner objects to Respondent's proposal,

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and if the parties cannot resolve their differences within three additional court

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days, Petitioner shall provide his written objection to Respondent within three

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further court days. Respondent shall file and serve a document containing

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Petitioner's objections and Respondent's responses within three additional court

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days. The Court shall rule on Petitioner's objections before the privileged materials

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are disclosed. Any person obtaining access to the privileged material pursuant to

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this process shall also be given a copy of this Protective Order

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and shall sign a statement agreeing to be bound by its terms.
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Documents and testimony that Petitioner contends are privileged shall

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be clearly designated as such by labeling the documents or testimony in a manner

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that does not prevent reading the text of the document.

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8.

All documents and testimony designated as privileged by Petitioner

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that are submitted to this Court shall be submitted under seal in a manner reflecting

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their confidential nature and designed to ensure that the privileged material will not

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become part of the public record. Any pleading, deposition transcript, discovery

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response or request, or other papers served on opposing counsel or filed or lodged

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with the court that contains or reveals the substantive content of the privileged

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matter shall be filed under seal, and shall include a separate caption page that

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includes the following Confidentiality Notice or its equivalent:

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TO BE FILED UNDER SEAL

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THIS PLEADING OR DOCUMENT CONTAINS CONFIDENTIAL

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INFORMATION SUBJECT TO A PROTECTIVE ORDER AND IS NOT TO

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BE OPENED NOR ITS CONTENTS DISPLAYED OR DISCLOSED

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If privileged documents or documents containing privileged matters

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are filed with this Court, they shall be filed with the Clerk of this Court in sealed

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envelopes prominently marked with the caption of the case and the foregoing

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Confidentiality Notice. The Clerk of the Court is directed to maintain the

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confidentiality of any documents filed in accordance with the above. Insofar as

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reasonably feasible, only confidential portions of the filings shall be under seal;

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and the parties shall narrowly tailor their documents to limit, as much as is

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practicable, the quantity of material that is to be filed under seal. When a pleading

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or document contains only a limited amount of privileged content, a party may file

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a complete copy under seal and at the same time file on the public record

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an additional, redacted version of the document, blocking out the limited matter

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comprising the confidential portions.

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No later than sixty days after the filing of this Protective Order,

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Petitioner shall identify any previously filed or lodged pleading, order,

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declaration, transcript or other document, or any part thereof, that contains or

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discloses the substance or content of privileged matter. For each such item,

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following consultations with Respondent, Petitioner shall file a Redacted Version

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of the item, blocking out the privileged matter, and for each such originally filed

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item, Petitioner shall supply the clerk with a "To Be Filed Under Seal" caption

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page and envelope that conform to the Privileged Caption, and the clerk shall insert

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the filed or lodged item in the envelope, seal the item and re-file it.

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11.

Petitioner's disclosure of documents from trial counsel's file in this

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action, and any related testimony by Petitioner or members of Petitioner's trial

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team at a deposition in this case, does not constitute a waiver of Petitioner's rights

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under the Fifth and Sixth Amendments to the United States Constitution in the

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event of any retrial.

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12.

This order shall continue in effect after the conclusion of the habeas

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corpus proceedings and specifically shall apply in the event of a retrial of all or any

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portion of Petitioner's criminal case. Any modification or vacation of this order

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shall be made upon notice and an opportunity to be heard from both parties.

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IT IS SO ORDERED.
Dated: April 25, 2012.

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___________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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