Michael Stephen Combs v. Jill Brown

Filing 98

PROTECTIVE ORDER by Judge Otis D. Wright, II (mg)

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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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)
) CV 05-4777-ODW
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Petitioner,
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) BITTAKER PROTECTIVE ORDER
v.
)
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) DEATH PENALTY CASE
KEVIN CHAPPELL, Warden of
California State Prison at San Quentin, )
)
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Respondent.
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)
MICHAEL STEPHEN COMBS,

Petitioner’s Motion for a Protective Order pursuant to Bittaker v. Woodford,
331 F.3d 715 (9th Cir. 2003), is hereby GRANTED as follows:
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This Order applies to: (a) documents and materials, including

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declarations, derived from the trial team or trial counsel files that Petitioner

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provides to Respondent during this habeas action; (b) any related testimony

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provided at an evidentiary hearing or deposition in this matter; and (c) any

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reference to such documents or testimony in the parties’ pleadings or exhibits

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submitted to this Court.

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2.

To the extent that the Court may 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 may order Petitioner’s trial counsel’s file, including

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

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Petitioner turns over such documents voluntarily by filing any part of the material

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as supporting evidence in this action), such discovery shall be subject to this

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Protective Order and shall remain confidential and sealed. Further, to the extent

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that this Court may permit the taking of the depositions of trial counsel, other

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members of the defense team, Petitioner, and his experts, such discovery shall be

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subject to this Protective Order and shall remain confidential and sealed. If an

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evidentiary hearing is held in this case, any testimony by Petitioner, his experts,

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trial counsel, and any trial defense team member shall be subject to this Protective

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Order and shall remain confidential and sealed.

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3.

All privileged documents and testimony produced to Respondent in

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this action may be used only for purposes of litigating this habeas corpus

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proceeding by: (a) Petitioner and the members of his legal team, i.e., lawyers,

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paralegals, investigators, and support staff, assigned to this case by the Office of

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the Federal Public Defender, and persons retained by Petitioner’s counsel to

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litigate this matter, including, but not limited to, outside investigators, consultants

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and expert witnesses; and (b) Respondent and the members of his legal team, i.e.,

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lawyers, paralegals, investigators, and support staff, assigned to this case by the

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California Attorney General’s Office, and persons retained by Respondent’s

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counsel to litigate this matter, including, but not limited to, outside investigators,

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consultants and expert witnesses. This Protective Order extends to members of

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the legal teams and all persons retained by the parties to litigate this matter. All

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such individuals shall be provided with a copy of this Protective Order.

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4.

Except for disclosure to the persons and agencies described in

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Paragraph 3, disclosure of the contents of the affected documents and testimony

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and the documents and testimony themselves shall not be made to any other

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persons or agencies, including, but not limited to, prosecutorial agencies and law

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enforcement personnel, without the Court’s prior authorization. If Respondent

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contends that he needs to disclose Petitioner’s privileged material to outside

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prosecutorial agencies, outside law enforcement personnel, experts, consultants,

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deponents or witnesses in order to investigate or respond to Petitioner’s habeas

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claims, Respondent shall first provide notice to Petitioner’s counsel regarding (a)

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the identity of each individual to whom access must be provided, and (b)

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Respondent’s reasons therefor. Petitioner shall notify Respondent within three

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court days of his non-opposition or objection to Respondent’s proposal. If

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Petitioner objects to Respondent’s proposal, and if the parties cannot resolve their

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differences within three additional court days, Petitioner shall provide his written

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objection to Respondent within three further court days. Respondent shall file and

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serve a document containing Petitioner’s objections and Respondent’s responses

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within three additional court days. The Court shall rule on Petitioner’s objections

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before the privileged materials are disclosed. Any person obtaining access to the

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privileged material pursuant to this process shall also be given a copy of this

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Protective Order and shall sign a statement agreeing to be bound by the terms of

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this Order.

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5.

Documents and testimony that Petitioner contends are privileged

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

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manner that does not prevent reading the text of the document.

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6.

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 or evidentiary hearing in this case, does not constitute a

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waiver of Petitioner’s rights under the Fifth and Sixth Amendments to the United

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States Constitution in the event of any retrial.

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To the extent that either party may wish to file under seal any

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material referenced herein as supporting evidence in this proceeding, the party

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shall comply with the applicable Local Rules and specifically demonstrate the

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need for the under seal filing, keeping in mind that the showing therefor is not

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necessarily satisfied by the existence of this Order.

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8.

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

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any portion of Petitioner’s criminal case. Any modification or vacation of this

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Order shall only be made upon notice to and an opportunity to be heard from both

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parties.

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IT IS SO ORDERED.

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Dated: October 15, 2013

_______________________________
HONORABLE OTIS D. WRIGHT, II
U.S. DISTRICT COURT JUDGE

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