Jae Yung Kim v. A. M. Gonzales et al

Filing 55

PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon re Notice of Lodging #53 . (ib)

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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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JAE YUNG KIM,

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Petitioner,

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NO. CV 14-89- R (AFM)

v.

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[PROPOSED] PROTECTIVE ORDER

A.M. GONZALES, Warden.
Respondent.

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Pursuant to this Court’s order on August 12, 2015, the parties hereby submit the
following joint proposed order:
The Court hereby enters a Protective Order regarding the following: (1) the

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declaration of Ellen Turlington, filed under seal in this matter as Exhibit 4 to

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Petitioner’s Supplemental Opposition to Respondent’s Motion to Dismiss Petition for

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Writ of Habeas Corpus (“Supplemental Opposition”); (2) the declaration of habeas

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counsel, David P. Elder, filed under seal in this matter as Exhibit 5 to Petitioner’s

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Supplemental Opposition; (3) the declaration of Alane Mabaquiao, filed under seal in

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this matter as Exhibit 6 to Petitioner’s Supplemental Opposition; and (4) a billing

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invoice of habeas counsel, David P. Elder, filed under seal in this matter as Exhibit 7 to

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Petitioner’s Supplemental Opposition. This Protective Order will extend to any

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reference to the sealed materials in the parties’ pleadings submitted to the Court.1

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Nothing in this Protective Order prevents Petitioner from seeking to expand this

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Protective Order, or Respondent from opposing any motion seeking to expand this

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Protective Order, in the event that further briefing or an evidentiary hearing requires the

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disclosure of additional protected materials.

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1.

On July 9, 2015, Petitioner Jae Yung Kim filed his Supplemental

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Opposition. In the Supplemental Opposition, Kim included facts and statements from

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his habeas counsel related to Kim’s representation that Kim claims are protected by

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attorney client privilege and the work product doctrine.2

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2.

The protected materials disclosed in this action may be used only for

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

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

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this action by the Office of the Federal Public Defender, and persons retained by

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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 members

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

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this action by the California Department of Justice, Attorney General’s Office, and

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persons retained by Respondent’s counsel to litigate this matter, including, but not

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limited to, outside investigators, consultants, and expert witnesses. This Protective

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Order extends to members of the legal team and all persons retained by the Parties to

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litigate this matter. All such individuals shall be provided with a copy of this Protective

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Order.

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Exhibits 5, 6, and 7, which were filed under seal and sealed portions of Exhibit
4, which are the subject of the Protective Order will be referenced as “protected
materials.”
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The Respondent does not agree that the protected materials contain work

product.

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3.

Except for disclosure to persons and agencies described in Paragraph 2,

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disclosure of the protected materials shall not be made to any other persons or agencies,

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

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without a court order.

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4.

The protected materials shall be clearly designated as such by labeling the

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documents or testimony in a manner that does not prevent reading the text of the

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documents.

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5.

Any document that is not confidential, privileged or otherwise protectable

in its entirety will not solely be filed under seal if the confidential portions can be

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redacted. If documents can be redacted, then a redacted version for public viewing,

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omitting only the confidential, privileged, or otherwise protectable portions of the

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document, shall be filed. Because the parties are likely to discuss the privileged

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material, the parties request, simultaneously with the filing of the redacted document,

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an un-redacted copy of the document shall be filed with an application to file the un-

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redacted copy under seal. The un-redacted copy shall be served on the opposing party.

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As set forth in paragraph 6, the application shall comply with Local Civil Rule 79-5.

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6.

Protected material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific protected material at issue. A party that seeks to

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file under seal any document or item containing protected material must comply with

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Local Rule 79-5. The application required by Rule 79-5 shall explain why the

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document or items falls within the ambit of this Protective Order. If a party’s request to

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file protected material under seal is denied by the Court, then the receiving party may

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file the information in the public record unless otherwise instructed by the Court. If the

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Court grants the application to have additional materials filed under seal, the newly-

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sealed, protected materials shall include a caption page that includes the following

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confidentiality notice or its equivalent:

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TO BE FILED UNDER SEAL

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3

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THIS PLEADING OR DOCUMENT CONTAINS CONFIDENTIAL

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INFORMATION SUBJECT TO A PROTECTIVE ORDER AND IS NOT

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TO BE OPENED NOR ITS CONTENTS DISPLAYED OR DISCLOSED

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7.

Petitioner’s disclosure of protected materials in this case does not

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

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United States Constitution in event of any retrial.

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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 any

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

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only be made upon notice to and an opportunity to be heard from both parties.
IT IS SO ORDERED.

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Dated: September 10, 2015
HON. ALEXANDER F. MACKINNON
United States Magistrate Judge

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Presented by:
/s/ Jelani J. Lindsey
JELANI J. LINDSEY
Deputy Federal Public Defender
/s/ Esther P. Kim
ESTHER P. KIM
Deputy Attorney General

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