Chris Anthony George v. Raymond Madden

Filing 35

STIPULATION AND PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich. re Stipulation for Protective Order 34 . (See Order for Further Details) (kl)

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1 2 3 4 5 6 7 HILARY POTASHNER (Bar No. 167060) Federal Public Defender MARK R. DROZDOWSKI (Bar No. 166669) (E-Mail: MORIAH S. RADIN (Bar No. 260245) (E-Mail: Deputy Federal Public Defenders 321 East 2nd Street Los Angeles, California 90012-4202 Telephone: (213) 894-2854 Facsimile: (213) 894-0081 Attorneys for Petitioner CHRIS ANTHONY GEORGE 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 EASTERN DIVISION 12 CHRIS ANTHONY GEORGE, 13 14 15 Petitioner, v. Case No. EDCV 16-1016-RGK (AJW) STIPULATION AND PROTECTIVE ORDER RAYMOND MADDEN, 16 Respondent. 17 18 19 Pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (en banc), 20 Petitioner and Respondent, through their respective counsel, hereby stipulate, agree and 21 request that this Court enter the following protective order regarding (1) documents 22 from trial counsel’s files provided to Respondent during this habeas action; (2) related 23 testimony provided at the evidentiary hearing in this matter; and (3) any reference to 24 such documents or testimony in the parties’ post-hearing briefs submitted to the Court: 25 1. Petitioner’s trial attorney, Sean Davitt, provided a declaration to 26 Respondent that Respondent filed on March 23, 2017 with his objections to the Court’s 27 report and recommendation. Docket no. 16. Mr. Davitt later provided a declaration to 28 Petitioner’s counsel that Petitioner filed with other direct testimony declarations on July 1 Docket no. 31. Mr. Davitt testified at the evidentiary hearing held on July 18. Mr. 2 Davitt’s declarations and hearing testimony discussed attorney-client communications 3 and his thoughts about Petitioner’s case. 4 2. Before the evidentiary hearing, Mr. Davitt gave a copy of his files 5 pertaining to Petitioner’s case to counsel for Petitioner and later to counsel for 6 Respondent. Davitt Direct Testimony Declaration signed June 29, 2017, ¶ 3. 7 Documents from those files were submitted as exhibits at the evidentiary hearing. See 8 Petitioner’s Exhibits 3, 10-19, 21; Joint Proposed Exhibit List (docket no. 30). None of 9 those exhibits has been publicly filed in this case. At the end of the hearing, the parties 10 agreed to submit the entire case file produced by Mr. Davitt as Petitioner’s Exhibit 23. 11 Petitioner is submitting those documents to the Court today. These files contain 12 attorney-client communications and counsel’s thoughts and opinions about the case. 13 3. The parties agree that Bittaker’s protections apply to Mr. Davitt’s case 14 files and to portions of the hearing testimony of Messrs. Davitt and George. The 15 parties will designate the portions of the testimony they believe are subject to Bittaker 16 promptly upon receiving the hearing transcript. Documents from Mr. Davitt’s case 17 files shall be subject to this Protective Order and shall remain confidential and sealed. 18 Similarly, privileged portions of testimony by Messrs. Davitt and George shall be 19 subject to this Protective Order and shall remain confidential and sealed. Petitioner 20 contends that the testimony provided by these witnesses is subject to claims of 21 attorney-client privilege and/or protected from disclosure by the attorney work product 22 doctrine.1 23 4. All privileged documents and testimony produced to Respondent and/or 24 presented in this action may be used only for purposes of litigating this habeas corpus 25 proceeding by: (a) Petitioner and the members of his legal team (i.e., lawyers 26 _________ 27 28 1 Materials and testimony subject to a privilege and/or subject to the attorney work product doctrine will be referred to collectively hereinafter as “privileged” materials. Information obtained outside of this habeas proceeding or waived by some conduct other than its revelation in this habeas proceeding may not be considered protected material. 1 2 paralegals, investigators and support staff) assigned to George v. Madden by the office 3 of the Federal Public Defender, and persons retained by Petitioner’s counsel to litigate 4 this matter, including but not limited to, outside investigators, consultants and expert 5 witnesses; and (b) Respondent and the members of his legal team (i.e., lawyers, 6 paralegals, investigators, and support staff) assigned to George v. Madden by the 7 California Department of Justice, Attorney General’s Office, and persons retained by 8 Respondent’s counsel to litigate this matter, including, but not limited to, outside 9 investigators, consultants and expert witnesses. This Protective Order extends to 10 members of the legal teams and all persons retained by the parties to litigate this matter. 11 All such individuals shall be provided with a copy of this Protective Order. 12 5. Except for disclosure to the persons and agencies described in Paragraph 13 4, disclosure of the contents of the documents and testimony and the documents and 14 testimony themselves shall not be made to any other persons or agencies, including, but 15 not limited to, prosecutorial agencies and law enforcement personnel, without the 16 Court’s order. 17 6. Privileged documents and testimony shall be clearly designated as such by 18 labeling the documents or testimony in a manner that does not prevent reading the text 19 of the document. 20 7. All privileged documents and testimony submitted to this Court shall be 21 submitted under seal in a manner reflecting their confidential nature and designed to 22 ensure that the privileged material will not become part of the public record. Privileged 23 testimony from the evidentiary hearing shall be clearly designated as such by marking 24 the transcripts of the proceeding. Any pleading or other papers served on opposing 25 counsel or filed or lodged with the Court that contains or reveals the substantive content 26 of the privileged matter shall be filed under seal, and shall include a separate caption 27 page that includes the following confidentiality notice or its equivalent: 28 /// 1 2 TO BE FILED UNDER SEAL 3 THIS PLEADING OR DOCUMENT CONTAINS CONFIDENTIAL 4 INFORMATION SUBJECT TO A PROTECTIVE ORDER AND IS NOT 5 TO BE OPENED NOR ITS CONTENTS DISPLAYED OR DISCLOSED 6 7 8. If privileged documents or documents containing privileged matters are 8 filed with this Court, they shall be filed with the Clerk of this Court in sealed envelopes 9 prominently marked with the caption of the case and the foregoing Confidentiality 10 Notice. The Clerk of the Court is directed to maintain the confidentiality of any 11 documents filed in accordance with the above. Insofar as reasonably feasible, only 12 confidential portions of the filings shall be under seal and the parties shall tailor their 13 documents to limit, as much as is practicable, the quantity of material that is to be filed 14 under seal. When a pleading or document contains only a limited amount of privileged 15 content, a party may file a complete copy under seal and at the same time file on the 16 public record an additional, redacted version of the document, blocking out the limited 17 matter comprising the confidential portions. 18 9. Petitioner’s disclosure of documents from trial counsel’s file in this action, 19 and related testimony by Petitioner or members of Petitioner’s trial team at the 20 evidentiary hearing in this case, does not constitute a waiver of Petitioner’s rights under 21 the Fifth and Sixth Amendments to the United States Constitution in the event of any 22 retrial. 23 /// 24 25 26 27 28 1 10. This order shall continue in effect after the conclusion of this habeas 2 corpus action. Any modification or vacation of this order shall only be made after 3 notice to and an opportunity to be heard from both parties. 4 Respectfully submitted, 5 HILARY POTASHNER Federal Public Defender 6 7 8 DATED: July 21, 2017 9 10 11 By /s/ Mark R. Drozdowski MARK R. DROZDOWSKI MORIAH S. RADIN Deputy Federal Public Defenders Attorneys for Petitioner CHRIS GEORGE 12 KAMALA D. HARRIS Attorney General of California 13 14 15 DATED: July 21, 2017 16 17 18 19 By /s/ Kevin Vienna KEVIN VIENNA Deputy Attorney General Attorneys for Respondent RAYMOND MADDEN IT IS SO ORDERED: Dated: July 24, 2017 20 21 22 23 Presented by: HILARY POTASHNER Federal Public Defender 24 25 26 By: /s/ Mark R. Drozdowski MARK R. DROZDOWSKI MORIAH RADIN Deputy Federal Public Defenders 27 28 Attorneys for Petitioner CHRIS A. GEORGE __________________________________ HONORABLE ANDREW J. WISTRICH United States Magistrate Judge

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