Breaux v. Ornoski, et al

Filing 278

PROTECTIVE ORDER signed by Magistrate Judge Dale A. Drozd on 3/5/15 (see order for details).(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ANTHONY BREAUX,

Case No. 2:93-cv-00570-JAM-DAD

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Petitioner, DEATH PENALTY CASE
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v.
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PROTECTIVE ORDER
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S.W. ORNOSKI, Warden of San Quentin State
Prison,

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Respondent.
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Petitioner David Breaux and Respondent Kevin Chappell recognize that pursuit of the

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ineffective assistance of counsel claims by Petitioner during the evidentiary hearing in this federal

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habeas action will intrude upon matters heretofore protected by the attorney-client and attorney

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work product privileges. The parties agree that pursuant to Bittaker v. Woodford, 331 F.3d 715,

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720 (9th Cir. 2003) (en banc), cert. denied, 540 U.S. 1013 (2003), Petitioner has waived his

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attorney-client and work product privileges to the extent necessary to litigate his habeas claims of

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ineffective assistance of counsel.

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The parties agree to the issuance of the following protective order, and good cause

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appearing, see Bittaker, 331 F.3d at 717 n.1, see also Lambright v. Ryan, 698 F.3d 808 (9th Cir.

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2012).

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Accordingly, IT IS HEREBY ORDERED that:

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1. For purposes of the evidentiary hearing and preparation for the evidentiary hearing in

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this federal habeas action, trial counsel’s files that relate to Petitioner’s ineffective assistance of

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counsel claims, including the files of any investigators or experts retained by trial counsel, shall

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be deemed to be confidential. These documents and materials (hereinafter “documents”) may be

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used only by representatives from the Office of the California Attorney General and any expert

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retained by the Attorney General’s Office in this federal habeas proceeding. If a representative of

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the Attorney General’s Office provides the confidential materials to an expert as authorized

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above, the Attorney General’s Office shall inform the expert of this protective order and the

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expert’s obligation to keep the documents confidential.

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2. Disclosure of the contents of the documents and the documents themselves may not be
made to any other persons or agencies, including any other law enforcement or prosecutorial

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personnel or agencies, without an order from this Court. The terms of this order do not prohibit

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representatives of the Attorney General’s Office from disclosing or discussing items within the

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confidential materials with Petitioner’s trial counsel or disclosing and discussing with witnesses

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their own statements or observations that were recorded or summarized in any reports contained

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in trial counsel’s files.

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3. This order shall continue in effect after the conclusion of the habeas corpus proceedings

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and specifically shall apply in the event of a retrial of all or any portion of Petitioner’s criminal

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case, except that either party maintains the right to request modification or vacation of this order

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upon entry of final judgment in this matter.

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Dated: March 5, 2015

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brea0570.protective.order(3.5.15)