Lenart v. Ornoski

Filing 141

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/13/14 ordering that the protective order proposed by petitioner in his 12/06/13 filing 139 is adopted. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS HOWARD LENART,

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Petitioner,

No. 2:05-cv-1912 MCE CKD
DEATH PENALTY CASE

v.
WARDEN, San Quentin State Prison,

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ORDER

Respondent.

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As required by the August 15, 2013 order, petitioner filed a proposed protective order

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regarding respondent’s discovery of petitioner’s trial attorneys’ files. (ECF Nos. 127, 139.)

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Respondent objects to portions of the proposed protective order. (ECF No. 140.) Petitioner did

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not file a reply.

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Petitioner’s proposed protective order largely mirrors the protective order approved by the

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Court of Appeals in Bittaker v. Woodford, 331 F.3d 715, 717 n.1 (9th Cir. 2003), with one

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exception. Petitioner includes a paragraph limiting respondent’s use of the discovered materials

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to the “preparation and conduct of depositions of witness[es] for whom this court has previously

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granted petitioner leave to depose for purposes of preservation of evidence pursuant to Rule 27.”

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(ECF No. 139 at 2:26 – 3:3.) For several reasons, this court finds the limitation proposed by

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petitioner to be appropriate. First, this court permitted respondent to discover petitioner’s trial

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counsel’s files solely for the purpose of the depositions of the witnesses whose testimony will be
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pr
reserved. (ECF No. 127. This is an unusual situ
.)
n
uation. It is not the situa
ation that co
onfronted the
e

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co in Bittak
ourt
ker. There, the court con
t
nsidered a pr
rotective ord issued du
der
uring normal discovery
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in the federal habeas proce
h
eeding. Second, the pro
oceedings in the present c
case are stay
yed. That

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sta was lifted solely for th limited pu
ay
d
he
urpose of pr
roceedings re
elated to pet
titioner’s pre
eservation of
f

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ev
vidence. (EC Nos. 120, 127.) Fina
CF
ally, until the standards s out in 28 U.S.C. § 2254(d) are
e
set

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sa
atisfied, this court may no consider evidence tha was not be
c
ot
e
at
efore the stat court. See Cullen v.
te
e

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Pinholster, 131 S. Ct. 1388 1398-1401 (2011). T
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Therefore, res
spondent’s a
argument tha he should
at

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be permitted to include inf
e
o
formation gl
leaned throu the disco
ugh
overy in his a
answer in this court is

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pr
remature. Ac
ccordingly, the court fin petitioner proposed limitation o responden use of
t
nds
r’s
d
on
nt’s

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the discovered files approp
e
d
priate at this time.
s
Respon
ndent further asks this co to rule i advance o any use pe
r
ourt
in
on
etitioner mig make in
ght

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sta court of the preserved testimony. This court will not rule on a matter that is not before it.
ate
t
d
.
e

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Th parties ma seek amendments to the protectiv order if ne
he
ay
t
ve
ecessary.

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For the foregoing reasons, and good cause appearing, I IS HERE
e
r
d
e
IT
EBY ORDER
RED that the
e

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pr
rotective order proposed by petitione in his Dec
er
cember 6, 2013 filing (EC No. 139) is adopted.
CF
)

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Da
ated: Januar 13, 2014
ry

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len prot or.or
nart

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