L.H. et al v. Schwarzenegger et al

Filing 513

STIPULATED PROTECTIVE ORDER Regarding Parole Defense Counsel Access to Witness Contact Information and Certain Mental Health Information signed by Senior Judge Lawrence K. Karlton on 2/11/09 re 509 . (Duong, D)

1 BINGHAM McCUTCHEN LLP

GEOFFREY HOLTZ ­ 191370 2 KRISTEN A. PALUMBO ­ 215857 BRIANA LYNN ROSENBAUM ­ 239977 3 Three Embarcadero Center San Francisco, California 94111-4067 4 Telephone: [phone]

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PRISON LAW OFFICE 7 DONALD SPECTER ­ 83925 SARA NORMAN ­ 189536 8 1917 Fifth Street Berkeley, California 94710-1916 9 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs

ROSEN, BIEN & GALVAN, LLP MICHAEL W. BIEN ­ 096891 GAY C. GRUNFELD ­ 121944 MEGHAN R. LANG ­ 221156 ANNE MANIA ­ 218766 SHIRLEY HUEY ­ 224114 ELIZABETH H. ENG ­ 239265 315 Montgomery Street, Tenth Floor San Francisco, California 94104 Telephone: [phone] YOUTH LAW CENTER SUSAN L. BURRELL ­ 074204 CAROLE SHAUFFER ­ 100226 CORENE KENDRICK ­ 226642 200 Pine Street, 3rd Floor San Francisco, California 94104 Telephone: [phone]

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Case No. 2:06-CV-02042-LKK-GGH STIPULATED PROTECTIVE ORDER REGARDING PAROLEE DEFENSE COUNSEL ACCESS TO WITNESS CONTACT INFORMATION AND CERTAIN MENTAL HEALTH INFORMATION

14 L.H., A.Z., D.K., D.R., M.N., and R.C., on behalf of

themselves and all other similarly situated juvenile parolees 15 in California, Plaintiffs,

16

17 ARNOLD SCHWARZENEGGER, Governor, State of 18 California, MATTHEW CATE, Secretary, California 19 20 21 22 23 24 25 26 27 28
1

vs.

Department of Corrections and Rehabilitation ("CDCR"); SCOTT KERNAN, Undersecretary of Operations, CDCR; BERNARD WARNER, Chief Deputy Secretary of the Division of Juvenile Justice; RACHEL RIOS, Director, Division of Juvenile Parole Operations; MARTIN HOSHINO, Executive Officer of the Board of Parole Hearings ("BPH"); ROBERT DOYLE, Chair of the BPH; SUSAN MELANSON, HENRY AGUILAR, ASKIA ABDULMAJEED, JOSEPH COMPTON, ROBERT CAMERON, JOYCE ARREDONDO, MARY SCHAMER, and TRACEY ST. JULIEN, Commissioners and Board Representatives; CHUCK SUPPLE, Executive Officer of the Juvenile Parole Board; CDCR; DIVISION OF JUVENILE JUSTICE; BOARD OF PAROLE HEARINGS; and the JUVENILE PAROLE BOARD, Defendants.1

The names of Defendants currently serving and their CDCR capacities have been substituted pursuant to Fed. R. Civ. P. 25.
STIPULATED PROTECTIVE ORDER RE PAROLEE DEFENSE COUNSEL ACCESS TO WITNESS CONTACT INFORMATION & CERTAIN MENTAL HEALTH INFORMATION - CASE NO. 2:06-CV-02042-LKK-GGH

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1 SUBJECT TO THE APPROVAL OF THIS COURT, THE PARTIES HEREBY STIPULATE 2 TO THE FOLLOWING PROTECTIVE ORDER: 3 1. The Stipulated Order for Permanent Injunctive Relief ("Permanent Injunction")

4 requires Defendants to appoint counsel to represent each and every Juvenile Parolee in the 5 Revocation Process. Id. ¶ 15. The Permanent Injunction provides that a Juvenile Parolee's 6 counsel shall not be denied reasonable access to all of their clients' files. Id. ¶ 20. The 7 Permanent Injunction also requires that, at the time of appointment, the Juvenile Parolees' 8 counsel be provided with all of the evidence in the State's possession that the State intends to 9 rely upon or that may be exculpatory. Id. ¶¶ 16, 19. 10 2. In order to comply with the Permanent Injunction, the Due Process Clause of the

11 Fourteenth Amendment of the United States Constitution, Morrissey v. Brewer, 408 U.S. 471 12 (1972), and In re Olson, 37 Cal.App.3d 783 (1974) , it is agreed by the parties that the Juvenile 13 Parolee's counsel may have access to the following "sensitive material": 14 (a) Any medical or mental health record, including any mental health care

15 record even if a health care provider has determined that there is a substantial risk of significant 16 adverse or detrimental consequences to a parolee/patient in seeing or receiving a copy pursuant 17 to Health & Safety Code § 123115(b). 18 (b) Contact information, including telephone numbers and addresses, of any

19 witnesses or victims in the offense alleged in the parole revocation or revocation extension 20 proceedings who do not declare themselves to be fearful or who have not been designated as 21 confidential by any law enforcement agency. The names, contact information, or any 22 information that would disclose the identity of a confidential witness shall not be provided. The 23 telephone numbers of witnesses or victims who declare themselves to be fearful shall be 24 provided as described in Paragraph 9 below. 25 3. In the course of Parole Revocation and Revocation Extension Proceedings, the

26 Defendants shall disclose the sensitive material only to the Juvenile Parolee's attorney, CalPAP 27 employees, a certified law student supervised by the Juvenile Parolee's attorney, or paralegals, 28 law clerks or legal secretaries working for the Juvenile Parolee's attorney. 1
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STIPULATED PROTECTIVE ORDER RE PAROLEE DEFENSE COUNSEL ACCESS TO WITNESS CONTACT

1

4.

Persons to whom "contact information," as defined above in Paragraph 2(b), is

2 disclosed shall treat the sensitive material or information as confidential and are prohibited from 3 disclosing the records or information to any other person, including the parolee who is subject to 4 the parole revocation proceedings, except as necessary in the parole revocation or probable cause 5 hearing when the parolee is not present. With regard to this exception, the information or records 6 shall be used only as necessary to represent the parolee in the parole revocation or related 7 proceedings and shall not be used in any other action or for any other purpose. 8 5. Persons to whom mental health and/or medical records are disclosed may use such

9 information as necessary to advocate for the parolee in his or her Parole Revocation or 10 Revocation Extension Proceedings. This includes, but is not limited to, preparing for revocation, 11 revocation extension and related proceedings, and communicating with service providers to 12 determine whether alternatives to incarceration exist. 13 6. Persons to whom sensitive medical or mental health information is disclosed shall

14 be made aware if a health care provider has determined that there is a substantial risk of 15 significant adverse or detrimental consequences to a Juvenile Parolee/patient in seeing or 16 receiving a copy and concerning which the health care provider has complied with the 17 requirements of Health & Safety Code § 123115(b). Persons to whom such a determination is 18 communicated shall be aware of the sensitive nature of the information when discussing it with 19 the Juvenile Parolee/client, and shall use their professional discretion in determining the level of 20 access to the information that the Juvenile Parolee/client shall receive. 21 7. Each person to whom disclosure of the sensitive material is made shall, prior to the

22 time of disclosure, be provided a copy of this order and shall agree in writing that they have read 23 this order, understand and agree to be bound by its provisions, and consent to be subject to the 24 jurisdiction of the United States District Court for the Eastern District of California with respect 25 to any proceeding regarding the enforcement of this order, including without limitation, any 26 proceeding for contempt for violating this order. 27 8. The Juvenile Parolee's attorneys of record and their agents shall not make copies of

28 the sensitive material obtained by them except as necessary for purposes of the Juvenile 2
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STIPULATED PROTECTIVE ORDER RE PAROLEE DEFENSE COUNSEL ACCESS TO WITNESS CONTACT

1 Parolee's revocation, revocation extension, or related proceedings. The attorneys of record will 2 maintain control over all copies, electronic or otherwise, obtained by them. Persons who receive 3 medical or mental health care information under this order shall return or destroy the information 4 at the conclusion of the pertinent proceedings. 5 9. For any witness who declares himself or herself "fearful," the only contact

6 information that may be given to the parolee's attorney is a telephone number at which the 7 witness can be contacted. When contacting any witness or victim, the parolee's attorneys of 8 record and their agents shall identify themselves to the witness or victim as a representative of 9 the Juvenile Parolee. If no witness contact information is known or provided to Defendants, 10 Defendants are not obligated to procure contact information for transmittal to the parolee's 11 attorney. 12 13 IT IS SO STIPULATED. 14 15 Dated: February 9, 2009 16 17 18 19 Dated: February 9, 2009 20 21 22 23 IT IS SO ORDERED. 24 25 26 27 28 3
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ROSEN, BIEN & GALVAN, LLP By: /s/ Gay C. Grunfeld Gay C. Grunfeld Attorneys for Plaintiffs HANSON BRIDGETT LLP By: /s/ Paul Mello Paul Mello Attorneys for Defendants

Dated: February 11, 2009.

STIPULATED PROTECTIVE ORDER RE PAROLEE DEFENSE COUNSEL ACCESS TO WITNESS CONTACT