Stanley v. Ayers

Filing 48

ORDER by Judge 1/24/2012 Granting in Part 45 Petitioner's Third Motion for Discovery and Protective Order. (emcsec, COURT STAFF) (Filed on 1/24/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Darren Cornelius STANLEY,
Petitioner,

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v.
Michael MARTEL, Acting Warden of
San Quentin State Prison,
Respondent.

Case Number 3-7-cv-4727-EMC
DEATH-PENALTY CASE
ORDER GRANTING IN PART
PETITIONER’S THIRD MOTION
FOR DISCOVERY &
PROTECTIVE ORDER
[Doc. No. 45]

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In this capital habeas action, the Court previously granted Petitioner leave to depose his

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trial counsel, Walter Cannady and Richard Hove, in connection with allegations that trial counsel

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rendered ineffective assistance. (Doc. No. 33 at 3.) The Court subsequently stayed proceedings,

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including the depositions of trial counsel, pending a determination of Petitioner’s competence.

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(Doc. No. 39 at 2–3.) However, the Court carved out an exception to this stay for discovery

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granted for preservation purposes. (Id. at 3.)

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Petitioner now seeks leave to proceed with the depositions of trial counsel for

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preservation purposes owing to both attorneys’ advanced age along with Cannady’s presumptive

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retirement and Hove’s disbarment. (Doc. No. 45 at 2.) When the parties met and conferred to

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discuss Petitioner’s request, “[R]espondent offered to agree to the depositions on the condition

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that [P]etitioner provide [R]espondent with copies of trial counsel’s files.” (Id. at 3.)
Case No. 3-7-cv-4727-EMC
ORDER GRANTING IN PART PETITIONER’S THIRD MOTION FOR DISCOVERY & PROTECTIVE ORDER
(DPSAGOK)

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Petitioner contends that Respondent’s condition is unreasonable due to “two aspects of

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the situation which are asymmetrical between the parties.” The first such aspect is that

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Petitioner’s trial counsel have a professional obligation to coöperate with his current counsel,

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whereas Respondent “is barred from breaching that confidentiality which exists until a finding of

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waiver by the filing of a finalized petition alleging ineffective assistance or, in this instance, by

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specific questioning at the deposition, as to which Respondent can cross-examine.” The second

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such aspect is “Petitioner’s burden of pleading particularized facts, and ultimate burden of proof

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of his claims.” According to Petitioner, in light of this asymmetry, “Respondent’s interests are

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fully protected by cross-examining trial counsel, either upon the documents Petitioner’s counsel

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puts into play as exhibits, or in due course after the pleading stage is complete.” (Id. at 2.)
Petitioner’s arguments ignore the reason that depositions may be conducted for

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preservation purposes, which is to perpetuate testimony that otherwise may be lost. See

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Calderon v. U.S. Dist. Ct. (Thomas), 144 F.3d 618, 621–22 (9th Cir. 1998). If future depositions

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of trial counsel are contemplated, then there is no need to perpetuate their testimony at this time.

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On the other hand, if immediate depositions are necessary because trial counsel never again may

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be able to testify, then Respondent must be afforded the right to cross-examine trial counsel as

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thoroughly as if the testimony were being given at an evidentiary hearing in open court. This

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means that Respondent must have access to trial counsel’s files in the same manner that he

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would at an evidentiary hearing.

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Petitioner’s claim that the attorney-client privilege and the protection of the attorney-

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work-product doctrine cannot be waived until he commences the depositions or files a finalized

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petition alleging ineffective assistance is of no moment. For one thing, there already is a petition

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on file in this matter in which Petitioner alleges ineffective assistance. (Doc. No. 5-1 at 93–100;

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Doc. No. 5-2 at 1–2 (claim 7); Doc. No. 5-3 at 11–21 (claim 25); id. at 77–89 (claims 34–38); id.

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at 95–101; Doc. No. 5-4 at 1–17 (claims 40–44); id. at 39–55 (claims 48–53); id. at 73–75 (claim

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58)). More importantly,

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district courts have the obligation, whenever they permit discovery
of attorney-client materials as relevant to . . . ineffective assistance
of counsel claims in habeas cases, to ensure that the party given
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Case No. 3-7-cv-4727-EMC
ORDER GRANTING IN PART PETITIONER’S THIRD MOTION FOR DISCOVERY & PROTECTIVE ORDER
(DPSAGOK)

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such access does not disclose these materials, except to the extent
necessary in the habeas proceeding, i.e., to ensure that such a
party’s actions do not result in a rupture of the privilege.

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Bittaker v. Woodford, 331 F.3d 715, 727–28 (9th Cir. 2003). The Court “must enter appropriate

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orders clearly delineating the contours of the limited waiver before the commencement of

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discovery, and strictly police those limits thereafter.” Id. at 728 (emphasis added). Accordingly,

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the Court has the power as well as the obligation to impose an implied, narrow waiver and to

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issue an appropriate protective order now, before trial counsel are deposed to perpetuate their

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testimony.

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Respondent raises several arguments in opposition to Petitioner’s request to depose trial

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counsel for preservation purposes. (Doc. No. 45 at 3–5.) The Court need not address these

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arguments as Respondent is amenable to Petitioner’s request if he receives a copy of trial

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counsel’s files, which is precisely what the Court is ordering.

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Good cause appearing therefor, the Court grants in part Petitioner’s Third Motion for
Discovery, (Doc. No. 45).

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Petitioner Darren Cornelius Stanley, by and through his counsel of record, may schedule

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and conduct the depositions of Walter Cannady and Richard Hove at a time and place acceptable

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to counsel for Respondent if Petitioner’s counsel first provides Respondent’s counsel with a

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copy of Cannady’s and Hove’s files regarding Petitioner, including all documents and

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information in the files that are protected by the attorney-client privilege or the attorney-work-

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product doctrine.

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All documents and information protected by the attorney-client privilege or the attorney-

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work-product doctrine (including but not limited to privileged documents in trial counsel’s and

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the prosecution’s files as well as parts of depositions revealing privileged communications) are

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“Privileged Protected Materials” pursuant to this Protective Order.

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Privileged Protected Materials shall be revealed to and used by only the parties’

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attorneys, experts, and consultants (and persons working under their direct supervision), only for

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litigating the present action. Disclosure of the contents of Privileged Protected Materials shall
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Case No. 3-7-cv-4727-EMC
ORDER GRANTING IN PART PETITIONER’S THIRD MOTION FOR DISCOVERY & PROTECTIVE ORDER
(DPSAGOK)

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not be made to any other persons or agencies, including any other law-enforcement or

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prosecutorial personnel or agencies, without prior authorization from this Court. The disclosure

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of Privileged Protected Materials in the course of the present action does not constitute a waiver

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of the attorney-client privilege or the protection of the attorney-work-product doctrine.

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In the event that a party wishes to submit to the Court any Privileged Protected Materials

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(or briefs or other materials disclosing the contents of Privileged Protected Materials), the party

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shall do so under seal. However, copies of briefs or other materials disclosing the contents of

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Privileged Protected Materials shall be filed in the public record with the disclosure of the

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contents of the Privileged Protected Materials deleted and such deletion noted as made pursuant

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to this Protective Order.
This Protective Order shall continue in effect after the conclusion of the present action

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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. The parties may request modification or vacation of this Protective Order upon entry of

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final judgment in the present action.

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This order disposes of Docket No. 45.

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IT IS SO ORDERED.

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DATED: January 24, 2012

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EDWARD M. CHEN
United States District Judge

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Case No. 3-7-cv-4727-EMC
ORDER GRANTING IN PART PETITIONER’S THIRD MOTION FOR DISCOVERY & PROTECTIVE ORDER
(DPSAGOK)