Salcido v. Wong

Filing 39

ORDER GRANTING 29 MOTION FOR BITTAKER PROTECTIVE ORDER. Signed by Judge Maxine M. Chesney on December 10, 2012.(mmcsec, COURT STAFF) (Filed on 12/10/2012)

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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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RAMON BOJORQUEZ SALCIDO,

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Petitioner,

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Case Number 09-00586 MMC
DEATH-PENALTY CASE

v.

ORDER GRANTING MOTION FOR
BITTAKER PROTECTIVE ORDER

KEVIN CHAPPELL,
Acting Warden of San Quentin State Prison,
Respondent.

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On August 9, 2012, Petitioner, a condemned inmate at San Quentin State Prison, filed a

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Motion for Protective Order pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003). On

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August 22, 2012, Respondent filed an Opposition. On August 29, 2012, Petitioner filed a Reply.

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For the reasons set forth below, the Petitioner’s motion will be granted.

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Background
The instant habeas proceeding was initiated on February 9, 2009, when Petitioner asked

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the Court to appoint counsel and to stay his execution pending the completion of said action.

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The next day, the Court granted Petitioner’s requests and referred the matter to the Court’s

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Selection Board for recommendation of counsel. Petitioner was appointed counsel on August

ORDER GRANTING MOTION BITTAKER PROTECTIVE ORDER

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10, 2011. Following the Court’s resolution of issues pertaining to equitable tolling, the Court

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directed Petitioner to file a finalized petition by August 10, 2012.

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On August 9, 2012, Petitioner lodged with the Court a complete, unredacted version of

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his Petition and exhibits, as well as a proposed redacted version of the documents. He also filed

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an Administrative Motion to File Under Seal Portions of the Petition, which filing is the subject

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of a separate order.

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By the instant motion, Petitioner requests the Court issue a Bittaker protective order, see

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Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), to ensure that all privileged attorney-client

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communications and work product information disclosed in his Petition be used only for

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purposes of litigating his Petition. He argues that without a protective order, Respondent may

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potentially benefit from a windfall of information and unfair advantage should he be retried.

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Respondent contends the Bittaker decision has no application outside the confines of

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court-compelled discovery, that a protective order is not necessary because California law

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affords Petitioner adequate protection, and the public’s right of access would be infringed if a

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protective order were issued. Respondent further contends Petitioner’s request for a protective

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order is foreclosed under Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

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Discussion

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In Bittaker, the Ninth Circuit upheld a protective order that precluded the use of the

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petitioner’s privileged materials “for any purpose other than litigating the federal habeas petition,

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and barr[ed] the Attorney General from turning them over to any other persons or offices,

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including, in particular, law enforcement or prosecutorial agencies.” See Bittaker, 331 F.3d at

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717. In approving the protective order, the Ninth Circuit recognized that while the “fairness

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principle” requires a litigant to make a limited waiver of the attorney-client privilege when he

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puts the lawyer’s performance at issue during the course of litigation, id. at 718-19, courts must

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“closely tailor[] the scope of the waiver to the needs of the opposing party in litigating the claim

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in question,” id. at 720. The Ninth Circuit explained that two prevailing considerations justified

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extending protections to privileged information disclosed during habeas litigation. First, the

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Ninth Circuit noted that a broad waiver rule, i.e., one that does not protect privileged
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ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER

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information, “would no doubt inhibit the kind of frank attorney-client communications and

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vigorous investigation of all possible defenses that the attorney-client and work product

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privileges are designed to promote.” Id. at 722. Second, the Ninth Circuit wanted to ensure that

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both the prosecution and defense would be put “back at the same starting gate” if the petitioner

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won habeas relief, id. at 722-23, and “allowing the prosecution at retrial to use information

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gathered by the first defense lawyer – including the defendant’s statements to his lawyer – would

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give the prosecution a wholly gratuitous advantage,” id. at 724.

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Although Bittaker dealt with a protective order in the context of court-compelled

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discovery, the Ninth Circuit has since made clear that Bittaker’s holding “extends to the entire

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habeas litigation, not to pretrial discovery only.” See Lambright v. Ryan, 698 F.3d 808, 820, 822

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(9th Cir. 2012) (holding, for purposes of Fifth Amendment protection, “[i]t was not necessary for

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[petitioner] to show that his testimony was compelled”).

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Respondent’s other arguments advocating the denial of a protective order likewise are

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unavailing. To the extent respondent argues that California law already affords Petitioner

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adequate protection, see People Ledesma, 39 Cal. 4th 641 694-95 (2006), the grant of a

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protective order would simply reinforce any protections accorded to Petitioner under state law.

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Next, Respondent’s reliance on Pinholster is misplaced. Pinholster dealt with a narrow issue –

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the scope of the record appropriate for review under 28 U.S.C. § 2254(d)(1). See Pinholster, 131

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S. Ct. at 1398 (describing issue as “whether review under § 2254(d)(1) permits consideration of

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evidence introduced in an evidentiary hearing before the federal habeas court”). The decision

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has no bearing on the propriety of Petitioner’s request for a protective order. Finally, the

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public’s right of access does not favor the denial of a request for a protective order. See Bittaker,

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331 F. 3d at 725 n.9 (noting narrow waiver of privilege strikes appropriate balance among

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interests of habeas petitioner, prosecution, and public).

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ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER

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Conclusion

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For the foregoing reasons, Petitioner’s Motion is hereby GRANTED.

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IT IS SO ORDERED.

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Dated: December 10, 2012
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MAXINE M. CHESNEY
United States District Judge

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ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER