Salcido v. Wong

Filing 40

ORDER RE: BITTAKER PROTECTIVE ORDER; DIRECTIONS TO PETITIONER. Signed by Judge Maxine M. Chesney on December 10, 2012. (mmcsec, COURT STAFF) (Filed on 12/10/2012)

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Case3:09-cv-00586-MMC Document29-2 Filed08/09/12 Page1 of 6 1 2 3 4 5 6 7 8 SEAN K. KENNEDY (No. 145632) Federal Public Defender MARTA VANLANDINGHAM (No. 251661) MICHAEL D. WEINSTEIN (No. 262179) Deputy Federal Public Defenders 321 East 2nd Street Los Angeles, California 90012-4202 Telephone: (213) 894-2854 Facsimile: (213) 894-0081 Attorneys for Petitioner RAMON BOJORQUEZ SALCIDO 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RAMON BOJORQUEZ SALCIDO, ) ) Petitioner, ) ) v. ) ) KEVIN CHAPPELL, Warden of ) California State Prison at San Quentin, ) ) Respondent. ) ) ) ) No. CV 09-00586 MMC DEATH PENALTY CASE [PROPOSED] ORDER RE: BITTAKER PROTECTIVE ORDER ; DIRECTIONS TO PETITIONER Case3:09-cv-00586-MMC Document29-2 Filed08/09/12 Page2 of 6 1 GOOD CAUSE HAVING BEEN SHOWN, Petitioner’s Motion for a Bittaker 2 Protective Order is GRANTED. Pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th 3 Cir. 2003), this Court enters the following Protective Order regarding: (1) documents 4 and materials, including declarations, derived from the trial team or trial counsel files 5 that Salcido provides to Respondent during this habeas action; (2) any related 6 testimony provided at an evidentiary hearing in this matter; and (3) any reference to 7 such documents or testimony in the parties’ pleadings submitted to this Court. 8 1. To the extent that the Court will order the production of 9 documents and discovery in this matter that Petitioner contends are 10 subject to claims of privilege or protected from disclosure by the 11 attorney work product doctrine, and to the extent that this Court will 12 order Petitioner’s trial counsel’s file, including the files of other defense 13 team members, be produced to the Respondent (or Petitioner turns over 14 such documents voluntarily by filing any part of the material as 15 supporting evidence in this action), such discovery shall be subject to 16 this Protective Order and shall remain confidential and sealed. Further, 17 to the extent that this Court will order the taking of the depositions of 18 trial counsel, other members of the defense team, Petitioner, if such 19 deposition is granted, and Petitioner's experts, such discovery shall be 20 subject to this Protective Order and shall remain confidential and sealed. 21 If an evidentiary hearing is held in this case, any testimony by Petitioner, 22 Petitioner’s experts, trial counsel, and any trial defense team member 23 shall be subject to this Protective Order and shall remain confidential 24 and sealed. Petitioner contends that the testimony provided by these 25 witnesses is subject to claims of privilege and/or protected from 26 disclosure by the attorney work-product doctrine. 27 28 If Respondent disputes any such designation of privilege, Respondent may move the Court for an order exempting such material from this Order. 2. All privileged documents and testimony produced to Respondent in this action may be used only for purposes of litigating 1 Case3:09-cv-00586-MMC Document29-2 Filed08/09/12 Page3 of 6 1 this habeas corpus proceeding by: (a) Petitioner and the members of the 2 legal team, i.e., lawyers, paralegals, investigators, and support staff, 3 assigned to Salcido v. Chappell by the Office of the Federal Public 4 Defender, and persons retained by Petitioner’s counsel to litigate this 5 matter, including, but not limited to, outside investigators, consultants 6 and expert witnesses; and (b) Respondent and the members of the legal 7 team, i.e., lawyers, paralegals, investigators, and support staff, assigned 8 to Salcido v. Chappell by the California Department of Justice, Attorney 9 General’s Office, and persons retained by Respondent’s counsel to 10 litigate this matter, including, but not limited to, outside investigators, 11 consultants and expert witnesses. This Protective Order extends to 12 members of the legal teams and all persons retained by the parties to 13 litigate this matter. All such individuals shall be provided with a copy 14 of this Protective Order. 15 3. Except for disclosure to the persons and agencies described 16 in Paragraph 2, disclosure of the contents of the documents and 17 testimony and the documents and testimony themselves shall not be 18 made to any other persons or agencies, including, but not limited to, 19 prosecutorial agencies and law enforcement personnel, without the 20 Court’s order. If Respondent contends that he needs to disclose 21 Petitioner’s privileged material to outside prosecutorial agencies, outside 22 law enforcement personnel, experts, consultants, deponents or witnesses 23 in order to investigate or respond to Petitioner’s habeas claims, 24 Respondent shall provide to Petitioner’s counsel (a) the identity of the 25 individual/s to whom access is going to be provided, and (b) 26 Respondent’s reasons therefor. Petitioner shall notify Respondent 27 within three court days of his non-opposition or objection to 28 Respondent’s proposal. If Petitioner objects to Respondent’s proposal, 2 Case3:09-cv-00586-MMC Document29-2 Filed08/09/12 Page4 of 6 1 and if the parties cannot resolve their differences within three additional 2 court days, Petitioner shall provide his written objection to Respondent 3 within three further court days. Respondent shall file and serve a 4 document containing Petitioner’s objections and Respondent’s responses 5 within three additional court days. The Court shall rule on Petitioner’s 6 objections before the privileged materials are disclosed. Any person 7 obtaining access to the privileged material pursuant to this process shall 8 also be given a copy of this Protective Order and shall sign a statement 9 agreeing to be bound by the terms of this Protective Order. 10 4. Documents and testimony that Petitioner contends are 11 privileged shall be clearly designated as such by labeling the documents 12 or testimony in a manner that does not prevent reading the text of the 13 document. 14 5. All documents and testimony designated as privileged by 15 Petitioner that are submitted to this Court shall be submitted under seal 16 in a manner reflecting their confidential nature and designed to ensure 17 that the privileged material will not become part of the public record. 18 Should an evidentiary hearing be held in this matter, privileged 19 testimony shall be clearly designated as such by marking the transcripts 20 of the proceeding. Any pleading, deposition transcript, discovery 21 response or request, or other papers served on opposing counsel or filed 22 or lodged with the court that contains or reveals the substantive content 23 of the privileged matter shall be filed under seal, and shall include a 24 separate caption page that includes the following confidentiality notice 25 or its equivalent: 26 // 27 // 28 // 3 Case3:09-cv-00586-MMC Document29-2 Filed08/09/12 Page5 of 6 1 TO BE FILED UNDER SEAL 2 THIS PLEADING OR DOCUMENT CONTAINS CONFIDENTIAL 3 INFORMATION SUBJECT TO A PROTECTIVE ORDER AND IS NOT 4 TO BE OPENED NOR ITS CONTENTS DISPLAYED OR DISCLOSED FILED ON DECEMBER 10, 2012, 5 6. If privileged documents or documents containing privileged 6 matters are filed with this Court, they shall be filed with the Clerk of this 7 Court in sealed envelopes prominently marked with the caption of the 8 case and the foregoing Confidentiality Notice. The Clerk of the Court is 9 directed to maintain the confidentiality of any documents filed in 10 accordance with the above. Insofar as reasonably feasible, only 11 confidential portions of the filings shall be under seal; and the parties 12 shall tailor their documents to limit, as much as is practicable, the 13 quantity of material that is to be filed under seal. When a pleading or 14 document contains only a limited amount of privileged content, a party 15 may file a complete copy under seal and at the same time file on the 16 public record an additional, redacted version of the document, blocking 17 out the limited matter comprising the confidential portions. 18 accordance with General Order 62(5) and shall 7. Petitioner’s disclosure of documents from trial counsel’s 19 file in this action, and any related testimony by Petitioner or members of 20 Petitioner’s trial team at a deposition or evidentiary hearing in this case, 21 does not constitute a waiver of Petitioner’s rights under the Fifth and 22 Sixth Amendments to the United States Constitution in the event of any 23 retrial. 24 8. This order shall continue in effect after the conclusion of 25 the habeas corpus proceedings and specifically shall apply in the event 26 of a retrial of all or any portion of Petitioner’s criminal case. Any 27 modification or vacation of this order shall only be made upon notice to 28 and an opportunity to be heard from both parties. 4 Case3:09-cv-00586-MMC Document29-2 Filed08/09/12 Page6 of 6 No later than five court days from the date of this Order, Petitioner shall e-file under seal his 1 2 3 4 5 9. Salcido’s unredacted Petition for Writ of Habeas Corpus 10. Exhibits 59, 65, 69-70, and 75-80 shall remain under seal. in accordance with General Order 62(5) ("If a motion to file under seal is granted in part or in shall remain under seal. full, the requesting party will e-file the document under seal according to the procedures outlined in the FAQs on the ECF website.") No later than five court days from the date of this Order, Petitioner shall e-file his redacted Petition for Writ of Habeas Corpus in the public record. Dated: December 10, 2012 HONORABLE MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE 6 7 8 9 10 Presented by: /S/ Michael Weinstein MICHAEL WEINSTEIN Deputy Federal Public Defender 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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