Ervin v. Ayers

Filing 232


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1 2 3 4 5 6 7 8 KAMALA D. HARRIS Attorney General of California THOMAS S. PATTERSON Supervising Deputy Attorney General ADRIANO HRVATIN Deputy Attorney General State Bar No. 220909 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1672 Fax: (415) 703-5843 E-mail: Attorneys Specially Appearing for the California Department of Corrections and Rehabilitation 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 14 CURTIS LEE ERVIN, Petitioner, CAPITAL CASE 15 16 17 18 19 20 21 C 00-1228 CW v. STIPULATION AND [PROPOSED] ORDER RESOLVING SUPPLEMENTAL MOTION FOR ORDER THAT SAN KEVIN CHAPPELL, Acting Warden of QUENTIN STATE PRISON PERMIT California State Prison at San Quentin, PETITIONER’S COUNSEL TO CONDUCT IN-PERSON REVIEW OF Respondent. RECORDED TELEPHONE CALLS AND FOR ACCESS TO RELATED MATERIAL, INCLUDING LOGS AND TRANSCRIPTIONS 22 23 Petitioner Curtis Lee Ervin, Respondent Kevin Chappell, and the California Department of 24 Corrections and Rehabilitation (CDCR), a non-party specially appearing in the above-captioned 25 matter as custodian of the telephone records implicated by Petitioner’s supplemental motion for 26 discovery, through their attorneys, have met and conferred regarding the motion and reached a 27 stipulation that resolves its issues, and submit the stipulation to the Court for its consideration and 28 approval, as follows: 1 Stip. & [Proposed] Order Resolving Pet.’s Supp. Discovery Mot. (C 00-1228 CW) 1 1. On June 5, 2012, Petitioner filed a supplemental motion for an order that San Quentin 2 State Prison permit Petitioner’s counsel to conduct an in-person review of recorded telephone 3 calls and for access to related materials, including logs and transcriptions. (Docket No. 222.) 4 2. On June 18, 2012, counsel for Petitioner and Respondent stipulated to extend 5 Respondent’s deadline to respond to Petitioner’s motion from June 19, 2012 to June 29, 2012 6 (Docket No. 225), which the Court approved on June 19, 2012 (Docket No. 226). 7 3. On June 29, 2012, counsel for Petitioner, Respondent, and CDCR stipulated to extend 8 the deadline to respond to Petitioner’s motion from June 29, 2012 to July 13, 2012. (Docket No. 9 227.) Specifically, CDCR’s counsel, following a preliminary review of Petitioner’s motion and 10 investigation regarding the discovery sought, met and conferred with Petitioner’s counsel and 11 indicated that San Quentin was inclined to accommodate Petitioner’s request for an in-person 12 review of the telephone records at issue. CDCR’s counsel, however, needed additional time to 13 ensure that the disclosure of such information, to the extent it may implicate inmates’ identifying 14 information, does not contravene federal or state privacy laws and regulations. (Id.) On July 3, 15 2012, the Court approved the parties’ stipulation. (Docket No. 228.) 16 17 18 4. On July 6, 2012, counsel met and conferred further regarding Petitioner’s motion and reached an agreement that resolves its issues. 5. At a time in the near future to be agreed upon by counsel for Petitioner and San 19 Quentin, through CDCR’s counsel, Petitioner’s counsel will be permitted to conduct an in-person 20 review of the recorded telephone calls made from San Quentin to the California Appellate Project 21 (CAP) between August 1, 2011 and October 31, 2011 for the purpose of identifying the telephone 22 calls made in that time period to CAP by inmate Gary Dale Hines (CDCR No. D91000). The 23 disclosure of the name of the inmate placing the telephone call is authorized by title 15, section 24 3261.2(e) of the California Code of Regulations. 25 6. During Petitioner’s counsel’s in-person review, Petitioner’s counsel agrees to listen to 26 no more than the first segment of the telephone call, generally within the first five to ten seconds 27 of any given call, to identify solely the identity of the individual who placed the call. Should 28 Petitioner’s counsel be unable to determine the identity of the caller, Petitioner’s counsel agrees 2 Stip. & [Proposed] Order Resolving Pet.’s Supp. Discovery Mot. (C 00-1228 CW) 1 to confer with San Quentin personnel present at the in-person review to determine the least 2 intrusive way to determine the caller’s identity without encroaching upon the substance of the 3 call. Petitioner’s counsel further agrees not to disclose the identity of any caller, other than 4 inmate Hines, to any third person. 5 7. Counsel for the parties also met and conferred regarding additional requests or issues 6 raised by Petitioner’s supplemental discovery motion. Petitioner’s counsel has been advised that 7 San Quentin does not have the capacity to transcribe recorded telephone calls and does not have 8 any transcript of any telephone call made by inmate Hines to CAP. Nor does San Quentin have in 9 its possession, custody, or control any documentation, such as Unit Telephone Logs or inmate 10 sign-up sheets, reflecting the telephone calls made to CAP during the time period at issue. San 11 Quentin has retained, and will not destroy during the pendency of this litigation, copies of the 12 voice recordings that San Quentin has identified as having been made from San Quentin to CAP 13 during August 1, 2011 to October 31, 2011. 14 8. Following Petitioner’s counsel’s in-person review of the telephone calls at issue, San 15 Quentin will provide to Petitioner’s counsel copies of the telephone calls identified as being made 16 by inmate Hines to CAP during the time period at issue. 17 9. Should Petitioner rely on or use the recorded telephone calls as evidence in 18 connection with any further motion or proceeding in this matter, Petitioner’s counsel will provide 19 Respondent’s counsel, within a reasonable time frame, copies of the telephone calls identified as 20 being made by inmate Hines to CAP during the time period at issue supplied by CDCR to 21 Petitioner’s counsel pursuant to this stipulation and proposed order. The use of the recorded 22 telephone calls shall be limited to Petitioner’s litigation only, and may not be used against inmate 23 Hines in his capital case, absent a separate waiver of any privilege held by inmate Hines or 24 pursuant to court order, or any other proceeding, absent a separate waiver of any privilege held by 25 inmate Hines or pursuant to court order. 26 27 10. The parties agree that the issues raised by Petitioner’s supplemental discovery motion have been resolved such that Petitioner’s motion may be denied as moot. 28 3 Stip. & [Proposed] Order Resolving Pet.’s Supp. Discovery Mot. (C 00-1228 CW) 11. The parties agree that this stipulation does not waive any rights the parties may have 2 regarding the discovery sought by the instant motion, including Petitioner's right to seek furthet• 3 relief, Respondent's. right: to object to any such request, and CDCR's right to appear specially to 4 respond to that request. 5 IT IS SO STIPULATED. 6 Respectfully S.ubmitted, 7 8 Dated: July J..a, 2012 LAW OFFICES OF ROBERT R. BRYAN LAW OFFICES OF PAlvlALA SAYASANE 9 10 11 12 Dated: July lJ , 2012 13 14 Deputy Atto · 1ey General Attortieysfor Respondent -1 I 15 16 Dated: July J.!_, 2012 OFFICE OF THEATIORNEY GENERAL Ao~~f;- 17 18 Deputy Attorney Get1eral Attorneys Specially Appeari11gfo1• the Cal{fornia Department ofCorrections 19 and Rehabilitation 20 21 IT IS SO ORDERED. 22 23 Dated: 17 July~· 2012 THE HONORABLE CLAUDIA WILKEN 24 United States. District Court Judge , 25 26 27 28 SP201.2204786 2062S359.dpc 4 S~ip. & [Proposed] Or·dcr Resolving Pet.'s Supp. Discovery Mor. (C 00-1228 CW)

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