Ervin v. Ayers

Filing 232

ORDER by Judge Claudia Wilken 231 STIPULATION WITH PROPOSED ORDER RESOLVING 222 SUPPLEMENTAL MOTION FOR ORDER THAT SAN QUENTIN STATE PRISON PERMIT PETITIONER'S COUNSEL TO CONDUCT IN-PERSON REVIEW OF RECORDED TELEPHONE CALLS AND FOR ACCESS TO RELATED MATERIAL, INCLUDING LOGS AND TRANSCRIPTIONS. (ndr, COURT STAFF) (Filed on 7/17/2012)

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: [phone]
Fax: [phone]
E-mail: [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)