Cuevas Espinoza v. Cate

Filing 123

ORDER Denying 119 Joint Motion for Entry of Stipulated Protective Order. The parties must submit a revised joint motion for a stipulated protective order no later than the close of business on Thursday, 04/26/2018. Signed by Magistrate Judge Bernard G. Skomal on 04/25/2018. (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Rogelio Cuevas Espinoza,

Case No.: 10cv397-WQH-BGS
Petitioner,

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ORDER DENYING JOINT MOTION
FOR ENTRY OF STIPULATED
PROTECTIVE ORDER

v.
Shawn Hatton, Warden,
Respondent.

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[ECF No. 119]

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The parties’ Joint Motion for Stipulated Protective Order (ECF No. 119) filed on

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April 12, 2018 is currently before the Court. In conversations with the Court, the parties

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stated a Protective Order was to be entered pursuant to Bittaker v. Wodoford, 331 F.3d 715

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(9th Cir. 2003) (en banc) for the purpose of protecting privileged information that could be

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disclosed during appellate defense counsel Barbara Smith’s testimony during the May 2,

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2018 evidentiary hearing.

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However, unlike in Bittaker, the categories of documents and testimony required to

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be deemed confidential and submitted under seal per the proposed Protective Order are

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overly broad. Critically, the proposed Protective Order fails to provide a nexus between

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(1) the privileged nature of the documents or testimony at issue and (2) the resultant need
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for such documents or testimony to be marked as confidential and/or submitted under seal.

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This systemic error must be corrected throughout the proposed Protective Order; only

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documents or testimony containing privileged information should be permitted to be

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sealed. A determination regarding the existence of privilege and whether such a privilege

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has been waived will be subject to notice and an opportunity to be heard from the parties

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if contested.

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The overly broad nature of the proposed Protective Order is apparent on its face. For

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example, the proposed Protective Order would encompass: “(1) any and all testimony,

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documents and materials, including declarations, that are presented, discovered, filed or

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admitted during this habeas action; (2) any and all testimony provided at an evidentiary

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hearing or through discovery, and any statements made in pre-hearing investigation in this

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matter; and (3) any reference to such documents, testimony, or statements in pleadings and

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briefings submitted to the Court.” (ECF No. 119 at 2.) However, the proposed Protective

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Order should only apply to: (1) documents and materials from appellate defense counsel’s

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files regarding her representation of Petitioner; (2) any related testimony provided at a

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deposition or an evidentiary hearing in this matter and (3) any reference to such documents

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or testimony in the parties’ pleadings submitted to the Court.

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Further, in the proposed Protective Order, the parties would require all “testimony

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or statements made [at the evidentiary hearing] by Petitioner, Petitioner’s experts, appellate

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defense counsel, and any appellate defense team member or expert [to] be deemed

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confidential and sealed.” (ECF No. 119 ¶ 5.) However, it is only testimony and statements

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made during the evidentiary hearing by Petitioner, Petitioner’s experts, appellate defense

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counsel, and any appellate defense team member regarding privileged matters that should

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be deemed confidential and sealed. Sealing the entirety of appellate defense counsel and

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Petitioner’s testimony from the evidentiary hearing would be overly inclusive.

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Similarly, the proposed Protective Order limits the use of “any and all of the above

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mentioned documents, statements, testimony, and privileged materials” by the parties to

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this federal habeas litigation. (ECF No. 119 ¶ 6) However, it is only privileged documents
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produced to Respondent and privileged testimony in this action that should be limited to

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use by the parties in this habeas corpus proceeding, or any related federal or state habeas

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corpus proceeding regarding the same conviction.

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Further, Paragraph 2 is overbroad and ambiguous. It states that “[a]ny and all

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discovery granted by this Court, including requests to depose appellate defense appellate

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defense counsel, and other appellate defense team members or experts, shall be deemed

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confidential.” (ECF No. 115 ¶ 2.) This means, that “any and all discovery granted by this

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Court . . . shall be deemed confidential.” Nowhere in the proposed Protective Order is the

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term “confidential” defined. As some paragraphs state that materials “shall be deemed

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confidential and sealed”, it appears that confidential documents are not required to be filed

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under seal. The parties must define what protections should be afforded confidential

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documents.

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For the reasons stated above, the Joint Motion for Stipulated Protective Order (ECF

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No. 119) is DENIED WITHOUT PREJUDICE. Given that the evidentiary hearing is

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set to recommence on May 2, 2018 at 9:30 a.m., the parties must submit a revised joint

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motion for a stipulated protective order no later than the close of business on Thursday,

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April 26, 2018. The revised joint motion for a stipulated protective order should be

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consistent with the following protective orders: Protective Order, Bittaker v. Woodford,

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No. 91-cv-1643-WMB (C.D. Cal. May 10, 2002) (ECF No. 423), Supplement to Protective

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Order, Bittaker v. Woodford, No. 91-cv-1643-WMB (C.D. Cal. Nov. 17, 2003) (ECF No.

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467), and Protective Order, Scott v. Ylst, No. 03-cv-978-VAP (C.D. Cal. Aug. 8, 2006)

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(ECF No. 54) (use of protective order approved sub nom in Scott v. Chappell, 547 Fed.

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App’x 815 (2013)).

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Additionally, upon review of the prior Protective Order (ECF No. 74) entered in this

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action, it appears the parties intended to limit that Protective Order to privileged testimony

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and communications only per Bittaker. However, upon review, it also appears overbroad

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for the same reasons discussed above. (See, e.g., ¶ 5 ECF No. 74 ¶¶ 3, 6) The parties

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should resubmit a modified protective order consistent with Bittaker to the extent the
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existing Protective Order (ECF No. 74) should apply to only privileged material and

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testimony.

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IT IS SO ORDERED.
Dated: April 25, 2018

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