Gunderson v. Kirkegard et al
Filing
34
STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Carolyn S Ostby on 6/27/2014. (TAG, )
FILED
JUN 2 7 2014
Clerk, U.S. District Court
District Of Montana
Billings
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
DAVID GUNDERSON,
Petitioner,
v.
)
) Cause No. CV 13-35-BLG-CSO
)
, STIPULATED
)
) PROTECTIVE ORDER
)
)
LEROY KIRKEGARD; Attorney
General of the State of Montana,
Respondents.
)
)
)
)
Pursuant to the Court's June 4, 2014, Order (Doc. 32), the parties have
conferred with one another and hereby submit this Proposed Stipulated Protective
Order for the Court's approval. Pursuant to Bittaker v. Woodford, 331 F.3d 715
(9th Cir. 2003) (en bane), this Court enters the following Protective Order
regarding {I) testimony provided at deposition or at any evidentiary hearing in this
matter from Petitioner David Gunderson's state trial team or state trial counsel and
(2) documents and materials derived from the trial team or trial counsel files that
Petitioner provides to Respondents in this habeas action.
STIPULATED PROTECTIVE ORDER
PAGE 1
1.
On May 15, 2014, the parties jointly moved for leave to depose
Gunderson's state trial counsel and for a briefing schedule to develop and submit
the procedural issue regarding the ineffective assistance of counsel (IAC) claim set
forth in Gunderson's habeas corpus petition for decision. Respondents request to
review Mr. Kelleher's file regarding his representation of Gunderson. Petitioner
acknowledges that he has waived the attorney-client privilege by claiming that Mr.
Kelleher was ineffective because he failed to request a jury instruction on the
lesser-included offense of criminal trespass. He maintains, however, that his
waiver is limited to only those communications that are relevant to this claim.
2.
Respondents' request to review Mr. Kelleher's file regarding his
representation of Gunderson is granted.
3.
Mr. Kelleher's duty of confidentiality to Gunderson is waived for the
sole purpose of the habeas corpus proceedings in this case. There is no legal or
ethical foundation for any disciplinary action or tort complaint against Mr.
Kelleher or the public defender's office for breaching the duty of confidentiality in
these habeas corpus proceedings.
4.
Any testimony adduced at any deposition or evidentiary hearing in
this case, by any witness addressing material subject to this order shall be subject
STIPULATED PROTECTIVE ORDER
PAGE2
to the limitations on use contained in this Protective Order. 1 To the extent that Mr.
Kelleher's file, including the files of other defense team members, is produced to
Respondents during this habeas action, such discovery shall be subject to this
Protective Order, shall remain confidential, and shall not be disclosed except
pursuant to the terms of this Order. Documents that Petitioner contends are
privileged shall be clearly designated as such by labeling the documents in a
manner that does not prevent reading the text of the documents.
5.
All privileged materials produced to Respondents in this action, and
any deposition and in-court testimony that addresses privileged material, may be
used only for purposes of litigating this habeas corpus proceeding by: (a) Petitioner
and the members of the legal team, i.e., lawyers, paralegals, investigators, and
support staff, assigned to Gunderson v. Kirkegard, by the Office of the Federal
Public Defender, and persons retained by Petitioner's counsel to litigate this
matter, including, but not limited to, outside investigators, consultants and expert
witnesses; and (b) Respondents and the members of the legal team, i.e., lawyers,
paralegals, investigators, and support staff, assigned to Gunderson v. Kirkegard, by
the Montana Department of Justice, Attorney General's Office, and persons
retained by Respondents' counsel to litigate this matter, including, but not limited
1
Materials and testimony subject to a privilege and/or subject to the attorney work
product doctrine will be referred to collectively hereinafter as "privileged" materials.
STIPULATED PROTECTIVE ORDER
PAGE3
to, outside investigators, consultants and expert witnesses. This Protective Order
extends to members of the legal teams and all persons retained by the parties to
litigate this matter. All such individuals shall be provided with a copy of this
Protective Order.
6.
Except for disclosure to the persons and agencies described in
Paragraph 5 for purposes of litigating this habeas corpus action, disclosure of the
contents of privileged materials and testimony, and the materials and testimony
themselves, shall not be made to any other persons or agencies, including, but not
limited to, prosecutorial agencies and law enforcement personnel, without the
Court's order.
7.
Pleadings, documents or other exhibits previously filed in this habeas
proceeding which may reveal the contents of privileged materials subject to this
Protective Order are not to be filed under seal. However, Respondents shall be
precluded from using any privileged communications or materials or information
contained therein, including any testimony relating to the same, against Petitioner
in any manner in any future State proceeding, including a retrial.
8.
Petitioner's disclosure of documents from trial counsel's file in this
action, and any related testimony by a witness at a deposition or evidentiary
hearing in this case, does not constitute a waiver of Petitioner's rights under the
STIPULATED PROTECTIVE ORDER
PAGE4
Fifth and Sixth Amendments to the United States Constitution in the event of any
retrial.
9.
Nothing in this Protective Order is intended to apply to materials or
information never subject to the attorney-client or work product privileges in the
first place.
10.
This Order shall continue in effect after the conclusion of the habeas
corpus proceedings and specifically shall apply in the event of a retrial of all or any
portion of Petitioner's criminal case. Any modification or vacation of this order
shall only be made upon notice to and an opportunity to be heard from both parties.
Presented by:
Isl David Ness
DAVID NESS
Assistant Federal Defender
Counsel for Petitioner
Isl C. Mark Fowler
C. MARK FOWLER
Assistant Attorney General
Counsel for Respondents
OORDERED.
STIPULATED PROTECTIVE ORDER
PAGES
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