Stock v. Frink

Filing 25

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge John Johnston on 4/21/2016. (TAG, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DONALD RUDOLPH STOCK,
Petitioner,
v.

CV 14-25-H-DLC-JTJ
STIPULATED PROTECTIVE
ORDER

MARTIN FRINK; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

Pursuant to this Court’s February 9, 2016 Order (Doc. 17), the parties hereby
submit this Stipulated Protective Order for the Court’s approval. Pursuant to
Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (en banc), this Court enters the
following Protective Order regarding: (1) testimony at deposition or at any
evidentiary hearing in this matter from Petitioner Donald Stock’s state trial
counsel, Chad Wright; and (2) documents and materials derived from Wright’s
files that Stock provides to the Respondents Martin Frink and the Attorney General
of the State of Montana (the State) in this habeas action.

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1.

On February 9, 2016, the Court authorized the deposition of Wright

about Claims 2(e) and 2(g) in Stock’s habeas petition regarding ineffective
assistance of trial counsel (IAC). The State requests to review Wright’s file
regarding his representation of Stock. Stock acknowledges that he has waived the
attorney-client privilege by claiming that Wright was ineffective for failing to
obtain a DNA expert and failing to obtain a medical expert. Stock maintains,
however, that his waiver is limited to only those communications that are relevant
to his IAC claims.
2.

The State’s request to review Wright’s file regarding his

representation of Stock is granted.
3.

Wright’s duty of confidentiality to Stock is waived for the sole

purpose of the habeas proceeding in this case. There is no legal or ethical
foundation for any disciplinary action or tort complaint against Wright 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 to
the limitations on use contained in this Protective Order.1 To the extent that
Wright’s file, including the files of other defense team members, is produced to the

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Materials and testimony subject to privilege and/or subject to the attorney
work product doctrine will be referred to collectively as “privileged” materials.
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State during this habeas corpus proceeding, 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 Stock 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 the State 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) Stock and
members of the legal team he has retained, i.e., lawyers, paralegals, investigators,
and support staff in Stock v. Frink; and (b) the State and the members of the legal
team, i.e., lawyers, paralegals, investigators, and support staff assigned to Stock v.
Frink, by the Montana Department of Justice, Attorney General’s Office, and
persons the State’s counsel have retained to litigate this matter, including, but not
limited to outside investigators, consultants, and expert witnesses. 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 the 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 person or agencies, including, but not

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limited to, prosecutorial agencies and law enforcement personnel, without an order
of the Court.
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, the State shall be
precluded from using against Stock in any future state proceeding, including a
retrial, any privileged communications or materials or information contained
therein, including testimony relating to the same.
8.

Stock’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 Stock’s rights under the
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 attorney-client or work product privileges in the first
place.
10.

This Order shall continue in effect after conclusion of the habeas

corpus proceedings and shall apply in the event of a retrial or any portion or all of
Stock’s criminal case. Any modification or vacation of this order shall be made
only upon notice to both parties and an opportunity for both parties to be heard.

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Presented by:
/s/ Tammy K Plubell
TAMMY K. PLUBELL
Assistant Attorney General
Counsel for Respondents
/s/ Todd Maybrown
TODD MAYBROWN
Counsel for Plaintiff

IT IS SO ORDERED.
Dated April 21, 2016

/s/ John Johnston
United States Magistrate Judge

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