Robertson v. Thaler, Director TDCJ-CID

Filing 22

MEMORANDUM OPINION AND ORDER denying 20 MOTION for Reconsideration. (Ordered by Senior Judge A. Joe Fish on 8/28/2013) (tln)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MARK ROBERTSON,
Petitioner,
VS.
WILLIAM STEPHENS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO.
3:13-CV-0728-G

(Death Penalty Case)

MEMORANDUM OPINION AND ORDER

On August 23, 2013, the respondent filed a motion (docket entry 20) to
reconsider the court’s order granting Mark Robertson (“Robertson”) leave to proceed
ex parte (docket entry 19). On that same date, the respondent filed an out-of-time
response (docket entry 21) to Robertson’s amended motion for leave to proceed ex
parte (docket entry 17). The court considers the allegations of the out-of-time
response as incorporated into the respondent’s motion for reconsideration (docket
entry 20).

Respondent’s motion and out-of-time response assert that Robertson has the
burden of proof to substantiate his allegations of attorney work product and that he
has failed to meet this burden or even describe the harm that would result from
disclosure (docket entry 21 at 2-3). While respondent’s counsel accepts
responsibility for the delay, the procedural posture of this matter has changed. The
urgent nature of pre-petition funding prompted this court to shorten the response
time. Robertson originally requested leave to proceed ex parte on this funding matter
on May 13, 2013, and his investigation of this claim has been delayed by these
procedural requirements. If the court now vacates the prior order to require
Robertson to make further disclosures, the investigation would be further delayed
without a resolution to the funding request. Respondent’s motion for reconsideration
does not show that such a delay is necessary or helpful.
Respondent complains about the nondisclosure of the identity of any experts
and of his or her reports (docket entry 21 at 4), but these would appear to be
protected until the petitioner decides whether to rely upon such expert’s opinions.
See FED. R. CIV. P. 26(b)(4)(D). Respondent minimizes the harm to Robertson in
disclosing the information now by arguing that it will eventually be disclosed when
the habeas petition is filed (docket entry 21 at 4). This does not account for the
possibility that Robertson’s attorney may choose to not use a particular expert or
pursue the precise claim sought to be investigated. That is a decision entitled to the

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protection afforded attorney work product. Respondent also argues against the
nondisclosure of those legal theories or opinions that may reasonably be inferred
(docket entry 21 at 4), but does not reveal how such disclosure is now needed.
Indeed, his argument suggests the opposite. Respondent’s motion to reconsider fails
to show that the order granting leave to proceed ex parte was incorrect or that the
further delay that would result from vacating that order is justified.
Respondent’s motion to reconsider (docket entry 20) is DENIED.
SO ORDERED.

August 28, 2013.

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A. JOE FISH
Senior United States District Judge

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