United States District Court, D. Arizona
CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.
Pending before the Court is Respondents’ motion to modify the protective order entered by this Court on April 3, 2014. (Doc. 414). Respondents request that this Court modify the protective order to allow both parties in the state proceedings access to any discovery and/or testimony produced and/or exchanged during the habeas proceedings conducted in this Court. Petitioner opposes the motion (Doc. 415), and Respondents have filed a reply (Doc. 416.) For the reasons set forth herein, the Court denies Respondents’ motion to modify.
The complete and lengthy procedural history of this case can be found in the orders of District Judges John M. Roll and Cindy K. Jorgenson, and in the opinions of the circuit court. As it relates to the matter presently before the Court, in September 2003, this Court issued an order of protection during discovery proceedings in preparation for an evidentiary hearing on a claim of ineffective assistance (“IAC”) of sentencing counsel. Petitioner ultimately prevailed on his habeas claim, Lambright v. Schriro, 490 F.3d 1103, 1128 (9th Cir. 2007), and this Court entered final judgment in his favor on January 25, 2008. (Doc. 341.) Petitioner was scheduled to begin his resentencing on April 22, 2009. (Doc. 345.)
In October 2008, Respondents moved to modify the protective order to allow the Pima County Attorney’s Office access to habeas depositions and discovery (with the exception of Petitioner’s own deposition) in preparation for Petitioner’s resentencing. (Id.) On December 4, 2008, the Court issued an order directing Petitioner to identify specific statements he believed were protected by the Fifth Amendment as well as specific communications and grounds for asserting the attorney-client privilege. (Doc. 357.) Petitioner filed a notice of appeal from the order and did not file a response or motion to stay the Court’s order. On March 24, 2009, the Court, finding that it retained jurisdiction to rule on the motion to modify, vacated the order of protection entered on September 23, 2003. (Doc. 362.) Petitioner filed a notice of appeal. (Doc. 363.) The Ninth Circuit, noting that due to Petitioner’s premature appeal the District Court lacked the information necessary to rule on the modification motion, vacated the modification order and remanded for further proceedings. Lambright v. Ryan, 359 F.App’x 838, 840 (9th Cir. 2009).
At the direction of this Court, the parties provided further briefing on Respondents’ motion to modify. The Court granted Respondents’ motion, concluding that its September 2003 protective order should remain in effect only as to the transcript of Petitioner’s deposition. (Doc. 385.) Petitioner appealed this order. On December 20, 2012, the Ninth Circuit remanded for further proceedings on Respondents’ motion to modify. Lambright v. Ryan, 698 F.3d 808 (2012). The Court ordered supplemental briefing, and, on April 3, 2014, issued an order granting in part and denying in part Respondents’ motion to modify. (Doc. 413.) Neither party appealed from this protective order, and it is now the subject of the matter presently before the Court. (Doc. 414.)
April 3, 2014 Protective Order
Because Respondents request a sweeping modification of the protective order, the Court summarizes its content and scope. After consideration of each item of discovery that Petitioner asserted was privileged (Doc. 406), the Court specifically identified several categories of discovery documents and excerpts of hearing testimony that qualified for protection under the attorney-client privilege, the work product doctrine, or the Fifth Amendment right against self-incrimination.
The Court found that a transcribed interview with predecessor habeas counsel Thomas Higgins, and a declaration from habeas counsel David Tiers, both referencing an interview of trial counsel Carmine Brogna and specifically discussing Brogna’s recollections regarding his mental impressions of the case and facts of the crime, his trial strategy and theories of the case, his investigation, and his communications with Petitioner, were protected as privileged attorney-client communication and work product. (Doc. 413 at 3.)
The Court also found that portions of Brogna’s testimony at the federal habeas evidentiary hearing were similarly protected. (Id.)
The Court found the remaining items included in the protective order to be privileged under the Fifth Amendment. This included the reports, interviews, evaluations, depositions and raw data of experts who personally interviewed Petitioner, or who relied on the reports of other experts who had conducted personal interviews of Petitioner. (Doc. 413 at 4) (citing Doc. 406 at 9–16). This also included correspondence between experts and Petitioner’s habeas counsel, as well as excerpts of testimony of Petitioner and Drs. Richard Hinton, Barry Morenz, Gina Lang, and Edward French. (Id.) (citing 406 at 21–25).
Additionally, the Court found that the evidentiary hearing testimony of five of Respondents’ fact witnesses were subject to the protective order because Respondents relied on protected information elicited from Petitioner in investigating and locating these fact witnesses, noting that Respondents had not specifically addressed this assertion of privilege nor claimed that the information was obtained through other means. (Id.) (citing Doc. 406 at 16–19, 22–23.)
In ruling, the Court found guidance on remand from the Ninth Circuit’s holding in this case:
. . . that the Fifth Amendment “prohibits use of [Petitioner’s] testimony at resentencing so long as it could be used to establish aggravating factors or to undermine his claim of mitigating factors.” Lambright, 698 F.3d at 822. The court further held that the Fifth Amendment protected Petitioner’s statements to mental health experts, observing that Petitioner “could not simultaneously put his mental health at issue and then ...