Joe Lambright v. Dora Schriro

MEMORANDUM

Lambright appeals from two orders of the district court, dated December 4, 2008 and March 24, 2009. Each concerned a protective order (the Protective Order), entered by the court on September 23, 2003, that prevented the state from using at his capital resentencing proceedings material “discovered” in connection with Lambright’s habeas proceedings. Because we conclude that the December 4 order was not appealable and that Lambright’s erroneous appeal from that order resulted in the district court’s inability to establish a reviewable record in connection with its March 24 order, we vacate and remand for further proceedings.

I.

This court lacks jurisdiction over Lambright’s appeal from the district court’s December 4 order. That order announced the district court’s intention to modify the Protective Order after the parties had an opportunity to advise it further about what material they believed was privileged and/or should continue to be protected from use at resentencing. It was not appealable because it was not a final order, did not conclusively determine the issue of modification, and was subject to review on appeal if and when a final modification order was…