Joe Lambright v. Charles Ryan

Opinion by Judge REINHARDT; Dissent by Judge CALLAHAN.

OPINION

Joe Leonard Lambright appeals the decision of the district court to modify the protective order issued in his federal habeas proceeding to permit Respondent to turn over materials produced during the federal proceeding to the agency that will prosecute his resentencing, the Pima County Attorney’s Office. The district court granted Respondents’ motion for modification, reasoning that the protective order covered only materials disclosed after the issuance of the order, that Lam-bright did not rely on the protective order, that any privileged material lost protection under the order when it became part of the public record during the evidentiary hearing, and that Lambright had failed to explain the basis for his assertion that certain materials were privileged. We hold that the district court abused its discretion in granting the motion for modification as to materials that are privileged. First, the language of the protective order covers all materials, not just materials produced after its issuance, and, in any event, the failure to enter the order before the commencement of discovery was an abuse of discretion.…

dissenting:

I agree with the majority that the district court did not abuse its discretion in denying the motion for discovery and an evidentiary hearing. I also agree that the district court properly modified its protective order so as to exclude from its coverage non-privileged materials. However, I dissent because the majority, in finding that the district court abused its discretion in modifying its protective order, distorts the applicable law as set forth in our en banc opinion, Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003), and misperceives the facts in the case. An implied waiver, as Bittaker explains, arises only once a specific claim of privilege is presented to a court and any resulting protective order is forward-looking. Lambright did not seek a protective order until September 2003, after 15 months of discovery, the protective order sought only to limit the scope of Lambright’s deposition, and Lambright subsequently declined to testify. Accordingly, there was no implied waiver prior to the district court’s September 2003 order, and that order does not cover the discovery that took place before it was entered. Moreover, Lambright has not shown that any rights he…

BACKGROUND

In 1987, Lambright filed a federal habeas petition under 28 U.S.C. § 2254 in the Arizona District Court. In his petition, Lambright argued inter alia that he was denied effective assistance of sentencing counsel. The district court dismissed that claim, finding that it was procedurally defaulted. We reversed and remanded “for an evidentiary hearing . . . . to determine whether Lambright was denied effective assistance of counsel at sentencing because of the failure to investigate and present evidence of his psychiatric condition and social history.” Lambright v. Stewart (Lambright I), 241 F.3d 1201, 1208 (9th Cir. 2001).

On remand, between July 26, 2001 and August 26, 2003, the district court entered several discovery orders. On July 26, 2001, the district court ordered that discovery be conducted pursuant to Rule 6(b) of the Rules Governing Section 2254 Cases,1 and instructing the parties to engage in informal dis- 1 Rule 6(a) states: “Leave of Court Required. A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” 12496 LAMBRIGHT v. RYAN covery. Starting on…