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Blair v. Ayers

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION


February 19, 2009

JAMES NELSON BLAIR, PETITIONER,
v.
ROBERT L. AYERS, JR., WARDEN, CALIFORNIA STATE PRISON AT SAN QUENTIN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

DEATH PENALTY CASE

Joint Stipulation for Protective Order for Testimony and Declarations Regarding Petitioner's Competency AND ORDER

INTRODUCTORY STATEMENT

This Court has scheduled the hearing to "determin[e] Blair's competence to assist his counsel in accordance with Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003)" to begin September 30, 2008. Some of the information relied upon by the experts, and potentially some additional evidence, is protected by the attorney-client privilege and/or work product doctrine. The parties agree that said information should remain confidential, except as otherwise indicated in this stipulation. Accordingly, the parties stipulate as follows:

JOINT STIPULATION

Hereafter, Petitioner and Respondent, through their respective counsel, stipulate to the following:

Pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), this Court shall enter a protective order:

1. All information that is privileged under the attorney-work product doctrine and is attorney-client communication produced or presented in this action may be used only for purposes of litigating Petitioner's competency to assist counsel or other mental health or mental state claims for state and federal habeas relief:

(a) Petitioner and the members of the legal team, i.e., lawyers, paralegals, investigators, and support staff, assigned to Blair v. Ayers, No. CV 99-6859-VAP (OP), and persons retained by Petitioner's counsel to assist in habeas corpus proceedings involving the Petitioner, including, but not limited to, outside investigators, consultants and expert witnesses; and

(b) Respondent and the members of the legal team, i.e., lawyers, paralegals, investigators, and support staff, to Blair v. Ayers, No. CV 99-6859-VAP (OP), and persons retained by Respondent's counsel to assist in litigating the instant Dusky/Gates competency hearing, including, but not limited to, outside investigators, consultants and expert witnesses.

2. This Protective Order extends to members of the legal teams and all persons retained by the parties to litigate Blair v. Ayers, No. CV 99-6859-VAP (OP). All such individuals shall be provided with a copy of this Protective Order.

3. All privileged information that is presented in court shall be heard in a courtroom closed to the public. All transcripts from these proceedings shall be requested by only present counsel (the Federal Public Defender and the California Attorney General) for Petitioner and Respondent. All transcripts from these proceedings shall be filed under seal.

4. Except for disclosure to the persons and agencies described in Paragraph 1, disclosure of the documents, the contents of the documents, and testimony concerning the documents or their contents shall not be made to any other persons or agencies, including, but not limited to, prosecutorial agencies and law enforcement personnel, without the Court's order.

5. Any privileged information shall be clearly designated as such, when presented at any evidentiary hearing, by labeling the documents in a manner that does not prevent reading the text of the document. For example, documents such as counsel's correspondence with Petitioner, the report by Richard G. Dudley, Jr., M.D., and his testimony, and the declaration and testimony of Statia Peakheart contain privileged information.

6. All privileged information shall be kept under seal in a manner reflecting their confidential nature and designed to ensure that the privileged material will not become part of the public record. At the evidentiary hearing to be held in this matter, privileged testimony shall be clearly designated as such by marking the transcripts of the proceeding. Any pleading, deposition transcript, discovery response or request, or other papers served on opposing counsel or filed or lodged with the court that contains or reveals the substantive content of the privileged matter shall be filed under seal, and shall include a separate caption page that includes the following confidentiality notice or its equivalent:

"TO BE FILED UNDER SEAL THIS PLEADING OR DOCUMENT CONTAINS CONFIDENTIAL INFORMATION SUBJECT TO A PROTECTIVE ORDER AND IS NOT TO BE OPENED NOR ITS CONTENTS DISPLAYED OR DISCLOSED"

7. If privileged documents or documents containing privileged matters are filed with this Court, they shall be filed with the Clerk of this Court in sealed envelopes prominently marked with the caption of the case and the foregoing Confidentiality Notice. The Clerk of the Court is directed to maintain the confidentiality of any documents filed in accordance with the above. Insofar as reasonably feasible, only confidential portions of the filings shall be under seal; and the parties shall tailor their documents to limit, as much as is practicable, the quantity of material that is to be filed under seal. When a pleading or document contains only a limited amount of privileged content, either party may file a complete copy under seal and at the same time file on the public record an additional, redacted version of the document, blocking out the limited matter comprising the confidential portions.

8. This order shall continue in effect after the conclusion of the Dusky/Gates competency hearing in Blair v. Ayers, No. CV 99-6859-VAP (OP), and specifically shall apply in the event of any post-conviction merits determination, and retrial of all or any portion of Petitioner's criminal case. Any modification or vacation of this order shall only be made upon notice to and an opportunity to be heard from both parties.

SO STIPULATED:

Dated: August 27, 2008

DECLARATION OF SERVICE

I declare that I am, and was at all times herein mentioned, a citizen of the United States, a resident of the County of Los Angeles, over the age of 18 years and not a party to this action or proceeding. My business address is Office of the Federal Public Defender, 321 East 2nd Street, Los Angeles, California 90012-4206, and I am employed in the office of a member of the bar of this Court, at whose direction the service described herein was made. I served the within Joint Stipulation for Protective Order for Testimony and Declarations Regarding Petitioner's Ability to Assist Counsel on the parties in this action by placing one copy thereof in an envelope and depositing said envelope in the United States Mail, with postage fully prepaid thereon, at Los Angeles, California, addressed as follows:

James N. Blair, CDC# D-13027 San Quentin State Prison San Quentin, CA 94964 By Hand-delivery: Courtesy Copy to:

Death Penalty Law Clerk Hon. O. Parada, Mag. Judge United States Courthouse, Rm 801 Riverside Federal Courthouse 312 North Spring Street Riverside, California Los Angeles, CA 9001

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California on August 27, 2008.

Martha Sifuentes Martha Sifuentes

SEAN J. BOLSER (250241) STATIA PEAKHEART (200363) Deputy Federal Public Defenders Statia_Peakheart@fd.org 321 East 2nd Street Los Angeles, California 90012-4202 Telephone: (213) 894-7528 Facsimile: (213) 894-7566 Attorneys for Petitioner JAMES NELSON BLAIR

IT IS HEREBY ORDERED THAT: Pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), this Court shall enter a protective order:

1. All information that is privileged under the attorney-work product doctrine and is attorney-client communication produced or presented in this action may be used only for purposes of litigating Petitioner's competency to assist counsel or other mental health or mental state claims for state and federal habeas relief:

(a) Petitioner and the members of the legal team, i.e., lawyers, paralegals, investigators, and support staff, assigned to Blair v. Ayers, No. CV 99-6859-VAP (OP), and persons retained by Petitioner's counsel to assist in habeas corpus proceedings involving the Petitioner, including, but not limited to, outside investigators, consultants and expert witnesses; and

(b) Respondent and the members of the legal team, i.e., lawyers, paralegals, investigators, and support staff, to Blair v. Ayers, No. CV 99-6859-VAP (OP), and persons retained by Respondent's counsel to assist in litigating the instant Dusky/Gates competency hearing, including, but not limited to, outside investigators, consultants and expert witnesses.

2. This Protective Order extends to members of the legal teams and all persons retained by the parties to litigate Blair v. Ayers, No. CV 99-6859-VAP (OP). All such individuals shall be provided with a copy of this Protective Order.

3. All privileged information that is presented in court shall be heard in a courtroom closed to the public. All transcripts from these proceedings shall be requested by only present counsel (the Federal Public Defender and the California Attorney General) for Petitioner and Respondent. All transcripts from these proceedings shall be filed under seal.

4. Except for disclosure to the persons and agencies described in Paragraph 1, disclosure of the documents, the contents of the documents, and testimony concerning the documents or their contents shall not be made to any other persons or agencies, including, but not limited to, prosecutorial agencies and law enforcement personnel, without the Court's order.

5. Any privileged information shall be clearly designated as such, when presented at any evidentiary hearing, by labeling the documents in a manner that does not prevent reading the text of the document. For example, documents such as counsel's correspondence with Petitioner, the report by Richard G. Dudley, Jr., M.D., and his testimony, and the declaration and testimony of Statia Peakheart contain privileged information.

6. All privileged information shall be kept under seal in a manner reflecting their confidential nature and designed to ensure that the privileged material will not become part of the public record. At the evidentiary hearing to be held in this matter, privileged testimony shall be clearly designated as such by marking the transcripts of the proceeding. Any pleading, deposition transcript, discovery response or request, or other papers served on opposing counsel or filed or lodged with the court that contains or reveals the substantive content of the privileged matter shall be filed under seal, and shall include a separate caption page that includes the following confidentiality notice or its equivalent:

"TO BE FILED UNDER SEAL THIS PLEADING OR DOCUMENT CONTAINS CONFIDENTIAL INFORMATION SUBJECT TO A PROTECTIVE ORDER AND IS NOT TO BE OPENED NOR ITS CONTENTS DISPLAYED OR DISCLOSED"

7. If privileged documents or documents containing privileged matters are filed with this Court, they shall be filed with the Clerk of this Court in sealed envelopes prominently marked with the caption of the case and the foregoing Confidentiality Notice. The Clerk of the Court is directed to maintain the confidentiality of any documents filed in accordance with the above. Insofar as reasonably feasible, only confidential portions of the filings shall be under seal; and the parties shall tailor their documents to limit, as much as is practicable, the quantity of material that is to be filed under seal. When a pleading or document contains only a limited amount of privileged content, either party may file a complete copy under seal and at the same time file on the public record an additional, redacted version of the document, blocking out the limited matter comprising the confidential portions.

8. This order shall continue in effect after the conclusion of the Dusky/Gates competency hearing in Blair v. Ayers, No. CV 99-6859-VAP (OP), and specifically shall apply in the event of any post-conviction merits determination, and retrial of all or any portion of Petitioner's criminal case. Any modification or vacation of this order shall only be made upon notice to and an opportunity to be heard from both parties.

IT IS SO ORDERED.

DECLARATION OF SERVICE

I declare that I am, and was at all times herein mentioned, a citizen of the United States, a resident of the County of Los Angeles, over the age of 18 years and not a party to this action or proceeding. My business address is Office of the Federal Public Defender, 321 East 2nd Street, Los Angeles, California 90012-4206, and I am employed in the office of a member of the bar of this Court, at whose direction the service described herein was made. I served the within [Proposed] Protective Order for Testimony and Declarations Regarding Petitioner's Competency on the parties in this action by placing one copy thereof in an envelope and depositing said envelope in the United States Mail, with postage fully prepaid thereon, at Los Angeles, California, addressed as follows:

James N. Blair, CDC# D-13027 San Quentin State Prison San Quentin, CA 94964 By Hand-delivery:

Death Penalty Law Clerk United States Courthouse, Rm 801 312 North Spring Street Los Angeles, CA 9001 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California on August 27, 2008.

Martha Sifuentes

20090219

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