The parties have responded to the court's request dated February 18, 2010, for briefing on the conduct of respondent's deposition of petitioner and potential objections thereto. After considering the parties' briefs and good cause appearing, the court finds and orders as follows.
The parties appear to be largely in agreement about the scope of the deposition on the following subjects, with one exception. Petitioner points out that respondent's reference to "brain injury" is not clear. The court agrees. Within ten days of the filed date of this order, the parties shall meet and confer and submit to the court a definition, or a concise presentation of their disagreements over a definition, of "brain injury" as incorporated in items 1 and 3 below.
1. Petitioner's communications with his trial defense team regarding: (a) his ability to form the specific intent to commit murder, (b) his mental health, (c) his "brain injury,"*fn1 (d) his leadership qualities, (e) his background, (f) alcohol use, (g) learning abilities, (h) his criminal history, and (i) his development of friendships with and information about co-defendants Virgal Edwards and John Osborne.
2. Petitioner's communications with his trial defense team regarding: (a) the investigation and strategic decisions affecting the development and presentation of his case, including his version of events leading up to the crime, during the commission of the crime, and following the crime up to the time of his arrest; (b) waiver of time to continue dates; and (c) the decision that petitioner testify.
3. Petitioner's communications with his current experts regarding the following subjects at the time of trial: (a) his ability to form the specific intent to commit murder, (b) his mental health, (c) his "brain injury,"*fn2 (d) his leadership qualities, (e) his background, (f) alcohol use, (g) learning abilities, and (h) his criminal history.
The parties disagree about the following area of inquiry, as described by respondent: "Riel's leadership qualities, learning abilities, and alcohol use insofar as they affect the guilt phase." (Dkt. No. 327 at 3.) Respondent argues this is a legitimate area of inquiry because the evidentiary hearing covers petitioner's guilt phase claims that his trial counsel failed to investigate and present evidence that it was unlikely petitioner was the leader in the crimes due in part to petitioner's personality, learning problems and alcohol use. Petitioner argues strenuously that all discovery must be limited to petitioner's communications with his trial defense team or petitioner's knowledge of acts of trial counsel or their agents. Petitioner's argument continues that since respondent could not have questioned petitioner prior to trial, the state may not question petitioner now as a "percipient witness to substantive matters." (Dkt. No. 343 at 3.) Petitioner ignores the fact that this is a discovery deposition, not testimony. In this civil proceeding, respondent has a right to seek the discovery of information that reasonably may lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Moreover, the issue is not what the state could have presented at trial; rather, the issues in this habeas proceeding are: (1) what information should petitioner's trial counsel have gathered to support petitioner's assertions that he was not the leader of the group and was asleep due to substantial alcohol consumption during the commission of the murder, and (2) whether the absence of that information at trial prejudiced petitioner. There is no question that petitioner has information regarding his leadership abilities, his learning abilities, and his alcohol use. Whether or not he communicated this information to trial counsel is important; it is also important to determine whether any of the information would have made a difference to the jury's guilt phase determination. For these reasons, the court finds it appropriate for respondent to question petitioner regarding petitioner's "leadership qualities, learning abilities, and alcohol use insofar as they affect the guilt phase." All respondent's questions are, of course, further restricted to the "subject matter" of petitioner's claims that will be the subject of the evidentiary hearing. Fed. R. Civ. P. 26(b)(1).
II. Conditions of Deposition
A. Preparing Petitioner for Deposition
It is reasonable for petitioner's counsel to prepare petitioner for the deposition.
Respondent does not object to this request. Petitioner asks that his counsel be permitted to bring with them necessary materials for preparation including documents, video and audio tapes and equipment, binders, and laptop computers. The court finds these items reasonably necessary to prepare petitioner for his deposition. Petitioner's counsel shall inform the court if he requires more specific authorization to bring these items into San Quentin.
B. Scheduling Deposition to Obtain Court Rulings on Objections
As described below, the court finds a protective order appropriate to limit access to the information gained through the deposition. The protective order should allay some of petitioner's concerns about the release of sensitive information and thus should avoid the necessity of resolving many objections during the course of the deposition. Counsel is reminded that the Federal Rules specify that objections are noted for the record, and the testimony is taken subject to any objections. Fed. R. Civ. P. 30(c)(2). However, the court is willing to make itself reasonably available for telephone conferences to resolve objections if necessary. When scheduling petitioner's deposition, if counsel ...