In an April 6, 2009 order setting a status conference to discuss preparation for the evidentiary hearing, the court instructed the parties as follows:
Prior to the status conference, counsel shall review the court's June 13, 2008 and January 30, 2009 orders in Osband v. Ayers, CIV S 97-0152 WBS KJM, regarding the standards for determining what, if any, portions of the evidentiary hearing, including the transcript and exhibits, should be sealed. At the status conference, counsel shall be prepared to discuss procedures and a schedule for preparing for and conducting an evidentiary hearing.
At the April 22, 2009 status conference, the court informed the parties it intended to apply the standard for closing portions of the evidentiary hearing set out in the June 13, 2008 and January 30, 2009 orders in Osband v. Ayers, CIV S 97-0152 WBS KJM. The court then required the parties to file a joint statement that would, among other things, inform the court whether either party wishes to propose an alternative to the procedure for sealing portions of the evidentiary hearing set out in the court's June 13, 2008 and January 30, 2009 orders in Osband v. Ayers, CIV S 97-0152 WBS KJM, and if so suggest a briefing schedule for doing so.
Apr. 29, 2009 Order at 3. On July 20, 2009, respondent filed a "Motion for Open and Public Access to the Entire Evidentiary Hearing." While the title indicated that respondent sought a court order that no portions of the evidentiary hearing would be closed, the test for closure proposed by respondent was similar in many ways to the test set out in Osband. However, respondent never attempted to distinguish his proposed test from the Osband test.
Because the court found prior briefing inadequate, the parties were ordered to submit additional briefing on the issue of the standard petitioner must meet if he seeks closure of portions of the evidentiary hearing.*fn1 Oct. 20, 2009 Order at 2-3. The parties were also instructed to consider whether petitioner's possible assertion of the Fifth Amendment privilege should change the standard.
New briefing has been submitted but does not particularly clarify the parties' positions with respect to the standard to be used. The parties do agree that any assertion of the Fifth Amendment privilege is not relevant to the standard to be used for closing the hearing.
II. Osband Standard Compared To Respondent's Proposed Standard
The test set out in Osband required petitioner to show: (1) the information is covered by either the attorney/client privilege or work product protection, and (2) that petitioner "may" suffer prejudice upon retrial if the information is made public. Osband v. Ayers, CIV S 97-0152 WBS KJM, June 13, 2008 Order at 4, 22-23. Petitioner satisfies step (2) by showing:
(a) the relevance of the information he seeks to seal to an issue that may be raised on retrial, (b) the likelihood that the issue may be raised on any retrial, and (c) the prejudice he would suffer should the information be revealed. Id. at 23.
In his opening and supplemental briefing, respondent states that petitioner must make the following showing to justify closure of the hearing:
(1) that any closure serves a compelling interest;
(2) that a substantial probability exists that the compelling interest would be harmed (i.e., showing (i) the relevance of the particular information he seeks to seal to an issue that may be raised on retrial; (ii) the likelihood the issue would even be raised in any retrial; and (iii) the actual ...