Petitioner is before the court on a petition for habeas corpus under 28 U.S.C. § 2254, seeking relief from his state-court conviction and sentence of death. Petitioner has filed a motion to reconsider two orders issued by the magistrate judge on October 16, 2008 concerning the procedure for sealing portions of evidentiary hearing proceedings and transcript in order to preserve petitioner's attorney-client privilege.
On April 7, 2008, the magistrate issued a protective order covering documents produced during discovery for petitioner's ineffective assistance of counsel claim. At that time, the magistrate declined to extend the protective order to cover a scheduled evidentiary hearing. On October 16, 2008, the magistrate issued an order adopting the reasoning and conclusions reached in a June 13, 2008 order issued in Osband v. Ayers, which set out a procedure and standard for sealing portions of the evidentiary hearing record. CIV S-97-0152 WBS KJM. The June 13, 2008 Osband order, issued after a closed evidentiary hearing had taken place, required the petitioner to file a statement identifying portions of the evidentiary hearing and exhibits that should remain under seal, and explaining "(a) the relevance of the information he seeks to seal to an issue which may be raised on re-trial, (b) the likelihood that the issue may be raised on retrial, and (c) the prejudice he could suffer should that information be revealed." Osband Order, June 13, 2008, ECF No. 513. The order gave the respondent an opportunity to respond to petitioner's statement, and the petitioner an opportunity to reply. The magistrate would then issue a protective order covering any information deemed to satisfy the three-part test. Petitioner now seeks reconsideration of the magistrate's order adopting the Osband standard for determining which portions of the evidentiary hearing will be sealed.
A district judge reviewing a nondispositive order of a magistrate judge must "modify or set aside any part of the order that is clearly erroneous or contrary to law." Fed. R. Civ. Proc. 72(a); 28 U.S.C. 636 (b)(1)(A). The court reviews de novo the question of whether the magistrate's order is contrary to law. Osband v. Woodford, 290 F.3d 1036 (9th Cir. 2002). In this case, the magistrate's October 16, 2008 order is contrary to the Ninth Circuit's holding in Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), and must be modified.
B. Bittaker's Narrow Waiver Rule Applies to Evidentiary Hearings
In Bittaker, the Ninth Circuit addressed the question of "the scope of the habeas petitioner's waiver [of attorney-client privilege]: Does it extend only to litigation of the federal habeas petition, or is the attorney-client privilege waived for all time and for all purposes--including the possible retrial of the petitioner?" 331 F.3d 715, 717 (9th Cir. 2003). The court adopted a narrow waiver rule, holding that the waiver implied when a petitioner asserts an ineffective assistance of counsel claim is limited only to the litigation of the habeas claim. The court affirmed the district court's use of a protective order precluding the use of privileged materials turned over during discovery for any purpose other than litigating the habeas claim. Bittaker directed district courts to "ensure that the party given such access [to privileged materials] does not disclose these materials, except to the extent necessary in the habeas proceeding, i.e., to ensure that such a party's actions do not result in a rupture of the privilege. Id., at 727-28.
The June 13, 2008 Osband order adopted by the magistrate in this case stated that Bittaker addressed only the discovery question, and not the public's access to trial records that contain privileged information. Although the facts in the Bittaker case involved only discovery documents, the language of the decision clearly contemplates that the narrow waiver rule extends to privileged information disclosed throughout litigation of the habeas claim "We can think of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver that limits the use of privileged communication to adjudicating the effective assistance of counsel claims fully serves the federal interest." Bittaker, 331 F.3d at 722 (emphasis added). The court went on to distinguish between the waiver implied by the court when a habeas petitioner brings an ineffective assistance of counsel claim, and the express waiver that would result from some other conduct by the petitioner, "The courts of California remain free, of course, to determine whether Bittaker waived his attorney-client privilege on some basis other than his disclosure during the course of the federal litigation." Id., at 726. The clear implication of this distinction is that any disclosures made throughout the course of federal litigation are subject to a narrow waiver rule, in contrast to disclosures made outside the course of litigation, which give rise to a more broad waiver.
There is, of course, one important factor that distinguishes the discovery phase from the evidentiary hearing phase with respect to protection of the attorney-client privilege; the public has a right of access to trials, which does not exist with respect to discovery documents. In this case, the magistrate issued a protective order that deemed all documents produced during discovery to be confidential. The order limited the use of those documents to the habeas proceedings, and specifically prohibited use of the documents in the event of retrial. Protective Order, April 7, 2008, ECF No. 251. Because of the public's right of access to trials, a protective order covering the evidentiary hearing will necessarily be more narrow than the magistrate's discovery phase protective order. The protective order covering the evidentiary hearing will only protect information that is actually privileged, and the petitioner has the burden of establishing the elements of the privilege. U.S. v. Martin, 278 F.3d 998 (9th Cir. 2002). However, the protective order for the evidentiary hearing phase need not be so narrow as to only cover those portions of the hearing that meet the Osband test.
C. The Magistrate's Requirement That Petitioner Show a Likelihood of Prejudice If Certain Privileged Information is Revealed is Contrary to Bittaker
In affirming the district court's protective order covering all privileged information disclosed during discovery, the Bittaker court acknowledged any use of privileged information would lead to unfair prejudice against the petitioner, and would give prosecutors and unfair advantage. "If petitioner relies on the protective order by releasing privileged materials and it turns out to be invalid, he will suffer serious prejudice during any retrial." Bittaker, 331 F.3d at 718. Similarly, use by prosecutors of privileged information disclosed during a habeas proceeding would presumptively violate the fairness principle. As the court explained, "allowing the prosecution at retrial to use information gathered by the first defense lawyer--including defendant's statements to his lawyer--would give the prosecution a wholly gratuitous advantage." Id., at 724.
The magistrate's requirement that petitioner meet the three-part standard announced in Osband is contrary to the presumption, expressed in Bittaker, that the use of any privileged ...