United States District Court, E.D. California
February 5, 2015
JERRY F. STANLEY, Petitioner,
WARDEN, San Quentin State Prison, Respondent.
CAROLYN K. DELANEY, Magistrate Judge.
On February 4, 2015, the undersigned held a hearing on petitioner's motion to compel. Joe Schlesinger and Tivon Schardl appeared for petitioner. Attorney Jack Leavitt also appeared. In addition to argument on the motion to compel, the court heard argument on the amount of sanctions to be levied against Mr. Leavitt pursuant to the December 19, 2014 order.
Motion to Compel
In December 2014, the court granted petitioner's motion to issue a subpoena duces tecum to Mr. Leavitt for his files regarding his representation of petitioner Stanley. (ECF No. 965.) On December 10, 2014, petitioner's counsel issued the subpoena. (ECF No. 975-1.) The subpoena required Mr. Leavitt to produce the following documents by December 24:
ANY AND ALL DOCUMENTS RELATED OR REFERRING TO GERALD FRANK STANLEY, including but not limited to any and all case files, correspondence, drafts, investigative reports, notes, electronic or recorded messages, recordings, computer files, related to any and all proceedings, including but not limited to USDC No. 2:95-cv-1500, 9th Cir.Nos. 04-16255, 08-99026, 13-15987, Butte Co. No. 079825, Lake Co. No. CR-1323.
(Id.) In addition, the subpoena included a copy of the provisions of Federal Rule of Civil Procedure 45(c), (d) and (e) regarding Mr. Leavitt's duty to respond to the subpoena and "the potential consequences of not doing so." (Id.) In a letter dated December 17, 2014 to petitioner's counsel Joe Schlesinger, Mr. Leavitt refused to turn over any documents and objected to the subpoena on four grounds: (1) it did not offer to compensate his expenses to drive to Sacramento with the files; (2) it created an undue burden to provide such a "wide array of claimed documents;" (3) petitioner Stanley has stated that the Federal Defender does not represent him and may not seek to subpoena documents from any of his other attorneys; and (4) the attorney/client privilege prevents Mr. Leavitt from turning over the documents against petitioner Stanley's wishes. The present motion to compel followed. (ECF No. 975.)
Pursuant to Rule 45(d)(2)(B), a person subject to a subpoena duces tecum may object to the subpoena within 14 days after service. If the objections assert any privileges, they must "describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim." Fed.R.Civ.P. 45(e)(2)(A)(ii). Once an objection is made, the party serving the subpoena may move to compel compliance. Fed.R.Civ.P. 45(d)(2)(B)(i). Each of Mr. Leavitt's objections is addressed, and rejected, below.
1. Failure to Provide Witness Fees and Mileage
The subpoena did not command Mr. Leavitt's attendance and the court finds it is not necessary for Mr. Leavitt to deliver the documents himself. Accordingly, no witness fees or travel expenses are required.
2. Undue Burden
Mr. Leavitt objected on the basis that petitioner is "demanding more than sixteen years of paperwork." (ECF No. 975-1.) In his opposition to the motion to compel, Mr. Leavitt referred to the documents sought as numerous, but appeared to be primarily concerned with the costs of production. (ECF No. 987 at 7-8.) As described above, Mr. Leavitt need not personally deliver the documents. Further, the court will order petitioner's counsel to pay for the costs of delivery and the costs of return of the documents to Mr. Leavitt.
3. Petitioner has Stated that his Appointed Attorneys may not have the Documents Sought
As has been noted throughout these proceedings, petitioner Stanley has been consistently inconsistent. Recent events once again demonstrate his fickleness. In a January 29, 2015 order the court addressed Mr. Stanley's August 2014 statements to his appointed attorneys that his "time" with Mr. Leavitt "is up;" "Eleven years of this having fun is over with." (ECF No. 991-2 at 2.) During the February 4 hearing, Mr. Leavitt provided the court with a letter apparently authored and signed by Mr. Stanley indicating, among other things, that he did not wish his appointed attorneys to continue to represent him and does not want Mr. Leavitt to provide the subpoenaed files to his appointed attorneys. As Mr. Leavitt conceded at the hearing, however, no one knows what Mr. Stanley wants at any given moment. Mr. Leavitt's objection to the subpoena on this ground is overruled.
4. Attorney/Client Privilege
Mr. Leavitt argued that because his relationship with petitioner Stanley is solely one of attorney and client, all documents in his files are covered by the privilege. That is not the case. "The fact that a person is a lawyer does not make all communications with that person privileged." United States v. Martin , 278 F.3d 988, 999 (9th Cir. 2002). Further, "[b]lanket assertions" of the privilege are "extremely disfavored.'" Id. at 1000 (quoting Clarke v. Am. Commerce Nat'l Bank , 974 F.2d 127, 129 (9th Cir. 1992)). The party asserting a privilege has the burden of identifying "specific communications and the grounds supporting the privilege as to each piece of evidence over which privilege is asserted." Id . Mr. Leavitt has failed to identify any documents as privileged. Even if he had, petitioner has waived any assertion of privilege or attorney work product protection by making a claim of ineffective assistance of counsel at the retrospective competency proceeding. See Osband v. Woodford , 290 F.3d 1036, 1042 (9th Cir. 2002). Mr. Leavitt's objections based on privilege are overruled.
Because Mr. Leavitt's objections to the subpoena are baseless, petitioner's motion to compel will be granted. After being told during the hearing that the motion would be granted, Mr. Leavitt first informed the court that he would refuse to turn over the subpoenaed documents to petitioner's appointed attorneys but would be willing to deliver them to petitioner at San Quentin Prison. When the court informed Mr. Leavitt that turning the documents over to petitioner would be in direct violation of this order and would subject Mr. Leavitt to further sanctions, Mr. Leavitt stated that he will obey the court's order and would not give the files to petitioner. In addition, Mr. Leavitt represented, as an officer of the court, that he would not destroy any of the subpoenaed documents. Because the documents are currently maintained at Mr. Leavitt's home, however, the court has concerns about the security of the subpoenaed documents. It was suggested during the hearing that the documents be delivered to the court for safekeeping during the pendency of any motion for reconsideration. Mr. Leavitt agreed to that suggestion and requested that a delivery service pick up the documents from him in the afternoon of Friday, February 6, 2015.
On December 19, 2014, the court granted petitioner's counsel's motion for sanctions against Mr. Leavitt. (ECF No. 972.) The court found that Mr. Leavitt made, or attempted to make, five filings in violation of court orders. (Id. at 11.) The district judge denied Mr. Leavitt's motion for reconsideration of that order. (ECF No. 990.) Petitioner's counsel filed a statement of their time spent responding to Mr. Leavitt's filings and making the motion for sanctions. (ECF No. 980.) Mr. Leavitt filed objections to the stated fees. (ECF No. 983.) Those objections are meritless. First, the $180/hour rate for attorney time is not unreasonable. It is the figure the Administrative Office of the United States Courts, and this circuit's Judicial Council, have adopted as the maximum reasonable rate of pay for counsel in a capital habeas case. Both Mr. Schardl and Mr. Schlesinger easily meet the standards for payment of lead counsel in a capital habeas case. Therefore, the $180/hour rate should be applied to them.
Mr. Leavitt's second objection is that a thirty-minute conference with petitioner should not be charged to him because it is not clear what was discussed. The court accepts petitioner's counsel's representation that this conference was necessitated by Mr. Leavitt's filings. Mr. Leavitt makes several other objections regarding which filings he "made." Those arguments were addressed previously in the motion for sanctions and will not be revisited here.
Finally, Mr. Leavitt objects to paying for a supplemental brief petitioner's counsel filed after argument on the sanctions motion. This objection is valid. Mr. Leavitt will not be charged with the 10.5 hours petitioner's attorneys spent on that filing. That reduces the total amount of sanctions from the $11, 010.00 sought by petitioner's counsel to $9, 120.00.
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as follows:
1. Petitioner's December 31, 2014 Motion to Compel (ECF No. 975) is granted. Mr. Leavitt may file a motion for reconsideration of this order. Any motion for reconsideration shall be filed by February 13, 2015. Mr. Leavitt may seek an extension of time of this deadline, with a showing of good cause.
2. Petitioner's counsel shall arrange for a commercial delivery service to respond to Mr. Leavitt's home on February 6, 2015, to pick up all documents responsive to the subpoena. The delivery service shall deliver the documents to the Office of the Clerk of this court as soon as practicable after receiving them. The documents received by the court will neither be filed nor lodged. The documents will be held by the Clerk of Court and secured in a restricted room. The person delivering the documents should specifically note that the documents are neither lodged nor filed, refer to this order in the cover letter, and provide a copy of this order in the box or boxes delivered.
3. If Mr. Leavitt fails to file a timely motion for reconsideration of the court's order granting the motion to compel, petitioner's counsel may obtain the box(es) of documents from the court. Within two weeks of receipt of the documents, petitioner's counsel shall return them to Mr. Leavitt.
4. Mr. Leavitt is ordered to pay sanctions in the amount of $9, 120 pursuant to the December 19, 2014 order. Mr. Leavitt may file a motion for reconsideration of this sanctions amount. Any motion for reconsideration must be filed by February 18, 2015. If Mr. Leavitt fails to make a timely motion for reconsideration, he shall pay $9, 120 to the Clerk of the Court no later than February 20, 2015. Mr. Leavitt may seek extensions of time of these deadlines, for good cause.
5. To the extent petitioner's counsel requests further sanctions levied against Mr. Leavitt, those requests are denied. However, Mr. Leavitt was warned during the hearing, and is warned again here, that his failure to comply with any aspect of this order will subject him to sanctions. And, to reiterate what this court has previously made clear, Mr. Leavitt may not file any documents in this court unless specifically permitted to do so.