United States District Court, E.D. California
ORDER
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Movant
is a federal prisoner proceeding through counsel on an
amended motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 and a motion for discovery.
Respondent was ordered to file a response to the motions to
vacate and for discovery, and the response is currently due
December 30, 2019. (ECF No. 85.) On December 3, 2019, movant
filed a request for a protective order to limit the scope of
the implied waiver of the attorney-client privilege and the
dissemination and use of any materials or information
obtained from former defense counsel. (ECF No. 86.) Since it
appeared from the motion that the parties disagreed as to the
scope of the waiver, respondent was ordered to respond to the
request for protective order. (ECF No. 87.) Respondent has
now filed a motion for a revised briefing schedule (ECF No.
88), which movant opposes in part (ECF No. 89).
In her
motion for a revised briefing schedule, counsel for
respondent requests that the deadline to respond to the
request for a protective order be extended to February 4,
2020, and that the response to the § 2255 motion be due
ninety days after an order ruling on the request for a
protective order. (ECF No. 88 at 2.) Counsel asserts that she
believes it is necessary to resolve the motion for protective
order prior to completing briefing on the § 2255 motion.
(Id. at 3, ¶ 3.) She further claims that it is
necessary to obtain information from former defense counsel
in order to respond to both the § 2255 motion and the
motion for protective order, and that additional time to
respond to the motion for protective order is necessary
because of former defense counsel's unavailability and
her own case constraints and accrued use or lose leave.
(Id., ¶¶ 3-4.)
Movant
does not appear to oppose the proposed schedule as a general
matter, [1] but instead opposes respondent's
stated intention to interview and obtain documents from
former defense counsel in order to respond to the motion for
a protective order. (ECF No. 89.) He argues that this stated
intention to interview former defense counsel and review his
files ignores the purpose of the motion for protective order.
(Id.)
Respondent's
position regarding briefing on the § 2255 motion is well
taken, and the deadline to respond to the § 2255 motion
will be vacated and a response will be due sixty days after
an order ruling on the motion for protective order. However,
as movant points out, allowing respondent's counsel to
interview former defense counsel and review his case files
defeats the point of the motion for protective order.
Furthermore, it is unclear why respondent needs to question
former defense counsel or review his case files in order to
respond to movant's position on the proper scope of the
implied waiver of attorney-client privilege. Since it is
unclear what portion of the requested extension was based on
former defense counsel's unavailability and what portion
was due to respondent's counsel's other obligations,
the court will grant a thirty-day extension of the deadline
to respond to the motion for protective order and movant may
reply within seven days of the filing of a
response.[2] Additionally, until the motion for
protective order has been ruled on, respondent shall refrain
from obtaining and reviewing former defense counsel's
case files in this matter and from discussing with former
defense counsel his representation of and attorney-client
relationship with movant.
Accordingly,
IT IS HEREBY ORDERED that:
1.
Respondent's motion for an amended briefing schedule is
granted in part.
2.
Respondent shall file a response to the motion for protective
order on or before January 17, 2020. Movant's reply, if
any, is due seven days after service of a response.
3.
Respondent's December 30, 2019 deadline to respond to the
§ 2255 motion is vacated. A response shall be due within
sixty days of the filing of an order ruling on the motion for
protective order. Movant's reply, if any, shall be due
thirty days from the service of a response.
4.
Until the court rules on the motion for protective order,
respondent shall refrain from obtaining and reviewing former
defense counsel's case files in this matter and from
discussing with former defense counsel his representation of
and attorney-client relationship with movant.
---------
Notes:
[1] Counsel does note his unavailability
during the month of February and requests an alternate reply
deadline. (ECF No. 89 at 4.)
[2] The parties are free to request
additional time, should they find it necessary, and should
file stipulated requests for ...