REINHARDT, Circuit Judge:
Joe Leonard Lambright appeals the decision of the district court to modify the protective order issued in his federal habeas proceeding to permit Respondent to turn over materials produced during the federal proceeding to the agency that will prosecute his resentencing, the Pima County Attorney's Office. The district court granted Respondents' motion for modification, reasoning that the protective order covered only materials disclosed after the issuance of the order, that Lambright did not rely on the protective order, that any privileged material lost protection under the order when it became part of the public record during the evidentiary hearing, and that Lambright had failed to explain the basis for his assertion that certain materials were privileged. We hold that the district court abused its discretion in granting the motion for modification as to materials that are privileged. First, the language of the protective order covers all materials, not just materials produced after its issuance, and, in any event, the failure to enter the order before the commencement of discovery was an abuse of discretion. Second, the protective order was sufficient to protect the materials introduced at the evidentiary hearing, and Lambright was entitled to rely on the assurances made by the district court that evidence introduced during the evidentiary hearing was protected by the order. Third, the district court did not request that Lambright explain the basis for asserting that certain materials were privileged, and erred in failing to recognize that his waiver of the Fifth Amendment privilege was limited; thus its modification of the protective order as to those materials was an abuse of discretion. We therefore vacate the portion of the order relating to privileged materials and remand to
Lambright also appeals the decision by the district court to deny his motion for discovery and an evidentiary hearing prior to the imposition of sanctions on Respondents for violating the protective order and for disqualification of the Arizona Attorney General's Office from representing Respondents at the sanctions evidentiary hearing. We hold that the district court did not abuse its discretion in denying the motion for discovery and an evidentiary hearing. The parties had a full opportunity to brief the issue, and based on the evidence before it, the district court concluded that the violation of the protective order was inadvertent. Because we hold that the district court did not abuse its discretion in failing to hold an evidentiary hearing, the disqualification of the Arizona Attorney General's Office from representing Respondents is moot.
In 1987, Lambright filed a federal habeas petition under 28 U.S.C. § 2254 in the Arizona District Court. In his petition, Lambright argued inter alia that he was denied effective assistance of sentencing counsel. The district court dismissed that claim, finding that it was procedurally defaulted. We reversed and remanded "for an evidentiary hearing.... to determine whether Lambright was denied effective assistance of counsel at sentencing because of the failure to investigate and present evidence of his psychiatric condition and social history." Lambright v. Stewart (Lambright I), 241 F.3d 1201, 1208 (9th Cir.2001).
On remand, between July 26, 2001 and August 26, 2003, the district court entered several discovery orders. On July 26, 2001, the district court ordered that discovery be conducted pursuant to Rule 6(b) of the Rules Governing Section 2254 Cases,
On September 2, 2003, Lambright moved for a protective order, noting that Respondents intended to ask "questions, at his deposition, concerning the crime that [he] was convicted of," which he argued would be irrelevant and violate his Fifth Amendment right against self-incrimination. Lambright requested the protective order to prevent that "deposition testimony
On September 23, 2003, the district court issued a protective order with the following parameters:
In November 2003, the district court held a six-day evidentiary hearing on the ineffective assistance of sentencing counsel claim. During the cross-examination of Lambright, Respondents asked questions related to his crime of conviction. Lambright invoked his Fifth Amendment right, and his counsel entered a standing objection to all questions related to the crime. The court responded:
The court allowed Respondents to continue cross-examining Lambright with questions related to his crime of conviction, which Lambright refused to answer. On August 30, 2004, the district court denied Lambright habeas relief on his ineffective assistance of sentencing counsel claim. We reversed, vacated his death sentence, and instructed the state court to conduct a new sentencing proceeding. Lambright v. Schriro (Lambright II), 490 F.3d 1103 (9th Cir.2007).
On October 10, 2008, Respondents filed a Motion to Modify Protective Order with the district court, requesting that the protective order be modified to allow the Pima County Attorney's Office access to materials produced during the federal habeas proceeding. Rather than respond to the modification motion, Lambright filed a Motion for Order to Show Cause on November 3, 2008, alleging that Respondents violated the protective order by sending protected materials to the Pima County Attorney's Office without first seeking modification of the order. On December 3, 2008, the district court issued an order addressing the parameters of the protective order. The court stated that although it had mistakenly omitted the word "privileged" from the protective order, it was evident from Bean and Bittaker, the cases upon which the court relied, that only privileged materials were covered. Thus, it modified the order "so that it will be narrowly tailored to solely protect documents and information that qualify for protection under the Fifth Amendment or the attorney-client privilege." The court then granted Lambright an opportunity to "identify the specific information or materials he asserts should be protected from use at his resentencing."
Instead of responding to the order, Lambright filed an appeal. On March 24, 2009, the district court held that its December 2008 order was not final or appealable, and proceeded to vacate the protective order and deny the motion for an order to show cause. Lambright appealed the March 2009 order as well. On appeal, we held that we lacked jurisdiction over the December 2008 order, but that we had jurisdiction to review the March 2009 order. Lambright v. Ryan (Lambright III), 359 Fed.Appx. 838, 840 (9th Cir.2009). We held that we could not review the denial of the motion for an order to show cause on the record before us, and we therefore vacated the order and remanded "so that
On remand, the district court ordered supplemental briefing from both parties. The court ordered Respondents to address the extent and cause of the protective order violation, and any prejudice Lambright might have suffered as a result of the violation. The court ordered Lambright to "set forth inter alia the specific statements or information he contends are privileged and should be protected from use at his resentencing."
Respondents' supplemental brief asserted that any violation of the protective order was inadvertent, and submitted affidavits from Patricia Nigro and Kent Cattani, attorneys in the Arizona Attorney General's Office, stating that they were unaware that the file contained materials covered by the protective order. Concerning the extent of the violation, Respondents contended that the materials in the file were not protected because "most, if not all, of the evidence at issue was presented in open court with no suggestion that the court proceedings would remain under seal." Respondents also argued that the prejudice to Lambright was minimal because the Pima County prosecutor had "avowed" not to look at any protected materials absent authorization from the district court, any mental health information fell outside the scope of the protective order because it was disclosed prior to the issuance of the order, and Lambright had put his mental health at issue at resentencing.
In his supplemental brief, Lambright identified the materials that he asserted were protected by the attorney-client, work product, and Fifth Amendment privileges, and non-privileged materials that he argued should be covered by the order and barred from use at resentencing in order to return him to the position he would have been in had his first sentencing been constitutionally error-free. Lambright also filed a Motion for Discovery and an Evidentiary Hearing Relating to Petitioner's Motion for an Order to Show Cause and Motion to Disqualify the Office of the Arizona Attorney General. Lambright argued that resolving the issue of the violation of the protective order based on the parties' briefs would inadequately develop a factual record, and that the Arizona Attorney General's Office should be disqualified from representing Respondents prior to the requested evidentiary hearing because some of its attorneys would be necessary witnesses at the hearing.
Respondents filed a reply, arguing that the court should affirm its order vacating the protective order. Respondents argued that Lambright waived any privilege to his mental health information when he placed
The district court issued its decision on May 4, 2010. The court denied the motion to disqualify the Arizona Attorney General's Office from representing Respondents, finding that there was no pending "trial" and that "any testimony from [its] lawyers or staff would be in regard to the `nature... of legal services rendered in the case' and thus exempt from [the advocate-witness rule]." The court also denied the motion for discovery and an evidentiary hearing on the violation of the order, finding that based on the sworn affidavits by the Arizona Attorney General's Office attorneys, "there are no disputed issues of material fact." The court found that Lambright did not suffer any prejudice from the disclosure of the file to the Pima County Attorney's Office because the materials had not been used at his resentencing proceeding, and because Lambright had failed to show that those materials could not have been obtained from public records of the federal evidentiary hearing. Although the court acknowledged that Respondents violated the "plain language of the protective order," it agreed that the file was "inadvertently" sent and, rather than preclude the use of the materials, the court directed the retrieval of the file as a sanction.
The district court then addressed the modification of the protective order. The court held that because the "protective order ... does not state that it applied retroactively ... the only materials that fall within the scope of the order are those that were disclosed after the order issued on September 23, 2003." The court further held that Lambright did not rely on the protective order because he engaged in discovery prior to its issuance, had "sought only a narrow protective order," and refused to answer questions related to the crime of conviction even after the order was issued. The court acknowledged that it "inadvertently omitted the word `privileged' in its protective order," but held that "it is apparent when considered in context with the original motion and oral argument in support of the motion, that the Court intended its protective order to address only the concerns set forth in Bean and Bittaker." Although Lambright identified materials that he claimed were privileged, and thus should remain subject to the protective order, the court rejected the assertion of privilege, faulting Lambright for failing to explain the basis for the privilege asserted. The court also declined to extend protection to non-privileged material, based on the "status quo" language from Bittaker, reasoning that upholding the broad protective order would lead to duplicative discovery in the resentencing proceeding. Lastly, the court found that all evidence presented during the federal evidentiary hearing became public record because Lambright did not request that any materials be sealed. The court held that the assurances given to Lambright during the evidentiary hearing concerned only his testimony about the crime and not all materials introduced during the evidentiary hearing. Accordingly,
This appeal followed.
We first address the modification of the protective order, and review for abuse of discretion. See Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 472 (9th Cir.1992) ("The court reviews the grant of a protective order for abuse of discretion,... as well as a request to modify a protective order.") (citations omitted).
As noted above, the district court, in considering the scope of the protective order, determined that it covered only materials produced after the order was issued on September 23, 2003. This determination was an abuse of discretion for two reasons. First, its interpretation of the text of the protective order is illogical. The district court reasoned that the protective order applied only to those materials produced after its issuance because the order did not specifically state that it applied retroactively. The order, however, states that it applies to "all discovery granted to Respondents" and to "[a]ny information, documents and materials obtained vis-a-vis the discovery process." The common meaning of the word "all" is "the whole amount, quantity, or extent of; as much as possible," and the common meaning of the word "any" is "one or some indiscriminately of whatever kind: one or another taken at random; every — used to indicate one selected without restriction." All and Any Definition, Merriam-Webster Dictionary, http://www.m-w.com (last visited October 4, 2012). The absence of a specific statement that the order applies retroactively does not alter the ordinary meanings of these words. To the contrary, in the absence of any limitation, the only logical reading of the order is that it applies to the entirety of materials produced in the federal habeas proceeding, whether before or after issuance of the protective order. It is illogical to say, as the district court does here, that the words "all" and "any" do not really mean "all" and "any" but instead mean "only the materials produced after this order." Nothing in the record supports the district court's reading of the order. Its attempt to limit the scope of the order to those
Second, the district court abused its discretion because it had a duty to enter a protective order prior to ordering the disclosure of privileged materials. In Bittaker, we delineated the scope of the waiver of the attorney-client and work product privileges when a federal habeas petitioner raises a claim of ineffective assistance of counsel. 331 F.3d at 716-17, 722 n. 6. We held that, although that petitioner impliedly waives his attorney-client privilege, such waiver is narrow and does not extend beyond the adjudication of the ineffectiveness claim in the federal habeas proceeding. Id. at 720-25. In order to protect that limited waiver, we stated that
Id. at 727-28 (emphasis added). We explained that parties in habeas cases, "unlike those in ordinary civil cases, have no right to discovery," and that discovery is available if, and only "to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so." Id. at 728 (internal quotation marks and citations omitted). "If a district court exercises its discretion to allow such discovery ..., it must ensure compliance with the fairness principle. To that end, it must enter appropriate orders clearly delineating the contours of the limited waiver before the commencement of discovery, and strictly police those limits thereafter." Id. (emphasis added).
Despite this clear holding, the dissent insists that Bittaker does not require the protective order to be issued at the commencement of discovery on a habeas petitioner's ineffective assistance claim because "the doctrine of implied waiver does not arise when a habeas petition is filed, but only once a defendant brings a question of privilege to the court's attention." Dissent at 835. We disagree. The defendant impliedly waives his attorney-client privilege the moment he files a habeas petition alleging ineffective assistance of counsel.
Here, the district court entered an order in July 2001, authorizing the parties to engage in discovery. After that, the court entered several orders for production of information and materials to Respondents, including: several orders starting in June 2002, ordering Lambright and Respondents to disclose the names of all of his witnesses and to provide a summary of their anticipated testimony, to exchange expert reports, to engage in informal discovery including witness interviews and document exchanges without further court supervision, and to produce all raw data and information used by the experts; an order in February 2003, granting Respondents access to Lambright's medical and mental health records from the Arizona Department of Corrections; two orders in July 2003, granting Respondents' motions to allow state experts to examine Lambright; and an order in August 2003, allowing Respondents to depose Lambright and his trial counsel, and authorizing the deposition of experts.
The district court, citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir.2003), also held that, because Lambright did not attempt to seal any discovery materials submitted during the evidentiary hearing, those materials became part of the public record and are no longer covered by the protective order. This determination also constitutes an abuse of discretion. First, there is no indication in Bittaker that the protective order entered by the district court is insufficient by itself to protect the narrow waiver of the attorney-client and work product privileges and to prevent the disclosure and use of materials in a resentencing proceeding. Bittaker offers no reason to provide less protection for privileged information disclosed in an evidentiary hearing than for privileged information disclosed during pretrial discovery. In fact, where, as here and in Bittaker, the purpose of a protective order is to allow a party to disclose materials in a habeas proceeding but not in subsequent litigation (as opposed to shielding the evidence from the public), it would render the order practically useless to hold that disclosing the materials in the habeas hearing deprives that material of protection in the subsequent litigation. Moreover, the language in Bittaker supports the conclusion that its holding extends to the entire habeas litigation, not to pretrial discovery only. In that case, we explained that the state courts "remain free, of course, to determine whether [the petitioner] waived his attorney-client privilege on some basis other than his disclosure of privileged information during the course of the federal litigation." 331 F.3d at 726 (second emphasis added); see also id. at 722 ("[W]e can conceive 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 communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests.") (emphasis added). Thus, under Bittaker, disclosure of protected material "during the course of the federal litigation" remains protected. Id. at 726. This necessarily extends beyond the discovery phase and includes the evidentiary hearing during which the petitioner presents his claim to the district court.
Foltz is not to the contrary. In Foltz we explained that materials that are sealed during discovery presumptively may not remain sealed once they are filed with the court for public policy reasons unless the materials in questions are of a type that "have traditionally been kept secret for important policy reasons." 331 F.3d at 1134 (internal quotation marks and citation omitted). Attorney-client privileged materials, of course, are archetypical examples of material that has traditionally been kept secret for important policy reasons. See, e.g., United States v. Jicarilla Apache Nation, ___ U.S. ___, 131 S.Ct. 2313, 2320, 180 L.Ed.2d 187 (2011). Consequently, the protective order was sufficient to protect Lambright from the disclosure and use of protected materials at resentencing, and his counsel was not required to seal the evidentiary hearing in order to ensure that such materials remained protected. The contrary determination by the district court constituted an error of law, and thus an abuse of discretion. See Ressam, 679 F.3d at 1086.
In its order, the district court attempted to limit the scope of its assurances, stating that "[t]he record is clear that the Court offered during the evidentiary hearing an extension of the discovery protective order solely to protect any testimony by [Lambright] concerning the underlying crime." The assurances, however, were not meant as an "extension of the discovery protective order." The district judge represented to Lambright and his counsel that the protective order, as issued, fully covered the evidentiary hearing. At no point during the exchange at the evidentiary hearing did the judge suggest that he was extending or somehow modifying the scope of the protective order to cover the evidence at the hearing. Rather, the judge stated that he "ha[d] issued a protective order" that covered the testimony offered at the hearing. (emphasis added). The judge refers to the protective order, as already issued, protecting statements made during the evidentiary hearing. After Lambright's counsel objected, specifically expressing a concern that "matters brought up in a hearing like this can later be used in a resentencing," the district judge again referred to the protection of "the order that I have entered." (emphasis added). To use the testimony from the evidentiary hearing at the resentencing, the judge assured Lambright, the state court "would have to disregard the protective order that I have issued." (emphasis added). Notably, the district judge did not say that the state court would have to disregard his statements at the evidentiary hearing; rather, he referred to the protection granted by the already issued order. Clearly, the judge was not extending the protective order, as the district court now attempts to argue, but giving assurances regarding the scope of the already issued order. Moreover, although the assurances were made in the context of the testimony regarding the crime, as that was the testimony Lambright refused to give, there is no reason to believe that the protective order applied with any less force to other protected material introduced during the evidentiary hearing.
Thus, because the district judge assured Lambright and his counsel that the protective ordered covered evidence presented during the evidentiary hearing, Lambright was not required to seal the proceedings to protect his interests. Based on the assurances, Lambright reasonably believed that the protective order was sufficient to safeguard his rights, and that seeking to seal the proceedings "would have been redundant." This court has held that "the explicit assurances that a judge makes ... must be consistent and worthy of reliance." Perry v. Brown, 667 F.3d 1078, 1087 (9th Cir.2012). "Because [Lambright] reasonably relied on [the assurances
Lambright, in his supplemental brief to the district court, identified the materials he asserted were covered under the protective order because of the attorney-client, work product, or Fifth Amendment privileges. The district court rejected the claim that the documents listed by Lambright in his supplemental brief should be protected because "it is simply not clear from [his] brief how or why the attorney-client or work-product privilege applies to these materials," and because Lambright had not "identified any compelled testimony ... or otherwise explained how the Fifth Amendment right against self-incrimination is relevant to the... documents." In doing so, the district court abused its discretion.
The district court faulted Lambright for not providing an explanation of how or why the privilege applied to each item identified. The supplemental briefing order, however, only required that Lambright "set forth inter alia the specific statements or information he contends are privileged and should be protected from use at his resentencing." That is, the district court asked that Lambright identify the documents he believed should remain protected. It did not require that Lambright show, for each material identified, why the asserted privilege applied. It is true that a "party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." United States v. Gray, 876 F.2d 1411, 1415 (9th Cir.1989). Given the wording of the order, however, it was not unreasonable for Lambright to believe, as he asserts on appeal, that the "grounds for claiming the privilege were hardly `unclear' to the district court," and that no explanation was required for the district court to rule on the modification of the order. Faulting Lambright for failing to make a showing that the briefing order did not require him to make was "(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record," and the district court thus abused its discretion. Hinkson, 585 F.3d at 1262 (internal quotation marks and citation omitted).
The district court also abused its discretion in holding that Lambright had not shown that the Fifth Amendment privilege applied because he had not demonstrated that his testimony was compelled. It was not necessary for Lambright to show that his testimony was compelled. The Fifth Amendment prohibits use of his testimony at resentencing so long as it could be used to establish aggravating factors or to undermine his claim of mitigating factors, Estelle v. Smith, 451 U.S. 454, 462-63, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and offering it was necessary to vindicate his constitutional rights in the habeas proceeding, Simmons v. United States, 390 U.S. 377, 388-94, 88 S.Ct. 967,
Moreover, in ruling on the modification of the protective order without the information necessary to make a proper determination, the district court abused its discretion. District courts have the obligation to "strictly police" the limits of habeas petitioners' narrow waivers of the
Lambright also asserts that certain non-privileged materials should remain protected, pursuant to Bittaker, "to restore him to the position he would have occupied, had the first trial been constitutionally error-free." 331 F.3d at 722. The district court rejected this argument, finding "no support for such an expansive reading of Bittaker," and reasoning that, taken to its logical conclusion, such a broad interpretation of the order would require that the materials developed by Lambright in the federal habeas proceeding be kept from his state sentencing counsel, forcing him to enlist new experts and reinvestigate mitigation. We hold that the district court did not abuse its discretion. To support his argument that non-privileged materials should be covered by the protective order and barred from use at resentencing, Lambright relies solely on language from our decision in Bittaker, stating: "If a prisoner is successful in persuading a federal court to grant the writ, the court should aim to restore him to the position he would have occupied, had the first trial been constitutionally error-free." 331 F.3d at 722. This language, when read in isolation, seems broad. When read in context, however, it is clear that we were concerned with the disclosure of privileged materials, which the prosecution would not have had access to absent the constitutional error that necessitated a federal habeas proceeding. Lambright does not provide any other support for his position that non-privileged materials disclosed in the course of a federal habeas proceeding must be excluded from use at a resentencing. As such, we hold that the district court did not abuse its discretion in modifying the protective order authorizing the disclosure of non-privileged materials to the Pima County Attorney's Office.
For the foregoing reasons, we conclude that the district court abused its discretion in granting Respondents' motion to modify the protective order as to materials covered by the attorney-client, work product, and Fifth Amendment privileges. The district court abused its discretion in holding that the protective order did not apply to any materials exchanged prior to its issuance; the clear text of the order covers all materials, not just those exchanged after the issuance of the order and, in any event, the district court had an obligation to enter the protective order prior to the commencement of discovery in the federal habeas proceeding. The September 23, 2003 protective order, therefore, applies retroactively. The district court also abused its discretion in holding that any materials lost protection under the order because Lambright failed to move to seal the evidentiary hearing; the protective order was sufficient to protect Lambright from the disclosure and use of privileged materials and, moreover, he was entitled to rely on the district court's assurances that the protective order covered materials introduced at the evidentiary hearing. Finally, the district court abused its discretion in modifying the protective order without determining
We affirm, however, the portion of the May 4, 2010 order modifying the protective order as to non-privileged materials. The portion of Bittaker that Lambright relies on concerns the disclosure of privileged materials, and Lambright has offered no other argument for why non-privileged materials should be excluded from use at his resentencing.
We now turn to the denial of the motion for discovery and an evidentiary hearing on the sanctions issue, and for disqualification of the Arizona Attorney General's Office from representing Respondents at the sanctions evidentiary hearing, and we review for abuse of discretion. See Paladin Assocs., Inc. v. Montana Power Co., 328 F.3d 1145, 1164-65 (9th Cir.2003) (reviewing district court's imposition of sanctions and refusal to hold evidentiary hearing prior to imposing sanctions for abuse of discretion); United States v. Frega, 179 F.3d 793, 799 (9th Cir. 1999) (reviewing district court's ruling on motion for disqualification of counsel for abuse of discretion).
In Lambright III, we remanded to the district court with instructions to "resolve any disputed factual questions and make factual findings regarding the circumstances surrounding, and the extent and effect of, the violation" of the protective order prior to determining "whether sanctions are warranted." 359 Fed.Appx. at 840. On remand, the court ordered supplemental briefing from Respondents to explain the violation of the protective order and any prejudice that resulted from such violation, and afforded Lambright an opportunity to respond. After considering the supplemental briefing and affidavits submitted by the Arizona Attorney General's Office, the court held that "neither discovery nor a hearing are necessary because there are no disputed issues of material fact." The court noted that Lambright would like the opportunity to cross-examine the Arizona Attorney General's Office to verify their story, but, after considering the challenges to their credibility raised by Lambright, found that "there is no basis for questioning the affiants' veracity and holding a hearing to have counsel restate what is already in their affidavits would be a waste of time and resources." The court thus determined that it had "sufficient knowledge of the facts to consider" the motion for sanctions. Considering those facts, the court found that Respondents "violated the plain language of the protective order when they provided materials obtained through the discovery process to the Pima County Attorney without first seeking modification of the protective order," but that this was done "without willful intent to disobey" the order. Finally, the court determined that an order directing Respondents to retrieve the materials subject to the protective order was an appropriate sanction because "such sanction will restore the parties to the position they were in had Respondents not violated the protective order."
"When necessary, the district court may hold an evidentiary hearing on a
Here, both parties were afforded an opportunity to fully brief the sanctions issue. Respondents submitted evidence to support their arguments that the violation of the protective order was inadvertent and did not cause prejudice, and Lambright had the opportunity to challenge that evidence and present his arguments in support of his position. The district court gave careful consideration to all of the evidence and arguments raised by the parties, and ultimately concluded that the material facts were not disputed and that, although Respondents violated the protective order, such violation was inadvertent and thus a severe sanction was not warranted. Instead, the court determined that ordering Respondents to retrieve the file from the Pima County Attorney's Office was an appropriate sanction because it returned the parties to the same position they were in prior to the violation. The district court did not commit an error of law, and we cannot say that its findings were "(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record." Hinkson, 585 F.3d at 1262 (internal quotation marks and citation omitted). Therefore, the court did not abuse its discretion in failing to hold an evidentiary hearing prior to the imposition of sanctions on Respondents for violating the protective order.
Because we hold that the district court did not err in failing to hold an evidentiary hearing on the sanctions issue, the motion for disqualification of the Arizona Attorney General's Office from representing Respondents at that hearing is moot.
We affirm the portion of the district court's May 4, 2010 order excluding non-privileged materials from the coverage of its protective order, but we hold that it erred in holding that: (1) the protective order applied only to privileged materials produced after its issuance; (2) the privileged materials introduced at the evidentiary hearing were no longer covered by the protective order because Lambright failed to move to seal the evidentiary hearing; and (3) the materials identified by Lambright as privileged were not protected because he failed to support his assertion of privilege by submitting written justifications to the district court. We therefore vacate those portions of the order pertaining to the numbered clauses supra. On remand, the district court shall allow Lambright an opportunity to support his assertions of privilege as to materials that he identified as protected by the attorney-client, work product, and Fifth Amendment privileges, and shall determine which materials fall within a privilege and are thus covered by the protective order.
We also conclude that the district court did not abuse its discretion in failing to hold an evidentiary hearing prior to the imposition of a sanction on Respondents for violating the protective order, and thus that the sanction, trivial as it may be, was
CALLAHAN, Circuit Judge, dissenting:
I agree with the majority that the district court did not abuse its discretion in denying the motion for discovery and an evidentiary hearing. I also agree that the district court properly modified its protective order so as to exclude from its coverage non-privileged materials. However, I dissent because the majority, in finding that the district court abused its discretion in modifying its protective order, distorts the applicable law as set forth in our en banc opinion, Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003), and misperceives the facts in the case. An implied waiver, as Bittaker explains, arises only once a specific claim of privilege is presented to a court and any resulting protective order is forward-looking. Lambright did not seek a protective order until September 2003, after 15 months of discovery, the protective order sought only to limit the scope of Lambright's deposition, and Lambright subsequently declined to testify. Accordingly, there was no implied waiver prior to the district court's September 2003 order, and that order does not cover the discovery that took place before it was entered. Moreover, Lambright has not shown that any rights he may have had to a protective order were not waived, or that the State should be denied access on resentencing to materials that were revealed during Lambright's habeas proceedings that were open to the public. Accordingly, I dissent.
The majority's extraordinary interpretation of the district court's 2003 protective order is best understood in the context of the history of Lambright's criminal proceedings.
In March of 1982, Joe Leonard Lambright was convicted of first degree murder, kidnaping, and sexual assault. After a brief sentencing proceeding in which the sentencing judge found one aggravating factor — that the "offense was committed in an especially heinous, cruel or depraved manner" — and no substantial mitigating evidence, Lambright was sentenced to death. See Lambright v. Schriro, 490 F.3d 1103, 1106, 1109 (9th Cir.2007) ("Lambright III").
Lambright's conviction and sentence were affirmed by the Arizona courts on direct appeal and in state post-conviction proceedings. Id. at 1104. In April 1987, Lambright filed a federal habeas petition under 28 U.S.C. § 2254 in the United States District Court for Arizona, arguing inter alia that he had been denied effective assistance of counsel. The district court denied the petition, and Lambright appealed.
In 1999, the Ninth Circuit reversed Lambright's conviction on the ground that the use of dual juries for a single trial of both Lambright and Smith violated due process. The en banc court then reheard the case, reversed the panel decision, and affirmed the denial of habeas relief with respect to the dual jury issue. Lambright v. Stewart, 167 F.3d 477 (9th Cir.), rev'd, 191 F.3d 1181 (9th Cir.1999) (en banc) ("Lambright I").
Upon receipt of a certified copy of our order, the district judge set the case for a scheduling conference, and granted Lambright's motion for appointment of associate counsel. Lambright sought authorization of expenditures, and when the district court initially denied the motion, Lambright submitted a declaration under seal. The district court granted the motion to file under seal, and in February 2002, it subsequently granted the motion for authorization of expenditures of funds. Over the next year and a half, Lambright, through his counsel, vigorously developed his case. There are over 80 docket entries during this time, including motions by Lambright to seal certain documents, the appointment of psychiatrists to examine Lambright, orders allowing contact visits with Lambright, stipulations concerning visits, orders requiring the disclosure of the names of all lay and expert witnesses, the release of Lambright's medical and mental health records, and motions for discovery by Lambright.
On August 26, 2003, the court granted the State's motion to depose Lambright and his trial counsel. On September 2, 2003, in response to that order, Lambright filed the motion for a protective order that is at the heart of this appeal. Lambright requested "a protective order limiting the scope of questioning of Petitioner at his deposition, to only those matters which are relevant to the subject matter in dispute." The short memorandum of points and authorities in support of the motion was based on Lambright's Fifth Amendment right not to be compelled to be a witness against himself.
In considering the motion, the district court relied on two cases, Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003) (en banc), and Bean v. Calderon, 166 F.R.D. 452 (E.D.Cal.1996). On September 23, 2003, the district court granted Lambright's motion in an order that read:
Despite the September 23, 2003, protective order, and despite the court's warnings that Lambright's refusal to answer could be considered in determining whether he had carried his burden of proof, Lambright refused to testify. The case proceeded to a hearing, and, in August 2004, the district court denied Lambright's ineffective assistance of counsel claim. Lambright appealed. The Ninth Circuit concluded that Lambright had received ineffective assistance of counsel, reversed the district court, vacated the death sentence, and remanded with instructions to grant the writ. Lambright III, 490 F.3d 1103.
In October 2008, after the case had been returned to the district court, the State filed a Motion to Modify Protective Order requesting that the protective order be modified to allow the Pima County Attorney's Office access to the materials produced during the federal habeas proceedings. The district court granted the motion in part. It first explained:
After discussing Bittaker, the district court determined that "a protective order under Bittaker limits use during retrial only of privileged materials obtained by invoking a federal habeas court's power of discovery compulsion for the limited purpose of litigating a petitioner's ineffectiveness claim." The court noted that Lambright opposed modification of the protective order on principle and had not identified "any privileged information or any self-incriminating statements obtained during the discovery process that, if disclosed to prosecutors, would prejudice his resentencing." The court concluded that the protection order "was intended to shield Petitioner from prejudice at retrial from (1) any statements he made during his deposition concerning the crime and (2) any information subject to the attorney-client privilege obtained during discovery." The court determined that it would modify the protective order "so that it will be narrowly tailored to solely protect documents and information that qualify for protection under the Fifth Amendment or the attorney-client privilege." To that end, Lambright was given 30 days in which "to identify the specific information or materials he asserts should be protected from use at his resentencing."
Lambright, instead of filing any further motion in the district court, filed a notice of appeal from the December 4, 2008, order. When Lambright failed to respond to
Lambright's appeals from the December 4, 2008, order and the March 24, 2009, order were consolidated. On December 21, 2009, the Ninth Circuit issued a memorandum disposition. Lambright v. Ryan, 359 Fed.Appx. 838 (9th Cir.2009) ("Lambright IV"). The panel dismissed the first appeal as pre-mature, and then set forth its ruling on the second appeal in two paragraphs. The first, explaining its action, reads:
359 Fed.Appx. at 840-41 (footnote and final citation omitted). The second paragraph comments:
Id. at 841 (parallel citation omitted).
We finally come to the order that is presently before us. On remand, the district court, on May 4, 2010, issued an order
The State sought modification to allow prosecutors access to the depositions and discovery obtained during the federal habeas proceedings. The district court found guidance in cases that considered (a) the avoidance of duplicative discovery, (b) whether the materials had been produced in reliance on the protective order, and (c) whether the information had been released through public court proceedings.
The court observed:
Lambright opposed the motion, arguing that the State had failed to provide notice that it would attempt to modify the protective order, and that he had relied on the protective order's broad language and the court's verbal assurances that his testimony would not be used against him in a later resentencing. The district court, however, was not persuaded. It noted that the order specifically provided that either party could seek modification and determined that Lambright did not rely on the order in conducting discovery. The court observed that Lambright had sought only a narrow protective order and that its verbal assurances covered only Lambright's testimony.
Reiterating the reasons set forth in its 2008 order, the district court explained that it had inadvertently omitted the word "privileged" in its protective order. The court stated that "it was apparent, when considered in context with the original motion and oral argument in support of the motion, that the Court intended its protective order to address only the concerns set forth in Bean and Bittaker." The district court explained that its order "was intended to shield [Lambright] from prejudice at resentencing from (1) any statements he made during his deposition concerning the crime, and (2) any information subject to the attorney-client or work-product privilege obtained during discovery." The court concluded that "[b]ecause the plain language of the order extends beyond the parameters of privileged material — and Petitioner did not rely on the Court's mistake to litigate his ineffectiveness claim — modification is appropriate."
The district court then listed the general items from the habeas proceeding that Lambright claimed were covered by the attorney-client, work-product, and the Fifth Amendment privileges. The district court, however, chastised Lambright for failing to (a) identify specific communications or relevant dates of disclosure, (b) identify any compelled testimony, and (c) explain the relevance of his Fifth Amendment right against self-incrimination to the listed documents. Excluding Lambright's testimony (which remains protected), the only items arguably containing privileged attorney communications or work product were the interviews and depositions of trial
Finally, the court concluded that because Lambright "did not seek to seal any of the materials submitted and testified to during the evidentiary hearing in support of his habeas claim, those materials became a matter of public record. The district court cited our language in Foltz v. State Farm Mutual Insurance Co., 331 F.3d 1122, 1134 (9th Cir.2003):
This appeal is from the district court's May 4, 2010, order.
I agree with the majority that we review the modification of a protective order for abuse of discretion. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 472 (9th Cir.1992). However, the abuse of discretion test we set forth in United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc), requires that the district court's findings be given substantial deference. In Hinkson, we stated:
Id. at 1262 (parallel citations and footnotes omitted).
An obvious question in light of the district court's prolonged, patient, and careful consideration of this case is how the majority can conclude that the district court's May 2010 order was an abuse of discretion. The majority asserts that the order was an abuse of discretion because: (1) the district court's "interpretation of the text of the protective order is illogical" (Majority at 817); and (2) the district court "had a duty to enter a protective order prior to ordering the disclosure of privileged materials." Majority at 818. Neither of these reasons withstands analysis.
Although the majority may not like the May 2010 order, there is nothing "illogical" about it. As the district court noted, Lambright had engaged in discovery for some 15 months before seeking a protective order. During these 15 months, Lambright made a couple of motions to seal particular documents and the district court granted those motions. Lambright never sought a general protective order, and the motion for a protective order that he did file in September 2003 sought only to limit "the scope of questioning of Petitioner at his deposition." The facts that the parties had engaged in discovery for over a year without any protective order, and that Lambright's motion only sought prospective relief for testimony to be given at a deposition, would lead most judges and attorneys to "logically" conclude that the motion was forward-looking and did not concern any specific prior discovery, let alone all of it.
While the majority's first reason strays from the facts of this case, its second reason misstates the law and is unsupported by the facts. The majority misreads Bittaker, 331 F.3d 715, as requiring that all discovery in a federal habeas petition be sealed, regardless of whether any party has requested a protective order. This allows it to assert that the district court
Our en banc opinion in Bittaker starts by distinguishing an implied waiver from "the more traditional express waivers." 331 F.3d at 719. We explained:
Id. at 719-20 (citations and footnote omitted). The opinion further observes that an express waiver "need not be effectuated by words or accompanied by the litigant's subjective intent," and "the privilege may be waived by the client's, and in some cases the attorney's actions, even if the disclosure that gave rise to the waiver was inadvertent." Id. at 720 n. 4.
In contrast, the doctrine of implied waiver "allocates control of the privilege between the judicial system and the party holding the privilege." Id. at 720 (quoting Developments in the Law — Privileged Communications, 98 Harv. L.Rev. 1450, 1630 (1985)). We explained:
Id.
We then noted that this regime gave rise to three important implications. "The first is that the court must impose a waiver no broader than needed to ensure the fairness of the proceedings before it." Id. "Second, the holder of the privilege may preserve the confidentiality of the privileged communications by choosing to abandon the claim that gives rise to the waiver condition." Id. at 721. Third, "if a party complies with the court's conditions and turns over privileged materials, it is entitled to rely on the contours of the waiver the court imposes, so that it will not be unfairly surprised in the future by learning that it actually waived more than it bargained for in pressing its claims." Id.
Under the regime set forth in Bittaker the doctrine of implied waiver does not arise when a habeas petition is filed, but only once a defendant brings a question of privilege to the court's attention. The court then "gives the holder of the privilege a choice:" if he wants to litigate the claim, he must waive the privilege "to the extent necessary to give your opponent a fair opportunity to defend against it." 331 F.3d at 720. The directive that an implied waiver only arises when the privilege is presented to a court is reinforced by our statement in Bittaker that "[b]ecause these express waiver cases do not involve the court-ordered disclosure of privileged information after the client has asserted a claim or defense that placed at issue the nature of the privileged material, we do not find them particularly useful in ascertaining the scope of Bittaker's waiver of his attorney-client privilege under the fairness doctrine." Id. at 720 (internal quotation marks and citation omitted).
Furthermore, the very purpose of an implied waiver makes it prospective only. An implied waiver is a court imposed limited waiver of a privilege, but "the holder of the privilege may preserve the confidentiality of the privileged communications by choosing to abandon the claim that gives rise to the waiver condition." Id. at 721. This is possible only if the court order imposing a limited waiver is in existence when the holder makes his choice. Thus, in a federal habeas petition an implied waiver arises only when the petitioner affirmatively asserts a privilege before the court and the court then issues a forward-looking protective order.
The majority ignores these features of the doctrine of implied waiver when it asserts that "the district court abused its discretion because it had a duty to enter a protective order prior to ordering the disclosure of privileged materials." Majority at 818. In support of its assertion, the majority quotes our statement in Bittaker that "district courts have the obligation, whenever they permit discovery of attorney-client materials as relevant to the defense of ineffective assistance of counsel claims in habeas cases, to ensure that the party given such access does not disclose these materials, except to the extent necessary in the habeas proceeding." 331 F.3d at 727-28. We made this statement in the context of the question of enforcement. In that context, it is clear that "whenever they permit discovery of attorney-client materials" refers to protective orders issued in response to petitioners' assertions of privileges. Any suggestion that the filing of a habeas petition itself, or commencement of discovery in a habeas petition, somehow invokes an implied waiver would make implied waivers the rule, rather than an exception to "more traditional express waivers." Id. at 719.
The majority attempts to justify its application of the September 2003 protective
Indeed, the district court's docket sheet reflects that the parties and counsel cooperated in the process of preparing the habeas case. The parties sought assistance from the district court to ensure funds for the preparation of Lambright's case and to set time tables for discovery. In the fall of 2002, when Lambright sought authorization of expenditures to allow a neuropsychologist to examine him, the district court's order allowing the neuropsychologist to have a confidential contact visit with Lambright was issued pursuant to a stipulation by the parties. The only other order that might arguably be interpreted as compelling discovery was entered on February 11, 2003, and directed the Arizona Department of Corrections to provide copies of Lambright's medical and mental health records to counsel for both parties. However, there is nothing in the record to suggest that Lambright had any concern about protecting those materials. Instead, Lambright's failure to advance any such concerns appears to have been deliberate, as his counsel did file motions to seal other documents which the district court granted.
A fair reading of the record discloses that: (a) the parties did not request any court order to commence discovery; (b) Lambright's counsel knew how to file motions to seal documents and successfully made such motions, and (c) Lambright did not make any assertion of privilege or request for a protective order prior to his September 2003 motion. Accordingly, as a matter of fact and law, there was no implied waiver or protective order prior to the fall of 2003.
Another troubling aspect of the majority's opinion is its failure to consider that Lambright was represented by counsel at all times in his federal habeas petition. Instead, the majority appears to assume that a defendant's right to a protective order under Bittaker is absolute and cannot be waived by a petitioner's counsel. The majority never explains why it deems this right different from all of the constitutional rights that can be waived.
Absent Supreme Court case law to the contrary, we should assume that whatever right to a protective order a petitioner may have under Bittaker, it can be waived by counsel for any number of reasons. Here, Lambright's attorneys apparently chose not to seek a protective order until Lambright
In granting the State's motion for a modification of the protective order, the district court relied in part on the established rule that the public has a common law right of access to judicial documents. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). It then found that because Lambright "did not seek to seal any of the materials submitted and testified to during the evidentiary hearing in support of his habeas claim, those materials became a matter of public record." In support of its conclusion the district court cited our holding in Foltz that:
331 F.3d at 1134 (internal citations and quotations omitted).
The majority concludes that the State may not use the materials even though they became part of the public record. It offers two grounds for its conclusion. First, it argues that a protective order under Bittaker is sufficient in itself "to protect the narrow waiver of the attorney-client waiver and work product privileges and to prevent the disclosure and use of materials in a resentencing proceeding." Majority at 820. Second, it argues that Lambright "was entitled to rely on the assurances by the district judge, made during the evidentiary hearing, that the protective order extended to evidence introduced at the hearing." Majority at 821. The first argument fails because, as has been noted, there was no implied waiver prior to the September 2003 protective order. The second argument fails because the district court's assurances were clearly limited to Lambright's testimony, and Lambright, despite having procured a protective order, declined to testify.
The majority's second ground also fails because the facts are not as it portrays them to be. The assurance that the district court gave Lambright was clearly and specifically limited to his testimony. The district judge stated:
This assurance, by its own clear terms, is limited to Lambright's testimony "concerning the crimes in this case" that he would not have given but for the protective order.
Because no protective order was entered prior to the September 2003 order and the September 2003 order was, as a matter of law, forward-looking, it follows that the district court was not compelled to recognize any privilege in the materials discovered before September 2003. Indeed, it seems incredibly inefficient to require the State to go through the process of "rediscovering" in the state resentencing proceedings information that is now known to the public, and to the State.
On remand, counsel cooperated in preparing Lambright's federal habeas case. There was no request to seal documents or for a protective order until the fall of 2003 when Lambright filed a motion for a protective order limiting the scope of questioning at his forthcoming deposition. The district court, applying our then recent en banc opinion in Bittaker, 331 F.3d 715, issued a protective order that it subsequently determined was broader than necessary or appropriate. The State sought a modification of the protective order to allow it to use documents disclosed in the federal habeas proceedings in the state resentencing proceedings. The State did not seek to use Lambright's testimony because, even under the protective order, Lambright had refused to testify.
The majority's determination that the district court abused its discretion in modifying its protective order misreads Bittaker and the factual record. Bittaker holds that an implied waiver arises when a petitioner asserts a privilege before the district court. The court's subsequent order "does not order disclosure of the materials categorically; rather the court directs the party holding the privilege to produce the privileged materials if it wishes to go forward with its claims implicating them." 331 F.3d at 720 (emphasis added). Thus, the very nature of an implied waiver protective order renders it forward-looking. Accordingly, the district court's orders prior to the September 2003 protective order are not protective orders and the September 2003 order does not cover materials disclosed prior to its issuance.
The majority also fails to appreciate two additional factors that support the district court's order. First, whatever rights Lambright might have had to a protective order were subject to waiver. Second, to the extent that the materials that Lambright now seeks to protect were disclosed during public sessions in his habeas proceedings, the State should be allowed to use those documents pursuant to the common law right of access to judicial documents.
Even if one or more of the preceding arguments were not persuasive, we would still be required to affirm the district court's modification of its protective order. As the majority notes, we review the modification of a protective order for abuse of
Finally, I am concerned with the practical consequences of the majority's approach. By distorting the doctrine of implied waiver and misreading the facts in this case, the majority delays and increases the expense of resentencing Lambright without offering him any substantive protection. The public and the State have knowledge of all the documents that the majority would protect. Thus, all the majority's opinion accomplishes is to force the State to conduct additional discovery in the resentencing proceeding to formally gather information that it has already seen. The district court recognized the inefficiency of such a course when it granted the motion to modify the protective order. Moreover, the majority's unique interpretation of Bittaker is likely to generate considerable litigation as parties and courts argue over whether a court order at the beginning of a federal habeas proceeding somehow seals all discovery beyond any attorney's ability to waive the privilege.
585 F.3d at 1262 n. 21.
Furthermore, as the district court implied, were the state court to disregard the district court's protective order, Lambright could file another federal habeas petition.
