(DP) Sanders v. Davis ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD L. SANDERS, Case No. 1:92-cv-05471-JLT-SAB 12 Petitioner, DEATH PENALTY CASE 13 v. TENTATIVE ORDER AS TO RESPONDENT’S NOTIFICATION 14 RON BROOMFIELD, Warden of San REGARDING PROTECTIVE ORDER Quentin State Prison, OF OCTOBER 5, 2007 15 Respondent.1 16 17 18 Before the Court is the notification filed by counsel for Respondent, Supervising 19 Deputy Attorney General Kenneth Sokoler (Docs. 416, 416-1), regarding the stipulated 20 protective order filed in the case on October 5, 2007 (Doc. 227). 21 On July 14, 2022, pursuant to the Ninth Circuit’s decision on appeal, this Court granted 22 a conditional writ of habeas corpus in the 28 U.S.C. § 2254 proceeding challenging 23 Petitioner’s 1982 murder conviction and death sentence rendered in Kern County Superior 24 Court Case No. 22079. Therein, the Court directed that the State of California vacate the 25 death sentence imposed upon Petitioner and sentence him to a penalty other than death in 26 27 1 Ron Broomfield, appointed as warden of San Quentin State Prison in September 2021, is substituted as Respondent in place of his predecessor wardens. Fed. R. Civ. P. 25(d). 1 conformance with state law, or grant him a new penalty phase trial. 2 In the Notification, counsel for Respondent states that: (1) on August 16, 2022, 3 unspecified privileged and confidential Protected Information was disclosed by his office to 4 Kern County Assistant District Attorney Andrea Kohler and her law clerk Michael Strand, 5 contrary to the Protective Order, and (2) Ms. Kohler and Mr. Strand have not themselves 6 disclosed, and will not disclose, the Protected Information to other members of the Kern 7 County District Attorney’s Office, or further participate in the state proceeding in this matter. 8 The Protective Order, in pertinent part, provides that: 9 All Protected Information may be used only by counsel for respondent in the Office of the California Attorney General and 10 persons working under their direct supervision and may be used only for purposes of litigating the claims presented in [petitioner’s] 11 petition for writ of habeas corpus pending before this Court. Respondent shall keep sealed and confidential all Protected 12 Information. Disclosure of any Protected Information shall not be made to any other persons or agencies, including any law 13 enforcement or prosecutorial personnel or agencies without prior authorization of the Court ordered on a motion by respondent and 14 after [petitioner] has had an opportunity to object. Any such motion by respondent shall be filed and served upon counsel for 15 [petitioner] with fifteen days’ notice, shall state the specific information respondent it [sic] seeks to disclose and the grounds 16 for such disclosure, and shall be filed under seal. 17 This order shall continue in effect after the conclusion of these habeas corpus proceedings and specifically shall apply in the event 18 of a retrial of all or any portion of [petitioner’s] criminal case. The Court shall maintain continuing jurisdiction over this matter for the 19 purpose of enforcing the provisions of this order and imposing appropriate sanctions for any violation. 20 21 (Doc. 227 at 4-5.) The Protective Order further provides that the following information is 22 “Protected Information”: 23 [A]ny item or information to which a claim of privilege attaches, including the following: 24 Any production to respondent of documents from defense 25 counsel’s files, whether provided voluntarily or pursuant to court order; 26 Any discovery statements or deposition testimony made to 27 respondent by [petitioner], his trial attorney, Frank Hoover, any investigators, experts, or other ancillary personnel 1 or during trial (hereafter referred to collectively as the “trial defense team”), or any other attorneys, investigators or 2 experts who have represented or consulted with [petitioner] at any time in connection [sic] his legal claims in this case 3 and any other ancillary personnel employed or appointed to assist then since trial, who are called by [petitioner] as 4 witnesses (hereafter referred to collectively as the “post- conviction defense team”); 5 Any interviews of any member of the trial defense team or 6 post-conviction defense team, including but not limited to any audio or video recordings, notes, memoranda or other 7 tangible thing(s) memorializing or purporting to memorialize any part of such interview(s); 8 Any declarations served by [p]etitioner on [r]respondent by 9 any witness who is or was at any time a member of the trial defense team or post-conviction defense team; and 10 Any information contained in these documents, discovery 11 statements, interviews, declarations or deposition testimony or derived directly or indirectly from them. 12 13 (Id. at 1-3.) 14 Federal courts have discretion whether to impose sanctions for violation of a protective 15 order. Such violations may, but do not necessarily, constitute sanctionable conduct. Fed. R. 16 Civ. P. 37(b)(2)(A) ([T]he court “may issue further just orders” in response to violations of a 17 discovery order); see also Mahboob v. Educ. Credit Mgmt. Corp., No. 15-CV-0628-TWR- 18 AGS, 2021 WL 818971, at *3 (S.D. Cal. Mar. 2, 2021), report and recommendation 19 adopted, No. 15-CV-628 TWR (AGS), 2021 WL 7448532 (S.D. Cal. Mar. 31, 2021) (citing 20 Fed. R. Civ. P. 16(f)) (“[I]f a party or its attorney . . . fails to obey a scheduling or other pre- 21 trial order,” “the court may issue any just orders, including those authorized by Rule 22 37(b)(2)(A)(ii-vii)).” In order to determine whether or not a protective order has been 23 violated, courts focus on the terms of the order itself. Apple, Inc. v. Samsung Elecs. Co., No. 24 511CV01846LHKPSG, 2014 WL 12596470, at *4 (N.D. Cal. Jan. 29, 2014) (citing Biovail 25 Labs., Inc. v. Anchen Pharm., Inc., 463 F. Supp. 2d 1073, 1080 (C.D. Cal. 2006)). 26 Federal courts are charged with strictly policing and studiously enforcing protective 27 orders covering trial counsel’s files during habeas proceedings. See Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003) (en banc). Federal courts also have inherent power to 1 manage their cases and impose sanctions for improper conduct. See Chambers v. Nasco, Inc., 2 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. 3 Gomez, 239 F.3d 989, 991 (9th Cir. 2001); Thompson v. Housing Auth., 782 F.2d 829, 831 4 (9th Cir. 1986); Jackson v. Microsoft Corp., 211 F.R.D. 423, 430 (W.D. Wash. 2002) 5 (citing Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)); see 6 also Local Rule 110 (“[The] failure of counsel or of a party to comply with these Rules or 7 with any order of the Court may be grounds for imposition by the Court of any and all 8 sanctions authorized by statute or Rule or within the inherent power of the Court.”). 9 The Ninth Circuit has repeatedly held that Rule 37 “provide[s] comprehensively for 10 enforcement of all [discovery] orders, including Rule 26(c) protective orders.” United States 11 v. Nat'l Med. Enters., Inc., 792 F.2d 906, 911 (9th Cir. 1986) (affirming Rule 37 sanctions 12 for violation of a protective order); Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 13 770, 784 (9th Cir. 1983) (same); see also Apple, Inc., 2014 WL 12596470, at *5 (“[P]rotective 14 order violations may, but do not necessarily, constitute sanctionable conduct . . . a court must 15 look to the totality of the circumstances surrounding each violation.”); Westinghouse Elec. 16 Corp. v. Newman & Holtzinger, P.C., 992 F.2d 932, 934-35 (9th Cir. 1993) (“[T]he power of 17 a court to make an order carries with it the equal power to punish for a disobedience of that 18 order, and the inquiry as to the question of disobedience has been, from time immemorial, the 19 special function of the court.”). 20 Although the court has broad discretion to fashion remedies to the misconduct, the 21 harshest sanctions, such as exclusion of evidence or dismissal, are to be reserved for cases of 22 bad faith or willful misconduct. See United States v. Sumitomo Marine & Fire Ins. Co., Ltd., 23 617 F.2d 1365, 1369 (9th Cir. 1980); I.F. v. City of Vallejo, No. 2:18-CV-0673-JAM-CKD, 24 2021 WL 601054, at *9 (E.D. Cal. Feb. 16, 2021). 25 Counsel for Respondent has presented evidence that the disclosure of Protected 26 Information to Ms. Kohler and Mr. Strand was inadvertent and unintentional and that there 27 has not been and will not be any unauthorized use of the disclosed Protected Information by 1 |has not identified the specific Protected Information disclosed to Ms. Kohler and Mr. Strand 2 | without notice to petitioner and authorization from the Court. 3 Based upon the facts and the current evidence and the applicable legal standards, the 4 Court finds tentatively that neither remedial nor deterrent sanctions are warranted at this time. 5 Apple, Inc.. 2014 WL 12596470, at *5—6 (sanctions may not be warranted where innocent 6 |conduct does not result in harm). However, within 15 days of the service date of this order, 7 Petitioner may file a response to the tentative ruling. Within 15 days thereafter, 8 |Respondent’s counsel may file a reply. If Petitioner fails to file a timely response, then the 9 | Court’s tentative ruling shall become its final ruling on the matter. Any filing by the parties 10 that discloses Protected Information shall be filed under seal. 11 The Clerk of the Court is directed to serve copies of this order upon counsel for 12 | Petitioner, Nina Rivkind, and counsel for Respondent, Supervising Deputy Attorney General 13 | Kenneth Sokoler and Assistant Attorney General Lewis Martinez. 14 15 IS SO ORDERED. 16| Dated: _ November 7, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28