Osband v. Woodford

• Citation: 290 F.3d 1036
• Decision Date: 15 May 2002
• Docket Number: No. 00-99016.,00-99016.
• Parties: Lance Ian OSBAND, Petitioner-Appellee, v. Jeanne WOODFORD, Warden of the California State Prison at San Quentin, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

290 F.3d 1036

Lance Ian OSBAND, Petitioner-Appellee, v. Jeanne WOODFORD, Warden of the California State Prison at San Quentin, Respondent-Appellant.

No. 00-99016.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 10, 2001.

Filed May 15, 2002.

Ward Campbell, Attorney General's Office, Sacramento, CA, for the respondent-appellant.

Connie Marie Alvarez, Sacramento, CA, for the petitioner-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CV-97-00152-WBS-JFM.

Before POLITZ,^* W. FLETCHER, and FISHER, Circuit Judges.

ORDER

WILLIAM A. FLETCHER, Circuit Judge.

This court's opinion filed on March 6, 2002, and published at 282 F.3d 1125 (9th Cir.2002), is withdrawn and replaced by the attached opinion.

With the filing of this new opinion, the panel has voted unanimously to deny the petition for rehearing. Judges W. Fletcher and Fisher have voted to deny the petition for rehearing en banc, and Judge Politz so recommends.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc, filed March 20, 2002, are DENIED.

OPINION

Petitioner-appellee seeks a writ of habeas corpus in this capital case, claiming, among other things, ineffective assistance by his trial counsel. Because of petitioner's ineffective assistance claim, the magistrate judge allowed discovery by the State of materials that would ordinarily have been subject to evidentiary privileges, including the attorney client privilege. Over the State's objection, the magistrate judge also entered a protective order limiting the State's use of the materials. The district court denied the State's motion to reconsider the magistrate judge's order, and the State appeals that denial.

We hold that the district court's denial of the motion to reconsider is an appealable collateral order. We further hold that the denial of the motion was not clear error and, accordingly, affirm the district court.

I. Background

Petitioner-appellee Lance Ian Osband was convicted of first-degree murder in a California state court and sentenced to death. The California Supreme Court affirmed the judgment, see People v. Osband, 13 Cal.4th 622, 55 Cal.Rptr.2d 26, 919 P.2d 640 (1996), and later denied Osband's petition for writ of habeas corpus. Osband then sought a writ of habeas corpus in federal district court under 28 U.S.C. § 2254.

Osband's petition asserted numerous claims of ineffective assistance of counsel, including a claim that counsel was inadequate in the development and presentation of evidence regarding Osband's mental health. The magistrate judge granted the State's motion for discovery on these claims, finding that "petitioner has waived attorney/client privilege and work product protection with respect to all documents relevant to his ineffective assistance of counsel claims." The magistrate judge also found that, given the allegations relating to mental health evidence, "any privilege for petitioner's communications with non-testifying mental health professionals has been waived."

The magistrate judge allowed discovery of trial counsel's files and of the records of two mental health examiners, but it entered a protective order restricting use of these documents by the State. The order, entered over the State's objection, read as follows:

All documents produced to respondent pursuant to respondent's motion to discover trial counsel's file and the mental health examinations of Drs. Yarvis and Hutchinson, prepared at trial counsel's request in preparation for trial, shall be deemed to be confidential. These documents may be used only by representatives from the Office of the California Attorney General and may be used only for purposes of any proceedings incident to the petition for writ of habeas corpus pending before this Court. Disclosure of the contents of the documents and the documents themselves may not be made to any other persons or agencies, including any law enforcement or prosecutorial personnel or agencies without an order from this Court. This order shall continue in effect after the conclusion of the habeas corpus proceedings and specifically shall apply in the event of a retrial of all or any portion of petitioner's criminal case.

The State moved in the district court for reconsideration of the magistrate judge's order. Applying the clear error standard of 28 U.S.C. § 636(b)(1)(A), the district court denied the motion. The district court emphasized that under our en banc opinion in McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.1999) (en banc) (McDowell II), a magistrate judge retains broad discretion to decide whether to issue such a protective order. Noting that the magistrate judge could later modify the protective order, the district court indicated that "[t]o the extent the Order handicaps respondent's ability to defend against petitioner's claims, respondent may seek particularized relief from the Magistrate Judge designed to mitigate any such prejudice."

The State timely appealed the district court's denial of its motion to reconsider the magistrate judge's order.

II. Appellate Jurisdiction

As an initial matter, petitioner-appellee Osband argues that we lack subject matter jurisdiction over the State's appeal. We disagree. While neither the protective order nor the district court's denial of the motion to reconsider is a final judgment on the merits of the case, we have jurisdiction pursuant to 28 U.S.C. § 1291 under the "collateral order doctrine." See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Appealable collateral orders belong to "that small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. 1221.

We have previously heard an interlocutory appeal of a protective order in a case very similar to this one. In Wharton v. Calderon, 127 F.3d 1201 (9th Cir.1997), petitioner Wharton was a state court prisoner under sentence of death who sought a writ of habeas corpus alleging, inter alia, ineffective assistance of counsel. The district court held that Wharton had waived his attorney-client privilege for materials relevant to his ineffective assistance claim, and it allowed discovery by the State. At the same time, however, the district court entered a protective order prohibiting the State from communicating with Wharton's former counsel except in a deposition at which Wharton's current counsel could be present. The State appealed the order.

We held in Wharton that the protective order was an appealable collateral order. Paraphrasing the Supreme Court in Swint v. Chambers County Commission, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), we stated that to be appealable an interlocutory order must satisfy three requirements: (1) it must be "conclusive"; (2) it must "resolve an important question separate from the merits"; and (3) it must be "effectively unreviewable on appeal from a final judgment." Wharton, 127 F.3d at 1203. We conclude in this case that all three requirements are met and that the protective order is appealable.

First, the protective order is the "conclusive" determination by the district court of the legal issue in question. The petitioner in Wharton conceded that the protective order was conclusive, but petitioner in this case does not. Osband points out that the district court noted that, should the need arise, the State could seek modification of the order to avoid prejudice. This is true, but the protective order in Wharton is, in this respect, not different in substance from the order in this case. A party subject to a protective order is generally free to return to the issuing court to seek modification of the order. See Empire Blue Cross & Blue Shield v. Janet Greeson's A Place For Us, 62 F.3d 1217, 1219 (9th Cir.1995). The protective order in Wharton did not specify that modification might be available to avoid prejudice, but we view it as fairly implicit in the order that such modification was available. Our opinion in Wharton does not recount whether the district court ever stated that its order was subject to modification; but this hardly matters, for it is clear, even without such a statement, that it would have been.

In any event, the issue in this appeal is not whether prejudice to the State might, at some future date, lead to modification of the order. The issue is, rather, the underlying legal basis of the order. The State argues that under Anderson v. Calderon, 232 F.3d 1053 (9th Cir.2000), the magistrate judge was simply without power to issue the order. According to the State, the waiver of the attorney-client privilege was essentially unqualified "`as to the matters challenged'" in Osband's ineffective assistance claim. State's brief at 12-13 (quoting Anderson, 232 F.3d at 1099). If this is so, the magistrate judge was without power to restrict access to the discovered materials by state law enforcement and prosecutorial officials. Further, according to the State, the magistrate judge's prohibition on using the discovered materials on retrial in the state court (if retrial were to occur) was "`an unwarranted anticipatory interference with the prerogatives of the state courts.'" Id.

The magistrate judge's entry of the order, and the district court's denial of the State's motion to reconsider, are "conclusive" determinations that Osband's ineffective assistance claim does not constitute an unqualified waiver of the attorney-client privilege, and that the federal court has the power to...