Cockrum v. Johnson

• Decision Date: 12 February 1996
• Docket Number: No. 6:93 cv 230.,6:93 cv 230.
• Citation: 917 F. Supp. 479
• Parties: John COCKRUM, b.n.f. Mandy Welch, Applicant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Eastern District of Texas

917 F. Supp. 479

John COCKRUM, b.n.f. Mandy Welch, Applicant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. 6:93 cv 230.

United States District Court, E.D. Texas, Tyler Division.

February 12, 1996.

Mandy Welch and Richard Burr, Texas Defender Service, Houston, TX, for plaintiff.

John Jacks and Meredith Anne Martinez, Dana E. Parker, Asst. Dist. Atty., Stephani A. Stelmach, Asst. Atty. Gen., Attorney General's Office, Austin, TX, for defendant.

John Cockrum, Huntsville, TX, pro se.

ORDER

JUSTICE, District Judge.

I. Introduction

The applicant in the above-entitled and numbered civil action moves for a protective order. A hearing on the motion was held on January 5, 1996, and the parties were given leave to submit post-trial briefs. After considering the briefs and the testimony, both that offered at the hearing and that submitted by deposition, it is found that the motion for protective order should be granted in part and denied in part.

II. Background

Sometime soon after he was sentenced to death, John Cockrum, the applicant in this habeas corpus action, began writing to his daughter, Tiffany Nicole Cockrum. He started this practice out of a concern that his daughter, who was four years old at the time he entered prison, would never know her father. In an effort to explain the circumstances of his life and to convey a sense of who he is, he has documented his reflections on his present circumstances and past history, and, while his writings are addressed to his daughter, they comprise a diary as much as a formal correspondence. He has continued writing to his daughter ever since entering prison, and after ten years on death row, his writings now fill over 1600 pages.

No one has read what Cockrum has written in these pages, not even the daughter to whom they are addressed. After he finishes an entry, he sends it to his mother, Barbara Sutherland, who holds it with the others she has received. Sutherland is under instructions from Cockrum to hand over all the documents to his daughter when she reaches the age of twenty-one. At that time, Cockrum feels that his daughter will be sufficiently mature to understand the circumstances he discusses and the feelings he expresses.

The respondent served a notice of deposition and subpoena duces tecum on Barbara Sutherland.¹ The subpoena requires Sutherland to produce, among other things, all letters sent to her by the applicant. In response, Sutherland provided a number of documents — including all letters that her son has written to her personally — and raised a number of objections. The parties informally resolved all of the contentions, save the dispute over Cockrum's letters to his daughter.

Subsequently, Sutherland herself wrote a letter to the court regarding this matter. Court's Exhibit No. 2. In addition to expressing her opposition to the production of the letters to Cockrum's daughter, Sutherland objected to the subpoena to the extent that it asked for a journal that she kept.² Sutherland relates that after deciding to write a book about the experiences of families with a close relative on death row, she took handwritten notes and typed approximately fifteen pages of her story. She stored her work on a computer, but, through computer error, lost the fifteen pages of material. She was unable to locate her notes as of the time of the hearing, but nevertheless requests that they be protected from discovery. She also requests that any future journal or book that she should write about her experiences be protected from discovery. This letter was made a part of the motion for protective order, and Sutherland testified at the hearing about her concerns.

III. Legal Standard

The person seeking a protective order bears the burden of establishing good cause and a specific need for protection. Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th Cir.), cert. denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990). If good cause is shown, the court may issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). Framing an appropriate protective order necessarily entails consideration of the needs of the party seeking the discovery. See Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir.1992) (approving a decision to deny discovery based on a balancing of the relevance and necessity of the information sought against the privacy interests involved), cert. denied, 507 U.S. 910, 113 S.Ct. 1255, 122 L.Ed.2d 654 (1993). Aside from these general principles, the Federal Rules of Civil Procedure, and the case law interpreting them, provide very little guidance in sorting through the specific concerns of this very unique case.

A. Cockrum's Letters to His Daughter

Cockrum argues that the intensely private nature of the letters to his daughter establishes good cause for prohibiting their discovery. The right to privacy encompasses both an individual interest in avoiding the disclosure of personal matters, Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977); and a zone of familial privacy, restricting state interference with family relationships, see Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (right to privacy in the relationship between father and child); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (recognizing a "private realm of family life which the state cannot enter"). Both aspects of the right to privacy are implicated in this case. The State seeks to discover a very personal correspondence between father and daughter. These letters are the primary link of communication between Cockrum and his daughter, and exposing the letters to public view would compromise, if not sever, that link.³

The State contends that by seeking a writ of habeas corpus, Cockrum has waived any right to privacy he might have. It is true that, generally speaking, a litigant seeking relief determines the issues to be brought before the court and cannot selectively choose what information to reveal and what information to withhold; however, a person does not thereby relinquish every aspect of his right to privacy. Rather than requiring discovery without regard for a party's privacy interests, the proper course is to balance a party's legitimate claims of privacy against the need of the opponent for the discovery. See Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D.Cal.1995) ("Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.").

In evaluating the State's need for the discovery, it cannot be denied that the letters are relevant to this action. Specifically, the letters undoubtedly contain information relevant to the claim that Cockrum's attorneys provided ineffective assistance at the sentencing phase of trial by failing to investigate and present mitigating evidence regarding Cockrum's upbringing and his possible insanity at the time of the offense.⁴ Cockrum believes that only two to three pages of the documents in question are relevant, but, considering the broad legal definition of relevance in the context of discovery,⁵ the number is undoubtedly much higher. The ineffective assistance claim touches not only on the specifics of the murder and subsequent trial, but also on Cockrum's entire family history and its effect on his mental condition. The letters surely discuss Cockrum's upbringing and provide insight into Cockrum's psychological state, both at the time of the crime and at the time he wrote the letters.

While relevant, the letters are not necessary to the State's case. The focus of an ineffective assistance claim is the information available to the attorneys at the...