Ervine v. Warden, San Quentin State Prison
214 F. Supp. 3d 917
E.D. Cal.2016Background
- Petitioner (habeas) moved to file under seal: exhibit 290 (juror declaration) and exhibits 291–301 (handwritten pre-trial notes petitioner prepared for counsel), and sought a protective order limiting respondent’s use of the notes.
- At hearing, parties agreed redaction of juror’s name would protect privacy; respondent said it would move to dismiss the petition for exhaustion and requested time to do so.
- Court reviewed sealing standards (compelling reasons for exhibits attached to pleadings) and the Ninth Circuit’s protective-order precedents on attorney–client materials and waiver in ineffective-assistance claims.
- Court found petitioner’s notes were communications for counsel and thus presumptively privileged, but waiver by raising ineffective-assistance claims is limited in scope.
- Court ordered a redacted public version of exhibit 290 and sealed the unredacted version; ordered exhibits 291–301 filed under seal and served to respondent under a protective order restricting use (including restrictions extending to any retrial).
- Court set a briefing schedule: respondent to file motion to dismiss or responsive pleading by Jan 31, 2017; standard opposition/reply schedule thereafter.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Standard for sealing exhibits attached to a petition | "Good cause" suffices for non-dispositive filings | "Compelling reasons" required for exhibits to pleadings | Compelling-reasons standard applies to exhibits attached to a petition; sealing must be narrowly tailored |
| Whether juror identity should be public | Redaction of juror name protects privacy | No objection to redaction approach | Public filing with juror name redacted; unredacted version sealed |
| Whether petitioner’s handwritten pre-trial notes are privileged | Notes were written for counsel and are privileged; should be protected from broad waiver | Contest that petitioner has not proven privilege or relevance | Court accepts counsel’s representation that notes are privileged and grants sealing of exhibits 291–301 |
| Scope of waiver and protective order | Waiver for ineffective-assistance claims should be limited to litigation of habeas and not permit use at retrial | Seeks access/use for litigation; challenges privilege proof | Court adopts a Bittaker-style protective order limiting use to habeas litigation and barring use in retrial absent court order; order remains in effect after proceedings unless modified |
Key Cases Cited
- Pintos v. Pacific Creditors Ass’n, 605 F.3d 665 (9th Cir.) (standard and public access principles for judicial records)
- Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir.) (compelling reasons test for sealing judicial records)
- Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir.) (trial court discretion in sealing decisions)
- Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir.) (examples of compelling reasons and good-cause sealing)
- Bittaker v. Woodford, 331 F.3d 715 (9th Cir.) (limited waiver of attorney–client privilege in ineffective-assistance claims and protective-order framework)
- Lambright v. Ryan, 698 F.3d 808 (9th Cir.) (protecting privileged materials during habeas evidentiary proceedings)
- Upjohn Co. v. United States, 449 U.S. 383 (privilege protects client-to-lawyer communications)
- Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (public access principles; narrowing sealing to necessary material)