Lambright v. Ryan

The district court abused its discretion by finding that a protective order in a federal habeas proceeding for ineffective counsel should not apply retroactively and that petitioner waived attorney client privilege to materials produced at an evidentiary hearing because he did not ask them to be sealed; the district court did not abuse its discretion by modifying the protective order to allow for disclosure for non-privileged material at resentencing.

Joe Leonard Lambright filed a habeas petition in Arizona District Court, arguing that his counsel during sentencing was ineffective. The district court dismissed the petition and on appeal the Ninth Circuit remanded it back down for an evidentiary hearing on whether his counsel was ineffective. On remand, Lambright moved for a protective order, which the district court granted, to protect against Respondents asking any questions of him during deposition which would be self-incriminating. However, the district court still allowed Respondents to depose Lambright and ask him questions about his crimes of conviction, which he refused to answer. The district court denied Lambright’s habeas petition, which he appealed and the Ninth Circuit reversed and remanded for new sentencing by the Pima County Attorney’s Office (“Pima County”). Respondents moved the district court to modify the protective order to allow Pima County to have access to all documentation related to Lambright’s habeas proceeding, which was granted and the Court of Appeals vacated and remanded. The district court denied Lambright’s motion to disqualify the Arizona Attorney General’s Office and modified the protective order so that it “would remain in effect only as to” Lambright’s deposition transcript. Lambright appealed. The Ninth Circuit considered whether the district court had abused its discretion when it modified the protective order and found that it had when it ruled that it only applied to materials supplied after the order went into effect because the court in a habeas proceeding for ineffective counsel should appropriately limit discovery as soon as it commences. Therefore, since the judge gave assurances that the protective order would apply to evidence produced for the evidentiary hearing, Lambright did not waive any claim to attorney client privilege despite not requesting the proceedings be sealed. The Ninth Circuit further held that the district court had not abused its discretion to modify the protective order to allow disclosure to Pima County of non-privileged materials. AFFIRMED in part, VACATED in part and REMANDED.