Opinion
2:94-cv-1665 KJM DB
03-14-2023
ANTONIO ESPINOZA, Petitioner, v. WARDEN, San Quentin State Prison, Respondent.
SEALED ORDER
DEBOFAH BARNES UNITED STATES MAGISTRATE JUDGE.
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Before the court are petitioner's counsel's request to file a motion and related documents under seal, petitioner's counsel's motion to compel CDCR to provide counsel with information regarding petitioner's health, and petitioner's request for an extension of time to file a joint status report. This court addresses the latter request in a publicly-filed order. Below, this court addresses petitioner's counsel's request to file documents under seal and motion to compel CDCR to provide information.
This court has two concerns about petitioner's counsel's filings. First, while petitioner's counsel (hereafter “counsel”) identifies only two requests, it appears from the submissions that counsel is making three. To summarize, they are: (1) a request to file under seal; (2) a motion to compel CDCR to provide counsel with health and other information upon counsel's request; and (3) a motion for a protective order to prevent respondent from having access to any of the documents provided to counsel by CDCR. Counsel shall confirm with the court that these are the three things they are seeking.
With respect to counsel's request to file under seal, it appears that some, if not all, of the information regarding petitioner's health referenced in counsel's motion has been made public. (See ECF No. 280-6 at 59; ECF No. 292-1). Nonetheless, this court recognizes that petitioner is entitled to a level of privacy over his health information and will issue a separate, public order directing the Clerk to file the request and motions under seal.
This court's second concern is that counsel seeks to have both his motion to compel and his motion for a protective order heard ex parte. Counsel appears to argue that ex parte consideration is necessary because the motions contain private information about petitioner's health and information protected by the attorney/client privilege or work product. As stated above, it appears that the information provided regarding petitioner's health is already available to respondent. If that is not the case, counsel shall so inform the court.
With respect to the privileges, counsel does describe some of the work done to attempt to determine the status of petitioner's health and to attempt to communicate with him. Whether or not that information is privileged or protected, this court does not find it necessary to counsel's motions and finds it could be omitted. It is sufficient that counsel needs information about petitioner's health and location in order to communicate with him. This court finds nothing necessarily confidential about counsel's need to communicate with petitioner. In fact, respondent could certainly be aware that counsel requested petitioner's health records from a prison officer and that the officer told counsel a signed HIPAA release was necessary. And, should the court order the provision of information, respondent would likely be aware that prison officers are providing that information based on the court's order.
This court does not find any reason, at this time, to enter an order compelling the provision of information without input from respondent. This is particularly true because counsel appears to be asking this court to find petitioner is incompetent to execute a release of records. Counsel does not explain why respondent should have no role in consideration of that issue.
The same is true for counsel's motion for a protective order. Regardless of the motion's merit, this court finds that it requires a response from respondent. Respondent should be permitted to provide their position about what, if any, of the information counsel seeks respondent already has access to or should have access to and, if access is limited, the procedures for respondent to seek access.
This court requires additional information from counsel addressing the issues raised herein. After receipt of that information, this court will determine whether or not it will consider counsel's motions on an ex parte basis.
Accordingly, IT IS HEREBY ORDERED that:
1. Within thirty days of the filed date of this order, petitioner's counsel shall file under seal a supplement to their motions to compel and for a protective order to address the issues raised by the court above.
2. The Clerk of the Court is directed to file this order under seal and to serve it only on counsel for petitioner. The Clerk shall identify the order in the docket as an Order for Supplemental Information re Sealed Motion.