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Were v. Bobby

United States District Court, S.D. Ohio, Eastern Division

December 23, 2019

JAMES WERE, N.K.A. NAMIR ABDUL MATEEN Petitioner,
v.
DAVID BOBBY, Warden, Respondent.

          Elizabeth P. Deavers Magistrate Judge

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

         Petitioner Mateen, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court for consideration of Movant Jason Robb's Motion for Clarification of Order of June 24, 2019, ECF No. 229. ECF No. 153-1.[1] Also before the Court are the Warden-Respondent's Response, ECF No. 154, and Movant Robb's Reply, ECF No. 155-1.

         Following a discovery conference on June 12, 2019, which included the Undersigned, Honorable Chief Judge Algenon L. Marbley, the Honorable Elizabeth P. Deavers, the Honorable Kimberly A. Jolson (via telephone), and the Honorable Michael R. Merz (via telephone), this Court, on June 24, 2019, issued an order memorializing that conference. ECF No. 152. Specifically, the Court established certain procedures for all affected parties-Petitioner Mateen, the Warden, and Intervenor-Petitioners-to follow in connection with the Stipulation and Protective Order ("Protective Order") that Chief Judge Marbley issued in Robb v. Ishee, Case No. 2:02-cv-535, ECF No. 57. This Court's June 24, 2019 Order was also filed in the Robb v. Ishee and Hasan v. Ishee, Case No. 1:03-cv- 288, cases. ECF No. 152, at PageID 23671.

The Protective Order at issue provides in relevant part:
This Stipulation and Protective Order governs the use and protection of information or documents which are obtained by counsel for Petitioner pursuant to the Court's Discovery Order entered on September 16, 2004, and which contain the identities of Inmates who have cooperated with the State of Ohio in the investigation and prosecution of participants in the disturbance at the Southern Ohio Correctional Facility in Lucasville, Ohio that occurred on April 11, 1993 - April 21, 1993 (hereinafter, "Inmates"), whether contained in documents, deposition testimony, deposition exhibits, electronic data, videocassette recordings, audio recordings, or any other written, recorded or graphic matter produced by Respondent, together with any and all information contained therein.

Robb v. Ishee, Case No. 2:02-cv-535, ECF No. 57 (emphasis added). Movant Robb's motion for clarification/modification targets the following provisions of this Court's June 24, 2019 Order:

1. Lead counsel for Respondent, Petitioner Mateen, Petitioner Robb, and Petitioner Hasan shall create an "Attorneys' Eyes Only" pseudonym list, using numbers as identifiers, starting with the number 1, for each of the Inmates who are entitled to anonymity under the Stipulation and Protective Order. That pseudonym list is hereby governed by the Stipulation and Protective Order. Should the pseudonym list need to be filed in any of these cases, it shall be filed under seal. As to all future pleadings, briefings, and/or exhibits containing any information that could lead to the identification of cooperating Inmates (hereinafter "confidential material"), the pleadings shall be filed publicly with the Inmate's name and identification number replaced by a pseudonym number that corresponds with that Inmate on the confidential "Attorneys' Eyes Only" pseudonym list from which the attorneys in these cases will operate going forward, and any other identifying information redacted, while any supporting exhibits that contain confidential information shall be filed under seal. Any pleading containing confidential information that is filed in this redacted form shall identify, by Bates stamp or other form, each of the sealed exhibits upon which the pleading relies.
4. Counsel's ability to share any pleadings or evidence that contain confidential material with their clients continues to be governed by 4(b) of the Stipulation and Protective Order. To be clear, as to each and every pleading or piece of evidence containing confidential information that counsel wishes to share with his or her client, counsel shall be required to obtain prior leave from the Judge presiding over his or her case and then give Respondent at least seven (7) days' written notice of which Inmates' identities will be disclosed.

         ECF No. 153-1, at PageID 23681-85.

         As to Paragraph 1, Movant Robb seeks clarification on the universe of inmates who are entitled to anonymity under the Protective Order, asserting that the absence of specificities leaves that list both over-inclusive in some respects and under-inclusive in other respects. Id. at PageID 23681-83. Movant Robb points out that, of the several hundred inmates who were interviewed following the Lucasville Riot, some gave cursory statements or no statements at all, while others gave extensive statements but never testified at trial. Movant Robb also asserts that the Protective Order is not clear as to whether it applies to the class of inmates who testified in open court and whose identities are therefore known to all. Finally, Movant Robb questions whether inmates who were interviewed but have since passed away should be covered by the Protective Order and whether the passage of time mitigates the need to strictly protect the anonymity of every inmate who may have cooperated with authorities.

         In response, the Warden maintains "that each inmate that cooperated in the investigation should get a pseudonym number." ECF No. 154, at PageID 23689 (emphasis in original). "There were simply too many trials," the Warden explains, "for an accurate determination of which inmates' identities are already known and which are not." Id. To that point, the Warden suggests that even inmates who testified at one or more trials should be assigned a pseudonym number and that, by motion to the Court, a movant could seek to have that inmate be referred to by his name instead of his pseudonym number. Id. The Warden continues as follows:

[T]he Warden proposes that the pseudonym list be prepared from the list in possession of the undersigned Counsel, with consultation from the counsel for the various inmates to ensure as complete a list as possible. If an inmate is found that is not currently on the list, that [sic] the list would then be supplemented and that additional inmate would be given the next available number. The list should be prepared without regard to which cooperating inmates ...

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