Commercial Litigation and Arbitration

“Illogical” Interpretation of Protective Order Constitutes Reversible Abuse of Discretion — Meaning of “All” and “Any” Is Literal

Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012):

Joe Leonard Lambright appeals the decision of the district court to modify the protective order issued in his federal habeas proceeding to permit Respondent to turn over materials produced during the federal proceeding to the agency that will prosecute his resentencing, the Pima County Attorney's Office. The district court granted Respondents' motion for modification, reasoning that the protective order covered only materials disclosed after the issuance of the order, that Lambright did not rely on the protective order, that any privileged material lost protection under the order when it became part of the public record during the evidentiary hearing, and that Lambright had failed to explain the basis for his assertion that certain materials were privileged. We hold that the district court abused its discretion in granting the motion for modification as to materials that are privileged. ... [T]he language of the protective order covers all materials, not just materials produced after its issuance***.

[T]he district court, in considering the scope of the protective order, determined that it covered only materials produced after the order was issued on September 23, 2003. This determination was an abuse of discretion for two reasons. First, its interpretation of the text of the protective order is illogical. The district court reasoned that the protective order applied only to those materials produced after its issuance because the order did not specifically state that it applied retroactively. The order, however, states that it applies to "all discovery granted to Respondents" and to "[a]ny information, documents and materials obtained vis-a-vis the discovery process." The common meaning of the word "all" is "the whole amount, quantity, or extent of; as much as possible," and the common meaning of the word "any" is "one or some indiscriminately of whatever kind: one or another taken at random; every — used to indicate one selected without restriction." All and Any Definition, Merriam-Webster Dictionary, (last visited October 4, 2012). The absence of a specific statement that the order applies retroactively does not alter the ordinary meanings of these words. To the contrary, in the absence of any limitation, the only logical reading of the order is that it applies to the entirety of materials produced in the federal habeas proceeding, whether before or after issuance of the protective order. It is illogical to say, as the district court does here, that the words "all" and "any" do not really mean "all" and "any" but instead mean "only the materials produced after this order." Nothing in the record supports the district court's reading of the order. Its attempt to limit the scope of the order to those materials produced after September 23, 2003, is illogical and therefore an abuse of discretion. See Hinkson, 585 F.3d at 1262. The dissent argues that we should not read the text of the September 23 order literally because it was issued in response to a motion that "only sought prospective relief for testimony to be given at a deposition." Dissent at 12533. This argument ignores the fact that the district judge himself instructed the parties to look to the text of his order in order to determine its scope. After oral argument on September 19, 2003, the court indicated it intended to grant a protective order and Lambright's counsel asked what its scope would be. The district judge responded: "Well, it will be set out. I will issue an order that will describe what that is." We take the district judge at his word.

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