Joe Leonard Lambright v. Charles L. Ryan

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
** Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Charles L.
Ryan is substituted as Respondent-Appellee for Dora B. Schriro.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE LEONARD LAMBRIGHT,
Petitioner - Appellant,
v.
CHARLES L. RYAN,**
Respondent - Appellee.
No. 09-99000
D.C. No. 4:87-cv-00235-JMR
MEMORANDUM *
JOE LEONARD LAMBRIGHT,
Petitioner - Appellant,
v.
CHARLES L. RYAN,**
Respondent - Appellee.
No. 09-15624
D.C. No. 4:87-CV-00235-JMR
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
FILED
DEC 21 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Argued and Submitted November 3, 2009
Pasadena, California
Before: SCHROEDER, REINHARDT and THOMPSON, Circuit Judges.
Lambright appeals from two orders of the district court, dated December 4,
2008 and March 24, 2009. Each concerned a protective order (the Protective
Order), entered by the court on September 23, 2003, that prevented the state from
using at his capital resentencing proceedings material “discovered” in connection
with Lambright’s habeas proceedings. Because we conclude that the December 4
order was not appealable and that Lambright’s erroneous appeal from that order
resulted in the district court’s inability to establish a reviewable record in
connection with its March 24 order, we vacate and remand for further proceedings.
I.
This court lacks jurisdiction over Lambright’s appeal from the district
court’s December 4 order. That order announced the district court’s intention to
modify the Protective Order after the parties had an opportunity to advise it further
about what material they believed was privileged and/or should continue to be

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protected from use at resentencing. It was not appealable because it was not a final
order, did not conclusively determine the issue of modification, and was subject to
review on appeal if and when a final modification order was entered. Foltz v. State
Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1129 (9th Cir. 2003) (stating that, when
no other matters are pending, modification of a protective order is appealable as
either a final or a collateral order).
Lambright argues that his appeal of the December 4 order deprived the
district court of jurisdiction to issue the March 24 order. However, it is well-
settled that filing an appeal from an unappealable decision does not divest the
district court of jurisdiction. Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th
Cir. 1993).
The district court’s March 24 order vacated the Protective Order and denied
Lambright’s motion for an order sanctioning the state pursuant to Federal Rule of
Civil Procedure 37(b) for an earlier violation of the Protective Order. The March
24 order was a final decision because it resolved all the issues pending before the
court. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992).
This court has jurisdiction to review the March 24 order pursuant to 28 U.S.C. §
1291.

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II.
The district court did not explain the factual or legal basis of its ruling on
Lambright’s motion to sanction the state for violating the Protective Order.
Instead, the court summarily dismissed the motion in a footnote. When a district
court fails to make findings of fact in a ruling on a motion for discovery sanctions,
the appellate court reviews its decision de novo. Adriana Int’l Corp. v. Thoeren,
913 F.2d 1406, 1408 (9th Cir. 1990). In this case, however, de novo review is not
possible because the record is unclear about the extent to which the Protective
Order was violated, the reasons the violation occurred, and the prejudice that
Lambright may have suffered as a result of the violation. Accordingly, we vacate
the district court’s dismissal of Lambright’s motion and remand so that the court
may resolve any disputed factual questions and make factual findings regarding the
circumstances surrounding, and the extent and effect of, the violation and then

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To the extent that the district court implicitly based its sanctions decision on1
its decision to vacate the Protective Order, we note that the propriety of the
underlying discovery order is not generally one of the factors to be considered in
ruling on a motion for sanctions, and is clearly not the only issue the court should
address. See United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365,
1369 (1980) (listing factors to be considered in ruling on sanctions for violation of
discovery order); see also James Wm. Moore et al., Moore’s Federal Practice ¶
37.42[6] (3d ed. 2006) (“If sanctions are sought pursuant to Rule 37(b) for failure
to obey an earlier discovery order, the propriety of the underlying discovery order
generally will not be considered.”).
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determine whether sanctions are warranted. See Ace Novelty Co. v. Gooding1
Amusement Co., 664 F.2d 761, 763 (9th Cir. 1981) (vacating and remanding where
the absence of factual findings and analysis of relevant factors frustrated appellate
review).
III.
Lambright’s premature appeal cut short the district court’s efforts to identify
the material that Lambright believed merited continued protection under the
Protective Order or a modified protective order. In particular, Lambright never
responded to the court’s request that he identify material that was protected by his
attorney-client privilege, work-product privilege, or Fifth Amendment privilege
not to disclose information that could be used to establish aggravating factors or to
undermine his claim of mitigating factors during future capital sentencing
proceedings. Estelle v. Smith, 451 U.S. 454, 462 (1981). For the same reason,

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Lambright had no opportunity to explain whether, in his view, non-privileged
material or material that did not emerge through the discovery process warranted
protection, given this court’s rationale in Bittaker v. Woodford: “If a prisoner is
successful in persuading a federal court to grant the writ [of habeas corpus], the
court should aim to restore him to the position he would have occupied, had the
first trial been constitutionally error-free.” 331 F.3d 715, 722 (9th Cir. 2003) (en
banc). As a result, the district court did not have sufficient information to rule on
the state’s motion to modify the Protective Order and the record does not contain
enough information to allow this court to review the district court’s decision on
that question. Accordingly, we vacate and remand for further proceedings. Ace
Novelty Co., 664 F.2d at 763.
VACATED and REMANDED FOR FURTHER PROCEEDINGS IN
ACCORDANCE WITH THIS DISPOSITION

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