                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                            MAR 19 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

DAVID LUTHER GHENT,                                No. 09-15997

              Petitioner - Appellant,              D.C. No. 5:90-cv-02763-RMW

  v.
                                                   MEMORANDUM *
ROBERT K. WONG, Warden,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Northern District of California
                 Ronald M. Whyte, Senior District Judge, Presiding

                        Argued and Submitted March 9, 2010
                             San Francisco, California

Before: FERNANDEZ, HAWKINS and THOMAS, Circuit Judges.

       Prisoner David Luther Ghent (“Ghent”), convicted of first degree murder and

related crimes in California state court, successfully obtained federal habeas relief and

the vacatur of his death sentence in Ghent v. Woodford, 279 F.3d 1121, 1124 (9th Cir.

2002). Ghent’s appeal here challenges the district court’s determination that the work



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
product of certain mental health experts who testified on Ghent’s behalf would be

subject to discovery. The State intends to make use of matters so discovered in a new

sentencing proceeding in state court. For the following reasons, we affirm.

       Factual Background & Procedural History

       During Ghent’s habeas proceedings in district court, Ghent was granted an

evidentiary hearing; and the State was granted discovery rights, as well as leave to

depose Ghent. Following the hearing, the district court granted Ghent’s motion for

a protective order, preventing the State from using documents or information gained

from discovery in any proceedings beyond Ghent’s habeas proceeding, including a

retrial of Ghent in state court.

       In April 2003, following the vacatur by this court of Ghent’s death sentence,

see Ghent, 279 F.3d at 1124, the district court modified the protective order

(hereinafter “MPO”), defining the term “protected information” as including Ghent’s

deposition, and excluding “documents or information if they were obtained by means

independent of the writ proceedings or their protection was waived by some conduct

other than their revelation in the writ proceedings.” The court required Ghent submit

a proposed order identifying specific information from the public record he wished

sealed.




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      In the State’s subsequent appeal of the MPO, a panel of this Court determined

the MPO to be within the district court’s discretion and declined to review the

propriety of the proposed sealing order, or its application to any specific items. Ghent

v. Woodford, 2004 WL 540692, at *1 (9th Cir. Mar. 17, 2004).

      The district court then issued its first sealing order in March 2005 (“March 2005

order”), itemizing several documents covered by the protective order, and others not

within its scope. In July 2008, the court included three additional documents under

the MPO via a second order (“July 2008 order”). Ghent then sought to seal additional

portions of the record, which the court, in its March 2009 order, granted in part. The

court, however, declined to apply the work product privilege to the notes and materials

from the expert witnesses called on Ghent’s behalf at the earlier evidentiary hearing.

      Ghent noticed appeal on April 20, 2009 [ER 1-3], seeking review of the MPO

(April 2003), and the subsequent orders clarifying the items covered by the MPO (July

2008 order, March 2009 order).

      Jurisdiction

      The orders Ghent appeals are all final orders under 28 U.S.C. § 1291, or

collateral orders, and thus appealable, because “[t]here were no other matters pending




                                           3
before the district court upon entry of [these orders].” 1 See Foltz v. State Farm Mut.

Auto. Ins. Co., 331 F.3d 1122, 1129 (9th Cir. 2003); see also Bittaker v. Woodford,

331 F.3d 715, 718 (9th Cir. 2003) (en banc); Osband v. Woodford, 290 F.3d 1036,

1039-40 (9th Cir. 2002) (applying the collateral order doctrine); Wharton v. Calderon,

127 F.3d 1201, 1203 (9th Cir. 1997) (applying the collateral order doctrine).

      Timeliness

      Ghent’s appeal of the April 2003 MPO is untimely. The order was affirmed by

this Court in 2004 as within the district court’s discretionary authority, see Ghent,

2004 WL 540692 at *1, and thus cannot be reconsidered by this panel. See Ingle v.

Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (citing Lower Elwha Band of

S'Klallams v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)). Ghent’s appeal

of the March 2009 order, however, was timely.

      Notes of Mental Health Experts

      Citing Fed. R. Civ. P. 26, the district court noted, “the moment that Petitioner’s

expert witnesses relied on the documents at issue at Petitioner’s trial, they ceased to




      1
      Ghent was not required to seek a certificate of appealability prior to appealing.
See Harrison v. Bell, 129 S. Ct. 1481, 1485 (2009).

                                          4
be protected work product. Since the documents were not protected work product

during Petitioner’s trial, they are not protected work product now.”2

       Petitioner’s argument that Bittaker, 331 F.3d at 727-28, requires a contrary

result is unavailing. While Bittaker certainly holds that the filing of a federal habeas

petition does not automatically result in a waiver of the attorney-client privilege

between a petitioner and his former counsel, id. at 722, the waiver at issue here

occurred in the original state court trial, and any privilege would have been considered

waived regardless of the initiation of federal habeas proceedings. Thus, the waiver

here was not based on “his disclosure of privileged information during the course of

the federal litigation,” see id. at 726, but rather when Ghent’s experts testified in his

state trial.

       Transcripts of Habeas Witness Testimony

       The district court also denied Ghent’s motion to include under the MPO

excerpts of habeas expert witness testimony. Because Ghent fails to enumerate



       2
        The district court did not err in this determination, following as it did the
majority rule among circuits facing this issue. See Reg’l Airport Auth. of Louisville
v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006), and cases cited therein; see also
Wright & Miller, Federal Practice and Procedure, § 2016.5. California law also
supports waiver in these circumstances. See People v. Ledesma, 39 Cal. 4th 641, 695-
96 (Cal. 2006); see also People v. Combs, 34 Cal. 4th 821, 862-64 (Cal. 2004). As the
district court noted, because “state law may preclude the use of some or all of these
documents at Petitioner’s retrial . . . the state court may so order.”

                                           5
specific reasons, or provide any references to case law or evidentiary rules, as to why

this testimony should be privileged, stating only that the court erred by excluding

“testimony from other witnesses that revealed privilege and work product information

from trial counsel,” we find this issue waived. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“As the Seventh Circuit observed in

its now familiar maxim, ‘[j]udges are not like pigs, hunting for truffles buried in

briefs.’”) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (alteration

in Indep. Towers)); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999)

(“[A]rguments not raised by a party in its opening brief are deemed waived.”);

Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (same).

      AFFIRMED.




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