Opinion
1:17-CR-00296-ABA-BAM
09-27-2022
UNITED STATES OF AMERICA, Plaintiff, v. JARVIS THOMAS, Defendant.
(ECF No. 254)
ORDER GRANTING IN PART AND DENYING IN PART EX PARTE APPLICATION REGARDING ORDER OF WAIVER OF ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES
Before this Court is the government's ex parte motion seeking an order finding that petitioner Jarvis Thomas as a result of his pending motion filed pursuant to 28 U.S.C. § 2255 (ECF No. 249), has waived the attorney-client and work product privilege, and that therefore, the government is entitled to compel discovery of responsive attorney-client communications and work product. (ECF No. 254).
In bringing the present motion, the government argues that petitioner's motion under § 2255 “waived the privilege as to attorney-client communications and his counsel's work product for purposes of present motion,” and states that it cannot adequately respond to petitioner's claims in his § 2255 motion without access to this privileged information. The government states that its waiver is partial “in that the information obtained through the waiver is to be used for purposes of adjudicating the Petitioner's Motion, but not in a retrial or in an unrelated case.” (ECF No. 254 at 3) Plaintiff has not responded to the government's motion.
In Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), the Ninth Circuit held that while a habeas petitioner waives his attorney-client privilege in a proceeding raising an ineffective assistance of counsel claim, such a waiver must be “narrowly tailored” to communications related to the claim. 331 F.3d at 724. In addition, the information obtained through such a waiver cannot be used in a retrial or unrelated case. Id. At 722 (“[W]e can conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver the limited the used of privileged communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests.”); see also Lambright v. Ryan, 698 F.3d 808, 818 (9th Cir. 2012). Accordingly, it does not follow that discovery of all communications between a petitioner and his prior attorney is automatically allowed where post-conviction relief petitioner alleges a claim of ineffectiveness assistance of counsel. Rather, if a district court exercises its discretion to allow discovery pertaining to an attorney-client privilege claim, it must enter appropriate protective orders delineating the contours of the limited waiver before commencement of discovery.
Accordingly, unless, in accordance with the instructions below, petitioner chooses to withdraw those portions of his § 2255 motion in which he alleges that he received ineffective assistance from his trial counsel, the government's application will be granted in part and denied in part as follows:
(1) The attorney-client privilege of petitioner Thomas is waived with respect to all communications between petitioner Thomas and his former attorney, E. Marshall Hodgkins, and his staff and agents, concerning events and facts related to Plaintiff's claims of ineffective assistance of counsel in petitioner Thomas's motion filed under 29 U.S.C. § 2255 in United States v. Jarvis Thomas, 17-cr-00296-ADA-BAM.
(2) Attorney E. Marshall Hodgkins, and his staff and agents, if applicable, may provide the government with a declaration addressing attorney-client communications concerningevents and facts related to the ineffective assistance of counsel claims presented in petitioner's § 2255 motion, and may communicate with government counsel to ensure that all issues are adequately addressed.
(3) To the extent the government's request is broader than this order, the government's request is denied without prejudice, subject to renewal by motion providing further information as to the necessity of the production of such documents.
(4) The government shall not use for any purpose or disclose to any party or in any proceeding beyond this action the privileged material it obtains in connection with the pending § 2255 motion proceeding. See Lambright v. Ryan, 698 F.3d 808, 818 (9th Cir. 2012); Bittaker v. Woodford, 331 F.3d 715, 722, 728 (9th Cir. 2003).
Alternatively, if in light of the above finding of the waiver of these privileges, petitioner wishes to no longer proceed with his pending § 2255 motion asserting an ineffective assistance of counsel claim, he must notify this court within twenty-one (21) days from the date of this order by withdrawing the allegations concerning ineffective assistance of counsel in his pending motion. Petitioner's failure to do so within the time provided will be deemed by the court to be a confirmation of the portion of this order finding petitioner's waiver of the attorney client privilege.
Accordingly, 1. The government's ex parte application (ECF No. 254) is granted in part and denied in part;
2. Petitioner, if he chooses to do so, has twenty-one (21) days from the date of this order to notify the Court that he no longer wishes to proceed with those portions of his pending § 2255 motion asserting ineffective assistance of counsel claims; and
3. In the event the petitioner indicates he wishes to proceed or does not respond within twenty-one days, this will be deemed by the Court to be a confirmation of the portion of this order finding petitioner's waiver of the attorney client and work product privileges.
IT IS SO ORDERED. 4