United States District Court, D. Alaska
HONORABLE TIMOTHY M. BURGESS JUDGE
PROCEEDINGS:
ORDER FROM CHAMBERS
The
matter comes before the Court on the United States'
Motion to Find Attorney-Client Privilege Waived (the
“Motion”).[1] Defendant Spresim Alimi, through counsel,
filed an Objection to the Motion and a Request for Protective
Order (“Objection”).[2] For the reasons discussed
below, the Motion is GRANTED IN PART and
DENIED IN PART and Defendant's request
for a protective order is GRANTED.
On May
17, 2019, Defendant filed a Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255
(“§ 2255 Motion”) asserting, among other
things, he received ineffective assistance from his three
prior defense counsel in the underlying case.[3] The present
Motion by the United States seeks a court finding that
Defendant has “waive[d] the attorney-client privilege
as to all communications with his alleged ineffective
lawyer.”[4] Defendant objects to such a broad
order.[5] Defendant acknowledges that he waives the
attorney-client privilege with respect to conversations with
counsel regarding plea negotiations and efforts to withdraw
Defendant's guilty plea, which serve as grounds for his
ineffective assistance claims.[6] However, contrary to the United
States' assertions, Defendant argues that he has not
waived the privilege as to all conversations with
his defense counsel.[7] Defendant contends that he only needs to
disclose those conversations with counsel that “address
the particular claims of ineffectiveness at issue and that
are necessary to give the opposing party a fair opportunity
to defend.”[8] In addition, Defendant argues that those
same conversations should be protected from use or disclosure
other than in rebuttal to Defendant's § 2255
Motion.[9]
The
Ninth Circuit in Bittaker v. Woodford held that the
general rule that “a litigant waives the
attorney-client privilege by putting the lawyer's
performance at issue during the court of litigation” is
limited in scope to only “what is needed to litigate
the claim of ineffective assistance of counsel in federal
court.”[10] This “narrow waiver rule”
allows the adjudication of ineffective assistance of counsel
while also safeguarding the attorney-client privilege in
criminal cases.[11] The Bittaker Court further
found the district court appropriately entered a protective
order precluding the use of the attorney-client
communications at issue for any purpose other than litigating
the ineffective assistance of counsel claim.[12]
Under
the Ninth Circuit's holding in Bittaker, this
Court finds that Defendant has waived the attorney-client
privilege with respect to communications with his prior
defense counsel and only with respect to those communications
related to his claims of ineffective assistance regarding
plea negotiations and withdrawing the guilty plea. However,
the Court finds that Defendant has not waived the
attorney-client privilege with respect to any other
communications with his prior defense counsel. The United
States Motion at Docket 128 is therefore GRANTED IN
PART and DENIED IN PART
Because
Defendant has waived the attorney-client privilege as to
certain attorney-client communications, the Court also
GRANTS Defendant's request at Docket 129
for an order protecting those specific communications. It is
HEREBY ORDERED that the United States shall
not use or disclose those communications or the information
within those communications for any reason other than
responding to Defendant's § 2255 Motion and the
litigation of Defendant's ineffective assistance of
counsel claims.
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Notes:
[1] Dkt .128 (Motion).
[2] Dkt. 129 (Objection).
[3] Dkt. 118 (Motion to Vacate).
[4] Dkt. 128-1 (Proposed Order) (quoting
Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir.
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