United States District Court, N.D. California
ORDER ON DEFENDANTS' MOTION TO COMPEL Re: Dkt. No. 102
ELIZABETH D. LAPORTE, Magistrate Judge.
This is a § 1983 case brought against the City and County of San Francisco ("City") and various members of the San Francisco police department ("Officer Defendants") by Plaintiff Maurice Caldwell, who was convicted of murder in 1990 but subsequently released in December 2012 after the San Francisco Superior Court granted Plaintiff's writ of habeas corpus based on ineffective assistance of counsel. Plaintiff alleges the following claims: (1) a due process violation for using suggestive identification techniques in violation of Manson v. Brathwaite, 432 U.S. 98 (1977) and Neil v. Biggers, 409 U.S. 188 (1972) and for fabricating evidence in violation of Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001); (2) conspiracy to violate Plaintiff's civil rights; (3) claims against the City pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978); and (4) failure to intervene.
On January 5, 2015, Defendants filed this motion to compel the deposition of Craig Martin, Plaintiff's criminal defense attorney. Defendants argue that both Mr. Martin and Plaintiff expressly waived the attorney-client privilege by disclosing attorney-client communications in support of Plaintiff's habeas petition, noting that no protective order was sought in that case. Defendants also argue that Plaintiff has impliedly waived the attorney-client privilege by filing this lawsuit. Defendants seek an order compelling the deposition of Mr. Martin on the following topics:
1. What Plaintiff told Mr. Martin regarding Plaintiff's involvement in the murder;
2. What Plaintiff told Mr. Martin regarding the alleged suggestive show-up;
3. Mr. Martin's decision not to challenge Mary Cobb's identification;
4. Mr. Martin's decision to defend the case not by attacking Mary Cobbs' identification, but by claiming that Plaintiff's shotgun shots did not kill Mr. Acosta;
5. Mr. Martin's decision not to investigate in any way the individuals that Plaintiff now claims perpetrated the crime;
6. Mr. Martin's decision not to call Plaintiff as a witness and to instead have Plaintiff invoke his Fifth Amendment rights; and
7. The location and handling of Mr. Martin's case file regarding this matter.
For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.
A. Express Waiver
Federal Rule of Evidence 502(c) provides that when a disclosure of otherwise privileged attorney-client communications "is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred." Fed.R.Evid. 502(c); see also Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) ("An express waiver occurs when a party disclose[s] privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public."). Here, Plaintiff does not dispute that privileged ...