United States District Court, N.D. California, San Jose Division
ORDER GRANTING GOVERNMENT'S MOTION FOR LIMITED
WAIVER OF DEFENDANT'S ATTORNEY-CLIENT PRIVILEGE; AND
EXTENDING GOVERNMENT'S DEADLINE TO RESPOND TO
DEFENDANT'S § 2255 MOTION [Re: ECF 468]
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
Melvin Russell “Rusty” Shields has filed a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 which contains two claims for relief based
on alleged ineffective assistance of trial counsel. Def. 2255
Motion, ECF 462. In response to the Court's order
directing it to respond, the Government filed a motion
seeking a waiver of Shields' attorney-client privilege.
Gov't Motion, ECF 468. The Government asserts that it
cannot respond to Shields' claims of ineffective
assistance of counsel without discussing the issues raised
therein with Shields' trial counsel, Thomas P. Nolan, Jr.
and Shira D. Kieval. Id.
August 8, 2017, the Court issued an order confirming that if
Shields wishes to pursue his claims of ineffective assistance
of counsel, he must waive the attorney-client privilege with
respect to communications between himself and his counsel.
Order Directing Defendant to File Statement of Election, ECF
470. The Court directed Defendant to file a Statement of
Election indicating whether he elects to waive the
attorney-client privilege or abandon his claims of
ineffective assistance of counsel. Id.
has filed a Statement of Election stating that he
“acknowledges that he is knowingly and voluntarily
electing to waive the attorney-client privilege on a limited
basis, ” but objecting to what he characterizes as the
“blanket waiver” requested by the Government.
Statement of Election, ECF 473. Shields asks that the Court
determine the scope of his waiver of the attorney-client
privilege on a request-by-request basis after requiring the
Government to file a motion for discovery setting forth in
detail what information it seeks from Shields' trial
counsel. He also requests that he be permitted to review all
documents produced by his trial counsel before production to
the Government; that all interviews between his trial counsel
and the Government be recorded and transcripts provided to
him; and that he attend all interviews between his trial
counsel and the Government via teleconference or video call.
Shields does cite one out-of-district case in which the
presiding magistrate judge determined in similar
circumstances that the scope of the waiver should be decided
in the context of specific requests for discovery, see
United States v. Kalfsbeek, No. 05-cr-0128 LKK AC, 2013
WL 129409 (E.D. Cal. Jan. 9, 2013), he does not cite (and the
Court has not discovered) any authority for the proposition
that Shields is entitled to the type of oversight he
requests. Moreover, the time-consuming discovery process
which Shields envisions is completely at odds with his
“strong objection to any delay or extension of
time” in the briefing of his § 2255 Motion.
Statement of Election at 2, ECF 473 In fact, Shields asks
that the Government be required to respond to his § 2255
Motion before obtaining discovery from his trial counsel.
Id. That request is unreasonable, as the Government
cannot evaluate the merits of Shields' ineffective
assistance claims without discussing the substance of those
claims with trial counsel.
with the practice of other courts in this district, the Court
concludes that it is appropriate to grant the
Government's motion for waiver of Shields'
attorney-client privilege at this time while expressly
limiting that waiver to the issues raised by Shields'
claims of ineffective assistance of counsel. See, e.g.,
United States v. Gomez, No. 13-CR-00282-PJH, 2016 WL
1275569 (N.D. Cal. Apr. 1, 2016). The Court further concludes
that it is appropriate to grant the Government a modest
extension of its deadline for filing opposition to
Shields' § 2255 Motion so that any information
obtained from Shields' trial counsel may be incorporated
into the opposition.
IT IS HEREBY ORDERED that:
Government's motion for waiver of Shields'
attorney-client privilege is GRANTED on the basis that
Shields has WAIVED the attorney-client privilege with respect
to privileged attorney-client communications between himself
and his trial counsel to the extent those communications
relate to Shields' claims of ineffective assistance of
counsel set forth in his § 2255 Motion;
Pursuant to Rule 6(a) of the Rules Governing Section 2255
Proceedings, the Court finds good cause for the Government to
conduct discovery of privileged attorney-client
communications between Shields and his trial counsel, as
Government is granted leave to inquire of and obtain
declarations from Shields' trial counsel, Thomas P.
Nolan, Jr. and Shira D. Kieval, regarding the Shields'
claims for ineffective assistance of counsel;
Government is precluded from using any privileged
attorney-client material thereby obtained for any purpose
other than litigating Shields' § 2255 Motion;
Government may not disclose privileged attorney-client
material to any persons other than representatives of the
United States Attorney's Office or law enforcement agents
who are assisting with litigation of Shields' § 2255
deadline for Government's response to Shields' §
2255 is extended from ...