United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Winmill, United States District Court Chief Judge
before the Court is the Government's unopposed Motion for
an Order Concerning Attorney-Client Privilege (Dkt. 5). For
the reasons explained below, the Court will grant the motion.
2015, this Court sentenced Defendant Ray Short to 180 months
in prison after he pleaded guilty to attempted sexual
exploitation of a minor child. See July 16, 2015
Judgment, Dkt. 53 in Case No. 4:14-cr-273-BLW, at 1. The
Ninth Circuit affirmed his sentence, and on October 30, 2017,
Mr. Short filed his Motion under 28 U.S.C. 2255 to Vacate,
Set Aside, or Correct his Sentence (Dkt. 1). Short's
§ 2255 motion raises several claims of ineffective
assistance of counsel during the underlying criminal case.
Based on these assertions, the Government asks the Court to
declare a limited waiver of the attorney-client privilege so
that it may meaningfully respond to Short's claims.
implicitly waives the attorney-client privilege when they
file a lawsuit putting in issue communications otherwise
privileged if upholding the privilege would deny the opposing
party access to relevant facts. United States v.
Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999). “It
has long been the rule in the federal courts that, where a
habeas petitioner raises a claim of ineffective assistance of
counsel, he waives the attorney-client privilege as to all
communications with his allegedly ineffective lawyer.”
Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir.
2003) (en banc). Indeed, this implied waiver - sometimes
known as the “fairness principle” - prevents use
of the privilege as both a shield and a sword. Id.
at 719 (citations omitted). If the party holding the
privilege does not wish to disclose the requested privileged
information, he has the option of abandoning the claim that
gives rise to the implied waiver. Id. at 721.
mindful of the dictates of fairness, a court should grant a
waiver no broader than necessary to enable the opposing party
to respond to the allegations of ineffective assistance of
counsel. Id. at 720. Accordingly, the district court
may impose limitations and conditions regarding the
information to be disclosed. Id. at 721. Should the
party receiving the privileged information not wish to be
bound by the limitations, then that party, before disclosure,
“is free to reject the materials and litigate without
§ 2255 Motion, Short alleges claims of ineffective
assistance of counsel. The Court must resolve those claims
utilizing the standard enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). In other words, giving
strong deference to the choices of counsel, it must decide
whether counsel's performance was deficient, and, if so,
whether Short was prejudiced by the deficient performance.
Id. at 688.
knowing the extent of the communications surrounding the
alleged ineffective assistance, the advice of counsel, and
any discussions regarding counsel's actions or inactions,
the government cannot respond meaningfully to Short's
allegations. To respond to Short's allegations,
therefore, fairness compels a decision to allow the
Government to discuss the claims and motivations for the
challenged actions with defense counsel. See, e.g.,
Harrison v. United States, 2011 WL 1743738 at *5 (D.
Haw. May 6, 2011).
Court finds that Short has implicitly waived the
attorney-client privilege with respect to matters pertaining
to his claims of ineffective assistance of counsel and will
therefore grant the government's motion.