Bittaker v. Woodford

Citation331 F.3d 715
Decision Date06 June 2003
Docket NumberNo. 02-99000.,02-99000.
PartiesLawrence S. BITTAKER, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, California State Prison of San Quentin, Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

A. Scott Hayward, Deputy Attorney General, Los Angeles, CA, argued for the respondent-appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Supervising Deputy Attorney General, and Keith H. Borjon, Supervising Deputy Attorney General, joined him on the briefs.

C. Renée Manes, Deputy Federal Public Defender, Los Angeles, CA, argued for the petitioner-appellee. Maria E. Stratton, Federal Public Defender, and Margo Rocconi, Deputy Federal Public Defender, joined her on the brief.

Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Jr., Senior Judge, Presiding. D.C. No. CV-91-01643-WMB.


Opinion by Judge KOZINSKI; Concurrence by Judge O'SCANNLAIN.


KOZINSKI, Circuit Judge.

Lawrence Bittaker was convicted in California state court of multiple murders and was sentenced to death. After unsuccessfully exhausting his state remedies, In re Bittaker, No. S052371, 2000 Cal. LEXIS 9066 (Cal. Nov. 29, 2000); In re Bittaker, No. S058797, 2000 Cal. LEXIS 9067 (Cal. Nov. 29, 2000), Bittaker filed a federal habeas petition pursuant to 28 U.S.C. § 2254 raising a multitude of claims, including a variety of ineffective assistance of counsel claims.

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. See, e.g., Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir.1997); Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974); Laughner v. United States, 373 F.2d 326, 327 (5th Cir.1967). The question presented to us is the scope of the habeas petitioner's waiver: Does it extend only to litigation of the federal habeas petition, or is the attorney-client privilege waived for all time and all purposes — including the possible retrial of the petitioner, should he succeed in setting aside his original conviction or sentence?

The district court entered a protective order precluding use of the privileged materials for any purpose other than litigating the federal habeas petition, and barring the Attorney General from turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies.1 The state appeals this order, arguing that petitioner completely waived his privilege and the district court therefore had no authority to preclude dissemination of these non-privileged materials, or their use to re-prosecute petitioner.2


The challenged order is not a final judgment, yet the parties agree that it is reviewable as a collateral order pursuant to 28 U.S.C. § 1291. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). While we ultimately agree, the matter is closer than the concurrence of the parties would suggest. The protective order is, after all, reviewable on appeal from the final judgment, no matter who wins below on the merits. See, e.g., Anderson v. Calderon, 232 F.3d 1053, 1061-62, 1099-100 (9th Cir.2000) (reviewing the denial of petitioner's request for a protective order on his appeal from the district court's final denial of his habeas petition). Moreover, at that time we will know much more about the practical effect of the order, if any. If petitioner is unsuccessful in any of his claims, and no retrial is necessary, the order would become irrelevant for all practical purposes.

Nevertheless, we conclude that the order is appealable because significant strategic decisions turn on its validity; review after final judgment may therefore come too late. If petitioner relies on the protective order by releasing privileged materials and it turns out to be invalid, he will suffer serious prejudice during any retrial. Similar reasoning has led some of our sister circuits to accept interlocutory appeals of discovery orders under the collateral order doctrine. See, e.g., In re Ford Motor Co., 110 F.3d 954, 962-64 (3d Cir.1997) ("Appeal after final judgment cannot remedy the breach in confidentiality occasioned by erroneous disclosure of protected materials.... [T]he cat is already out of the bag.... [T]here is no way to unscramble the egg scrambled by the disclosure...."); In re Cont'l Ill. Sec. Litig., 732 F.2d 1302, 1307-08 (7th Cir.1984) ("Once the Report was released, any error in releasing it would be impossible to correct."); In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 673-74 (D.C.Cir.1979) (per curiam) (holding that, because the district court's order "conclusively determined the question of waiver" of the attorney-client privilege, appellant "must pursue its claim of attorney-client privilege at this time in order to ensure that its claim not later become moot by reason of the documents' disclosure to third parties"); S. Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979) ("[B]ecause[information], once revealed, could not again be concealed, review following a decision on the merits would come too late....").

Moreover, as the Attorney General points out, the order complicates the litigation process, even if it is ultimately vacated.3 The uncertainty of the order's validity will significantly increase the cost, delay and burden for the parties and the court.

We have reviewed such orders under the collateral order doctrine in the past. See, e.g., Osband v. Woodford, 290 F.3d 1036, 1039-41 (9th Cir.2002); Wharton, 127 F.3d at 1203-04. For the foregoing reasons, we see no reason to depart from this practice. Rather, we agree with the parties that considerations of "inconvenience and costs" to the judicial system as a whole and "the danger of denying justice by delay" favor asserting appellate jurisdiction at this time. Johnson v. Jones, 515 U.S. 304, 315, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal quotation marks omitted).

The Merits

A. The rule that a litigant waives the attorney-client privilege by putting the lawyer's performance at issue during the course of litigation dates back to at least Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488 (1888), where the Court stated: "When Mrs. Blackburn entered upon a line of defence which involved what transpired between herself and Mr. Weatherford [her lawyer], and respecting which she testified, she waived her right to object to his giving his own account of the matter." Id. at 470-71, 9 S.Ct. 125. The Court thought this proposition so self-evident it felt no need to support it with either citation to authority or further analysis. In the intervening years, courts and commentators have come to identify this simple rule as the fairness principle. See, e.g., United States v. Amlani, 169 F.3d 1189, 1196 (9th Cir.1999); 8 John Henry Wigmore, Evidence in Trials at Common Law § 2327, at 636 (John T. McNaughton rev., 1961) [hereinafter Wigmore on Evidence]. The principle is often expressed in terms of preventing a party from using the privilege as both a shield and a sword. See, e.g., Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir.1992) ("The privilege which protects attorney-client communications may not be used both as a sword and a shield."); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 503.41[1], at 503-104.1 to.2 (Joseph M. McLaughlin ed., 2d ed. 2003) ("[T]he privilege may be found to have been waived by implication when a party takes a position in litigation that makes it unfair to protect that party's attorney-client communications.... The doctrine of waiver by implication reflects the position that the attorney-client privilege was intended as a shield, not a sword." (internal quotation marks omitted)). In practical terms, this means that parties in litigation may not abuse the privilege by asserting claims the opposing party cannot adequately dispute unless it has access to the privileged materials. The party asserting the claim is said to have implicitly waived the privilege. See, e.g., Christopher B. Mueller & Laird C. Kirkpatrick, Evidence: Practice Under the Rules § 5.30, at 549 (2d ed. 1999) ("Substantial authority holds the attorney-client privilege to be impliedly waived where the client asserts a claim or defense that places at issue the nature of the privileged material.").

Such waivers by implication differ materially from the more traditional express waivers.4 An express waiver occurs when a party discloses 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. See generally Mueller & Kirkpatrick § 5.28, at 530-33; Developments in the Law — Privileged Communications, 98 Harv. L.Rev. 1450, 1630 & n. 2 (1985) [hereinafter Privileged Communications]. Disclosures that effect an express waiver are typically within the full control of the party holding the privilege; courts have no role in encouraging or forcing the disclosure — they merely recognize the waiver after it has occurred. The cases upon which the state relies, see, e.g., Permian Corp. v. United States, 665 F.2d 1214, 1219-22 (D.C.Cir.1981); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423-27 (3d Cir.1991), fall into this category. These cases hold that, once documents have been turned over to another party voluntarily, the privilege is gone, and the...

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