Larsgard v. Straub et al

Filing 201

ORDER: that the Motion in Limine Re: Attorney-Client Privilege (Doc. 175 ) is GRANTED IN PART AND DENIED IN PART as explained in this ORDER. IT IS FURTHER ORDERED that the Motion for Protective Order (Doc. 198 ) is DENIED AS MOOT. Signed by Senior Judge David C Bury on 2/25/2019. (SEE ORDER FOR DETAILS) (MCO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

John Kristoffer Larsgard,
Plaintiff,

10
11

ORDER

v.

12

No. CV-13-00638-TUC-DCB

David Straub, et al.,

13

Defendants.

14
15

The Court denied the Plaintiff’s motions for telephonic appearance at trial of

16

witnesses Sharron Dowdle and Criss Candelaria. Both were ordered to appear in person at

17

the trial. Plaintiff was also granted leave to obtain their deposition testimony by telephone,

18

video conference or in person. Plaintiff has now scheduled depositions for both witnesses

19

for Thursday and Friday (2/18/19 and 3/1/19). Defendants filed a Motion for Protective

20

Order (Doc. 198), arguing that they should not have to “defend” these depositions until the

21

Court rules on the Motion in Limine Re: Attorney-Client Privilege.

22

Defendants assert that the attorney-client privilege has been waived with respect to all of

23

Plaintiff’s communications with his criminal defense attorneys. For reasons explained

24

below, the Court grants in part and denies in part the Defendants’ Motion in Limine Re:

25

Attorney Client Privilege. The Motion for a Protective Order is moot.

(Doc. 175.)

26

While Defendants ask the Court to preclude all evidence relating to the criminal

27

case, see (Motion in Limine Re: References to Other Cases (Criminal Case) (Doc. 174),

28

they also ask the Court to find that the Plaintiff has waived the attorney-client privilege

1

with respect to these criminal matters, including: “all relevant matters arising out of

2

counsel’s representation of Plaintiff, without limitation; their relevant communications, all

3

issues arising out of and relating to those communications; procedures used for attorney-

4

client communications with incarcerated defendants, [counsel’s] relationship with

5

Plaintiff, and the status of Plaintiff’s appeal.” (Motion (Doc. 175) at 1-2.)

6

Seemingly in conflict with his Response to the Motion in Limine Re: References to

7

Other Cases (Criminal Case), wherein the Plaintiff argued that he should be allowed to

8

discuss how he lost the chance to provide his lawyer with issues and facts that may have

9

assisted his attorney in preparing his appeal, the Plaintiff argues in respect to the question

10

of attorney-client privilege that “the only issue is whether or not Plaintiff was denied access

11

to counsel by Defendants. (Response (Doc. 185) at 2.) Plaintiff submits that Defendants

12

can “cross-examine Mr. Candelaria regarding his attempts to reach Plaintiff without

13

discussing attorney-client privilege communications.

14

Plaintiff and Mr. Candelaria and his support staff are not relevant to Plaintiff’s Sixth

15

Amendment claim and should not be discussed at trial.”

The communications between

16

Neither side sets out the law related to waiver. As an initial matter, “‘the identity of

17

the client, the amount of the fee, the identification of payment by case file name, and the

18

general purpose of the work performed are usually not protected from disclosure by the

19

attorney-client privilege.’” United States v. Amlani, 169 F.3d 1189, 1194 (9th Cir. 1999)

20

(citing Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992)).

21

Given the broad scope of the waiver suggested by Defendants, there is an intrusion on the

22

privilege if Defendants ask witnesses about the substance of attorney-client conversations

23

concerning appeal strategies and legal and factual issues related to the appeal. Even the

24

requested billing records are subject to the privilege to the extent that they represent

25

“‘correspondence, bills, ledgers, statements, and time records which also reveal the motive

26

of the client in seeking representation, litigation strategy, or the specific nature of the

27

services provided, such as researching particular areas of law.’” Id. (quoting Clarke, 974

28

F.2d at 129).

-2-

1

To determine whether Larsgard has waived the attorney-client privilege by claiming

2

that he was denied access to appellate counsel, the Court employs a three-pronged test: 1)

3

is the party asserting the privilege as a result of some affirmative act, such as filing suit; 2)

4

whether through this affirmative act, the asserting party has put the privileged information

5

at issue, and 3) whether allowing the privilege denies the opponent access to information

6

vital to its defense. Id. at 1195 (citations omitted). The burden to prove the privilege is

7

carried by the party asserting it. Lambright v. Ryan, 698 F.3d 808, 822 (9th Cir. 2012).

8

Here, the Plaintiff raised the issue of access to counsel in his Sixth Amendment

9

claim. By this claim, he put the communications between him and Candelaria in issue

10

insofar as they related to Larsgard’s appeal. He has waived his attorney-client privilege

11

over these communications, including whether the nature of Plaintiff’s calls to Candelaria

12

were always about his criminal case. If Larsgard intends to submit evidence of specific

13

facts and issues he was unable to discuss with Candelaria, then in rebuttal the Defendants

14

must know whether such facts and issues had previously been discussed and why or why

15

not those facts and issues had not been included in the Opening Brief. The Opening Brief

16

was filed November 9, 2012, before Larsgard was moved to the Rincon Mental Health

17

Unit. The Answer was filed on January 18, 2019. The Reply Brief was admittedly filed

18

without input from Larsgard on February 7, 2019, the day after he left the hospital. To the

19

extent, the Plaintiff wants to invoke the privilege during Candelaria’s deposition to

20

preclude the Defendants from obtaining rebuttal evidence, he does so at his own risk of

21

being precluded at trial from introducing evidence of facts and issues he may have chosen

22

to communicate to his attorneys if he had had access to them. Larsgard may not use the

23

attorney-client privilege as both a shield and a sword.

24

Defendants do not object to Plaintiff’s use of Sharon Dowdle’s deposition at trial

25

because she resides in Texas, but do object to using deposition testimony from Candelaria

26

because he resides in Pinetop Arizona. Defendants argue that Candelaria should testify in

27

person at the trial because he is a key witness in the case. He is the only source other than

28

the Plaintiff who can testify to the nature of the attorney-client communications necessary

-3-

1

during the pendency of a direct appeal. He is the only witness who can describe the ADC

2

procedures for lawyer access from the perspective of a criminal defense attorney who wants

3

to communicate with an inmate client. Plaintiff is free to determine whether he wants to

4

offer deposition testimony in the case in chief, but the Court will not allow deposition

5

testimony to be presented which has not been subjected to cross-examination. As noted

6

above, the Plaintiff invokes the privilege at Candelaria’s deposition at the risk of having

7

testimony precluded at trial.

8

The Court finds that the attorney-client privilege is waived as related to

9

communications or lack of communications between Larsgard and counsel related to the

10

direct appeal. To be clear, the Court does not intend to retry Larsgard’s criminal case, and

11

whether the attorney-client privilege is waived will not govern the Court’s determination

12

regarding admissibility of evidence based on relevancy. The Court has not yet ruled on the

13

Motion in Limine Re: References to Other Cases (Criminal Case). Assuming some

14

allowance, Plaintiff should take care not to open the door to attorney-client

15

communications that remain protected. Heretofore, Plaintiff has not been forthcoming with

16

evidence of actual injury; such evidence is not required in this civil case. (Order (Doc.

17

191) (referencing Court’s prior rulings rejecting Defendants’ assertion that actual injury is

18

element of claim). To be clear, specific examples of facts and issues that may have assisted

19

his attorney in preparing the appeal will be precluded at trial unless Defendants have been

20

afforded discovery. The only remaining discovery is Candelaria’s deposition.

21

Accordingly,

22

IT IS ORDERED that the Motion in Limine Re: Attorney-Client Privilege (Doc.

23

175) is GRANTED IN PART AND DENIED IN PART as explained above.

24

///

25

///

26

///

27

///

28

-4-

1
2
3

IT IS FURTHER ORDERED that the Motion for Protective Order (Doc. 198) is
DENIED AS MOOT.
Dated this 25th day of February, 2019.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-