Caldwell v. City of San Francisco et al

Filing 213

ORDER Re Defendant's motion to compel 161 by Magistrate Judge Elizabeth D. Laprote. (shyS, COURT STAFF) (Filed on 10/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MAURICE CALDWELL,

Case No. 12-cv-01892-EDL

Plaintiff,
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v.

ORDER

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CITY OF SAN FRANCISCO, et al.,

Re: Dkt. No. 161

Defendants.
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United States District Court
Northern District of California

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On August 21, 2015, Defendants filed a motion to compel production of documents and
deposition testimony from attorney Paige Kaneb. On September 30, 2015, this Court ordered
supplemental briefing as to whether the exception to -- rather than waiver of -- the attorney-client
privilege created by California Evidence Code section 958 applies to the filing of Ms. Kaneb’s
August 11, 2010 declaration without a protective order in support of Plaintiff’s habeas petition.
While a close question as there are no cases directly on point, Ms. Kaneb’s declaration is relevant
to Plaintiff’s claim of ineffective assistance of counsel as it bears on whether Plaintiff was
prejudiced by his trial attorney’s failure to investigate Henry Martin. Accordingly, under section
958, it appears that California courts would likely find that Plaintiff did not waive privilege by the
filing of Ms. Kaneb’s declaration in support of his habeas petition. See Fed. R. Evid. 502(c)
(“When the disclosure 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 . . . is not a waiver under the law of the state where the disclosure occurred.”).
IT IS SO ORDERED.
Dated: October 9, 2015
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ELIZABETH D. LAPORTE
United States Magistrate Judge