Caldwell v. City of San Francisco et al

Filing 281

ORDER on Defendants' Motion to Compel 161 by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT STAFF) (Filed on 11/3/2015)

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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 ON DEFENDANTS’ MOTION
TO COMPEL

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CITY OF SAN FRANCISCO, et al.,

Re: Dkt. Nos. 161, 224

Defendants.
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Following the hearing on September 29, 2015, at which the Court provided considerable

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guidance, Defendants and Plaintiff’s former habeas attorney Paige Kaneb were ordered to meet

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United States District Court
Northern District of California

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and confer as to the specific subject matters for which work product protection and attorney-client

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privilege were waived by Plaintiff’s filing of Ms. Kaneb’s declarations in support of his petition for

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compensation pursuant to California Penal Code section 4900 and his request for a finding of

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innocence pursuant to California Penal Code section 1485.55. On October 27, 2015, the Parties filed

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a joint letter indicating that they cannot reach agreement.

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“Disclosing a privileged communication or raising a claim that requires disclosure of a

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protected communication results in waiver as to all other communications on the same subject.”

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Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010) (citing Weil v. Inv./Indicators,

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Research & Mgmt., 647 F.2d 18, 24 (9th Cir. 1981)). However, “[d]isclosure constitutes a waiver

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of the attorney-client privilege . . . only as to communications about the matter actually disclosed.”

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Id. (internal quotation marks and citation omitted).

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The Parties dispute whether Ms. Kaneb is interpreting the scope of the waiver too

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narrowly. Defendants point to three examples, which instead show that Ms. Kaneb is properly

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construing the subject matter waiver at issue. First, Defendants cite a portion of Ms. Kaneb’s

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declaration that states: “I have also interviewed [Maritte] Funches twice in person, each time with

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a different lawyer present. Mr. Funches maintained that he had shot Mr. Acosta in the chest and

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that [Plaintiff] was neither present, nor involved in any way.” Defendants contend that Ms. Kaneb

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improperly redacted information concerning whether Plaintiff was involved in efforts, after the

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shooting took place, to intimidate Mary Cobbs, who identified Plaintiff as one of the shooters.

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However, Ms. Kaneb’s declaration only pertains to the shooting itself, not subsequent events.

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Therefore, Ms. Kaneb’s redactions are proper.

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Second, Defendants cite a portion of the declaration that indicates that Ms. Kaneb spoke

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with Plaintiff’s appellate attorney, who stated that he had interviewed Henry Martin and that all

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his of files pertaining to that interview were lost in a fire. Although Defendants argue that

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Plaintiff waived privilege as to the substance of Mr. Martin’s conversations with his appellate

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attorney, the declaration only puts at issue the fact that the interview took place and that records of

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it were destroyed. Third, Defendants argue that Ms. Kaneb is improperly withholding documents
over which privilege was waived by the statement in her declaration that both Maurice Tolliver

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United States District Court
Northern District of California

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and Demetrius Jones “described Henry Martin as a ‘dope fiend’ in 1990.” However, Ms. Kaneb

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properly interprets the scope of the waiver, stating that she has produced “all documents or

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portions of documents reflecting communications with Tolliver or Jones regarding Henry Martin’s

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drug use and whether he was a ‘dope fiend’ in 1990.”

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Other than these examples, Defendants point to no other instance in which Ms. Kaneb’s

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interpretation of the scope of the waiver is improper. However, in the joint letter, Ms. Kaneb did

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not address Defendants’ concern that her privilege log indicates that she is “redact[ing] documents

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that discuss facts simply because she had an impression or opinion of those facts.” Defendants

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point to Ms. Kaneb’s notes of an interview with Mr. Martin that appear to redact Mr. Martin’s

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recollection about the night of the murder. Accordingly, Ms. Kaneb is ordered to file a letter of no

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more than one page addressing this issue by November 6, 2015.

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IT IS SO ORDERED.
Dated: November 3, 2015

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________________________
ELIZABETH D. LAPORTE
United States Magistrate Judge

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