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Memo and Order re: 87 MOTION REQUESTING AN ORDER — PPP Attempt Conspiracy Legal Filings (Dkt. 104)

No. 1:20-cr-00074-MSM-LDA · Doc. 104 · Docket on CourtListener

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A memorandum and order by United States District Judge Mary S. McElroy in David Stavely v. United States, No. 1:20-cr-00074-MSM-LDA (Civil Action No. 22-cv-00315-MSM), in the U.S. District Court for the District of Rhode Island, filed October 26, 2022 (Doc. 104). It addresses the government's motion (ECF No. 87) for a finding that Stavely waived attorney-client privilege by filing a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel. Applying a balancing approach, the court grants the motion in part, limiting the waiver to the four claims against Attorney Jason Knight and to the § 2255 proceeding. Knight must produce related documents and may confer with the government, which may use the information only to respond to those claims. The court finds no waiver as to three other attorneys.

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Case 1:20-cr-00074-MSM-LDA Document 104 Filed 10/26/22 Page 1 of 6 PageID #: 1016

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

)
)
DAVID STAVELY, )
)
Plaintiff, ) No. 20-cr-00074-MSM-LDA
)
v. ) [Civil Action No. 22-cv-00315-MSM]
)
UNITED STATES OF AMERICA, )
)
Defendant. )
)
)

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

This case arises out of a habeas petition filed by David Stavely, who received

a 56-month sentence in October 2021 after pleading guilty to bank fraud conspiracy

and failure to appear in court as required. On August 29, 2022, Mr. Stavely filed a

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255,

based primarily on claims of ineffective assistance of counsel. (ECF. No. 79.)

Specifically, Mr. Stavely claims that his attorney afforded him ineffective assistance

of counsel, in derogation of his Sixth Amendment rights, at the time he entered his

plea and at sentencing, with alleged complaints including: (1) failure to present him

with discovery materials before he signed his plea; (2) failure to seek a continuance

of his sentencing hearing; (3) ineffective assistance in the preparation of his appeal

documents; and (4) falsified documents and wire fraud. Id. Pending before the

Court is the Government’s Motion for an Order (1) Finding a Waiver of Attorney-

1
Case 1:20-cr-00074-MSM-LDA Document 104 Filed 10/26/22 Page 2 of 6 PageID #: 1017

Client Privilege in § 2255 Proceeding and Permitting Prior Counsel to Discuss

Issues Raised by § 2255 Petition. (ECF No. 87). Specifically, the government is

asking the court for a ruling holding that Mr. Stavely had waived the attorney-

client privilege between him and the four attorneys who represented him

throughout his criminal proceedings. 1 The Government asserts that it needs the

waiver in order to respond to the allegations in Mr. Stavely’s § 2255 Motion. In

response, Mr. Stavely objects to any waiver of attorney-client privilege related to

issues beyond those specifically raised in his Motion, including any waiver of the

privilege between him and attorneys about whom he did not bring any ineffective

assistance of counsel claims. (ECF No. 94.)

In considering a waiver of attorney-client privilege, “we start with the

unarguable proposition that the attorney-client privilege is highly valued.

Accordingly, courts should be cautious” in permitting such waivers. In re Keeper of

Recs, 348 F.3d 16, 23 (1st Cir. 2003). At the same time, civil litigants should not be

permitted to “us[e] the attorney-client privilege as both a sword and a shield,” which

would allow them to “selectively disclose fragments helpful to [their] cause, entomb

other (unhelpful) fragments, and in that way kidnap the truth-seeking process.” Id.

at 24. Courts have navigated these competing interests in different ways, either by

finding that the privilege is automatically waived when a civil claim is made (the

1 There were four attorneys who represented Mr. Stavely at various stages of the trial court

proceedings. His complaint alleges the ineffective assistance of only one, Jason Knight,
who represented him when he entered his plea and at sentencing.

2
Case 1:20-cr-00074-MSM-LDA Document 104 Filed 10/26/22 Page 3 of 6 PageID #: 1018

“automatic waiver rule”) or by applying a balancing test to determine whether and

to what extent the privilege is waived under the facts of a particular case.

In Greater Newburyport Clamshell Alliance v. Public Service Co., 838 F.2d

13 (1st Cir. 1988), the First Circuit followed the latter, narrower approach. 2 In that

case, plaintiffs filed a civil rights action under 42 U.S.C. § 1983 alleging that the

defendants had conspired to infiltrate meetings at which plaintiffs and their

lawyers discussed their defense to criminal charges stemming from a protest at a

nuclear power plant. Id. at 16. The defendants subpoenaed the attorney who

represented the plaintiffs in their criminal case, but he refused to provide

information related to their trial preparation asserting the attorney-client privilege.

Id. The district court found the attorney in contempt and ruled that the plaintiffs

had automatically waived their privilege by instituting a civil suit. Id. On appeal,

the First Circuit held that in such “quasi-constitutional” situations the automatic

waiver rule “is too harsh. Without any consideration of the relative interests

involved, it simply destroys a privilege even if the privilege would not shield

evidence of any significance to the defense.” Id. at 20. Instead, the First Circuit

called for the use of a balancing test: “[t]he court should develop the parameters of

its discovery order by carefully weighing the interests involved, balancing the

importance of the privilege asserted against the defending party’s need for the

information to construct its most effective defense.” Id.

2 Other Circuits have similarly rejected the automatic waiver rule. See, e.g., Sedco Int’l,
S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir.1982); Mitchell v. Roma, 265 F.2d 633, 637 (3d
Cir.1959); Zenith Radio Corp. v. United States, 764 F.2d 1577 (Fed.Cir.1985); Bittaker v.
Woodford, 331 F.3d 715, 720 (9th Cir.2003).
3
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Here, the Government clearly has a reasonable interest in pursuing at least

some limited discovery to respond to an ineffective assistance of counsel claim.

However, unlike the civil damages action in Newburyport, a § 2255 proceeding is a

further step in its petitioner’s preceding criminal case. In re CCA Recordings 2255

Litigation v. United States, 337 F.R.D. 310, 324 (D. Kan. 2020) (noting that “while

civil in some respects, a § 2255 proceeding is a continuation of a defendant’s federal

criminal case.”); Rules Governing Section 2255 Proceedings for the United States

District Courts (noting that “a motion under § 2255 is a further step in the movant’s

criminal case and not a separate civil action.”). This requires courts to proceed with

particular care when deeming waived a § 2255 petitioner’s attorney-client privilege.

In the present case, this cautious approach suggests two primary

considerations. 3 First, a waiver of Mr. Stavely’s attorney-client privilege must be

narrowly limited to issues and communications directly relevant to a defense of the

claims raised in the § 2255 motion, and waiver should extend only insofar as this

information is related to the Government’s purpose of mounting a defense to the

ineffective assistance claims. 4 Bittaker v. Woodford, 331 F.3d 715, 720 (9th

3 Ordinarily, the Court would also take steps to ensure that a petitioner understands that

bringing an ineffective assistance claim may result in the Court’s deeming the privilege
waived. See Oliver v. United States, No. CR. 07-10016-MLW, 2010 WL 2612738, at *1 (D.
Mass. June 25, 2010) (informing the petitioner and giving her an “opportunity to remove
the ineffective assistance claim from her petition and thus preserve the privilege”); accord,
Bittaker, 331 F.3d at 722. In this case, Mr. Stavely’s Objection shows that he adequately
comprehends the consequences of his ineffective assistance claims. (ECF No. 94.)

4 Because each of Mr. Stavely’s claims relate exclusively to his representation by Attorney

Jason Knight, the Court is hard-pressed to discern how any of the attorneys who
represented him at an earlier stage of his criminal proceedings could have communicated
with him about Attorney Knight’s later representation. At this point, based on the
allegations in Mr. Stavely’s complaint and the sequence of his representation, the Court

4
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Cir.2003) (holding that a court must be careful to “impose a waiver no broader than

needed to ensure the fairness of the proceedings before it.”).

Second, a waiver must be limited to the instant proceedings, meaning that

any information obtained solely through the waiver must be off limits in any future

proceedings that may result from the success of Mr. Stavely’s § 2255 motion. U.S. v.

Stone, 824 F.Supp.2d 176, 188 (D. Me. Sept. 12, 2011) (“limiting implied waivers in

habeas cases alleging ineffective assistance of counsel protects petitioners’ Sixth

Amendment rights to a fair trial should the petition prove successful resulting in a

new trial or resentencing.”); accord, Bittaker, 331 F.3d at 727.

Accordingly, the Court GRANTS the Government’s Motion (ECF No. 87) in

part and orders:

1. Attorney Jason Knight shall produce, to the Government, all documents in
his possession that specifically relate to Mr. Stavely’s four allegations of
ineffective assistance of counsel. The Government shall prepare and
maintain a log of the documents that it receives from defense counsel.

2. Attorney Knight is authorized to confer with counsel for the Government
regarding his representation of Mr. Stavely, provided that the
communications are limited to information that is specifically relevant to the
four claims as alleged in his § 2255 Motion.

3. The Government shall not disclose or otherwise use the information obtained
except as is necessary to respond to Mr. Stavely’s ineffective assistance of
counsel claims as alleged in his § 2255 Motion.

4. The Government shall provide a copy of this order to Attorney Knight.

finds no waiver with respect to communications with the other three attorneys named in
the Government’s Motion. The Government may, in response to this Order, file a more
specific showing of necessity with respect to these attorneys.

5
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IT IS SO ORDERED.

_________________________________
Mary S. McElroy
United States District Judge

October 26, 2022

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