United States v. Gonzalez
2012 U.S. App. LEXIS 1303
9th Cir.2012Background
- Gonzalez and Paiz were convicted of fraud in separate trials tied to an insurance scam involving Paiz's car.
- Paiz filed a 2255 motion claiming ineffective assistance of counsel due to Wilder's failure to call Gonzalez as an exculpatory witness.
- The government sought Wilder's deposition and related materials; district court granted discovery subject to a protective order.
- Gonzalez claimed a joint defense privilege (JDA) barred disclosure of communications with Wilder.
- District court assumed a JDA existed and held communications were discoverable notwithstanding privilege; court ordered Wilder deposition.
- Ninth Circuit reversed and remanded for an in camera hearing to determine existence, extent, and termination of the JDA and timing of the contested communication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a joint defense agreement exist between Gonzalez and Paiz? | Paiz—argues JDA existed (express or implied) | Gonzalez—claims JDA existed or was implied | Existence of JDA must be determined on remand (in camera) |
| Did the JDA extend to communications at issue or had it ended prior? | Paiz contends communications were within ongoing JDA | Gonzalez contends JDA may have ended; issues timing of the communication | Remand for in camera findings on whether JDA continued when the communication was made |
| Can a unilateral 2255 filing waive the JDA for Gonzalez’s communications? | Paiz argues 2255 filing waives privilege | Gonzalez argues unilateral waiver cannot occur without all parties’ consent | District court erred; no unilateral waiver by 2255 petition; remand for further proceedings |
| What is governing rule for joint defense privilege versus work product in this context? | Waiver analysis should treat communications as privileged | Privilege should prevent discovery absent consent or end of JDA | JDA is extension of attorney-client privilege; cannot be waived unilaterally |
Key Cases Cited
- Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir.1964) (joint defense sharing confidential information remains privileged)
- In re Grand Jury Subpoenas, 902 F.2d 244, 902 F.2d 244 (4th Cir.1990) (common defense communications remain privileged)
- Hunydee v. United States, 355 F.2d 183 (9th Cir.1965) (extension of privilege to communications among co-defendants)
- United States v. Henke, 222 F.3d 633 (9th Cir.2000) (joint defense privilege as extension of attorney-client privilege)
- United States v. Austin, 416 F.3d 1016 (9th Cir.2005) (joint defense privilege protects common interests during litigation)
- Schwimmer v. United States, 892 F.2d 237 (2d Cir.1989) (common interest communications protected when for joint defense)
- In re Grand Jury Subpoenas Under Seal, 415 F.3d 333 (4th Cir.2005) (common enterprise communications remain protected)
- Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003) (waiver considerations in habeas context; holder choice to preserve privilege)
- United States v. Graf, 610 F.3d 1148 (9th Cir.2010) (burden to prove privilege extends; existence of relationship)