FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-15025
Plaintiff-Appellee, D.C. No.
v. 3:06-cr-00710-
LUIS ALBERTO GONZALEZ, WHA-2
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
November 15, 2011—San Francisco, California
Filed January 25, 2012
Before: Michael Daly Hawkins and Milan D. Smith, Jr.,
Circuit Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge Hawkins
*The Honorable Kevin Thomas Duffy, United States District Court
Judge for the Southern District of New York, sitting by designation.
719
722 UNITED STATES v. GONZALEZ
COUNSEL
Daniel P. Blank, Assistant Federal Public Defender, San Fran-
cisco, California, for the defendant-appellant.
Robert David Rees, Assistant United States Attorney, San
Francisco, California, for the plaintiff-appellee.
OPINION
HAWKINS, Senior Circuit Judge:
In this interlocutory appeal, Luis Alberto Gonzalez
(“Gonzalez”) challenges an order denying his motion to quash
a subpoena in a section 22551 habeas proceeding brought by
his wife, Katherine Elizabeth Paiz (“Paiz”). Gonzalez and
Paiz were convicted in separate trials of fraud arising from an
insurance scam involving Paiz’s car. The car was found
burned in a field with a gas can in the backseat shortly after
the pair discovered the car needed several thousand dollars of
repairs not covered by warranty, and ten days after Paiz took
out an insurance policy on the vehicle. Although both sepa-
rately confessed to the fraud, Paiz claimed she had no knowl-
edge that fire would be used to destroy the car. Gonzalez
initially told FBI agents that he had burned the car but that his
wife knew nothing about it. The trial court severed the trials
when Gonzalez announced he intended to testify at his wife’s
trial regarding the use of fire count (which carried a manda-
tory minimum ten-year sentence). See 18 U.S.C. § 844(h).
However, shortly before his own trial, Gonzalez indicated
his defense would be that he had nothing at all to do with the
crime and that he had lied to the FBI about his involvement
to protect his wife. He was convicted of three fraud counts,
1
28 U.S.C. § 2255.
UNITED STATES v. GONZALEZ 723
but acquitted of the use of fire count, and sentenced to ninety-
six months in prison.
Paiz’s attorney, Nina Wilder (“Wilder”) ultimately decided
not to call Gonzalez as a witness at Paiz’s trial. Paiz was con-
victed on all counts, and sentenced to 121 months in prison.
In her section 2255 petition, Paiz now alleges that Wilder pro-
vided ineffective assistance of counsel by failing to call Gon-
zalez as a witness. Gonzalez intervened to seek quashal of the
subpoenas directed at Wilder on the basis of a joint defense
privilege.
FACTS AND PROCEDURAL HISTORY
In September 2010, Paiz filed a motion in district court to
set aside her conviction for ineffective assistance of counsel.
One of her claims was that Wilder was ineffective for failing
to call Gonzalez as an exculpatory witness.
The government sought a deposition subpoena and sub-
poena duces tecum for Wilder. It specifically sought discov-
ery regarding Wilder’s statements to the district court during
an ex parte hearing, including communications Wilder had
received from Gonzalez’s counsel around that time, relating
to Gonzalez’s potential testimony at Paiz’s trial. The court
granted the motion and directed that the deposition proceed.
Gonzalez filed an emergency motion to quash or modify
the subpoenas on the basis of a joint defense privilege. His
counsel submitted a declaration claiming that he and Wilder
had “met and discussed confidential information related to
trial preparation” and that although there was no written joint
defense agreement (“JDA”), these communications were “for
the purpose of preparing a joint defense strategy” and the
“clear understanding was that such communications were
privileged.”
The district court ordered that the deposition of Wilder go
forward, but provided that counsel for Gonzalez and Paiz
724 UNITED STATES v. GONZALEZ
could attend and object to questions that they believed were
privileged. The court also imposed a protective order limiting
the use of any disclosed material to litigating Paiz’s section
2255 motion.
During the deposition, Gonzalez’s counsel objected to sev-
eral questions on the basis of the joint defense privilege, and
Wilder also frequently claimed that questions called for pro-
tected information. Like Gonzalez’s counsel, Wilder indicated
there was no written JDA, but an “implied agreement.” At the
deposition, Wilder reasoned: “We understood between our-
selves that everything we said would be confidential,” and
“[w]e agreed there would be a joint defense and that we
would share information.”
After additional briefing, the district court issued an order
denying the motions to quash, holding that “when a claim of
ineffective assistance of counsel is asserted in a collateral
challenge to a conviction, all information to and from trial
counsel plausibly relevant to the alleged acts or omissions is
discoverable.” United States v. Paiz, No. CR 06-710 WHA,
2010 WL 5399216, at *1 (N.D. Cal. Dec. 23, 2010). The court
concluded that even assuming a JDA existed, Gonzalez’s joint
defense privilege must yield to the discovery needs created by
Paiz’s ineffective assistance claim. The court ordered Wil-
der’s deposition to continue and that she answer all relevant
questions posed to her, but stayed the order pending this inter-
locutory appeal. Id. at *12. We now reverse and remand to the
district court.2
2
We have jurisdiction over this appeal pursuant to Perlman v. United
States, 247 U.S. 7 (1918): “We have interpreted Perlman to mean that a
discovery order directed at a ‘disinterested third-party custodian of privi-
leged documents’ is immediately appealable because the ‘third party . . .
would most likely produce the documents rather than submit to a contempt
citation.’ ” United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir. 2006)
(citation omitted).
UNITED STATES v. GONZALEZ 725
STANDARD OF REVIEW
A district court’s conclusions whether information is pro-
tected by attorney-client privilege is a mixed question of law
and fact which this court reviews de novo. United States v.
Richey, 632 F.3d 559, 563 (9th Cir. 2011).
DISCUSSION
I. The Joint Defense Privilege
The joint defense privilege was first recognized by our
court in Continental Oil Co. v. United States, 330 F.2d 347
(9th Cir. 1964). Employees of two different oil companies had
been summonsed to testify before the Grand Jury; each was
interviewed by their respective counsel. Counsel then pre-
pared memoranda about the information received and “ex-
changed such memoranda in confidence in order to apprise
each other as to the nature and scope of the inquiry proceed-
ing before the Grand Jury” and “to make their representation
of their clients in connection with the Grand Jury investiga-
tion and any resulting litigation, more effective.” Id. at 348-
49. When the government later sought to discover these mem-
oranda, asserting that the attorney-client privilege had been
waived by disclosing the information to third parties, we
rejected the claim and ordered the subpoena quashed. Id. at
350.
We reasoned that the communication was made for the
“limited and restricted purpose to assist in asserting their
common claims” and that thus “the recipient of the copy
stands under the same restraints arising from the privileged
character of the document as the counsel who furnished it,
and consequently he has no right, and cannot be compelled,
to produce or disclose its contents.” Id. (quotation omitted);
see also Hunydee v. United States, 355 F.2d 183, 185 (9th Cir.
1965) (“[W]here two or more persons who are subject to pos-
sible indictment in connection with the same transactions
726 UNITED STATES v. GONZALEZ
make confidential statements to their attorneys, these state-
ments, even though they are exchanged between the attorneys,
should be privileged to the extent that they concern common
issues and are intended to facilitate representation in possible
subsequent proceedings.”).
[1] The Ninth Circuit has long recognized that the joint
defense privilege is “an extension of the attorney-client privi-
lege.” United States v. Henke, 222 F.3d 633, 637 (9th Cir.
2000) (explaining that a JDA had established an implied
attorney-client relationship between the codefendants and
their counsel); see also United States v. Austin, 416 F.3d
1016, 1021 (9th Cir. 2005) (recognizing joint defense privi-
lege as extension of attorney client privilege that “protects not
only the confidentiality of communications passing from a
party to his or her attorney but also ‘from one party to the
attorney for another party where a joint defense effort or strat-
egy has been decided upon and undertaken by the parties and
their respective counsel’ ”) (quoting United States v. Schwim-
mer, 892 F.2d 237, 243 (2d Cir. 1989)). The privilege is also
referred to as the “common interest” privilege or doctrine,
because it has not been limited to criminal defense situations
or even situations in which litigation has commenced:
Whether the jointly interested persons are defendants
or plaintiffs, and whether the litigation or potential
litigation is civil or criminal, the rationale for the
joint defense rule remains unchanged: persons who
share a common interest in litigation should be able
to communicate with their respective attorneys and
with each other to more effectively prosecute or
defend their claims.
In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir.
1990).
Here, the district court assumed for the sake of argument
that an implied JDA existed, but nonetheless held that no such
UNITED STATES v. GONZALEZ 727
agreement “should or can be allowed to bar discovery or use
of pertinent communications to and from trial counsel in a
later Section 2255 proceeding.” 2010 WL 5399216, at *11.
The court reasoned that the “joint defense agreement does not
create a duty of loyalty to an individual who is not one’s own
client, and it is not the same as joint representation.” Id. at *8.
The court thus concluded that communications between coun-
sel are more appropriately characterized as “work product
communications, intended to aid in preparation for litigation,”
and that such privilege is not absolute; the court went on to
hold that there existed the required “necessity and unavaila-
bility by other means” for discovery of the work product. Id.
at *8-9; see Fed. R. Civ. P. 26(b)(3).
On appeal, the government does not advance the rationale
proffered by the district court.3 Rather, it argues that (1) Gon-
zalez did not sufficiently establish on the record that a JDA
actually existed, (2) that such an agreement could not exist in
the circumstances here, where Gonzalez’s defense was
adverse to Paiz’s, and (3) even if one existed, the court cor-
rectly held that Paiz’s section 2255 claim acted as a unilateral
waiver of the privilege in these circumstances.
II. Existence of a Joint Defense Agreement
Noting that we may affirm on any ground supported by the
record, the government suggests that we need not reach the
broader question of whether Paiz’s section 2255 motion
waived the joint defense privilege as to Gonzalez’s communi-
cations. It contends Gonzalez has not even established the
existence of a JDA. See United States v. Graf, 610 F.3d 1148,
1156 (9th Cir. 2010) (party asserting the attorney-client privi-
lege has the burden of establishing the existence of the rela-
tionship and the privileged nature of the communication).
3
We address the district court’s reasoning in Section III, below.
728 UNITED STATES v. GONZALEZ
The government first characterizes the district court’s deci-
sion as concluding that “the actual record is too thin” to sup-
port the contention that a JDA existed. 2010 WL 5399216, at
*11. But the court went on to state that there was possibly an
“implied joint defense agreement, one arising from a course
of conduct,” and ultimately concluded that the JDA’s exis-
tence was irrelevant because “the main holding of this order
is that no joint defendant agreement, no matter how plain and
clear, should or can be allowed to bar discovery or use of per-
tinent communications to and from trial counsel in a later Sec-
tion 2255 proceeding.” Id.
[2] The district court thus made no express finding regard-
ing the existence of an agreement and it is clear that the court
instead “assumed for the sake of argument that there was a
joint defense agreement.” Id. More importantly, it is clear that
no written agreement is required, and that a JDA may be
implied from conduct and situation, such as attorneys
exchanging confidential communications from clients who are
or potentially may be codefendants or have common interests
in litigation. Cont’l Oil, 330 F.2d at 350 (privilege applies
even “without an express understanding that the recipient
shall not communicate the contents thereof to others”) (quota-
tion omitted); In re Regents of Univ. of Cal., 101 F.3d 1386,
1389 (Fed. Cir. 1996) (it may reasonably be inferred from
consultation among clients and counsel allied in common
legal cause that disclosures are confidential); HSH Nordbank
AG v. Swerdlow, 259 F.R.D. 64, 72 n.12 (S.D.N.Y. 2009)
(noting joint agreement need not be in writing to protect a
communication); Avocent Redmond Corp. v. Rose Elecs., Inc.,
516 F. Supp. 2d 1199, 1203 (W.D. Wash. 2007) (“a written
agreement is not required” to invoke the joint defense privi-
lege).
[3] Here, there was sufficient evidence in the record to
support the existence of a JDA, at least to a point. Gonzalez’s
counsel filed a declaration asserting:
UNITED STATES v. GONZALEZ 729
[A]s the case progressed, [Ms. Wilder and I] met
and discussed confidential information related to
trial preparation, sometimes in the presence of the
clients and sometimes not. Although there was no
written joint defense agreement, this communication
among Mr. Gonzalez and Ms. Paiz and their counsel
was for the purpose of preparing a joint defense
strategy and involved the sharing of confidential
information. The clear understanding was that such
communications were privileged.
At her deposition, Wilder testified similarly that the JDA
started “from the beginning of the case,” and that it was an
“implied agreement.” “We understood between ourselves that
everything we said would be confidential.” She further stated:
“I think that the joint defense agreement was formed when we
sat down and agreed to jointly strategize in the case and to
share information. That’s the basis we agreed to” and “[i]n
our initial conversation we agreed to proceed jointly and share
confidential information.” Wilder acknowledged there was no
written JDA or any emails about one to her knowledge, but
that “at some point we certainly discussed, and repeatedly, I
think, at various points, talked about the fact that it was a joint
defense agreement, that there was a joint defense, that we
share confidential information, which is the whole point of the
joint defense.”
[4] The government argues that notwithstanding these
assertions of a joint defense and strategy, the legal interests of
Gonzalez and Paiz lacked sufficient commonality, especially
at the point the trials were severed or, if not then, when Gon-
zalez announced a defense that was demonstrably adverse to
the interests of Paiz by blaming her for the crime. The govern-
ment acknowledges that parties to an asserted JDA need not
have identical interests and may even have some adverse
motives, see Hunydee, 355 F.2d at 185, but correctly points
out that the attorneys do, at a minimum, need to be “engaged
in maintaining substantially the same cause on behalf of other
730 UNITED STATES v. GONZALEZ
parties in the same litigation.” Cont’l Oil, 330 F.2d at 350; see
also Hunydee, 355 F.2d at 185 (communications are privi-
leged “to the extent that they concern common issues and are
intended to facilitate representation”) (emphasis added).
[5] Here, even if Gonzalez and Paiz began as codefendants
with aligned interests, they later moved simultaneously to
sever their trials from one another; the government argues “it
is inherently contradictory simultaneously to claim to be in a
joint defense agreement and also that a joint trial is legally
prohibited.” This is not necessarily true, however, as parties
in separate actions might nonetheless have reasons to work
together toward a common objective, and there is no require-
ment that actual litigation even be in progress. Cont’l Oil, 330
F.2d at 350; United States v. Aramony, 88 F.3d 1369, 1392
(4th Cir. 1996) (unnecessary that there be actual litigation in
progress for privilege to apply). For example, here the trials
were initially severed so that Gonzalez could aid Paiz by testi-
fying at her trial. In addition, attorney Wilder testified that she
and Gonzalez’s counsel continued to meet and discuss the
cases after the severance was granted.
However, Wilder also testified that the first time she
learned of Gonzalez’s plan to blame his wife for the insurance
scam occurred “shortly before trial” and around the same time
Gonzalez publicly disclosed the defense. She also testified she
did not know at the time she filed the severance motion that
Gonzalez would claim he had lied to federal agents to protect
Paiz as the truly guilty party. The government contends that
one party being kept in the dark about such crucial informa-
tion is strong evidence that no true JDA existed. In addition,
Gonzalez’s defense was completely antagonistic to Paiz’s—
blaming her entirely for the crime while asserting his own
innocence. It is debatable whether Gonzalez could have rea-
sonably believed by this point that he and his wife were con-
tinuing to pursue a joint defense arrangement. See
Schwimmer, 892 F.2d at 244 (common interest rule requires
UNITED STATES v. GONZALEZ 731
communication to be given in confidence and that the client
reasonably understood it to be so given).
Gonzalez maintains that notwithstanding his shift in
defense theories, he remained consistently committed to
Paiz’s defense on the use-of-fire count—that she was guilty
of fraud but had no knowledge that the car would be burned.
If their mutual interest is defined more narrowly in this way,
then it is possible that their other adverse positions did not
undermine their joint defense privilege on this specific issue.
[6] As the foregoing discussion illustrates, the existence of
a JDA is not necessarily an all-or-nothing proposition, and
may be created (and ended) by conduct as well as express
agreement. The timeline of events and the facts of this case
could suggest that a JDA existed at the outset between the
parties and their counsel, but that it had ended at least by the
time Gonzalez decided to pursue his own defense and blame
Paiz for the crime (thus ending their common legal interests).
See In re Grand Jury Subpoena: Under Seal, 415 F.3d 333,
341 (4th Cir. 2005) (affirming district court factual finding
that common interest agreement did not exist prior to Decem-
ber 2001, so disclosures made prior to that time were not priv-
ileged); see also Gilson v. Sirmons, No. CIV-01-1311-C, 2006
WL 2320682, at *30 (W.D. Okla. 2006) (noting trial court
had conducted an in camera hearing and determined that a
JDA existed at least prior to the severance of the cases, and
that any information gained in confidence during the exis-
tence of those joint defense efforts remained protected by
attorney-client privilege). Alternatively, it may also be that
Paiz’s and Gonzalez’s “joint defense” strategy always related
only to the use-of-fire charge and that they remained commit-
ted on this point notwithstanding other defense changes.
[7] The record at least establishes the existence of a JDA
(either an express verbal agreement or one implied from con-
duct), but the court made no specific findings regarding the
extent or duration of that JDA. We therefore remand to the
732 UNITED STATES v. GONZALEZ
trial court for an (in camera) evidentiary hearing to expressly
determine: (1) if the JDA implicitly ended at some point, (2)
if so, when, and (3) when the relevant communication here
(the ultimate representation regarding what Gonzalez would
testify to at Paiz’s trial) was made. If the communication
occurred during the existence of the JDA, then it remains pro-
tected, as discussed further below. On the other hand, if it was
made after the joint defense efforts ended, and when Gonzalez
was merely a potential trial witness for Paiz, then that specific
communication to Paiz’s counsel may not be privileged
(though any prior statements made or communicated to her
during the JDA would remain protected). See Schwimmer,
892 F.2d at 243 (only communications made in course of
ongoing common enterprise and intended to further that enter-
prise are protected).
III. Unilateral Waiver by Section 2255 Motion
[8] In ruling that Gonzalez’s communications to Wilder
were nonetheless discoverable, the district court first con-
cluded that they should be treated more as “work product
communications” rather than “true privilege[d]” statements.
2010 WL 5399216, at *8-9. It then held that they were dis-
coverable because of the necessity and unavailability of other
means of discovering such work product. Id. This ruling con-
flicts with a number of this circuit’s precedents establishing
that the joint defense privilege is an extension of the attorney-
client privilege, and does establish a duty of confidentiality on
the part of the additional attorney and party to the agreement.
Hunydee, 355 F.2d at 185; Cont’l Oil, 332 F.2d at 350; see
also Austin, 416 F.3d at 1021; United States v. Stepney, 246
F. Supp. 2d 1069, 1077 (N.D. Cal. 2003). This distinction is
important because “[p]rivilege cannot be overcome by a
showing of need, whereas a showing of need may justify dis-
covery of an attorney’s work product.” Admiral Ins. Co. v.
U.S. Dist. Ct., 881 F.2d 1486, 1494-95 (9th Cir. 1989) (quota-
tion omitted).
UNITED STATES v. GONZALEZ 733
[9] Moreover, the case law is clear that one party to a JDA
cannot unilaterally waive the privilege for other holders. See
United States v. BDO Seidman, LLP, 492 F.3d 806, 817 (7th
Cir. 2007) (The “privileged status of communications falling
within the common interest doctrine cannot be waived with-
out the consent of all of the parties.”); John Morrell & Co. v.
Local Union 304A, 913 F.2d 544, 556 (8th Cir. 1990) (joint
defense privilege cannot be waived without the consent of all
parties to the defense); In re Grand Jury Subpoenas, 902 F.2d
at 250 (holding that all documents related to common claim
“are subject to a joint defense privilege that [one party] may
not waive unilaterally”). The Restatement similarly indicates
that one party to a common-interest arrangement lacks the
ability to waive the privilege as to other members:
Any member of a common-interest arrangement may
invoke the privilege against third persons, even if the
communication in question was not originally made
by or addressed to the objecting member. . . . Any
member may waive the privilege with respect to that
person’s own communications. Correlatively, a
member is not authorized to waive the privilege for
another member’s communication.
Restatement (Third) of the Law Governing Lawyers § 76,
cmt. g. (2000).
Nonetheless, the government argues that Paiz’s filing of the
section 2255 motion can act as a unilateral waiver of the priv-
ilege as to both her communications and those made by Gon-
zalez. To support its argument, the government cites to a
number of cases in which co-clients (represented by the same
attorney) later become involved in disputes with one another.
See, e.g., In re Teleglobe Commc’ns Co., 493 F.3d 345, 366
(3d Cir. 2007) (“When former co-clients sue one another, the
default rule is that all communications made in the course of
the joint representation are discoverable.”); FDIC v. Ogden
Corp., 202 F.3d 454, 461 (1st Cir. 2000) (joint defense privi-
734 UNITED STATES v. GONZALEZ
lege “inapplicable to disputes between joint clients”). These
cases are inapposite, however, as Paiz and Gonzalez were not
co-clients with the same counsel, and, moreover, are not
adverse parties in this habeas litigation.
The district court relied on this court’s decision in Bittaker
v. Woodford, 331 F.3d 715 (9th Cir. 2003), in which we noted
the longstanding rule that “where a habeas petitioner raises a
claim of ineffective assistance of counsel, he waives the
attorney-client privilege as to all communications with his
allegedly ineffective lawyer.” Id. at 716. We explained that
there is an implied choice to the holder of the privilege: “If
you want to litigate this claim, then you must waive your priv-
ilege to the extent necessary to give your opponent a fair
opportunity to defend against it.” Id. at 720. In Bittaker, we
relied on notions of fairness, and balanced the need for dis-
covery against the petitioner’s claim of privilege. Id. at 720-
22. Here, although noting that Bittaker involved the waiver of
the petitioner’s own claim of privilege and not that of a third
party, the district court relied on these underlying consider-
ations to conclude that Gonzalez’s interest in confidentiality
should also yield because he faced no consequences from dis-
closure and yet the petition could not be fully and fairly
resolved without it.
[10] While the district court identified valid concerns, they
represent only half of the equation presented in Bittaker and
the long line of cases decided before it: the holder of the privi-
lege has a choice. “[T]he holder of the privilege may preserve
the confidentiality of the privileged communications by
choosing to abandon the claim that gives rise to the waiver
condition.“ Id. at 721. Gonzalez, of course, is presented with
no such choice and is an unwilling third-party participant in
this habeas proceeding. Thus, a Bittaker-type balancing test
does not work here, where Gonzalez has not filed a petition
and thus has not chosen to put his communications at issue.
In addition, allowing unilateral waiver of confidential com-
munications by a single codefendant without the consent of
UNITED STATES v. GONZALEZ 735
the others would likely severely undermine the rationale for
the joint defense privilege in the first place. See Schwimmer,
892 F.2d at 243 (a lawyer’s “assistance can only be safely and
readily availed of when free from the consequences or the
apprehension of disclosure,” and joint defense privilege is an
extension of that attorney-client privilege) (internal quotation
omitted).
[11] For the foregoing reasons, we conclude the district
court’s analyses regarding privilege versus work product and
unilateral waiver by filing the section 2255 petition were in
error, and reverse and remand for further proceedings consis-
tent with this Opinion.
CONCLUSION
It appears that for at least part of the proceedings, Gonzalez
and Paiz were part of a JDA, either express or implied. How-
ever, it also appears possible that at some point that arrange-
ment ended, such as when Gonzalez decided to pursue his
own self-serving defense and blame Paiz for the crime rather
than pursuing a jointly beneficial defense strategy. Therefore,
we remand to the district court for an in camera evidentiary
hearing to determine if and when the JDA ended, and when
the communication at issue here (what Gonzalez would ulti-
mately testify to at Paiz’s trial) was made.
REVERSED AND REMANDED.