with whom Circuit Judge RAWLINSON joins, concurring in the judgment:
I concur in the result reached today by the court, that the protective order issued by the district judge was not an abuse of his discretion. Nevertheless, I cannot interpret Judge Byrne’s order as broadly as the majority. Nor am I convinced that the state attorney-client privilege must remain intact. As I see it, while a federal court has ample discretion to proscribe improper use of discovery materials obtained through its proceedings, it has no authority to determine admissibility for such underlying information under state law. Indeed, nothing in Judge Byrne’s order purports to make such a sweeping command.
I
Lawrence Bittaker is challenging his state conviction for multiple murders in this federal habeas corpus proceeding. He claims that he was deprived of effective assistance of counsel during his state court trial, and is thus being unconstitutionally detained. As the majority notes, it is axiomatic that when a client places the performance of his lawyer at issue, the client waives his or her right to assert the attorney-client privilege. Supra, at 718-719 (citing, among others, Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488 *729(1888), and United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir.1999)). There is no dispute that Bittaker cannot both pursue his ineffective assistance of counsel claims and simultaneously oppose the State’s request for discovery on the basis of the attorney-client privilege.
Cleverly, Bittaker refused to be deposed and refused to allow his trial counsel to be deposed or to allow the State access to his trial counsel’s files without a protective order precluding dissemination of the discovered materials outside the federal habe-as proceeding. Without determining the applicability of the attorney-client privilege 1 or making any representations as to the continuing viability of the privilege, the district court granted Bittaker’s request. Nonetheless, the majority concludes that by filing the protective order the district court preserved the attorney-client privilege as to all future proceedings, specifically upon retrial in state court. I respectfully disagree.
II
My disagreement with the majority lies not so much in its determination of the scope of the federal attorney-client privilege, although I have yet to be convinced by its reasoning,2 but in its blanket pre*730emption of state consideration of the effect of disclosure on the state attorney-client privilege. Even if, arguendo, the waiver of the federal attorney-client privilege extends only so far as the habeas proceeding, I see no reason why the state attorney-client privilege must necessarily also remain intact.
The majority concludes that the scope of the waiver of the attorney-client privilege is determined under federal law. In the context of this case, the majority is correct: the admissibility of the evidence in a habeas proceeding is governed by the federal attorney-client privilege and thus the scope of any waiver in these proceedings is also determined under federal law.3
The majority fails to note, however, that when a party seeks to introduce evidence in a state tribunal raising issues of state criminal law the federal attorney-client privilege is no longer applicable. Fed. R. Ev. 1101(a) (limiting applicability of the federal rules of evidence to “actions, cases, and proceedings” in federal courts). The initial existence of any privilege and its continuing vitality are both issues of state law, see Cal. Evid.Code § 910 (attorney-client privilege applies in “all proceedings”); see also Evans v. Raines, 800 F.2d 884, 887 n. 4 (9th Cir.1986) (“[B]ecause the attorney-client relationship is created and controlled by state law, the nature and extent of the attorney-client privilege is defined by state law.”); United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir.1985) (“Whether the communication between Rogers and his attorney, Miller, is in fact privileged and, thus, whether evidence of that communication can be objected to and excluded at trial, is a matter to be resolved in the trial court if the case proceeds to trial.”), just as the existence and applicability of the attorney-client privilege is a matter of federal law when one seeks to introduce evidence into federal courts on a federal claim such as a petition for a writ of habeas corpus, see Fed.R.Evid. 501 (stating that the federal attorney-client privilege applies to claims of federal law); see, e.g., Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998) (holding that under Federal Rule of Evidence 501 the attorney-client privilege survives the death of the client). The fact that the federal attorney-client privilege is not fully breached is not dispositive of the state’s privilege.
*731Invoking federalism and comity, the majority remarkably concludes that a federal district court must nevertheless protect the sanctity of the State of California’s attorney-client privilege by precluding the state from making an admissibility determination.4 But, why are the state courts not free to conclude that the petitioner waived his state law privilege by his bringing a federal habeas petition on ineffective assistance of counsel grounds? Why is it necessarily not a waiver under state law if the federal privilege is undisturbed?
The majority’s reasoning: the “fairness” principle. The majority concludes that because the “fairness” principle dictates that Bittaker’s waiver is valid only in the current habeas proceedings federal courts must have the authority to preserve the “bargain” that the court struck with Bit-taker. To preserve such “bargain,” the majority commands that California state courts treat the information as privileged. The majority merely begs the question. How does the fairness principle provide the federal courts the right to “bargain” with the state’s authority? Federal courts can strike whatever bargain they wish with a petitioner, but we cannot simply sell the state’s rights to pay for it.
Ill
If indeed a conflict between the federal attorney-client privilege and the state privilege existed, the federal rule would of course triumph. This a merely a function of the Supremacy Clause. The majority, however, has not identified a conflict between the federal and state privileges—nor could it— the two privileges apply at different times, in different proceedings. See Fed. R. Ev. 1101(a)-(c); see also Timothy P. Glynn, Federalizing Privilege, 52 Am. U.L.Rev. 59, 148 (2002) (arguing that Congress must adopt a substantive federal attorney-client privilege to preempt “contrary state privilege rules”). As we stated in Wharton v. Calderon, 127 F.3d 1201, 1205-06 (9th Cir.1997), “The attorney-client privilege is a rule of evidence. It does not provide a legal basis to support issuance of the district court’s ‘protective order,’ which purports to bar out-of-court interviews to which the rules of evidence *732do not apply.” The current situation is no different.
I agree that this case raises constitutional concerns, but I disagree that they are ripe for us to address. As in Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the problem of an unconstitutional condition only arises if the prosecutor actually attempts to use specific evidence in trial, and even under Simmons, the prosecutor may use compelled information under some circumstances, for example to impeach false testimony introduced at trial. See United States v. Beltran-Gutierrez, 19 F.3d 1287, 1288-89 (9th Cir.1994). Such principles are even more applicable when dealing with the attorney-client privilege. See Rogers, 751 F.2d at 1079 (“The prejudice [to the defendant from the government possessing privileged information before trial] does not affect [a defendant’s] ability to defend himself at trial. There is a fundamental distinction between the use of privileged information at trial, and its use during the investigatory period.”); United States v. White, 970 F.2d 328, 336 (7th Cir.1992) (“The attorney-client privilege is a testimonial privilege. Consequently, so long as no evidence stemming from the breach of the privilege is introduced at trial, no prejudice results.”).
Unless we are convinced that no possible use of discovery material would be constitutional (going well beyond Simmons), we should allow the state court to address the issue. See United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (“Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.”). State courts are in a much better position to determine admissibility of such evidence and they are certainly competent to resolve any constitutional issues that may arise.
Nor can the equitable powers of federal courts provide authority to proscribe state courts.
The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal district courts only in obedience to Congressional legislation in conformity to the Judiciary Article of the Constitution. Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent....
Douglas v. City of Jeannette, 319 U.S. 157, 162-63, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); see also Degen v. United States, 517 U.S. 820, 823-24, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (“Principles of deference counsel restraint in resorting to inherent power, ... and require its use to be a reasonable response to the problems and needs that provoke it....”); Perez v. Ledesma, 401 U.S. 82, 84-85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (holding that district court could not order the suppression of evidence in pending and future state ob*733scenity trial: “The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals....”).
Especially in deciding Bittaker’s claim, which arises in the habeas context under AEDPA — a statute whose “purpose [is] to further the principles of comity, finality, and federalism” — we must be careful to nurture “the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts.” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Paramount: we must “limit the scope of federal intrusion into state criminal adjudications and [] safeguard the States’ interest in the integrity of their criminal and collateral proceedings.” Id.
Leaving the state courts to consider the scope of its privilege in the first instance strikes such a balance. The federal habeas proceeding is not undermined—the petitioner has a full and fair opportunity to argue his case—and yet federal courts will still be able to enforce any federal interests either on direct review or through habeas review.
Of course, Bittaker would prefer to know in advance whether formerly privileged information may be used against him, but the Constitution does not provide such an accommodation. See United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (“[A] hard choice is not the same as no choice”).5 As the Supreme Court noted in Upjohn, “We are acutely aware ... that we sit to decide concrete cases and not abstract propositions of law.... This case-by-case process and the judicial restraint accompanying it have not and cannot produce generally applicable, particularized rules that provide certainty.” 449 U.S. at 386, 101 S.Ct. 677. I would have exercised such judicial restraint here.
IV
That being said, I concur in the result reached by the majority: the district court did not abuse its discretion in entering this particular protective order. Despite the majority’s insistence that the protective order preserves the attorney-client privilege in state court, the language of the protective order itself makes no such pretensions.6 Cf. Transamerica Computer Co. v. IBM Corp., 573 F.2d 646, 652 (9th Cir.1978) (interpreting order that explicitly preserved the privilege in any documents compelled by the court). The court’s protective order simply deems the requested discovery “confidential” and allows the Office of the California Attorney General to use the materials only for the purposes of the federal habeas corpus proceeding. While the protective order explicitly pro*734hibits disclosure of the materials’ contents in the event of a state retrial, it says nothing regarding the ability of the prosecutor to discover those same materials through state court discovery procedures if it determines the privilege was waived.
In fact, Bittaker himself explicitly denies that the protective order prohibits the state courts from considering the preservation of the state attorney-client privilege. See, e.g., Appellee’s Brief at 56 (“There are no pending proceedings in California’s state court, and Mr. Bittaker cannot seek to have those courts apply California law and protect his privileges in these documents. The only way to preserve these issues for consideration by a California court is by issuing a protective order in this federal action.” (emphasis in original)). Bittaker requested and received a protective order that merely preserves the status quo so that the state court can consider whether he waived his privilege under state law. Nothing more. In its haste to reach the merits of Bittaker’s attorney-client privilege claims, the majority creates the bargain it wishes the district court had entered, rather than enforce the “bargain” actually struck between Bittaker and the district court.
Once viewed correctly, Judge Byrne’s protective order is tailored to protect legitimate federal interests. The affront to the federal courts is not a possible breach of the state attorney-client privilege — a consequence of our dual sovereignties — but rather the risk that the prosecutor would use the information we gave him to build his case, circumventing the state discovery processes and any attendant limitations. Such potential abuse of federal discovery provides sufficient authority for entering the protective order.
Federal courts have the discretion to restrict future use of the discovered materials when a party may suffer harm as a result of disclosure. See, e.g., Harris v. Amoco Production Co., 768 F.2d 669, 683-84 (5th Cir.1985) (“A party may generally do what it wants with material obtained through the discovery process, as long as it wants to do something legal. The federal rules do not themselves limit the use of discovered documents or information. Rule 26(c) does, however, afford district courts the ability to impose limits. If the party from whom discovery is sought shows ‘good cause,’ the presumption of free use dissipates, and the district court can exercise its sound discretion to restrict what materials are obtainable, how they can be obtained, and what use can be made of them once obtained.” (citations omitted)). Accord Parsons v. General Motors Corp., 85 F.R.D. 724, 726 (D.Ga.1980) (“This court may impose conditions on the release of information to protect a person or party from any harmful side effects of disclosure.” (citing 4 Moore’s Federal Practice P 26.67, at 26-487)); Konrad v. DeLong, 57 F.R.D. 123, 125 (N.D.Ill.1972) (holding that court has power to prohibit use of expert’s testimony in other proceedings in order to prevent abuse of process and intimidation of witness before federal court).
Because habeas is a civil proceeding, the permissible discovery is broader and the free exchange of such discovery creates a situation ripe for abuse: by bringing a habeas petition to exercise his constitutional right, the petitioner must give his entire case to the State, and, if petitioner is found to be unconstitutionally confined, the prosecutor may then use that same discovery to reconvict him. Cf. Degen, 517 U.S. at 826, 116 S.Ct. 1777 (noting that protective orders are available to “prevent parties from using civil discovery to evade restrictions on discovery in criminal cases”); Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962) (“A litigant should not be" allowed to make use of the liberal discov*735ery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit. Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other.”). The district court can minimize such harm by forcing the parties to start the adversarial process over again, and to proceed through discovery using the processes of the new forum in a subsequent case. If we properly construed the protective order, we would not have to discuss the attorney-client privilege, speculate about waivers, or strong arm the state into following a limited waiver of state law attorney-client privilege; we could simply hold that the district court did not abuse its discretion in limiting the dissemination of discovery materials.
Control over the discovery itself is materially different from control over the consequences of disclosing the discovery. In the former case, the courts are merely insuring that any discovered materials are not later used; if the prosecution wants the information, it must find it somewhere else. In the latter instance, the court is not only insuring the confidentiality of the underlying information in its own proceeding, but it is also curtailing the state courts’ authority to make its own admissibility determination. Such noble intentions are simply too ambitious.
Thus, Judge Byrne’s protective order does not infringe on the state’s right to determine what evidence is admissible. If the prosecution can secure the same information through state discovery processes, state courts can determine admissibility of such evidence; it is only the information gained through the habeas proceeding itself that is off limits. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (“As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.”).
If, indeed, California wishes to guard its attorney-client privilege as jealously as the majority so believes, the protective order provides it every opportunity. While I disagree with the reach of the majority’s analysis, I concur in the court’s judgment and would affirm the district court’s use of its discretion in this case.
. I fail to see how the majority can uphold a protective order that precludes admissibility of all discovered evidence — -based on the attorney-client privilege — without first concluding that such privilege exists. Under our law, the party who asserts the attorney-client privilege must first prove that it applies. See United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir.2002) ("Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.... The burden is on the party asserting the privilege to establish all the elements of the privilege." (citations and internal quote marks omitted)). Although some of the discoverable information is likely privileged, surely not all of it is. This is no small matter; as the majority interprets the protective order, it prohibits the state court from even considering the admissibility of evidence. What justification is there for the protective order extending beyond the confines of privileged material?
. Federal courts have generally concluded that the information, once disclosed to a party opponent, waives the attorney-client privilege as to future proceedings. See, e.g., United States v. Mass. Inst. of Technology, 129 F.3d 681, 686 (1st Cir.1997) (holding that even if MIT was under a legal duty to disclose information pursuant to federal law because of its status as a defense contractor, it still waived privilege by providing such information to the IRS; MIT had the choice to become a defense contractor); Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1416, 1416-18 (Fed.Cir.1997) ("Once the attorney-client privilege has been waived, the privilege is generally lost for all purposes and in all forums.”); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir.1993) ("An allegation that a party facing a federal investigation and the prospect of a civil fraud suit must make difficult choices is insufficient justification for carving a substantial exception to the waiver doctrine.”); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1425 (3d Cir.1991) ("The traditional waiver doctrine provides that disclosure to third parties waives the attorney-client privilege unless the disclosure serves the purpose of enabling clients to obtain informed legal advice.”); In re Martin Marietta Corp., 856 F.2d 619, 623-24 (4th Cir.1988) (holding that disclosure to government waived attorney-client privilege as to future proceedings); In re von Bulow, 828 F.2d 94, 101-02 (2d Cir.1987) (holding that party implicitly waived his attorney-client privilege when his attorney published privileged material in a book, and the client assisted in promoting the book, as to the matters discussed in the book); United States v. Suarez, 820 F.2d 1158, 1161 (11th Cir.1987) ("[I]t has long been held that once waived, the attorney-client privilege cannot be reasserted.” (citing, among others, 8 Wigmore, Evidence § 2328 at 638 (McNaughton rev. 1961) ("A waiver at one stage of a trial should be final for all further stages ....”) (additional citations and footnote omitted))); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981) ("The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrect*730ing the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit.”). But see Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 n. 1, 611 (8th Cir.1977) (finding limited waiver after disclosure to the SEC). The mere fact that the disclosure to opposing counsel is made in confidence, i.e., under a protective order, should not alter the status of the waiver. Cf. In re Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487, 492-93 (5th Cir.1998) (holding that federal statute that prohibited circulation of information outside of mediation proceedings did not create evidentiary privilege).
. I am not even sure that we should be making any conclusions regarding the scope of the federal attorney-client privilege. There is no dispute that Bittaker waived his attorney-client privilege in his habeas proceeding and must allow his attorney to testify; this evidence is discoverable and admissible under Federal Rule of Evidence 501. Why the court must determine now the extent of that waiver, and thus the admissibility of evidence in a later proceeding, even a later federal proceeding, is unclear. While I agree that it may permit Bittaker to make a more educated decision regarding the claims which he brings, there is simply no controversy yet regarding the admissibility of evidence. I would leave the issue for a future court to decide when a case is brought before it. See Upjohn Co. v. United States, 449 U.S. 383, 386, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (noting that adjudications of the attorney-client privilege must be done on a case-by-case basis).
. I wonder how the majority would react if the tables were turned and the state court told the federal court how far its privilege extended. Suppose that under California law the attorney-client privilege is breached, even if no confidential information is disclosed, merely by filing an ineffective assistance claim on state habeas review—the scope of which under state law includes all privileged information relevant to the claim. Under such a scenario, no state privilege would exist when the petitioner enters federal court. (Any constitutional concerns that may be raised by such a law would not be ripe upon habeas review. See infra.) Yet, the state could not enter an order, binding on the federal courts, that declared the information non-privileged. Notwithstanding the status of the state attorney-client privilege, a federal court would still be free to apply the federal attorney-client privilege as it sees fit, namely that the privilege is not breached until confidential conversations are actually disclosed. See Fed.R.Evid. 501.
When the majority speaks of comity and cooperation, its words thus ring hollow. It seems to me that if a state can arbitrarily eliminate the privilege to avoid the current situation, it may also set the boundaries of how much disclosure is permissible before it chooses to no longer recognize it. That disclosure takes place in federal court does not alter the state's right to fashion the privilege in the manner it wishes so as to best balance its competing interests in encouraging frank communication between attorney and client and discerning the truth through court proceedings. As California's determination under state law would have no effect as to the continuing viability of the federal attorney-client privilege under federal law, a federal court’s determination of the scope of its waiver should have no binding effect on the state courts.
. In Martinez-Salazar, the trial court refused to dismiss a potential juror for cause when he twice stated that he would favor the prosecution in the defendant’s trial because “[One] assume[s] that people are on trial because they did something wrong.” 528 U.S. at 308, 120 S.Ct. 774. The defendant was then forced to use one of his peremptory challenges to remove him; later he ran out of such challenges. Id. at 309, 120 S.Ct. 774. The Court held that the defendant had a difficult, but not unconstitutional, choice: he could choose not to use his peremptory challenge and then on appeal argue that his Sixth Amendment right to a fair trial had been impaired, or he could use the challenge, although it might be better suited for another prospective juror. Id. at 316, 120 S.Ct. 774.
In contrast, a habeas petitioner's choice is not too difficult. He is imprisoned, he believes unconstitutionally, and his first concern is getting out. Any constitutional concerns regarding his retrial are secondary and, in reality, would not stop him from pursuing a valid ineffective assistance of counsel claim.
. See supra at 717 n. 1 for the text of the protective order.