Learn more about discovery requests from the respondent in a habeas corpus case here.
A (reciprocal) discovery request or motion by the respondent pursuant to Practice Book § 23-38 is not uncommon. Also, in IAC cases, habeas counsel should anticipate that the respondent will seek from the petitioner a copy of trial counsel’s file and/or appellate counsel’s file. Habeas counsel should also anticipate that the respondent will seek items or information that the petitioner intends to introduce in evidence at the habeas trial.
The Respondent’s Request
The respondent’s request or motion must get reviewed to ensure that it stays in the scope of Practice Book § 23- 38 or the claims plead in the amended petition. In addition, an objection must be filed to any request or motion considered overbroad, for information beyond the scope of § 23-38 or the claims plead in the petition remains confidential under the attorney-client privilege and/or Rule 1.6 of the Rules of Professional Conduct.
This happens because an IAC claim pierces the attorney-client privilege and/or rule of confidentiality, see Breton v. Commissioner, 49 Conn. Supp. 592, 598-99 (Super. Ct. 2006) (“[T]he petitioner does place the advice of his attorneys into question before this habeas court. In so doing, he impliedly waived his attorney-client privilege such that his lawyers may testify and speak with counsel for the respondent without invoking the former client’s attorney-client privilege”); accord Hardison v. Commissioner, 152 Conn. App. 410, 421 (2014)
(“We conclude that the petitioner has waived the attorney-client privilege because the issues raised in his petition cannot be determined without examining [trial counsel’s] advice, and, therefore, the habeas court did not err in denying the motion in limine to preclude her testimony”), but only with respect to the alleged.
Information or parts of trial counsel’s file or appellate counsel’s file that is unrelated to the claim plead is not relevant to the habeas litigation and, thus, is entitled to continued protection under the attorney-client privilege and/or the confidentiality rule. See Breton v. Commissioner, 49 Conn. Supp. at 600-01; see also Giordano v. United States, No. 3:11-cv-09 (MRK), 2011 U.S. Dist. LEXIS 27910, at *7 (D. Conn. Mar. 17, 2011)(when petitioner alleges IAC, the implied waiver of the attorney-client privilege “does not extend beyond what is needed to litigate the claim”)(quoting Bittaker [v. Woodford], 331 F.3d 715, 722 (9th Cir. 2003)(en banc); accord United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009)(“[T]he court must impose a waiver no broader than needed to ensure the fairness of the proceedings before it.” (internal quotation marks omitted)).
Additionally, if any information required to get disclosed pursuant to the respondent’s request would impair the petitioner’s rights at a retrial, habeas counsel should move for a protective order, citing Practice Book § 40-40, et seq. and the following authorities:
United States v. Nicholson, 611 F.3d 191, 217 (4th Cir. 2010)(holding that petitioner was, “entitled to a protective order prohibiting the Government from using privileged information revealed by [defense counsel] in litigating [petitioner’s] actual conflict of interest claim”); Bittaker v. Woodford, 331 F.3d at 722-24 (affirming entry of protective order limiting implied waiver to habeas proceeding); Also see Longo v. Premo, 326 P.3d 1152, 1161 (Ore. 2014)(In addition, this holds that habeas petitioner had the right to a protective order prohibiting use of trial counsel’s information in subsequent proceedings); Finally, see Commonwealth v. Chmiel, 738 A.2d 406, 424 (Pa. 1999)(“Just as an attorney may not respond to allegations of ineffectiveness by disclosing client confidences unrelated to such allegations, so the client confidences properly disclosed by an attorney at an ineffectiveness hearing may not be imported into the client’s subsequent trial on criminal charges”).