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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff / Respondent, 

v. 

D-8 JOSEPH ARSENAULT, 

Defendant / Petitioner. 

 / 

Criminal Case No. 2:14-cr-20599 

Civil Case No. 2:18-cv-10019 

HON. STEPHEN J. MURPHY, III 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE 

GOVERNMENT'S MOTION FOR ORDER FINDING WAIVER OF PRIVILEGE [576] 

 In March 2016, Defendant pleaded guilty to conspiracy to commit wire and mail 

fraud in violation of 18 U.S.C. § 1349. The Court then sentenced him to 121 months' 

imprisonment. Defendant now moves to vacate his sentence, and argues, inter alia, that 

his counsel were ineffective because they failed to make certain arguments and to 

present certain evidence during sentencing despite Defendant's requests. In light of that 

argument, the Government asks the Court to issue an order finding that Defendant waived 

the attorney-client privilege so that Defendant's attorneys may respond to his allegations. 

Defendant did not file a timely response to the Government's motion, E.D. Mich. LR 

7.1(e), which the Court would typically construe as a concession. But, the Court will 

address the merits here because Defendant is proceeding pro se and the issue at stake 

is substantial. 

 The attorney-client privilege protects certain communications between an attorney 

and client. In re Lott, 424 F.3d 446, 452 (6th Cir. 2005). The privilege, however, is not 

absolute. Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992). Generally, the privilege is 

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waived by either: (a) voluntary disclosure of private communications, or (b) conduct that 

implies a waiver. Lott, 424 F.3d at 452 (quoting In re Columbia/HCA Healthcare Corp. 

Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002)). In habeas cases, conduct that 

implies a waiver can be the assertion of ineffective assistance of counsel. Id. at 453. Such 

waivers, however, are construed narrowly and should be limited to the extent necessary 

to litigate a petitioner's claim. Id. Courts thus examine whether the petitioner injected into 

litigation an issue that requires testimony from his attorney or testimony concerning the 

reasonableness of his attorney's conduct. Id. (quoting Johnson v. Alabama, 256 F.3d 

1156, 1178 (11th Cir. 2001)). 

 Here, Defendant waived the attorney-client privilege only as to certain information. 

In support of his motion to vacate sentence, Arsenault attached to a public filing several 

emails between him and his attorneys. By publishing those previously private 

communications, Arsenault waived any privilege attached to the emails. But Arsenault did 

not waive the attorney-client privilege so totally that his attorneys can properly respond to 

additional inquiries from the Government. Although Arsenault raised an ineffective 

assistance of counsel claim, the nature of his particular claim does not require testimony 

from his attorneys. Unlike claims that require analysis of an attorney's private advice—for 

example, whether an attorney correctly advised on sentencing exposure—the claims here 

can be evaluated based on counsels' sentencing memoranda and oral arguments.1

 

1 As Arsenault's arguments develop, however, it may become necessary to analyze his 

private communications with his attorneys. If that happens, the Government may file a 

renewed motion. But, the Court will expect a more thorough analysis of why speaking 

with Arsenault's attorneys is necessary. 

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 Additionally, the Government requested an extension to respond to Arsenault's 

motion to vacate sentence. The justification for the extension was that the Government 

needed time to gather information from Arsenault's attorneys. But since that information 

is privileged, the Government need not collect it. The Court, however, will give the 

Government a short extension so it can process the present order. This extension, 

however, is the fourth, so no more will be granted barring extraordinary circumstances. 

ORDER 

WHEREFORE, it is hereby ORDERED that the Government's Motion for Order 

Finding Waiver of Privilege [576] is GRANTED IN PART AND DENIED IN PART. 

IT IS FURTHER ORDERED that no later than June 8, 2018, the Government shall 

file its response to Arsenault's motion to vacate sentence. 

 SO ORDERED. 

s/ Stephen J. Murphy, III 

 STEPHEN J. MURPHY, III 

 United States District Judge 

Dated: May 24, 2018 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on May 24, 2018, by electronic and/or ordinary mail. 

 s/ David Parker 

 Case Manager 

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