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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

DAMARI WILLIAM SINGLETON,

Defendant.

Case No. 16-cr-00518-BLF-1 

ORDER GRANTING IN PART AND 

DENYING IN PART GOVERNMENT’S 

MOTION FOR FINDING OF WAIVER OF 

DEFENDANT’S ATTORNEY-CLIENT 

PRIVILEGE AND COMPELLING 

DISCLOSURE OF COMMUNICATIONS

[Re: ECF 155]

This order addresses the Government’s Motion for Finding of Waiver of Defendant’s 

Attorney-Client Privilege and Compelling Disclosure of Communications. Motion for Waiver, 

ECF 155. The Government asks the Court to find that Defendant Damari William Singleton has 

waived the attorney-client privilege by including claims for ineffective assistance of trial counsel 

(“IAC claims”) in his pending Motion to Vacate and Correct Conviction and Sentence pursuant to 

28 U.S.C. § 2255. See id. The Government also asks the Court to compel Singleton’s trial 

counsel to produce all documents relating to representation of Singleton and to meet with the 

Government “as needed” to discuss and clarify those materials. See Motion for Waiver at 3, ECF 

155. Singleton opposes the Government’s motion, conceding that he has waived the attorneyclient privilege by asserting IAC claims but arguing that the waiver is more limited than the 

Government suggests and that the Government is not entitled to the breadth of discovery it seeks. 

See Opp., ECF 159.

The Government’s motion is GRANTED IN PART AND DENIED IN PART as set forth 

below.
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United States District Court

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A. Waiver

With respect to the issue of waiver, there is no dispute that Singleton’s IAC claims effect a 

limited waiver of the attorney-client and work product privileges. Singleton pled guilty to sex 

trafficking of children and was sentenced to 210 months of imprisonment followed by 7 years of 

supervised release. See Judgment, ECF 104. He has filed a Motion to Vacate and Correct 

Conviction and Sentence pursuant to 28 U.S.C. § 2255, asserting two IAC claims stemming from 

the allegedly deficient representation of his trial counsel, Michael Hinckley. See § 2255 Mot., 

153. Specifically, Singleton asserts that trial counsel was ineffective for failing to object to an 

incorrect calculation of Singleton’s criminal history (Claim 1), and for conceding that Singleton 

engaged in illegal post-plea conduct (Claim 2). The Court has ordered the Government to respond 

to the § 2255 motion by July 6, 2021. See Order Re Briefing Schedule, ECF 158.

“It has long been the rule in the federal courts 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.” Bittaker v. Woodford, 331 F.3d 715, 716 

(9th Cir. 2003). This waiver “applies equally to the work product privilege.” Id. at 722 n.6. 

Accordingly, this Court finds that Singleton’s assertion of IAC claims waives the attorney-client 

and work-product privileges in this case.

B. Scope of Waiver

“[S]uch waiver is narrow and does not extend beyond the adjudication of the 

ineffectiveness claim in the federal habeas proceeding.” Lambright v. Ryan, 698 F.3d 808, 818 

(9th Cir. 2012). This is because the Ninth Circuit “can conceive of no federal interest in enlarging 

the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of 

counsel in federal court.” Bittaker, 331 F.3d at 722. Thus, when a district court determines that a 

petitioner’s assertion of IAC claims effects a waiver of the attorney-client and work-product 

privileges, “it must enter appropriate orders clearly delineating the contours of the limited waiver 

before the commencement of discovery, and strictly police those limits thereafter.” Id. at 728. 

The district court has “a duty to enter a protective order prior to ordering the disclosure of 

privileged materials,” and it is an abuse of discretion to order disclosure without entering a 
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United States District Court

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protective order. Lambright, 698 F.3d at 818.

Applying these standards, the Court narrowly construes Singleton’s waiver of the attorneyclient and work product privileges to permit the Government to take discovery from Mr. Hinckley 

only as necessary to respond the IAC claims asserted by Singleton in his § 2255 motion. 

Moreover, the Government may not use such discovery for any purpose other than litigating 

Singleton’s § 2255 motion and may not disclose such discovery to other persons or agencies 

beyond those assisting in litigation of the § 2255 motion.

C. Discovery

Singleton correctly asserts that the Court’s finding of waiver does not automatically entitle 

the Government to take discovery from Mr. Hinckley, as leave of court is required to take any 

discovery in a § 2255 proceeding. See Rules Governing § 2255 Proceedings, Rule 6(a), 28 U.S.C. 

foll. § 2255. Rule 6 of the Rules Governing § 2255 Proceedings provides that “[a] judge may, for 

good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure 

or Civil Procedure, or in accordance with the practices and principles of law.” Id. “A party 

requesting discovery must provide reasons for the request,” and such request must “include any 

proposed interrogatories and requests for admission, and must specify any requested documents.” 

Id. Rule 6(b). 

The Court finds that good cause exists to permit the Government to take discovery from 

Mr. Hinckley in this case, as the Government needs such discovery to respond to the IAC claims 

asserted in Singleton’s § 2255 motion. However, the Government has not provided reasons for the 

broad scope of discovery requested, and it has not submitted proposed interrogatories, requests for 

admission, or requests for documents. The Government asks the Court to compel Mr. Hinckley 

“to provide all e-mails, messages, letters, summaries of conversations, notes, and other written or 

electronic correspondence documenting oral or written communications between Singleton and 

counsel pertinent to the Motion, criminal charges, plea negotiations, trial defenses, appellate 

defenses, and sentencing exposure in the course of counsel’s representation of Singleton in Case 

No. 16-CR-00518 BLF.” Motion for Waiver Proposed Order, ECF 155-1. The Government asks 

that Mr. Hinckley be ordered to provide all materials within 14 days, and that Mr. Hinckley be 
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“permitted to meet and confer with the government as needed thereafter for discussion and 

clarification of these materials and other matters pertinent to Singleton’s § 2255 claims.” Id. 

The Court agrees with Singleton that the Government appears to be seeking discovery 

regarding every aspect to Mr. Hinckley’s representation of Singleton rather than discovery 

targeted at the two IAC claims asserted by Singleton in his § 2255 motion. Those claims are that 

trial counsel was ineffective for failing to object to an incorrect calculation of Singleton’s criminal 

history (Claim 1), and for conceding that Singleton engaged in illegal post-plea conduct (Claim 2). 

The documents requested by the Government are not limited to those relevant to Singleton’s IAC 

claims. Moreover, the Government has not cited any authority for an order compelling Mr. 

Hinckley to provide documents within 14 days, or directing Mr. Hinckley to hold informal 

conversations with the Government “as needed.” Accordingly, while the Court finds good cause 

to allow the Government to take discovery from Mr. Hinckley, the Court must deny the 

Government’s current discovery requests as overly broad and vague. 

This ruling is without prejudice to a motion for discovery that complies in all respects with 

Rule 6 of the Rules Governing § 2255 Proceedings. Given this ruling, it is unrealistic to expect 

the Government to be able to respond to the § 2255 motion by the current deadline of July 6, 2021. 

The Court will entertain any reasonable request for extension of that deadline, and would prefer 

that any new briefing schedule be presented in a stipulation and proposed order agreed to by both 

parties. 

D. Conclusion

The Government’s motion is GRANTED IN PART AND DENIED IN PART, as follows:

(1) The Government’s motion for a finding of waiver is GRANTED. The Court finds 

that Singleton’s assertion of IAC claims in his § 2255 motion has effected a narrow waiver of the 

attorney-client and work product privileges to the extent necessary for the Government to litigate 

the IAC claims asserted by Singleton in his § 2255 motion.

(2) The Government may not use such discovery for any purpose other than litigating 

Singleton’s § 2255 motion and may not disclose such discovery to other persons or agencies 

beyond those assisting in litigation of the § 2255 motion.
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(3) The Government’s specific discovery requests are DENIED as overly broad, vague, 

and non-compliant with Rule 6 of the Rules Governing § 2255 Proceedings. This ruling is without 

prejudice to a motion for discovery that complies in all respects with Rule 6 of the Rules 

Governing § 2255 Proceedings. 

(4) This order terminates ECF 155.

IT IS SO ORDERED.

Dated: June 29, 2021

______________________________________

BETH LABSON FREEMAN

United States District Judge