United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
this Court is a motion by respondent, the United States, for
an order requiring former trial and appellate co-counsel of
petitioner, Ravidath Ragbir, to disclose information and
documents relating to his claims for ineffective assistance
of counsel. (ECF No. 42.) Mr. Ragbir has filed a resonse (ECF
No. 45), and the government has filed a reply. (ECF No. 46).
The parties seek other, ancillary relief as well.
with the background of this matter is assumed. In February
2017, Mr. Ragbir filed his current petition for a writ of
coram nobis, seeking to vacate a 2001 conviction for
wire fraud and conspiracy or, in the alternative, to require
resentencing. (Pet., ECF No. 1.) Among other arguments, Mr.
Ragbir asserts that he received ineffective assistance of
both trial and appellate counsel. (See Id.
¶¶ 46-64.) Trial counsel Patricia Lee, he says, was
ineffective in three ways: (1) she "misadvised him when
she said that his conviction could lead to deportation, but
did not explain that the immigration consequences of the
conviction were dependent on the outcome of the loss
determination" (id. ¶¶ 48-52); (2)
she failed to sufficiently investigate and negotiate loss
calculations during Mr. Ragbir's sentencing (id.
¶¶ 53-58); and (3) she failed to retain a
linguistics expert to evaluate the authenticity of a
purported confession (id. ¶¶ 59-61).
Appellate counsel, Anthony J. Fusco, Jr., he says, was
ineffective in that he failed to raise a preserved objection
to a jury instruction concerning the element of willful
blindness. (Id. ¶¶ 62-64.) A hearing on
the merits is set to occur before me on May 4, 2018.
(See ECF Nos. 9, 28, 29.)
government now moves for an order requiring Mr. Ragbir's
trial and appellate counsel "to disclose to the
Government otherwise privileged or confidential
communications that Mr. Ragbir's claims of ineffective
assistance of counsel have placed in issue" and also
"to provide [the government] with any documents bearing
on Mr. Ragbir's ineffective assistance of counsel
claims." (ECF No. 42 at 1.) The government indicates an
intent to interview and otherwise seek information not only
from Ms. Lee and Mr. Fusco, but also from two other lawyers:
Alan L. Zegas, said to have served as co-counsel with Ms.
Lee, and Michele Alcalde, said to have served as co-counsel
with Mr. Fusco. (See id.) The government seeks mis
relief on the basis that raising an argument of ineffective
assistance of counsel implicitly waives attorney-client
privilege as to communications related to the claim.
(Id. at 1-2.) It contends that Mr. Zegas was listed
as lead attorney on Mr. Ragbir's trial docket and that
other evidence suggests his active involvement in the
litigation. (Id., at 2.) It also notes that Ms.
Alcalde signed Mr. Ragbir's appellate brief and that an
affidavit from Mr. Ragbir in support of his coram
nobis petition mentions his discussions with both Mr.
Fusco and Ms. Alcalde. (Id.) The government includes
with its motion a proposed order that recites findings that
Mr. Ragbir's claims have implicitly waived
attorney-client privilege "with respect to
communications with his attorneys reasonably necessary to
prove or disprove his claims" and ordering "that
the Government may interview petitioner's former counsel,
Patricia Lee, Alan L. Zegas, Anthony J. Fusco, Jr. and
Michele Alcalde, Esqs., who shall provide all reasonably
necessary information for the Government to respond to the
ineffective assistance of counsel allegations raised by their
former client." (ECF No. 42-7.)
Ragbir opposes this motion, asking "that the Court
reject it entirely or, in the alternative, impose significant
limitations on the scope of any waiver." (ECF No. 45 at
1.) He argues that his assertion of claims for ineffective
assistance of counsel does not warrant a blanket waiver of
attorney-client privilege, but rattier a waiver narrowly
limited to the scope necessary to ensure a fair proceeding.
(Id. at 2-3.) He contends that document production
by former counsel should be narrowly limited and first
subject to in camera review, with an opportunity for his
counsel to raise objections. (Id. at 3-4.) Mr.
Ragbir asserts that, as he raised specific
ineffective-assistance claims concerning only Ms. Lee and Mr.
Fusco, the government should be limited to questioning only
those two attorneys, and only on those specific topics.
(Id. at 4-5.) He further asks that I bar the
government from speaking with his former counsel except at
the May 4 hearing or, in the alternative, that I require that
his counsel be permitted to attend any interview.
(Id. at 5-6.) Finally, Mr. Ragbir asks that I issue
a protective order limiting the use of any information
obtained from his former counsel to this proceeding.
(Id. at 6-7.)
reply, the government states that it agrees with Mr. Ragbir
that attorney-client privilege and work-product immunity are
waived only as to the specific topics raised in support of
his claims for ineffective assistance of counsel. (ECF No. 46
at 1.) It contends, however, that it must be permitted to
explore those topics not only with Ms. Lee and Mr. Fusco, but
also with their co-counsel, Mr. Zegas and Ms. Alcalde.
(Id. at 2.) The government argues that I "can
and should" require Mr. Ragbir's former counsel to
appear for interviews with the government and produce
relevant documents without in camera review. (Id.)
The government contends that it should be able to interview
Mr. Ragbir's former counsel outside the presence of his
current counsel. (Id. at 3.) It posits that a
protective order restricting the use of any information
obtained is unnecessary. (Id.) It includes with its
reply an amended proposed order, based on an order previously
issued by Judge Jerome B. Simandle in a similar case, which
would order Mr. Ragbir's former counsel to submit to
interviews with the government concerning his
ineffective-assistance-of-counsel claims, order each former
counsel to produce copies of directly relevant documents, and
order the government to produce the documents received to Mr.
Ragbir's counsel. (ECF No. 46-1.)
parties raise several specific questions regarding both the
scope of the applicable waiver of attorney-client privilege
in this case and the proper procedure to be applied in
obtaining discovery prior to the May 4, 2018 hearing. As to
scope, the parties raise three distinct issues: (1) the
substantive breadth of the privilege waiver, i.e., what
topics may be explored with Mr. Ragbir's former counsel;
(2) the particular attorneys to whom the privilege waiver
applies; and (3) how the government may use any information
it acquires via the privilege waiver.
Breadth of Waiver
the first issue, the substantive breadth of the waiver, the
parties now seem to agree. The United States Court of Appeals
for the Third Circuit has generally held that parties
implicitly waive attorney-client privilege when they place
the legal representation directly in issue. Other circuits
have held more specifically that when a petitioner
"claims that he received ineffective assistance of
counsel, he puts communications between himself and his
attorney directly in issue, and thus by implication waives
the attorney-client privilege with respect to those
communications."1 am persuaded by those authorities.
implicit waiver of attorney-client privilege is limited,
however, to attorney-client communications that are necessary
for the resolution of the claims at hand. Relevance in its
broad sense under the Federal Rules of Evidence would be too
lax a standard; mere relevance to the case "is
not the standard for determining whether or not
evidence should be protected from disclosure as privileged
Ragbir's counsel perhaps exaggerates in stating that the
government's motion sought a "blanket waiver of the
attorney-client privilege." In any case the government,
in its reply, has sharpened its focus. The government agrees
that Mr. Ragbir has waived the privilege only as to four
specific topics that his ineffective-assistance claims have
placed in issue:
1. trial counsel's alleged 'misadvice' to Mr.
Ragbir 'regarding deportation consequences';
2. trial counsel's alleged 'failure to sufficiently
investigate and negotiate loss at sentencing';
3. trial counsel's alleged 'failure to consult a
linguistic expert to challenge the accuracy of statements
that law enforcement attributed to Mr. Ragbir at trial';
4. appellate counsel's 'failure to raise the error
regarding the willful blindness jury instruction on
(ECF No. 46 at 1 (quoting ECF No. 45 at 4-5).) I agree that
Mr. Ragbir's waiver of the attorney-client privilege is
limited in scope to information necessary to fairly resolve
those four ...