Commercial Litigation and Arbitration

Post-Mohawk, Mandamus Available for Interlocutory Review of Denial of Privilege Assertion (Here, First Amendment Defense to Production of Internal Campaign Deliberations)

From Perry v. Schwarzenegger, 2009 U.S. App. LEXIS 27064 (9th Cir. Dec. 11, 2009):

In the event that we do not have jurisdiction under the collateral order doctrine [in light of the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009)], we would have authority to grant the remedy of mandamus. See 28 U.S.C. § 1651(a); Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004); City of Las Vegas v. Foley, 747 F.2d 1294, 1296-97 (9th Cir. 1984).

"The writ of mandamus is an 'extraordinary' remedy limited to 'extraordinary' causes." Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005). . . . In Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977), we established five guidelines to determine whether mandamus is appropriate in a given case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court's order raises new and important problems or issues of first impression. . . . "The factors serve as guidelines, a point of departure for our analysis of the propriety of mandamus relief." . . . . "Not every factor need be present at once." Burlington, 408 F.3d at 1146. "However, the absence of the third factor, clear error, is dispositive." . . .

Mandamus is appropriate to review discovery orders "when particularly important interests are at stake." 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3935.3 (2d ed. 2009). . . . Although "the courts of appeals cannot afford to become involved with the daily details of discovery," we may rely on mandamus to resolve "new questions that otherwise might elude appellate review" or "to protect important or clear claims of privilege." Id.; see Mohawk, 558 U.S. ___, slip op. 9 ("[L]itigants confronted with a particularly injurious or novel privilege ruling have several potential avenues of review apart from collateral order appeal. . . . [A] party may petition the court of appeals for a writ of mandamus."). In Schlagenhauf v. Holder, 379 U.S. 104 (1964), for example, the Supreme Court relied on mandamus to answer the novel question whether Federal Rule of Civil Procedure 35 authorized the physical and mental examination of a defendant. "The opinion affords strong support for the use of supervisory or advisory mandamus to review a discovery question that raises a novel and important question of power to compel discovery, or that reflects substantial uncertainty and confusion in the district courts." Wright & Miller § 3935.3.

Consistent with Schlagenhauf, we have exercised mandamus jurisdiction to review discovery orders raising particularly important questions of first impression, especially when called upon to define the scope of an important privilege. In Admiral Insurance, for example, we granted the mandamus petition to resolve "a significant issue of first impression concerning the proper scope of the attorney-client privilege." 881 F.2d at 1488. Taiwan v. United States District Court, 128 F.3d 712 (9th Cir. 1997), likewise involved review of another issue of first impression — the scope of testimonial immunity under the Taiwan Relations Act. . . . Finally, in Foley, we exercised our mandamus authority to address an "important issue of first impression" in a context similar to that here — whether legislators can be deposed to determine their subjective motives for enacting a law challenged as violative of the First Amendment. 747 F.2d at 1296.

Here, too, we are asked to address an important issue of first impression — the scope of the First Amendment privilege against compelled disclosure of internal campaign communications. Considering the Bauman factors, we conclude that this is an extraordinary case in which mandamus review is warranted.

Held, internal campaign communications not properly discoverable.

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