Commercial Litigation and Arbitration

Mandamus Granted to Reverse Order Finding Blanket, Subject Matter Waiver of Attorney-Client Privilege and Work Product — Mohawk Supports Mandamus (i) by Foreclosing Appeal and (ii) Because Blanket Waiver Order Is “Particularly Injurious”

From Hernandez v. Tanninen, 2010 U.S. App. LEXIS 9681 (9th Cir. May 12, 2010):

Hernandez was initially represented by Ferguson. During their initial meeting, Hernandez told Ferguson that Tanninen witnessed the discrimination and would corroborate Hernandez's story. In the course of investigating Hernandez's claims, Ferguson had a series of conversations with Tanninen over three days.

Tanninen initially corroborated Hernandez's allegations and agreed to provide a signed statement to that effect. After Tanninen spoke with Deputy Fire Chief Steve Streissguth, however, he indicated that he had known Streissguth for a long time, that he "could not do that to [Streissguth]," and that his getting involved would not be good for Streissguth and everyone involved. Realizing that he might now be a witness to Tanninen's conduct, Ferguson referred the case to another attorney. The tort claim was amended to include an allegation of conspiracy to cover up wrongdoing at the City Fire Shop.

In response to a request for production of documents, Hernandez produced a privilege log referencing thirty-five documents protected by either attorney-client or work product privilege, or both. ***

[T]he City moved to compel production of Ferguson's entire file, arguing that because Hernandez relied on Ferguson as a witness to Tanninen's conduct, fairness mandated that any privilege that once existed with respect to Ferguson was waived entirely.

The district court adopted the City's reasoning, found any attorney-client or work product privilege between Hernandez and Ferguson was waived, and ordered the thirty-five documents referenced in the privilege log produced. ***

When this interlocutory appeal was filed, we had jurisdiction to consider it under the collateral order doctrine. *** However, two days before oral argument, the Supreme Court decided Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009), holding that "the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege." *** Hernandez concedes that after Mohawk, the collateral order doctrine does not provide us with subject-matter jurisdiction to consider his appeal.

We may treat an appeal from an otherwise nonappealable order as a petition for a writ of mandamus. ***

"We have authority to issue a writ of mandamus under the 'All Writs Act,' 28 U.S.C. § 1651." *** "Mandamus is appropriate to review discovery orders when particularly important interests are at stake." Perry v. Schwarzenegger, 591 F.3d 1147, 1156-57 (9th Cir. 2010) (internal quotation marks omitted); see also Mohawk, 130 S. Ct. at 607 (identifying mandamus review as a possible remedy for a particularly injurious attorney-client privilege ruling). ***

"Whether a writ of mandamus should be granted is determined case-by-case, weighing the factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977)." *** In Bauman, "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." *** "Not every factor need be present at once." ... "In fact, rarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable." ***

We begin with the third factor, clear error, because "the absence of the third factor . . . is dispositive." *** "The clear error standard is significantly deferential and is not met unless the reviewing court is left with a 'definite and firm conviction that a mistake has been committed.'" ***

The district court did not clearly err by concluding that Hernandez waived both privileges [attorney-client and work product] as they pertained to the conspiracy claim. Disclosing a privileged communication or raising a claim that requires disclosure of a protected communication results in waiver as to all other communications on the same subject. Nobles, 422 U.S. at 239-40***. In opposing the City's motion for summary judgment, Hernandez disclosed communications between him and Ferguson about Tanninen. He also disclosed favorable portions of Ferguson's communications with Tanninen and produced some of Ferguson's notes of those conversations.

Disclosure constitutes a waiver of the attorney-client privilege, however, "only as to communications about the matter actually disclosed." *** Hernandez disclosed only his communications with Ferguson about Tanninen, waiving attorney-client privilege only as to that matter.

The work product privilege is also only waived "with respect to matters covered in . . . testimony." Nobles, 422 U.S. at 239-40. Hernandez produced notes from Ferguson's communications with Tanninen that were protected work product, but that constituted a waiver of work product privilege only as to that subject. ***

Because Hernandez only waived privilege with respect to his communications with Ferguson about Tanninen, as well as Ferguson's communications and work product relating to Ferguson's interaction with Tanninen, the district court clearly erred in finding a blanket waiver of the attorney-client and work product privileges as to the entire case. ***

Having identified clear error as to the district court's conclusion that Hernandez's disclosure constituted a blanket waiver of attorney-client and work product privilege, we turn to the remaining Bauman factors. The first factor, whether Hernandez has no other means to obtain the desired relief, is met because collateral order appeal is no longer available to Hernandez and "[a] discovery order . . . is interlocutory and non-appealable." ***

The second factor, whether Hernandez will be damaged in any way not correctable on appeal, is also satisfied. In Admiral, we found the second factor was satisfied by a disclosure order adverse to the attorney-client privilege because "an appeal after disclosure of the privileged communication is an inadequate remedy" for the "irreparable harm a party likely will suffer if erroneously required to disclose privileged materials or communications." 881 F.2d at 1491. Although the Mohawk court found that "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege," Mohawk, 130 S. Ct. at 606, the Court observed that other "discretionary review mechanisms," including a writ of mandamus, are available "for promptly correcting serious errors." Id. at 607-08 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994)). These other avenues, however, are only appropriate for a "particularly injurious or novel privilege ruling." Id. at 607.

In accord with this guidance, we consider whether the district court's ruling is particularly injurious or novel. There is nothing novel about Hernandez's claim to the attorney-client or work product privileges or the scope of either. The blanket waiver, however, is particularly injurious. The finding of a blanket waiver of both privileges could result in matters far beyond the scope of the waiver being disclosed, including case strategy, the strengths and weaknesses of Hernandez's claims, and all communications between Ferguson and Hernandez. With such a broad finding, Ferguson might be forced to testify about his evaluation of matters unrelated to Tanninen or the conspiracy claim. The breadth of the waiver finding, untethered to the subject-matter disclosed, constitutes a particularly injurious privilege ruling.

Neither the fourth nor fifth factor is met. The fourth factor, whether the error is oft repeated or manifests a persistent disregard of the federal rules, is not satisfied because there is nothing before us that suggests this error has been made more than once. *** And the fifth factor, whether the order raises new and important problems or issues of first impression, is also not satisfied because there is nothing particularly new about a waiver of either privilege.

Nonetheless, because the first three Bauman factors — including clear error — are met here, and because the district court's order finding a blanket waiver of both the attorney-client and work product privileges is "particularly injurious" to Hernandez's interests, we conclude that it is appropriate to grant a writ of mandamus to correct the district court's overbroad privilege ruling. Nothing in our opinion should be construed as precluding the district court from concluding that Hernandez has failed to meet his burden of showing that attorney-client or work product privilege applies to the documents at issue, ordering a more complete privilege log, conducting an in camera review, or taking other appropriate action.

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