Hernandez v. Tanninen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROLANDO HERNANDEZ, 

Plaintiff-Appellant, No. 09-35085

v.

 D.C. No.

3:04-cv-05539-FDB

MARK TANNINEN; CITY OF

VANCOUVER, OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Franklin D. Burgess, District Judge, Presiding

Argued and Submitted December 10, 2009

Submission Withdrawn December 11, 2009

Resubmitted May 12, 2010

Seattle, Washington

Filed May 12, 2010

Before: Ronald M. Gould and Richard C. Tallman,

Circuit Judges, and Roger T. Benitez, District Judge.*

Opinion by Judge Benitez

*The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation.

6875

6878 HERNANDEZ v. TANNINEN

COUNSEL

Philip A. Talmadge and Sidney C. Tribe, Talmadge/

Fitzpatrick PLLC, Tukwila, Washington, and Thomas S.

Boothe, Portland, Oregon, for the plaintiff-appellant.

Daniel G. Lloyd, City Attorney’s Office, Vancouver, Wash-

ington, and Barran Liebman LLP, Portland, Oregon, for the

defendants-appellees.

OPINION

BENITEZ, District Judge:

Rolando Hernandez appeals the district court’s decision

finding that any attorney-client or work product privilege

between Hernandez and his prior attorney, Gregory Ferguson,

HERNANDEZ v. TANNINEN 6879

was waived and ordering the production of all thirty-five doc-

uments referenced in a privilege log.

I

Hernandez filed suit against the City of Vancouver and

Mark Tanninen in 2004, asserting claims for race and national

origin discrimination based on disparate treatment, retaliation,

and a hostile work environment while employed as a

mechanic in the City’s Fire Shop. Additionally, he alleges that

Mark Tanninen and the City conspired to cover up their

actions and to conceal proof of his claims in violation of 28

U.S.C. § 1985(3).

Hernandez was initially represented by Ferguson. During

their initial meeting, Hernandez told Ferguson that Tanninen

witnessed the discrimination and would corroborate Her-

nandez’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, Her-

nandez produced a privilege log referencing thirty-five docu-

ments protected by either attorney-client or work product

privilege, or both. No action was taken with regard to the

request or the privilege log at that time. When the City moved

for summary judgment, Hernandez provided his own affida-

6880 HERNANDEZ v. TANNINEN

vit, an affidavit from Ferguson, and some of Ferguson’s hand-

written notes as evidence in opposition to the motion. The

district court granted summary judgment for the City, but a

prior panel of our court reversed based, in part, on Ferguson’s

and Hernandez’s affidavits. Hernandez v. City of Vancouver,

277 Fed. App’x 666, 671-72 (9th Cir. 2008).

Following remand, the 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 docu-

ments referenced in the privilege log produced.

II

[1] When this interlocutory appeal was filed, we had juris-

diction to consider it under the collateral order doctrine. In re

Napster, Inc. Copyright Litig., 479 F.3d 1078 (9th Cir. 2007).

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 priv-

ilege.” Id. at 609; see also id. at 604 n.1 (identifying the con-

flict among the circuits, including our decision in In re

Napster). “We, of course, have jurisdiction to determine our

own jurisdiction.” Special Invs., Inc. v. Aero Air, Inc., 360

F.3d 989, 992 (9th Cir. 2004). The reasoning of Mohawk,

which eliminated collateral order jurisdiction on appeals of

disclosure orders adverse to the attorney-client privilege,

applies likewise to appeals of disclosure orders adverse to the

attorney work product privilege. Further, Hernandez concedes

that after Mohawk, the collateral order doctrine does not pro-

vide us with subject-matter jurisdiction to consider his appeal.

HERNANDEZ v. TANNINEN 6881

[2] We may treat an appeal from an otherwise nonappeal-

able order as a petition for a writ of mandamus. Miller v.

Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc).

Whether we construe the appeal as a writ of mandamus

depends on whether mandamus is itself justified. Z-Seven

Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215,

1219-20 (9th Cir. 2000).

III

“We have authority to issue a writ of mandamus under the

‘All Writs Act,’ 28 U.S.C. § 1651.” Cohen v. U.S. Dist.

Court, 586 F.3d 703, 708 (9th Cir. 2009). “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 (identify-

ing mandamus review as a possible remedy for a particularly

injurious attorney-client privilege ruling). Mandamus is a

“drastic and extraordinary remedy reserved for really extraor-

dinary causes,” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380

(2004) (internal quotation marks omitted), and “only excep-

tional circumstances amounting to a judicial usurpation of

power, or a clear abuse of discretion, will justify the invoca-

tion of this extraordinary remedy.” Id. (internal quotation

marks and citations omitted). “Although we determine de

novo whether the writ should issue, we must be firmly con-

vinced that the district court has erred.” Cohen, 586 F.3d at

708.

“Whether a writ of mandamus should be granted is deter-

mined case-by-case, weighing the factors outlined in Bauman

v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977).”

Cole v. U.S. Dist. Court, 366 F.3d 813, 816-17 (9th Cir.

2004). In Bauman, “we established five guidelines to deter-

mine 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

6882 HERNANDEZ v. TANNINEN

will be damaged or prejudiced in any way not correctable on

appeal; (3) whether the district court’s order is clearly errone-

ous 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 impres-

sion.” Perry, 591 F.3d at 1156 (citing Bauman, 557 F.2d at

654-55). “The factors serve as guidelines, a point of departure

for our analysis of the propriety of mandamus relief.” Id. (cit-

ing Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1491

(9th Cir. 1989)). “Not every factor need be present at once.”

Id. “In fact, rarely if ever will a case arise where all the guide-

lines point in the same direction or even where each guideline

is relevant or applicable.” Special Invs., 360 F.3d at 994

(internal quotation marks omitted).

A

[3] We begin with the third factor, clear error, because “the

absence of the third factor . . . is dispositive.” Perry, 591 F.3d

at 1156; see also Cohen, 586 F.3d at 708 (“We will begin by

analyzing the district court’s opinion for clear error, as this

factor is highly significant and failure to show clear error may

be dispositive of the petition.” (internal quotation marks omit-

ted)). “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.’ ”

Cohen, 586 F.3d at 708 (quoting Concrete Pipe & Prods. v.

Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993)).

[4] The attorney-client privilege is intended “to encourage

clients to make full disclosure to their attorneys,” recognizing

that sound advice “depends upon the lawyer’s being fully

informed by the client.” Upjohn Co. v. United States, 449

U.S. 383, 389 (1981) (internal quotation marks omitted). The

work product doctrine is a “qualified privilege” that protects

“certain materials prepared by an attorney acting for his client

in anticipation of litigation.” United States v. Nobles, 422 U.S.

HERNANDEZ v. TANNINEN 6883

225, 237-38 (1975) (internal quotation marks omitted). Both

privileges may be waived. United States v. Plache, 913 F.2d

1375, 1379 (9th Cir. 1990) (attorney-client); Nobles, 422 U.S.

at 239 (work product); see also Tennenbaum v. Deloitte &

Touche, 77 F.3d 337, 340-41 (9th Cir. 1996) (finding that

waiver prevents selective disclosure—disclosing that which

supports a cause while hiding the unfavorable).

[5] The district court did not clearly err by concluding that

Hernandez waived both privileges as they pertained to the

conspiracy claim. Disclosing a privileged communication or

raising a claim that requires disclosure of a protected commu-

nication results in waiver as to all other communications on

the same subject. Nobles, 422 U.S. at 239-40; Weil v.

Inv./Indicators, Research & Mgmt., 647 F.2d 18, 24 (9th Cir.

1981) (“[V]oluntary disclosure of the content of a privileged

attorney communication constitutes waiver of the privilege as

to all other such communications on the same subject.”);

Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir.

1992) (“Where a party raises a claim which in fairness

requires disclosure of the protected communication, the privi-

lege may be implicitly waived.”). In opposing the City’s

motion for summary judgment, Hernandez disclosed commu-

nications 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.

[6] Disclosure constitutes a waiver of the attorney-client

privilege, however, “only as to communications about the

matter actually disclosed.” Chevron, 974 F.2d at 1162 (quot-

ing Weil, 647 F.2d at 25); see also Plache, 913 F.2d at 1380

(finding disclosure of a privileged communication waived the

privilege “on all other communications on the same subject”);

United States v. Mendelsohn, 896 F.2d 1183, 1189 (9th Cir.

1990) (affirming decision confining testimony based on

waiver to the subject of the waiver). Hernandez disclosed only

6884 HERNANDEZ v. TANNINEN

his communications with Ferguson about Tanninen, waiving

attorney-client privilege only as to that matter.

[7] 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 com-

munications with Tanninen that were protected work product,

but that constituted a waiver of work product privilege only

as to that subject. See McKenzie v. McCormick, 27 F.3d 1415,

1420 (9th Cir. 1994) (applying Hickman v. Taylor, 329 U.S.

495, 512-13 (1947), and Upjohn, 449 U.S. at 399, and finding

that notes of interviews with a witness were protected work

product).1

[8] 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.

B

[9] 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.” Perry, 591 F.3d at 1157 (quoting City of Las

Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984)); see also

Admiral, 881 F.2d at 1491 (finding mandamus was the only

method available for review of a disclosure order adverse to

the attorney-client privilege).

1

While not applied in this case, new Federal Rule of Evidence 502 also

limits any waiver by disclosure to the subject matter disclosed.

HERNANDEZ v. TANNINEN 6885

[10] The second factor, whether Hernandez will be dam-

aged in any way not correctable on appeal, is also satisfied.

In Admiral, we found the second factor was satisfied by a dis-

closure 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 mecha-

nisms,” 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 appro-

priate for a “particularly injurious or novel privilege ruling.”

Id. at 607.

In accord with this guidance, we consider whether the dis-

trict 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 Her-

nandez. With such a broad finding, Ferguson might be forced

to testify about his evaluation of matters unrelated to Tan-

ninen or the conspiracy claim. The breadth of the waiver find-

ing, 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 dis-

regard of the federal rules, is not satisfied because there is

nothing before us that suggests this error has been made more

6886 HERNANDEZ v. TANNINEN

than once. See Cole, 366 F.3d at 823 n.13. And the fifth fac-

tor, 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.

[11] 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 over-

broad privilege ruling. Nothing in our opinion should be con-

strued 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 docu-

ments at issue, ordering a more complete privilege log, con-

ducting an in camera review, or taking other appropriate

action.

IV

[12] The district court clearly erred in finding an unlimited

waiver of the attorney-client and work product privileges, and

the Bauman factors favor granting the petition. Accordingly,

we grant the petition for a writ of mandamus. The district

court shall reconsider its order granting the City of Vancou-

ver’s motion to compel with respect to the thirty-five docu-

ments on the privilege log, applying the limited scope of

Hernandez’s waiver of attorney-client and work product privi-

leges consistent with this opinion.

PETITION GRANTED.