Petition for Writ of Certiorari — Harbor Bancorp & Subsidiaries v. Commissioner

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92 266 OCT 3199

No, 97-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

GENERAL MOTORS CORPORATION,

Petitioner,

VALORIE LYNN GREAR AND PAUL C. NORDBERG,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

JORDAN B. CHERRICK

ARMSTRONG, TEASDALE,

SCHLAFLY & DAVIS

One Metropolitan Sq., 26th Fir.

St. Louis, Missouri 63102

(314) 621-5070

R. CHRIS HARVEY

JAMES K. PEDEN, III

Ross T. ROBINSON

STRASBURGER & PRICE, LLP

901 Main Street, Ste. 4300

Dallas, Texas 75202

(214) 651-4300

PAUL T. CAPPUCCIO

Counsel of Record

RICHARD A. CORDRAY

JAY P. LEFKOWITZ

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington D.C. 20005

(202) 879-5000

TIMOTHY M. BURKE

MANLEY, BURKE,

Lipton & Cook

225 West Court Street

Cincinnati, Ohio 45202

(513) 721-5525

Attorneys for Petitioner

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QUESTIONS PRESENTED

1. Whether a circuit court of appeals is jurisdictionally barred

from hearing an appeal from a trial court order compelling the

disclosure of privileged communications, or whether such an

appeal properly comes within the “collateral order” doctrine

laid down by the Court in Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949)?

2. Whether a circuit court of appeals is jurisdictionally barred

from reviewing a petition for mandamus taken from a trial court

order compelling the disclosure of privileged communications

because a party is obliged to disobey the order and go into

contempt before it can seek any review on the merits?

‘Nii ts

i

PARTIES TO THE PROCEEDING

Petitioner General Motors Corporation is a defendant in

this case and was both the appellant below and the real party in

interest in the separate proceeding on its petition for

mandamus. Karol R. Vernon and Vernbrook, Inc., were also

named as defendants. Pursuant to Supreme Court Rule 29.6,

General Motors advises the Court that the following is a list of

General Motors’ non-wholly-owned subsidiaries as reported to

the Securities and Exchange Commission in Exhibit 21 to

General Motors’ Form 10-K Annual — for the year ended

December 21, 1996:

Asset Leasing GmbH

Carus Grundstucks-Vermietungsgesellschaft mbH & Co.

General Motors GmbH & Co. OHG

Opel-Automobilwerk Eisenach-PKW GmbH

Auto Cable Industries (Pty) Limited

Convesco Vehicle Sales GmbH

Contro Toonico Herramental, S.A. de C.V.

Packard Electric Hebi Co., Limited

Packard Electric Bai Cheng Co., Limited

Delphi Italia Automotive Systems S.r.1.

Delphi Italia Service Center S.r.1.

DRB s.a./n.v.

Opel France S.A.

ENCI S.A.R_L.

Texton P.L.C.

Delphi Harrison

Delphi L’EM Argentina S.A.

Reinshagen Tournai S.A.

GM Ovonic L.L.C.

Banque Opel

General Acceptance (Thailand) Ltd.

Holden National Leasing Limited

GM Finance HB

OPEL Leasinggesellschaft mbH

. i Ss. CO ae

Polbank, S.A.

P.T. GMAC Lippo Finance

General Motors de Argentina S.A.

Beijing Wanyuan GM Automotive Electronic

Control Co., Ltd.

Hubei Delphi Automotive Generator Co., Ltd.

Saginaw Norinco Lingyun Drive Shaft Co., Ltd.

Zhejiang Delphi Asia-Pacific Brake Co., Ltd.

General Motors Colmotores, S.A.

IBC Vehicles Limited

Millbrook Pension Management Ltd.

DIRECTTV Enterprises, Inc.

IBC Vehicles (Distribution) Limited

GM-Saab Communication GmbH

Packard CTA Pty. Ltd.

Packard Electric Systems Samara Cable Company

PT General Motors Buana Indonesia

P.T. Packard Kabelindo Murni Indonesia

Radiodores Richard, S.A.

In addition, General Motors has recently acquired an

interest in the following entities:

American Mobile Satellite Corp.

Detroit Diesel Corp.

Fiem Sung San (India) Limited

GMFanuc Robotics Corp.

Isuzu Motors Limited

Motor Enterprises, Inc.

New United Manufacturing, Inc.

Nippon Avionics Co., Limited

PanAmSat Corp.

Suzuki Motor Corp.

Valorie Lynn Grear and her husband, Paul C. Nordberg,

are the plaintiffs in this case, having brought this suit in their

individual capacities, and were appellees and respondents

|

iv

below. The Honorable Julia Smith Gibbons of the United

States District Court for the Western District of Tennessee, who

sei ves as the trial judge in this case, was named as a respondent

in the petition for mandamus filed below.

Vv

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ............--- 0 esse eens i

PARTIES TO THE PROCEEDING .............-.-. ii

TABLE OF AUTHORITIES ....... 2... cece ec ceees vii

ee ee l

t'. ) | 5 Bee 2

STATEMENT OF JURISDICTION ..............--: 2

PROVISIONS INVOLVED ............--:e see eee 3

STATEMENT OF THE CASE ............---- +008: 3

A. The Task Force Memorandum ...............--- 3

B. The Trial Court Proceedings ................-.-- 4

C. The Trial Court Rulings .............-eeeeeeees 5

D. The Procedure Followed by the Court of Appeals .... 6

REASONS FOR GRANTING THE WRIT ..........-- 6

I. THE DECISION BELOW RAISES IMPORTANT

ISSUES OF APPELLATE JURISDICTION ON

WHICH THE CIRCUITS ARE IN CONFLICT ..... 8

Il. THE SIXTH CIRCUIT’S APPROACH ERECTS

UNDULY SEVERE HURDLES TO PROTECTING

THE ATTORNEY-CLIENT PRIVILEGE ........ 12

vi

TABLE OF CONTENTS

(continued)

PAGE

A. Effective Elimination of Mandamus Review ....... 12

B. The Fatal Flaw in the Sixth Circuit’s Analysis: A

Party Cannot Simply Opt for Criminal Contempt ... 14

C. Forcing Parties into Contempt is Unsatisfactory .... 15

Il. THIS PETITION ADDRESSES IMPORTANT

ISSUES OF JUDICIAL ADMINISTRATION THAT

DIRECTLY AFFECT EVERY CIRCUIT COURT

AND DISTRICT COURT NATIONWIDE ....... 17

CARB ARIEN 6 6606 n0ns ed ecu eNbNdb eee bee beeen 19

vii

TABLE OF AUTHORITIES

PAGE

Cases

Abbott Laboratories v. Gardner,

NI ina 5 vnc pa ccdessrvesesess 15

Admiral Ins. Co. v. U.S. Dist. Ct.,

881 F.2d 1486 (9th Cir. 1989) .............. passim

Boughton v. Cotter Corp.,

10 F.3d 746 (10th Cir. 1993) .........20seeeeee 10

Chase Manhattan Bank, N.A. v. Turner & Newall, PLC,

964 F.2d 159 (2d Cir. 1992) .............. 7, 10, 12

Cohen v. Beneficial Indus. Loan Corp.,

Oe oi ag cos. c cs cesscceece i, 9, 11

Coleman v. American Broad. Co.,

Fo a NS od.) ee 17

Ex parte Young,

ED, on nc ceca ncnsaesesceccnes 17

Fox v. Capital Co.,

Ns ences caasentenerenes 14

Grear v. General Motors Corp.,

No. 97-5968 (6th Cir. Sept. 17, 1997) ........ passim

Harper & Row Publishers, Inc. v. Decker,

423 F.2d 487 (7th Cir. 1970),

aff'd by equally divided Court,

ee, el 7, 11, 17

In re Bieter Co.,

16 F.3d 929 (8th Cir. 1994).............---5-. 7, 10, 11

In re Burlington Northern, Inc.,

eG Te” Lo D5) er 7, 10

In re Ford Motor Co.,

110 F.3d 954 (3d Cir. 1997) ..............-. passim

In re General Motors Corp.,

No. 97-5989 (6th Cir. Sept. 17, 1997) ........ passim

TABLE OF AUTHORITIES

(continued)

PAGE

In re Regents of Univ. of Cal.,

101 F.3d 1386 (Fed. Cir. 1996),

cert. denied, 117 S. Ct. 1484 (1997) ............ 7, 10

Jenkins v. Weinshienk,

670 F.2d 915 (10th Cir. 1982) ............ 7, 10, 12

La Buy v. Howes Leather Co.,

EE re 13

Laird v. Tatum,

I a kaa 4 6 none § Apis, 0 8d bik 'h 9 16

Lamar Fin. Corp. v. Adams,

OTS F286 SO8 (ote Co. 19D) 2... ccc ccc csvees 14

Oklahoma Operating Co. v. Love,

6 oa cass 60's 46 so Anker anna 16

O'Shea v. Littleton,

ee Soa ake aes 16

R.R. Donnelley & Sons Co. v. F.T.C.,

ke fly ee.) 14

Rowley v. McMillan,

502 F.2d 1326 (4th Cir. 1974) ............ 7,11, 12

Schlagenhauf v. Holder,

I ein i vee vive ke wane ee an tote es 13

Texaco, Inc. v. Louisiana Land & Exploration Co.,

Ue IE SPPED oo cc ccc cv nkucessuss 10

United States v. Hemphill,

369 F.2d 539 (4th Cir. 1966) ................ 7, 16

Upjohn Co. v. United States,

oa Ser 2, 9,17

Will v. United States,

ET IED aes 6-0: s'4.4:0.4w a bndsoinacd oad 13

ix

TABLE OF AUTHORITIES

(continued)

PAGE

Constitutional Provisions, Statutes, and Regulations

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No. 97-

IN THE

OCTOBER TERM, 1997

GENERAL MOTORS CORPORATION,

Petitioner,

Vv

VALORIE LYNN GREAR AND PAUL C. NORDBERG,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

Petitioner respectfully petitions for a writ of certiorari to

review the orders entered by the United States Court of Appeals

for the Sixth Circuit in this proceeding.

The Sixth Circuit’s twin rulings -- which held that a court

of appeals lacks jurisdiction to entertain either an interlocutory

appeal or a petition for writ of mandamus challenging a trial

court order compelling the disclosure of privileged

communications -- create a three-way circuit split and impose

an undue burden on litigants seeking to protect privileged

documents. Every other circuit to have addressed the issue has

LT, Se Se

2

concluded that parties have one or both of these avenues of

review available to challenge a trial court’s compelled

disclosure of documents or other communications protected by

the attorney-client privilege and work product doctrine. By

requiring litigants to disobey orders compelling disclosure of

privileged documents and go into contempt before seeking

appellate review, the Sixth Circuit has effectively ordered

district court bailiffs to guard the door to the court of appeals.

This draconian rule -- which requires litigants to brave the

threat of sweeping discovery sanctions, substantial fines, and

permanent harm to reputation, before they would be authorized

even to seek appellate review -- would all but eliminate judicial

protection of “the oldest of the privileges for confidential

communications known to the common law.” Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981).

OPINIONS BELOW

The District Court’s order compelling the disclosure of

privileged communications is unreported and is reprinted in the

Appendix to this petition (“Pet. App.”) at 10a. It affirmed a

magistrate’s order to the same effect that is reprinted at Pet.

App. la-9a. In order to obtain review of the disclosure order,

General Motors filed a notice of appeal and also petitioned for

mandamus. The Court of Appeals initially granted a temporary

stay of the disclosure order, see id. 12a, but later issued two

related orders resolving the matter, from which this petition is

taken. The first order dismissed the appeal, which was found

to be barred on jurisdictional grounds, and dissolved the

temporary stay. See id. 14a-15a. The second order denied the

petition for mandamus, which was also found to be barred on

jurisdictional grounds, and dissolved the temporary stay. See

id. 16a-17a.

STATEMENT OF JURISDICTION

The Court of Appeals entered the orders under review here

on September 17, 1997. See Pet. App. 14a; see also id. 16a.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

3

PROVISIONS INVOLVED

28 U.S.C. § 1291 provides, in pertinent part:

The courts of appeals . . . shall have jurisdiction

of appeals from all final decisions of the district courts

of the United States, . . . except where a direct review

may be had in the Supreme Court. . . .

28 U.S.C. § 1651(d) provides:

(a) The Supreme Court and all courts established

by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued

by a justice or judge of a court which has jurisdiction.

STATEMENT OF THE CASE

A. The Task Force Memorandum.

The document whose privileged character is at issue

between the parties here -- the so-called “Task Force

Memorandum” - is a ten-page confidential memorandum

written in April 1990 by two General Motors in-house lawyers,

Gary P. Toth and Douglas E. Brown, and addressed to a third

in-house lawyer, James A. Durkin. At that time, Mr. Durkin

was legal counsel to the senior committee that was responsible

for advising the Corporation on technical issues. Mr. Toth was

a principal legal advisor to General Motors’ Automatic

Restraint Task Force (“the Task Force”). The Task Force,

which consisted of about a dozen engineers, was charged with

providing the General Motors legal staff with information and

engineering evaluations on the technical issues raised in

connection with anticipated litigation involving General

Motors’ door-mounted restraint systems. See Pet. App. 24a-

25a (Durkin Affidavit).

Early in 1990, Mr. Durkin asked Messrs. Toth and Brown

to prepare a memorandum analyzing available technical

information related to the use of automatic belt systems. They

4

responded to this request by producing the confidential Task

Force Memorandum, with the anticipation that it would remain

confidential and be used solely to provide legal advice and

defend litigation claims against General Motors. Mr. Durkin

forwarded the memorandum to a select few individuals at

General Motors on a need-to-know basis, as analytical support

for the legal advice he had provided them.

In order to remove any doubt about the indisputably

privileged nature of the Task Force Memorandum, General

Motors has provided it for in camera review by this Court, by

lodging it as a separate sealed appendix accompanying this

petition. See Appendix A (filed under seal).

B. The Trial Court Proceedings.

This dispute over the privileged character of the Task

Force Memorandum arises from a products liability action.

Plaintiff Valorie Grear sustained serious injuries as the result of

a 1995 accident in her Buick Skylark. She and her husband

filed this action against General Motors, alleging that the car’s

door-mounted passive restraint and door latch systems were

defectively designed.

On February 10, 1997, plaintiffs served on General Motors

a request to produce all documents relating to the meetings of

and findings, conclusions, and studies of the Task Force. In

addition, plaintiffs served on General Motors a First Set of

Interrogatories, which requested, inter alia, that General

Motors produce a privilege log for all documents that it had not

produced in response to plaintiffs’ requests. General Motors

objected to this request on grounds of attorney-client privilege

and the work product doctrine. In response to plaintiffs’

request for a privilege log, General Motors stated that it would

either provide a privilege log for the Task Force documents or

provide them to the court for in camera inspection.

Dissatisfied with General Motors’ responses -- including

its assurance that it would produce either a privilege log or the

Task Force documents for in camera review -- the plaintiffs

moved to compel production of those documents. General

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Motors immediately sought a protective order, explaining that

it had declined to produce these documents -- including the

Task Force Memorandum -- because they are privileged.

On May 22, 1997, General Motors submitted the privileged

Task Force documents to the Court for in camera inspection,

and withdrew the rest of its privilege claims. The next day, the

parties discussed these documents at a settlement conference

before the Magistrate Judge. Following that meeting, the

Magistrate Judge ordered General Motors to produce a

privilege log identifying the Task Force documents that

remained undisclosed. Within a week, General Motors duly

produced the requested privilege log, which listed and

described, inter alia, the Task Force Memorandum. At the

same time, General Motors submitted the privileged documents

(including the Task Force Memorandum) under seal for in

camera review.

C. The Trial Court Rulings.

In an Order dated July 7, 1997, the Magistrate Judge

granted plaintiffs’ Motion to Compel and denied General

Motors’ Motion for a Protective Order. See Pet. App. 9a.

Significantly, the Magistrate Judge did not find that any of the

then-undisclosed Task Force documents were not privileged;

indeed, the Magistrate Judge refused even to review the

privileged documents in camera. Instead, the Magistrate Judge

granted the Motion to Compel because she determined that

General Motors had “waived its asserted privileges . . . for

failure to properly and timely describe the documents,” even

though General Motors has clearly and consistently reiterated

its position that this specific document is protected by the

attorney-client privilege. Id 4a. The Magistrate Judge directed

General Motors to produce the Task Force documents by July

15, 1997.

After granting an initial stay of the Magistrate Judge’s

ruling, the District Court ultimately affirmed the Magistrate

Judge’s order, stating only that “[t]he magistrate judge’s ruling

is not clearly erroneous or contrary to law.” Pet. App. 10a.

General Motors immediately appealed, petitioned for a writ of

aXe

6

mandamus, and moved for a stay pending review by the Sixth

Circuit. The District Court denied the stay, but extended the

deadline for producing the Task Force Memorandum to August

15, 1997. Id. 11a.

D. The Procedure Followed by the Court of Appeals.

On August 13, 1997, the Sixth Circuit issued an order that

temporarily stayed the trial court order pending its disposition

of the appeal and petition for mandamus filed by General

Motors. Pet. App. 12a-13a.

In two orders entered on September 17, 1997, the Sixth

Circuit: (1) granted plaintiffs’ motion to dismiss; (2) denied

General Motors’ petition for writ of mandamus; and

(3) dissolved the temporary stay. In denying both the appeal

and the mandamus petition, the Sixth Circuit did not rule on the

merits of either submission. Instead, it held that it lacked

jurisdiction to entertain either an interlocutory appeal or a

request for mandamus relief. In particular, the Sixth Circuit

expressly rejected the recent decision by the Third Circuit in Jn

re Ford Motor Co., 110 F.3d 954 (3d Cir. 1997), which had

held that both avenues of relief are properly available to a party

seeking to resist disclosure of documents protected by the

attorney-client privilege, bluntly stating that “we decline to

adopt the reasoning of that case.” Pet. App. 15a. The Sixth

Circuit held that “[aJlthough a direct appeal following final

judgment is an inadequate remedy, GM can obtain appellate

review by submitting to contempt and appealing the contempt

ruling.” Jd. 16a-17a; see also id. 15a.

Upon receipt of these orders, General Motors moved in the

Sixth Circuit for a stay of the mandate pursuant to Fed. R. App.

P. 41(b), seeking temporary relief pending review by this

Court. On October 3, 1997, the Sixth Circuit granted the

motion for stay and gave General Motors time in which to

prepare and file this petition for certiorari. Pet. App. 18a-19a.

REASONS FOR GRANTING THE WRIT

This petition cleanly presents a basic procedural issue of

great importance to judicial administration in the federal courts,

7

on which there is a clear and irreconcilable three-way split

among the circuit courts of appeals. The question presented is

what mechanism shall be available to litigants in the federal

courts to seek immediate relief from an order requiring the

disclosure of documents that are protected by the attorney-

client privilege. The Third Circuit has recently ruled that a

party may take an interlocutory appeal in these circumstances

under 28 U.S.C. § 1291, and that mandamus relief is also

available pursuant to 28 U.S.C. § 1651 as an alternative means

of obtaining immediate review. In re Ford Motor Co., 110

F.3d 954 (3d Cir. 1997).

In contrast, most courts do not permit an interlocutory

appeal in those circumstances, but do permit a party to seek

immediate relief by means of a petition for mandamus. See,

e.g., Inre Regents of Univ. of Cal., 101 F.3d 1386, 1387 (Fed.

Cir. 1996), cert. denied, 117 S. Ct. 1484 (1997); In re Bieter

Co.; 16 F.3d 929, 931 (8th Cir. 1994); Chase Manhattan Bonk,

N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir

1992); Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1490-

92 (9th Cir. 1989); In re Burlington Northern, Inc., 822 F 2d

518, 522 (Sth Cir. 1987); Jenkins v. Weinshienk, 670 F.2d 915,

917 (10th Cir. 1982); Rowley v. McMillan, 502 F.2d 1326, 1335

(4th Cir. 1974); Harper & Row Publishers, Inc. v. Decker, 423

F.2d 487, 492 (7th Cir. 1970), aff'd by equally divided Court,

400 U.S. 348 (1971).

The Sixth Circuit, however, has now imposed a far more

draconian rule, holding that in these circumstances a party may

not appeal from the trial court order and also may not pursue

mandamus relief -- indeed, that both avenues of relief are

barred on jurisdictional grounds. See Pet. App. 15a; see also id.

16a-17a. Instead, the Sixth Circuit has held that in order to

obtain immediate review, a party must go into contempt of the

trial court order and then seek to appeal from the imposition of

sanctions. Other circuit courts have squarely rejected

this position, holding that forcing a party to engage in

contumacious conduct is undesirable and creates the kind of

irreparable harm that justifies immediate review on mandamus.

See, e.g., United States v. Hemphill, 369 F.2d 539, 543 (4th Cir.

8

1966). Courts have also noted that sanctions imposed against

a party are not subject to immediate appeal unless the trial court

chooses to proceed by way of criminal contempt, rather than

through civil coercive contempt or by imposing some form of

discovery sanctions. See, e.g., Admiral Ins. Co., 881 F.2d at

1490-92. Those courts have thus recognized that forcing a

party to disobey the trial court’s order and submit to sanctions

offers no assurance that the party can avoid irreparable harm by

pursuing an immediate appeal.

This three-way split among the circuit courts on an issue so

basic to judicial administration and so critical to the

preservatior. of the legally sacrosanct attorney-client privilege

warrants review on the merits in this case.

I. THE DECISION BELOW RAISES IMPORTANT

ISSUES OF APPELLATF JURISDICTION ON

WHICH THE CIRCUITS ARE IN CONFLICT.

Whether a party to litigation has available some procedural

avenue by which it can challenge an erroneous trial court order

requiring disclosure of privileged communications is self-

evidently an important issue of judicial administration. This

issue arises frequently, and can affect almost any civil or

criminal case filed in federal court. A circuit conflict on such

an essential and ubiquitous issue demands immediate review by

this Court, if for no other reason than simply to lay down a

clear rule that can be applied uniformly by all of the lower

federal courts and followed clearly by litigants. As this petition

demonstrates, this procedural issue has generated a clear and

irreconcilable three-way split among the circuit courts.

The Third Circuit has recently ruled that an appellate court

has jurisdiction to review a party’s interlocutory appeal in these

circumstances, and that mandamus relief would also be

available in the alternative. Jn re Ford Motor Co., 110 F.3d

954, 964 (3d Cir. 1997). In a scholarly opinion by Judge

Becker, the Court of Appeals undertook a careful review of the

jurisdictional issues surrounding the possibility of an

interlocutory appeal. After a close examination of the three

prongs of the “collateral order” doctrine laid down by this

9

Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

(1949), the court concluded that discovery orders compelling

disclosure of privileged communications are subject to

immediate appeal because they: (i) conclusively determine the

disputed issue; (ii) resolve an important issue that is separate

from the merits; and (iii) are effectively unreviewable on appeal

from a final judgment. See In re Ford Motor Co., 110 F.3d at

957-64.

The Third Circuit’s holding that discovery orders

compelling the disclosure of privileged communications are

immediately appealable rests on a compelling analysis of the

Cohen “collateral order” doctrine. As the court explained, the

first and third prongs of the doctrine are obviously met, for the

order “conclusively determines the disputed issue,” Id. at 958,

and in terms of protecting privileged communications from

disclosure, the party is “irremediably disadvantaged by

erroneous disclosure” because “the cat is already out of the

bag,” id. at 963. These conclusions are indisputable.

With respect to the second prong of the Cohen doctrine, the

Third Circuit also was correct in holding that the issue of

compelled disclosure of privileged communications is both

separate from the merits of the underlying case and important

enough to warrant immediate review. Id. at 958-62. On the

issue of importance, in particular, the court held that “because

of the imperative of preventing impairment of some

institutionally significant status or relationship [here, the

attorney-client relation], the danger of denying justice by

reason of delay in appellate adjudication outweighed the

inefficiencies flowing from interlocutory appeal.” Jd at 960.

The court so concluded after weighing the importance of the

attorney-client privilege, which it recognized is “at the heart of

the adversary system,” and indeed “is one of the pillars that

supports the edifice that is our adversary system.” Id. at 961-

62. The court’s analysis thus mirrors this Court’s own

statements about the sacrosanct character of the privilege,

which ensures the “observance of law and administration of

justice.” Upjohn Co., 449 U.S. at 389.

10

In addition, the Third Circuit went on to emphasize that

even “if we did not have appellate jurisdiction, we would have

mandamus jurisdiction to review” such orders. Jn re Ford

Motor Co., 110 F.3d at 962. In reaching this conclusion, the

court rejected the praciicality of later review of this category of

trial court orders, holding that “there is no effective means of

reviewing after a final judgment an order requiring the

production of putatively protected material.” Jd at 964. (It

bears emphasis here that this statement by the court speaks to

the efficacy both of immediate appellate review and

discretionary mandamus review.) In the end, the court decided

that it would be preferable to review such orders on direct

appeal under the “collateral order” doctrine because mandamus

review is more limited, and affords “less opportunity to provide

guidance for future cases.” Jd But under the Third Circuit’s

approach, a party may seek immediate review of such orders by

utilizing either mechanism.

In contrast, most courts have not permitted an interlocutory

appeal in those circumstances. See, e.g., Texaco, Inc. v.

Louisiana Land & Exploration Co., 995 F.2d 43, 43-44 & n.4

(Sth Cir. 1993); Boughton v. Cotter Corp., 10 F.3d 746, 749-50

(10th Cir. 1993). Yet those same courts do permit a party to

seek immediate relief by means of a petition for mandamus.

See, e.g., In re Burlington Northern, 822 F.2d at 522 (Fifth

Circuit holds that mandamus is appropriate to protect claims of

privilege); Jenkins, 670 F.2d at 917 (Tenth Circuit holds the

same). Virtually every other circuit court likewise allows

mandamus review: the Federal Circuit, see, e.g., Jn re Regents

of Univ. of Cal., 101 F.3d at 1387 (“writ of mandamus may be

sought to prevent the wrongful exposure of privileged

communications”); the Eighth Circuit, see, e.g., In re Bieter

Co., 16 F.3d at 931-32 (mandamus authorized because

attorney-client privilege “has substantial importance to the

administration of j justice” and “an appeal after disclosure of the

privileged communication is an inadequate remedy”); the

Second Circuit, see, e.g., Chase Manhattan, 964 F.2d at 163

(granting mandamus relief because later appeal is an inadequate

remedy to protect valid claims of privilege); the Ninth Circuit,

11

see, e.g., Admiral Ins. Co., 881 F.2d at 1490-92 (same); the

Fourth Circuit, see, e.g., Rowley, 502 F.2d at 1335 (mandamus

is appropriate to protect claim of privilege because appeal from

either a final judgment or a contempt citation would be

i ); and the Seventh Circuit, see, e.g., Harper & Row,

423 F.2d at 492 (appellate review after disclosure of attorney-

client privileged information is inadequate and mandamus is

proper).

This great weight of authority reflects the view, embraced

by the vast majority of lower federal courts, that a mechanism

must be kept available to permit some form of immediate

review of trial court orders requiring the disclosure of

privileged communications. Accordingly, even if the Third

Circuit’s conclusions on the applicability of the Cohen doctrine

were judged to be incorrect for some reason, its alternative

holding that mandamus review is available in these

circumstances is surely correct. This holding is in agreement

with every other circuit court that has considered the issue --

except for the Sixth Circuit.

The Sixth Circuit has now imposed a rigid rule that in

these circumstances a party may not appeal from the trial court

order and also may not pursue mandamus relief. See Pet. App.

14a-15a; see also id. 16a-17a. Instead, a party will be forced to

go into contempt of the trial court order and then seek to appeal

from the imposition of contempt sanctions in order to vindicate

its claim of privilege. See id. 15a; see also id. 16a-17a. Indeed,

the Sixth Circuit has held that in this situation it has jurisdiction

to consider neither an appeal nor a petition for mandamus -- an

approach that disagrees with the position taken by every other

circuit court of appeals.

Thus, the Sixth Circuit has simply rejected the analysis that

undergirds the overwhelming body of precedent from the other

circuit courts. Once again, the principal foundation for all of

those other decisions is the inadequacy of alternative remedies,

such as appeal after a final judgment or possible (though not

certain) appeal from any imposition of contempt sanctions.

See, e.g., In re Bieter Co., 16 F.3d at 931 (mandamus review

12

appropriate due to “inadequacy of later review as a remedy”);

Chase Manhattan, 964 F.2d at 163 (granting mandamus relief

because “the privilege will be lost in the particular case if

review must await a final judgment”); Admiral Ins. Co., 881

F.2d at 1490-92 (granting mandamus relief because irreparable

harm can result from forced disclosure of privileged material

and civil contempt sanctions are not subject to immediate

appeal); Jenkins, 670 F.2d at 917 (where privileged information

is ordered to be disclosed, “appeal after a final decision is an

inadequate remedy; in these circumstances, an appellate court

may exercise its mandamus power”); Rowley, 502 F.2d at 1335

(mandamus is appropriate where a party’s only other avenue for

review of an order compelling disclosure of privileged

information is to appeal from entry of a contempt citation). The

Sixth Circuit’s position, and the essential legal analysis upon

which it rests, is simply irreconcilable with this overwhelming

body of decisions by the other courts of appeals.

This three-way split among the circuit courts on an issue so

basic to federal litigation and to preservation of the legally

sacred attorney-client privilege is untenable as a matter of

sound judicial administration. The issue is cleanly presented in

this case, and review is warranted to resolve the conflict and lay

down clear guidance for the lower federal trial courts and

appellate courts.

I. THE SIXTH CIRCUIT’S APPROACH ERECTS

UNDULY SEVERE HURDLES TO PROTECTING

THE ATTORNEY-CLIENT PRIVILEGE.

A. Effective Elimination of Mandamus Review.

The uniquely oppressive approach embraced by the Sixth

Circuit poses severe obstacles to appellate review of orders that

threaten the vital interests protected by the longstanding

doctrine of attorney-client privilege. In particular, the Sixth

Circuit’s approach would eliminate direct mandamus review as

a necessary tool that is available to protect the attorney-client

privilege. It thus clashes with this Court’s decisions, which

have stressed that mandamus review provides a logical method

-- and at times an essential method -- by which to supervise

13

important issues concerning the administration of justice in the

lower courts. See, e.g., Will v. United States, 389 U.S. 90, 107

(1967); La Buy v. Howes Leather Co., 352 U.S. 249, 259-60

(1957). To the extent that the Court has cautioned that

mandamus should not be used as “a substitute for an appeal,”

v. Holder, 379 U.S. 104, 110 (1964), this caveat

is amply addressed by limiting discretionary review in

mandamus only to important questions of law, where guidance

would be especially useful to the administration of justice in the

lower courts, and as an escape hatch to the rigors of the finality

rule, id. at 110-112.

The Sixth Circuit, however, has now held that even the

mere possibility of such mandamus review is jurisdictionally

barred and that a party instead must flout trial court orders and

incur contempt sanctions before review can be sought to

vindicate a valid claim of attorney-client privilege. See Pet.

App. 15a; see also id. 16a-17a. By placing the unavailability

of mandamus review on jurisdictional grounds, the Sixth

Circuit’s approach would clearly circumscribe the necessary

use of the writ and indeed would effectively eliminate it as an

option for courts and litigants in these circumstances.

Moreover, the Sixth Circuit’s erroneous conclusion that it

is barred on jurisdictional grounds from even considering

whether to grant mandamus relief is particularly troublesome

in this case, given the substantial importance of the underlying

substantive issues raised in General Motors’ mandamus

petition. The District Court’s order compelling the disclosure

of privileged communications raises unsettled questions about

the extent to which an extra-textual requirement to create a

privilege log can properly be imported into Rule 26 of the

Federal Rules of Civil Procedure. On its face, the Rule

contains no such rigid requirement; instead, it merely requires

a party raising a privilege objection to “make the claim

expressly” and to “describe the nature of the documents”

sufficiently to “enable other parties to assess the applicability

of the privilege.” See Fed. R. Civ. P. 26(b)(5). On the facts of

this case, it is plain that General Motors complied with the

absolute letter and spirit of this Rule; yet the Sixth Circuit has

14

erected unduly severe hurdles to parties like General Motors

who simply seek to vindicate the legitimate claims of privilege

traditionally afforded them.

B. The Fatal Flaw in the Sixth Circuit’s Analysis: A

Party Cannot Simply Opt for Criminal Contempt.

Even on its own terms, the Sixth Circuit’s approach is

inherently flawed. The Court of Appeals recognized that where

the sanctity of privileged communications is at stake, “a direct

appeal following final judgment is an inadequate remedy.” Pet.

App. 16a-17a. Nonetheless, it held that litigants are

jurisdictionally barred from obtaining immediate review of

such orders either by appeal or by mandamus, and must instead

“obtain appellate review by submitting to contempt and

appealing the contempt ruling” Jd This prescription,

however, overlooks the fact that even if a party were to follow

this suggestion and deliberately disobey a discovery order

requiring it to disclose privileged communications, the trial

court may decide to proceed by way of coercive civil contempt

or by imposing discovery sanctions, neither of which can be

appealed by a party until a final judgment has been entered.

See, e.g., Fox v. Capital Co., 299 U.S. 105, 107 (1936) (party

may not take an immediate appeal from civil contempt

sanctions); Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (Sth

Cir. 1990) (same); Admiral Ins. Co., 881 F.2d at 1491 (same);

R.R. Donnelley & Sons Co. v. F.T.C., 931 F.2d 430, 431 (7th

Cir. 1991) (discovery sanctions not appealable until after final

judgment).

Thus, even on its own terms, the Sixth Circuit’s approach

provides no assurance that a party will be able to seek to

vindicate its lawful privileges in any meaningful way, even

after it has been forced to assume an unappetizing and

unwelcome posture of judicial intransigence. If a party is

obliged to follow the rule now embraced by the Sixth Circuit,

it will be barred from obtaining any immediate review of a trial

court order compelling the disclosure of privileged

communications until it first disobeys that order and risks being

held in contempt. If, at that juncture, the trial court decides to

owe atin

eek tie a AS

eh iii ss,

15

respond to this flouting of its order by imposing civil contempt

sanctions -- such as daily fines or continued imprisonment until

the party submits to these coercive measures and discloses the

privileged communications -- the intransigent party cannot

obtain any immediate review of these sanctions at all. If

instead, the trial court decides to respond by imposing

discovery sanctions or even defaulting the noncomplying party,

then once again no review can be had at all -- either through an

appeal or by way of mandamus -- until a final judgment has

been entered in the case. But even the Sixth Circuit recognized

that this situation is untenable, because “a direct appeal

following final judgment is an inadequate remedy” to protect

the attorney-client privilege. Pet. App. 16a-17a. Indeed, only

if the trial court chose to proceed by imposing criminal

contempt sanctions would the Sixth Circuit be correct in its

blithe assumption that the noncomplying party will be able to

seek immediate review to vindicate its lawful claim of

privilege.

C. Forcing Parties into Contempt Is Unsatisfactory.

The Sixth Circuit’s approach also is an_ utterly

unsatisfactory means of ensuring effective judicial

management. It treats casually the prospect that in many cases,

litigants will be forced to engage in contumacious conduct in

order to correct an erroneous ruling and vindicate their clear

legal rights. Indeed, the Sixth Circuit’s approach emphatically

requires litigants to disobey trial court orders and go into

contempt of those orders before they can seek to vindicate their

rights and the legal privileges afforded them by law. This

cynical approach breeds unwelcome disrespect for legal

authority. And it ignores or underestimates the frictions and

intransigence that this regime would build into the

administration of justice in the trial courts. As such, it is

inconsistent with this Court’s recognition that where the only

alternatives to compliance with an order “would risk serious

criminal and civil penalties,” it is appropriate to permit judicial

review of a party’s legal challenges to that order. Abbott

Laboratories v. Gardner, 387 U.S. 136, 153 (1967).

16

Moreover, the Sixth Circuit’s approach is unduly

oppressive because it disregards the immediate hardship for

litigants who are thus obliged to suffer the obloquy of being

held in contempt. As Judge Haynsworth has aptly stated, no

public or private litigant should be put to this choice:

[A]ny litigant, private individual or public official, is

entitled to a writ of mandamus to avoid an appearance

to show cause why he should not be held in contempt

of court when the underlying order of the Court is

clearly erroneous and the refusal to comply with it has

been both formal and respectful... . [C]ontempt

proceedings . . . as a prerequisite to appellate review

of the order would be such a hardship upon any

litigant or witness that resort to a petition for

mandamus or prohibition ought to be permitted.

Hemphill, 369 F.2d at 543. Thus, the Sixth Circuit fails to

recognize the practical costs that its approach would impose

upon litigants who simply wish in good faith to preserve their

rights, without being branded as criminals or engaging in

sanctionable conduct. By contrast, in other contexts this Court

has recognized that even the imminent threat of criminal

prosecution presents sufficient harm to confer standing to bring

lawsuits and raise legal claims that otherwise would be barred

at the jurisdictional threshold. See, e.g., Laird v. Tatum, 408

U.S. 1, 10-14 (1972); see also O’Shea v. Littleton, 414 U.S.

488, 498 (1974).

In addition, even if a party were able to stand the pressure

of incurring contempt sanctions and seeking later review of any

such order, this Court has indicated that such an oppressive

judicial regime would raise serious due process concerns. In

Oklahoma Operating Co. v. Love, 252 U.S. 331 (1920), for

example, the Court considered a statutory scheme whereby the

only mechanism available for challenging certain rate orders

was to stand in contempt of the law and incur cumulative

penalties that mounted with each passing day. Recognizing

that the obligatory regime of cumulative penalties was “such as

might well deter even the boldest and most confident,” the

17

Court unanimously held that “[o]bviously a judicial review

beset by such deterrents does not satisfy the constitutional

even if otherwise adequate.” Jd. at 336-337. See

also Ex parte Young, 209 U.S. 123, 147 (1908) (same).

In short, the Sixth Circuit’s problematic approach to the

important procedural issues raised in this case warrants plenary

review at this time.

Ill. THIS PETITION ADDRESSES IMPORTANT ISSUES

OF JUDICIAL ADMINISTRATION THAT

DIRECTLY AFFECT EVERY CIRCUIT COURT

AND DISTRICT COURT NATIONWIDE.

The procedural issues that are squarely and cleanly raised

by this petition for certiorari directly affect every circuit court

and every district court nationwide. For purposes of sound

judicial administration, it is critical that this Court intervene to

establish a clear, uniform rule governing the proper relationship

between the trial courts and the reviewing courts in terms of

how a party miay seek to vindicate a rightful claim of attorney-

client privilege.

The issues raised in this case are especially important

because they involve basic and systemic protection for the

attorney-client privilege. It is well established in the Anglo-

American legal system that the privilege is honored because it

serves as an essential means to “promote broader public

interests in the observance of law and administration of

justice.” Upjohn Co., 449 U.S. at 389. Because it is “the oldest

privilege protecting confidential communications,” it “is also

one of the most sacred and absolute.” Coleman v. American

Broad. Co., 106 F.R.D. 201, 204 (D.D.C. 1985). Courts have

commonly recognized that the wrongful disclosure of

privileged materials causes irreparable harm and thus that

specific procedural avenues must remain available to allow

meaningful review of judicial orders that threaten to

accomplish this unjust result. See, e.g., In re Ford Motor Co.,

110 F.3d at 963-64 (party would be “irremediably

disadvantaged by erroneous disclosure” of privileged

communications); Harper & Row, 423 F.2d at 492 (same);

18

Admiral Ins. Co., 881 F.2d at 1490-92 (granting mandamus

relief to protect the attorney-client privilege because review

was not available by any other means, since party may not

immediately appeal a civil contempt order and irreparable harm

can result from forced disclosure of privileged material).

Certiorari review is warranted in this case to clarify the proper

procedures that are to be followed by litigants and the lower

federal courts in ensuring appropriate protection for the

attorney-client privilege.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JORDAN B. CHERRICK

ARMSTRONG, TEASDALE,

SCHLAFLY & DAVIS

One Metropolitan Sq., 26th Fir.

St. Louis, Missouri 63102

(314) 621-5070

R. CHRIS HARVEY

JAMES K. PEDEN, III

Ross T. ROBINSON

STRASBURGER & PRICE, LLP

901 Main Street, Ste. 4300

Dallas, Texas 75202

(214) 651-4300

PAUL T. CAPPUCCIO

Counsel of Record

RICHARD A. CORDRAY

JAY P. LEFKOWITZ

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington D.C. 20005

(202) 879-5000

TIMOTHY M. BURKE

MANLEY, BURKE,

LIPTON & COOK

225 West Court Street

Cincinnati, Ohio 45202

(513) 721-5525

Attorneys for Petitioner

October 31, 1997