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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1108

## Text

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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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i
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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2 Rh TON a et el. Mae

fd ELL.

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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5

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1691%3A1. Public record. Not legal advice.