Petition for Writ of Certiorari — Case Corp. v. B & J Co.

_ Supreme Court, U.S

LD ki LBD

991700 APR 21 200

i

IN THE

SUPREME COURT OF THE UNITED STATES

CASE CORPORATION,

Petitioner,

Ws

B & J COMPANY, INC., et al.,

Respondents.

ON PETITION For Writ OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE E1GutuH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JoHN V. PHELPS *

JEFFREY W. PURYEAR

WOMACK, LANDIS, PHELPS,

MCNEILL & McDANIEL s

P.O. Box 3077

JonesBoro, AR 72403

(870) 932-0900

Counsel for Petitioner

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED FOR REVIEW

Petitioner manufactures cotton pickers and is

defending numerous product liability suits that are now in

multidistrict litigation. Petitioner previously retained outside

counsel, Thomas J. Andrews, who attended meetings of

Petitioner’s Cotton Picker Improvement Team and authored

letters to Petitioner’s corporate counsel about these

discussions. In the discovery phase of the multidistrict

litigation, Petitioner was ordered to produce to Respondents

copies of the attorney letters authored by Mr. Andrews to

Petitioner’s corporate counsel. This Court’s involvement is

necessary for the protection of the attorney-client privilege

and work product doctrine.

WHETHER A CLIENT CAN BE ORDERED TO

PRODUCE TO OPPOSING COUNSEL LETTERS

AUTHORED DURING THE PENDENCY AND

ANTICIPATION OF FURTHER LITIGATION BY THE

CLIENT’S ATTORNEY TO ITS LEGAL DEPARTMENT

ABOUT THE VERY SUBJECT OF THE LITIGATION.

PARTIES TO THE PROCEEDING

Petitioner

Petitioner is Case Corporation. Its parent corporation is CNH

Global N.V., which is a publicly traded company that owns

all of Petitioner’s stock.

Respondents

Due to the lengthy list of Respondents, they are identified in

Appendix E.

il

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .......... i

PARI Ino 10 THE PROCEEDING ............. ii

pp ae ek ear ill

TABLE OF CITED AUTHORITIES ............. Vv

PO EPO i nko de we ewe ava ws 1

STATEMENT OF THE BASIS

a i CONE sxe ye So ek ew OR oe 1]

STATUTORY PROVISIONS INVOLVED ......... 2

Peeters SOW RENE RAD 6 a eek ee ea 3

REASONS FOR ALLOWING THE WRIT ......... 5

ARGUMENT 1

The attorney-client privilege protects Mr.

Andrews’ letters to Petitioner’s counsel; yet,

the Eighth Circuit, rejecting that claim,

disregarded the clear precedent of this Court

and the Arkansas Supreme Court and created

a conflict with a decision from the Third

eo eg ge rr rarer 6

iil

CONCLUSION

ARGUMENT 2

Rule 26(b)(3), which was based upon this

Court’s decision in Hickman, was designed to

protect letters such as the ones authored by

Mr. Andrews, but the Eighth Circuit

nonetheless held them discoverable. ........

APPENDIX

Appendix A

Eighth Circuit Court of Appeals Opinion,

SO ai wae ea ee eee

Appendix B

Eighth Circuit Court of Appeals Order

Denying Petition for Rehearing and for

Rehearing En Banc, 1/24/00............

Appendix C

Affidavit of Al Ludwig, 10/27/98 .........

Appendix D

Affidavit of Tom Andrews, 5/11/99 ........

Appendix E

Alphabetical listing of all Respondents ......

iV

. & 28 *& £8 SSS Se. CR Se SS OR SM SOE SR OS

TABLE OF CITED AUTHORITIES

Cases

Byrd v. State,

929 S.W.2d 151 (Ark. 1996) ......... 9-10, 13

Diversified Indus., Inc. v. Meredith,

572 F.2d 596 (8" Cir. 1977) (en banc) ...... 7,8

Fisher v. United States,

ae Nh re Ce ae 8 oa ee ee eee 6

Guy v. United Healthcare Corp.,

136 FAD. 172 3D. GR TRS) 6 ok es ss 11

Hasso v. Retail Credit Co.,

oe Fm. 429 GD. Pe. T97S) ok kc ce ee 10

Hewlett-Packard Co. v. Bausch & Lomb, Inc..,

116 F.R.D. 533 (N.D. Cal. 1987) ....... 11, 16

Hickman v. Taylor,

329 U.S. 495 (1947), aff’g

hie oe Rip gs Ce a.) passim

Hunt v. Blackburn,

ts eg ee 6

In re Beiter Co.,

16 F.3d 929 (8" Cir. 1994) .......... 7-8, 10

In re Ford,

110 F.3d 954 (3d Gir. 1997) .... 8-9, 12, 13, 20

In re Grand Jury Proceedings,

473 F.20 840 (6° Cle. 2973) oc ccc ees 17

McCrory v. Johnson,

tad OW ae cee CR, SUE 6 i ene eae 10

Philadelphia v. Westinghouse Elec. Corp..,

205 F. Supp. 830 (E.D. Pa. 1962).......... 11

Shelton v. American Motors Corp..,

805 F.2d 1323 (8 Cir. 1986), rev’g

106 F.R.D. 490 (W.D. Ark. 1985) ......... 17

Swidler & Berlin v. United States,

524 U.S. 399 (1998), rev’g In re Sealed Case,

124 F.3d 230 (D.C. Cir. 1997) ....... 5, 12, 13

Upjohn Co. v. United States,

449 U.S. 383 (1981), rev’g

600 F.2d 1223 (6" Cir. 1979) .......... passim

Statutes

UB. Bis 6 66 kk Kee 1

ae UA... Bh ok 64 3G 8 eee ee 4

De Us BT vo vce Rew ene eeeeeeee 4

ae U ah. BSNGO ao b.4 bos ee eee 1

Rules

Arkansas Rule of Evidence 502 ............... 4. 7

Arkansas Rule of Evidence 502(a)(5) ........... 9-10

Arkansas Rule of Evidence 502(b)(5) .......... 2,7,9

Federal Rule of Civil Procedure 26(b)(3) ....... passim

Federal Rule of Evidence 501. ............... ye

vl

hw vtihkuie

Other Authorities

Notes of the Advisory Committee for Federal

Rule of Civil Procedure 26 .............. 17

OPINIONS BELOW

The unpublished decision of the United States Court of

Appeals for the Eighth Circuit denying the petition for writ of

mandamus was entered December 7, 1999. A copy of the

opinion is included in Appendix A at la-3a. The unpublished

decision of the United States District Court, Eastern District

of Arkansas was filed under seal on June 23, 1999. A copy

of the Order is submitted simultaneously to this Court under

seal with Petitioner’s Motion for Leave to Lodge Under Seal

District Court Order.

STATEMENT OF THE BASIS FOR JURISDICTION

The United States Court of Appeals for the Eighth

Circuit denied Petitioner’s petition for writ of mandamus on

December 7, 1999. Petitioner filed a Petition for Rehearing

En Banc on Denial of Writ of Mandamus, and the United

States Court of Appeals for the Eighth Circuit denied the

petition on January 24, 2000. App. B at 4a.' This petition is

being filed within 90 days of the denial of the Petition for

Rehearing En Banc. The Court’s jurisdiction is invoked

pursuant to 28 U.S.C. §§ 1254(1) & 2106.

' Citations to “App.” are to the appendix filed with this

Petition for Writ of Certiorari pursuant to Supreme Court Rule

14(i).

STATUTORY PROVISIONS INVOLVED

Federal Rule of Evidence 501 - General Rule

Except as otherwise required by the

Constitution of the United States or provided

by Act of Congress or in rules prescribed by

the Supreme Court pursuant to statutory

authority, the privilege of a witness, person,

government, State, or political subdivision

thereof shall be governed by the principles of

the common law as they may be interpreted by

the courts of the United States in the light of

reason and experience. However, in civil

actions and proceedings, with respect to an

element of a claim or defense as to which State

law supplies the rule of decision, the privilege

of a witness, person, government, State, or

political subdivision thereof shall be

determined in accordance with State law.

Arkansas Rule of Evidence 502. Lawyer-client privilege.

(b) General Rule of Privilege. A client

has a privilege to refuse to disclose and to

prevent any other person from disclosing

confidential communications made for the

purpose of facilitating the rendition of

professional legal services to the client... (5) -

among lawyers and their representatives

representing the same client.

Federal Rule of Civil Procedure 26(b)(3)

Trial Preparation: Materials. Subject to the

provision of subdivision (b)(4) of this rule, a

party may obtain discovery of documents and

tangible things otherwise discoverable under

subdivision (b)(1) of this rule and prepared in

anticipation of litigation or for trial by or for

another party or by or for that other party’s

representative (including the other party’s

attorney, consultant, surety, indemnitor,

insurer, or agent) only upon a showing that the

party seeking discovery has substantial need of

the materials in the preparation of the party’s

case and that the party is unable without undue

hardship to obtain the substantial equivalent of

the materials by other means. In ordering

discovery of such materials when the required

showing has been made, the court shall protect

against disclosure of the mental impressions,

conclusions, opinions, or legal theories of an

attorney or other representative of a party

concerning the litigation.

STATEMENT OF THE CASE

Petitioner, a manufacturer of agricultural equipment,

employed attorney Thomas J. Andrews as outside legal

counsel. One product liability suit was already pending in

Arkansas, and additional litigation was anticipated.

Respondents are insurance companies who have filed suits in

their own names and in the names of their insureds to recoup

monies paid for cotton picker fire losses which occurred

before, during, and after Mr. Andrews’ employment.

3

Mr. Andrews attended several meetings of Petitioner’s

Cotton Picker Improvement Team between May 1995 and

March 1996. Following those meetings, Mr. Andrews

authored six letters to Petitioner’s corporate counsel to report

on discussions that were had at the meetings.

Respondents filed numerous product liability suits

against Petitioner in various United States District Courts,

each of which had subject matter jurisdiction over the suits,

according to 28 U.S.C. § 1332, because diversity of

citizenship existed among the parties and Respondents sought

the recovery of damages exceeding the minimum

jurisdictional requirements. The cases were consolidated into

multidistrict litigation in the United States District Court,

Eastern District of Arkansas, pursuant to 28 U.S.C. § 1407.

At the initial multidistrict litigation hearing on

September 11, 1998, an issue arose as to the “minutes” of the

series of meetings, and the district court was advised that Mr.

Andrews’ letters existed, but there were no minutes of the

meetings.” Mr. Andrews signed an affidavit confirming that

his letters were not minutes of the meetings; that they were

not distributed to any of the attendees to the meetings; and

that they were instead meant to be correspondence to

Petitioner’s legal counsel to advise of developments in the

litigation, notify counsel of possible future issues in the

litigation, and render legal advice. App. D at 8a-9a. These

facts were confirmed by the affidavit of Al Ludwig,

Petitioner’s Product Performance Manager. Mr. Ludwig

attended the meetings to advise counsel of the cotton picker

? Despite Petitioner’s statements to the contrary, the lower

courts in this case have routinely referred to Mr. Andrews’ letters

as “minutes.” The letters are not minutes.

4

fires and receive legal advice in the pending litigation and any

future litigation. He was told he could speak openly with

counsel during the meetings and believed that the discussions

would not be revealed to a third party. App. C at 5a-6a.

Respondents requested Petitioner to produce copies of

Mr. Andrews’ letters, and Petitioner objected to the

production of the letters based on the attorney client privilege

and work product doctrine. The District Court reviewed the

letters in camera and, per the order filed under seal on June

23, 1999, ordered Petitioner to produce the letters to

Respondents redacting only a limited portion. The District

Court’s order did not consider or reference the affidavits of

Mr. Andrews and Mr. Ludwig.

Petitioner’s timely request for issuance of Writ of

Mandamus by the United States Court of Appeals for the

Eighth Circuit was denied. App. A at la-3a. Petitioner’s

timely petition for rehearing en banc was also denied by the

Eighth Circuit Court of Appeals. App. B at 4a.

REASONS FOR ALLOWING THE WRIT

This Court should accept review of this case to

safeguard the attorney client privilege and work product

doctrine. By refusing to issue its writ of mandamus to the

District Court, the Court of Appeals disregarded the relevant

precedent of this Court and the Arkansas Supreme Court and

sanctioned the decision of the District Court, which likewise

disregarded the clearly established legal principles of this

Court and the Arkansas Supreme Court. The Court of

Appeals declined to follow Upjohn Co. v. United States, 499

U.S. 383 (1981); Swidler & Berlin v. United States , 524 U.S.

399 (1998); and Hickman v. Taylor, 329 U.S. 495 (1947),

5

en ine ote. me ae Oiled _

which warrant protection of Mr. Andrews’ attorney letters.

Furthermore, the decision of the Court of Appeals is in

conflict with a decision from the United States Court of

Appeals for the Third Circuit.

If the Eighth Circuit decision stands as final precedent,

there will be routine discovery requests for production of

attorney letters to clients. There will be Daubert-like

hearings to evaluate how privileged is the privilege. And,

there will be a legal profession weakened by timidity, afraid

of its own documentation, and ultimately smitten by itself, by

its own litigators whose preference was for perceived partisan

advantage. The oldest privilege known to the common law

deserves the privilege of protection.

ARGUMENT 1

The attorney-client privilege protects Mr.

Andrews’ letters to Petitioner’s counsel; yet,

the Eighth Circuit, rejecting that claim,

disregarded the clear precedent of this

Court and the Arkansas Supreme Court and

created a conflict with a decision from the

Third Circuit Court of Appeals.

This Court has long “recognized the purpose of the

[attorney client] privilege to be ‘to encourage clients to make

full disclosure to their attorneys.’” Upjohn Co. v. United

States, 499 U.S. 383, 389 (1981), rev’g 600 F.2d 1223 (6"

Cir. 1979) (quoting Fisher v. United States, 425 U.S. 391,

403 (1976)); see Hunt v. Blackburn, 128 U.S. 464 (1888)).

Indeed, it is the oldest privilege known to the common law for

confidential communication. Upjohn, 449 U.S. at 389.

“{T]he privilege exists to protect not only the giving of

6

professional advice to those who can act on it but also the

giving of information to the lawyer to enable him to give

sound and informed advice. ... The first step in the resolution

of any legal problem [by the lawyer] is ascertaining the factual

background and sifting through the facts with an eye to the

legally relevant.” Upjohn, 449 U.S. at 390-91.

Federal Rule of Evidence 501 applies the state rules of

privilege to federal proceedings. Arkansas Rule of Evidence

502, which defines the attorney client privilege, allows a

client to refuse to disclose confidential communications that

have been made for the purpose of facilitating the rendition of

professional legal service to the client, including

communications among lawyers who are representing the

same client. Ark. R. Evid. 502(b)(5).

In the context of a corporate client, such as Petitioner,

attorneys must confer with all employees -- even “middle

level” and “lower level” personnel - to accumulate

information that is relevant to the matter at hand and

adequately advise the client of potential difficulties. Upjohn,

449 U.S. at 391 (quoting Diversified Indus., Inc. v. Meredith,

572 F.2d 596, 608-09 (8" Cir. 1977) (en banc)). Indeed, the

Eighth Circuit Court of Appeals has specifically stated a five-

part test for application of the attorney client privilege in the

context of corporations and their employees:

[T]he attorney client privilege is applicable to

an employee’s communication if (1) the

communication was made for the purpose of

securing legal advice; (2) the employee making

the communication did so at the direction of

his corporate superior; (3) the superior made

the request so that the corporation could secure

legal advice; (4) the subject matter of the

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communication is within the scope of the

employee’s corporate duties; and (5) the

communication is not disseminated beyond

those persons who, because of the corporate

structure, need to know its contents.

In re Beiter Co., 16 F.3d 929, 935-36 (8" Cir. 1994) (quoting

Diversified Indus., 572 F.2d at 609).

In Upjohn, the Internal Revenue Service demanded

production of questionnaires that were completed by Upjohn

employees at the request of corporate counsel and counsel’s

notes of interviews with the employees. The questionnaires

and interviews were taken for the purpose of investigating

possible illegal payments by Upjohn to foreign governments.

The employees completed the questionnaires and were

interviewed so that counsel would “be in a position to give

legal advice to the company with respect to the [questionable]

payments.” Upjohn, 449 U.S. at 394 (emphasis in original).

The employees were made aware of the legal implications

surrounding the questionnaires and interviews; and the

communications were considered confidential when made by

the employees. /d. at 394-95. This Court held that the

attorney client privilege extended to the employees who were

interviewed or completed a questionnaire submitted by

corporate counsel, thereby rejecting the decision of the Sixth

Circuit Court of Appeals holding that the privilege only

applied to the officers and agents who were responsible for

reacting to legal advice. /d. at 395-96. The privilege thus

protected the documents from production to the IRS.

The Third Circuit Court of Appeals recently held that

a final draft of meeting minutes was protected by the attorney-

client privilege. /n re Ford, 110 F.3d 954 (3d Cir. 1997). In

Ford, the company’s Policy and Strategy Committee, which

8

was made up of corporate executives and acted as an advisory

body to Ford's chief executive officer, held a meeting with the

company’s general counsel to address its product, the Ford

Bronco Il. /d. at 957. Counsel had prepared a proposal in

the form of a report to address the concerns of the committee

and examine certain legal implications; and the committee not

only discussed counsel’s report in the meeting but ultimately

adopted the recommendations found in the report. Ford

intended for its communications with counsel to be kept

confidential, and its discussion with counsel was for the

purpose of seeking legal advice. Id. at 965n. 10 & 966. The

Court of Appeals held that the documents were protected by

the attorney client privilege and not discoverable. Further,

the District Court was clearly erroneous in holding that the

minutes contained only factual material and were merely

business records. /d. at 966.

The Arkansas Supreme Court has spoken directly to

the privilege provided for confidential communications

between attorney and client. In Byrd v. State, 929 S.W.2d

151 (Ark. 1996), the State sought to introduce testimony from

defendant’s counsel and counsel’s secretary as to

communications with the defendant, arguing that the

testimony of the attorney and secretary only went to the

timing of communications between the defendant and his

counsel, thereby making them relevant to the speedy trial

issue involved. The trial court permitted the testimony of the

attorney and secretary, but the Arkansas Supreme Court

reversed and held that Arkansas Rule of Evidence 502(b)

prohibited the evidence, stating:

Although the communications were somewhat

mundane, we hold they fell within the rubric

“confidential.” According to Ark. R. Evid.

502(a)(5), a communication is confidential if it

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is “not intended to be disclosed to third

persons other than those to whom disclosure is

made in furtherance of the rendition of

professional legal services to the client or

those reasonably necessary for the

transmission of the communication.” We have

no doubt that, during Mr. Norwood’s

representation of Mr. Byrd, neither of them

intended to have the information about Mr.

Norwood’s case strategy or the problem about

communication aired to third parties. Mr.

Norwood’s testimony was about advice to Mr.

Byrd given to facilitate rendition of legal

services to him, and thus it was privileged.

McCrory v. Johnson, 755 S.W.2d 566 (Ark.

1988).

Byrd, 929 S.W.2d at 154 (emphasis added). See also Beiter,

16 F.3d at 938-40 (holding that attorney client privilege

prevented opposing counsel from obtaining testimony and

information concerning conversations between a non-

employee consultant and corporate counsel); Hasso v. Retail

Credit Co., 58 F.R.D.-425, 428 (E.D. Pa. 1973) (denying

production of memorandum prepared by defendant's

employee at request of in-house counsel to address facts of

incident, as document was protected by attorney client

privilege).

The uncontradicted affidavit of Mr. Ludwig swears

that a purpose of the meetings was to “obtain advice from our

legal counsel about pending and anticipated cases.” App. C

at 6a. Indeed, he was “told this would be a confidential

meeting where we could talk openly with [Petitioner]’s

attorney.” App. C at 6a. Further, Mr. Andrews swears in

his affidavit that his letters to Petitioner’s corporate counsel

10

were intended to advise of the events at the meetings, to

report the advice he had given, and to alert his client to

litigation issues. App. D at 8a. Attorney Andrews

specifically stated in his affidavit: “I had assumed that the

correspondence between two attorneys for the same client

involving issues which could result in litigation would be

privileged.” App. D at 9a. Other federal district courts have

held as much. See Hewlett-Packard Co. v. Bausch & Lomb,

Inc., 116 F.R.D. 533, 543 (N.D. Cal. 1987) (finding that

outside counsel’s draft of a reply to protect a patent that was

submitted to in-house counsel for consideration was protected

by attorney client privilege); and Guy v. United Healthcare

Corp., 154 F.R.D. 172, 178-80 (S.D. Ohio 1993) (denying

production of memorandum shared between outside counsel,

drafts of correspondence shared between in-house counsel and

outside counsel, and memorandum providing legal advice

from outside counsel to in-house counsel based on attorney-

client privilege).

Upjohn recognized that the “communications” are

absolutely protected even though the underlying facts are not.

The attorney letters are the communications, and they were

the basis for Petitioner seeking issuance of writ of mandamus

by the Eighth Circuit Court of Appeals. According to

Upjohn, even to the extent that the letters in this case concern

an attorney’s report of facts, their production would violate

the principles espoused in Upjohn: “‘The client cannot be

compelled to answer the question, “What did you say . . . to

the attorney?” but may not refuse to disclose any relevant fact

within his knowledge merely because he incorporated a

statement of such fact into his communication to the

attorney.’” Upjohn, 449 U.S. at 395-96 (quoting

Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830,

831 (E.D. Pa. 1962)).

11

The decision of the Court of Appeals in this case not

to issue writ of mandamus to the District Court has now

resulted in a conflict among circuit courts of appeal. As

discussed supra, the Third Circuit Court of Appeals, in Ford,

protected the minutes of the defendant’s Policy and Strategy

Committee meeting because the committee sought legal advice

with respect to its product. Mr. Andrews’ letters to counsel

were much more than “minutes” and thus deserving of the

same attorney client privilege; yet, the Eighth Circuit Court

of Appeals refused to issue writ of mandamus. In so doing,

the Eighth Circuit has now created a conflict among the

circuits that this Court must resolve.

Respondents claimed to the District Court that Mr.

Andrews’ attorney letters contained mere facts and, therefore,

warranted production. Those “communications,” however,

are absolutely privileged and to obtain them through the

attorney letter is to obtain what can only have been “said to

the attorney.” In Swidler & Berlin v. United States, 524 U.S.

399, 408-09 (1998), rev’g In re Sealed Case, 124 F.3d 230

(D.C. Cir. 1997), this Court recognized that the privilege was

precisely the same in both criminal and civil cases and that

balancing the importance of the information against client

interests, even limited to criminal cases, introduced

substantial uncertainty into the privilege’s application. For

that reason, this Court, citing Upjohn, rejected the use of a

balancing test in defining the contours of the attorney client

privilege. Jd. at 409. The claim of Respondents to

entitlement to the attorney letters is to invite the balancing test

prohibited in Swidler & Berlin; and yet, the District Court

engaged in that very analysis.

Furthermore, the District Court, considering the

attorney-client privilege, erred by focusing on the content of

the letters instead of the communication. The proper question

12

was whether the information was within the format of an

attorney’s letter, Upjohn, 449 U.S. at 395-96. Since that

answer is self-evident, the inquiry should have gone no

further.

This Court decided Upjohn without requiring that the

documents be produced, reviewed, analyzed, or subjected to

the partisan argument about what the facts contained in them

meant according to the innuendos and interpretations of the

party who wanted them. The District Court, however, made

its decision based upon content, which it erroneously used to

determine if they contained privileged information; and the

Court of Appeals affirmed that action.

The Upjohn and Swidler & Berlin cases from this

Court mandate the application of the attorney client privilege

to prevent disclosure of Mr. Andrews’ attorney letters to

Respondents. Moreover, the Byrd decision from the

Arkansas Supreme Court would prohibit disclosure of the

attorney letters. Finally, the Third Circuit in Ford protects

Mr. Andrews’ letters as attorney client privilege information.

The Eighth Circuit Court of Appeals nevertheless disregarded

the clearly established principles of those precedents. In so

doing, the Court of Appeals has sanctioned the District

Court’s erroneous decision that so far deviates from the

established law and simultaneously created a conflict among

the circuit courts of appeal. This Court should thus accept the

petition for writ of certiorari.

ARGUMENT 2

Rule 26(b)(3), which was based upon this

Court’s decision in Hickman, was designed

to protect letters such as the ones authored

by Mr. Andrews, but the Eighth Circuit

nonetheless held them discoverable.

“Forcing an attorney to disclose notes and memoranda

of witnesses’ oral statements is particularly disfavored

because it tends to reveal the attorney’s mental processes.”

Upjohn, 449 U.S. at 399 (citing Hickman v. Taylor, 329 U.S.

495, 513 (1947)). In addition to the attorney client privilege,

Mr. Andrews’ attorney letters are protected from disclosure

by the work product doctrine, a protection that is well

grounded in the precedents of this Court, namely Hickman

and Upjohn, and Federal Rule of Civil Procedure 26(b)(3).

In Hickman v. Taylor, 329 U.S. 495, 498 (1947), aff’g

153 F.2d 212 (3d Cir. 1945), counsel for the defendants,

“with an eye toward the anticipated litigation,” interviewed

and took statements from persons who survived the sinking of

a tug boat. The attorney interviewed other potential witnesses

and prepared memoranda of their statements. The estate of a

deceased crew member sued the defendants and in discovery

requested copies of the written statements and reports of oral

statements taken in connection with the event. Based on the

fact that the statements and reports were prepared in

preparation for litigation, the defendants objected to the

production requests. /d. at 499.

This Court defined broadly the materials that comprise

the “work product” of an attorney:

14

_ In performing his duties it is

essential that a lawyer work with a certain

degree of privacy, free from unnecessary

intrusion by opposing parties and their

counsel. Proper preparation of a client’s case

demands that he assemble information, sift

what he considers to be the relevant from the

irrelevant facts, prepare his legal theories and

plan his strategy without undue and needless

interference... . This work is reflected, of

course, in interviews, statements, memoranda,

correspondence, briets, mental impressions,

personal beliefs, and countless other tangible

and intangible ways -- aptly though roughly

termed . . . as the “work product of the

lawyer.”

Id. at 510-11 (emphasis added).

In Hickman, the plaintiff was not required by the

district court to demonstrate necessity of the materials or that

absent production of the materials his case was unduly

prejudiced or imposed with hardship or injustice. This Court

recognized the protection that the materials deserved:

Here is simply an attempt . . . to secure

written statements, private memoranda and

personal recollections prepared or formed by

an adverse party’s counsel in the course of his

legal duties. As such, if falls outside the arena

of discovery and contravenes the public policy

underlying the orderly prosecution and defense

of legal claims. Not even the most liberal of

discovery theories can justify unwarranted

15

inguiries into the files and the mental

impressions of an attorney.

Id. at 510 (emphasis added).

This Court then turned to the manner in which such

discovery, if allowed, would affect the ability of an attorney

to discharge the responsibilities owed to a client and the long

term consequences that the legal profession would suffer:

Were such materials open to opposing counsel

on mere demand, much of what is now put

down in writing would remain unwritten. An

attorney’s thoughts, heretofore inviolate,

would not be his own. Inefficiency, unfairness

and sharp practices would inevitably develop

in the giving of legal advice and in the

preparation of cases for trial. The effect on the

legal profession would be demoralizing.

Id. at 511 (emphasis added); see also id. at 516 (Jackson, J.,

concurring); Hewlett-Packard Co., 116 F.R.D. at 546-47

(discussing the consequences to litigation if outside counsel’s

draft of a reply submitted to in-house counsel for review was

discoverable and not protected by the work product doctrine).

The Hickman Court placed the burden on the

requesting party to “establish adequate reasons” to invade the

privacy of the attorney’s work product materials. Hickman,

329 U.S. at 512. Finally, speaking to the request for oral

statements that were made to counsel, “whether in the form

of [counsel’s] mental impressions or memoranda,” the Court

stated that it did “not believe that any showing of necessity

[could] be made under the circumstances of [the] case so as

to justify production.” Id. (emphasis added).

16

The “work product rule” espoused in Hickman became

the basis of Federal Rule of Civil Procedure 26(b)(3). Even

though a requesting party can demonstrate a substantial need

of materials or show that he faces undue hardship to obtain a

substantial equivalent of the materials by other means, Rule

26(b)(3) nonetheless requires the district courts to protect

“against disclosure of the mental impressions, conclusions,

opinions, or legal theories of an attorney oF other

representative of a party concerning the litigation.” It is not

necessary that Rule 26(b)(3) specifically identify materials,

such as counsel’s memoranda of witness interviews, because

“the Hickman court stressed the danger that compelled

disclosure of such memoranda would reveal the attorney's

mental processes.” Upjohn, 449 U.S. at 400. The Notes of

the Advisory Committee for Rule 26 reflect the drafters’ view

that such materials are protected as work product. See Fed.

R. Civ. Pro. 26 advisory committee’s note (“protecting an

attorney against discovery of memoranda prepared from

recollection of oral interviews”). Furthermore, the Eighth

Circuit Court of Appeals, citing Hickman, held that an

attorney’s recollections, notes, and memoranda of interviews

with witnesses are “absolutely, rather than conditionally,

protected” by the work product rule and may not be

discovered. In re Grand Jury Proceedings, 473 F.2d 840,

848 (8"" Cir. 1973). See also Shelton v. American Motors

Corp., 805 F.2d 1323 (8" Cir. 1986), rev’g 106 F.R.D. 490

(W.D. Ark. 1985).

Furthermore, much of the Hickman opinion recited

supra is found in the Upjohn opinion, as the IRS claimed that

it made a sufficient showing of necessity under Rule 26(b)(3)

and thus was entitled to Upjohn’s counsel’s notes and

memoranda following interviews with the company’s

employees. This Court reiterated that while some materials

obtained or prepared by adversary counsel may be

17

Kade alice Sct se anes

oe D Rede Vinge 1K eS

discoverable, oral statements of witnesses are not included in

that category, and there was disbelief that any showing of

necessity could be made for such materials. Upjohn, 449

U.S. at 399 (citing Hickman, 329 U.S. at 512-13). The IRS

sought “work product based on oral statements” which

“reveal[ed] the attorneys’ mental processes in evaluating the

communications.” Upjohn, 449 U.S. at 401. Such work

product was not discoverable “simply on a showing of

substantial need and inability to obtain the equivalent without

undue hardship.” /d.

In this case the attorney letters which Respondents

seek to obtain fall precisely within the work product doctrine

established in Hickman, stated in Rule 26(b)(3), and upheld by

Upjohn. This fact does not require any reference to their

content. The District Court merely analyzed one paragraph

of the five letters which total 16 pages and ignored the

affidavit of Mr. Ludwig that the very purpose of the meetings

was to obtain advice about pending and anticipated cases after

having been “told this would be a confidential meeting where

we could talk openly with [Petitioner]’s attorney.” App. C at

6a. Further, the initial meeting of the committee that Mr.

Andrews attended was held on May 8, 1995. It is undisputed

that cotton picker fire litigation was pending as of that date.

The purpose of the meetings was to address the fires in

anticipation that additional cases could be filed. App. C at Sa-

6a.

The letters must and can only reveal Mr. Andrews’

mental processes; and his affidavit confirms:

3. I was retained in 1995 to provide legal

counsel to [Petitioner] regarding Cotton Picker

fires. As part of that representation I attended

meetings at [Petitioner] and wrote letters to

18

[Petitoner’s] legal department regarding those

meetings.

4. My purpose in writing to [Petitioner's]

legal department was not to provide any form

of minutes for the meetings. My

correspondence to the legal department did not

copy, nor was it provided to any of the

participants in the meeting. The attorney in

the legal department did not attend the

meetings, and was advised by my

correspondence of what generally had

occurred, as well as what advice I had given.

I also intended to alert my client to issues that

may come up in future litigation. I never

intended my correspondence to act as a set of

minutes for the meetings.

App. D at 8a-9a. The letters are the product of Mr. Andrews’

mental processes after attending the meetings, and they are

permeated with his own inferences and his own language.

Mr. Andrews was not a “mere reporter,” as suggested by the

District Court; and there are no quotations in the materials

that Respondents seek to obtain. Clearly, the letters are

memoranda based on “oral statements of witnesses” and are

the very type that the draftsmen of Rule 26 had in mind as

deserving special protection. Upjohn, 449 U.S. at 400.

The information assembled in the cotton picker fire

meetings and documented in Mr. Andrews’ letters to

corporate counsel are exactly the “interViews, statements,

memoranda, correspondence, briefs, mental impressions,

[and] personal beliefs” “obtained or prepared in anticipation

of litigation” which are protected from discovery. See Fed.

R. Civ. Pro. 26(b)(3). The meetings were held to discuss

19

se

+ ee ere

nnn

pending litigation and to prepare for anticipated litigation. In

Ford, supra, the Court of Appeals protected meetings agendas

that discussed strategy information as Ford prepared to defend

the Bronco II litigation. Ford, 110 F.3d at 967. The agendas

were prepared in anticipation of litigation and, therefore,

protected by the work product doctrine. Similarly, the

attorney letters at issue in this case are work product and not

discoverable. The District Court erred when it held that “the

meetings were not held either in anticipation of or in

preparation for litigation.”

The Eighth Circuit’s refusal to issue writ of mandamus

to the District Court will ultimately result in the confusion and

dilemmas that this Court sought to avoid in Hickman, whereby

the attorney’s notes would be subject to “inaccuracy and

untrustworthiness,” Hickman, 329 U.S. at 513; the attorney

becomes a witness as to what he remembers the witness saying

in the interview, id.; and the attorney is forced to defend his

own credibility, possibly against his own client, id. at 517

(Jackson, J., concurring).

If this Court does not accept review of this case, the

end result will be that a lawyer will no longer write letters to

a client in pending or anticipated litigation. How can the

public be served by a rule of law which contributes to the

destruction of attributes of the legal profession?

CONCLUSION

Twenty-first century bare-knuckled litigation in

America is in stark contrast to American jurisprudence that

the Founding Fathers of this nation witnessed in the late

1700s. And, despite the many changes in litigation in the last

two centuries, the judiciary has long protected the attorney

20

client privilege so that all persons, whether an individual or

corporation, could fully disclose the most personal matters to

their counsel and effectively assist in the prosecution or

defense of their claims. The Eighth Circuit Court of Appeals

failed to issue writ of mandamus to the District Court to

preclude the production of letters authored by Petitioner's

counsel to its corporate counsel. In so doing, the Court of

Appeals disregarded the attorney client privilege that

Petitioner is entitled to assert in the defense of the product

liability claims filed by Respondents in this multidistrict

litigation. Moreover, the Court of Appeals, with knowledge

that the letters were written while litigation was actually

pending and more was anticipated, likewise disregarded the

work product doctrine that protects the mental impressions of

a party’s attorney.

In this day of zealous advocacy, burdensome

discovery, and win-at-all costs litigation, the courts must

prevent parties from destroying those few privileges that

remain. The attorney client privilege protects the

communications that a client is permitted to share with its

counsel; and the work product doctrine safeguards the work

of the attorney in the representation of the client. Regardless

of all other changes that may occur in litigation, these two

principles of law must remain intact. “[D]iscovery, like all

matters of procedure, has ultimate and necessary boundaries.”

Hickman, 329 U.S. at 507.

Letters from an attorney to the client’s corporate

counsel that discuss pending litigation are absolutely

privileged. This Court should accept review of this case and

once again protect these vital privileges.

Respectfully submitted,

/s/

John V. Phelps

Jeffrey W. Puryear

WOMACK, LANDIS, PHELPS,

McNEILL & McDANIEL

P.O. Box 3077

Jonesboro, AR 72403

(870) 932-0900

Counsel for Petitioner

tN

nN

APPENDIX A

| UNPUBLISHED]

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

[Filed December 7, 1999]

No. 99-2885

In re: Case Corporation, )

Petitioner. )

)

Appeal from the United States District Court

for the Eastern District of Arkansas.

Before McMILLIAN, FAGG, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

PER CURIAM.

Case Corporation, a cotton pickei! manufacturer, was

sued by farmers whose Case pickers we're damaged by fire.

Between May 1995 and March 1996, ceritain Case employees

designated as the “Cotton Picker Improvement Team” (CPIT)

met to conduct “an impartial review of cotton picker losses,

including fires, to determine and implement appropriate

corrective and preventative measures.” The CPIT meetings

were also attended by Case’s outside counsel, who wrote a

series of letters to Case’s corporate ciounsel detailing the

la

—— —— ———————rr—————eeee

io eabectcinrasnstPbicam AS Nat aidobiod A Ma AS end SL

Court of Appeals Opinion - 12/7/99

information discussed at the meetings. When opposing

counsel requested that Case produce these letters, Case

objected, claiming the letters were protected from discovery

by the attorney-client privilege and the work product doctrine.

After examining the letters in camera, the district court

concluded the letters were discoverable because the meetings

were not held in anticipation of or in preparation for

litigation, the purpose of the meetings was not to obtain legal

advice from Case’s outside counsel, and the letters reported

unprivileged “factual matters and observations and opinions

of [Case’s] employees.” In ordering production of the letters,

the district court found “most telling” a passage in one of the

letters in which Case’s outside counsel stated:

During the course of this meeting, as has

occurred in the past, the participants in this

committee started to discuss how to defend

lawsuits, and must be re-directed back to the

primary purpose of the committee. This

committee was formed to determine whether

there is any consistency to cotton picker fires

such that there can be any changes to the

cotton picker either by way of engineering or

warnings to reduce frequency of cotton picker

fires. Since most of the participants in these

meetings believe that the primary cause of

cotton picker fires is inadequate maintenance

and inadequate training of operators, they start

with the idea of trying to prove that it is not a

design or a warning problem. [One of Case’s

corporate attorneys] and I have previously

discussed the approach and agreed that this

2a

Court of Appeals Opinion - 12/7/99

group is to be involved in engineering

questions rather than legal questions.

Case now petitions this court for a writ of mandamus,

seeking to prevent production of the letters. Having carefully

reviewed the documents in question, the parties’ arguments,

and the district court’s thorough order, we conclude the

district court did not abuse its discretion in ordering

production of the letters, see In re Bieter Co., 16 F.3d 929,

932-33 (8th Cir. 1994), and deny Case’s petition for writ of

mandamus, see 8th Cir. R. 47B.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

[Filed January 24, 2000]

No. 99-2885APB

In re: Case Corporation, )

Petitioner. )

)

Order Denying Petition for Rehearing

and for Rehearing En Banc

The petition for rehearing en banc is denied. Judge

McMillian and Judge Hansen would grant the petition. The

petition for rehearing by the panel is also denied.

(5128-010199)

January 24, 2000

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

4a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS -

PINE BLUFF DIVISION

{Dated October 27, 1998]

IN RE CASE IH COTTON MDL No. 1221

PICKER FIRE PRODUCTS ALL CASES

LIABILITY LITIGATION

AFFIDAVIT OF AL LUDWIG

STATE OF ILLINOIS

COUNTY OF ROCK ISLAND

Al Ludwig, after being duly sworn, states on his oath

as follows:

l. I am Al Ludwig. I have been employed by

Case Corporation, or its predecessor company, since 1979.

| am currently employed by Case Corporation as a Product

Performance Manager.

re In 1995, Case Product Management requested

that a series of meetings be held between Case employees and

outside legal counsel to discuss cotton picker fires and

lawsuits were anticipated would be filed against Case

Corporation regarding cotton picker fires in the future. Asa

part of my job responsibilities, I attended these meetings. The

first of these meetings was held on May 8, 1995.

Sa

District Court Affidavit of Al Ludwig - 10/27/98

3. One purpose of these meetings was to educate

our legal counsel about cotton picker fires and to obtain

advice from our counsel about pending and anticipated cases.

4. Case employees who attended these meetings

were directed to provide information as to cotton picker fires

to our legal counsel so that counsel could advise us on

pending and anticipated lawsuits. We were told this would be

a confidential meeting where we could talk openly with Case’s

attorney.

5. Communications occurring at meetings at

which legal counsel was present were not made available to

anyone who did not need to know the contents of those

communications.

6. The Case employees at the meetings certainly

considered all comments regarding the cotton picker fire

matters made in the presence of our attorney to be protected

from disclosure and believed that those comments would not

be revealed to any outsider.

FURTHER AFFIANT SAYETH NOT

/s/

Al Ludwig

Subscribed and sworn to before me this 17 day of October,

1998.

/s/

Notary Public

District Court Affidavit of Al Ludwig - 10/27/98

My commission expires:

12/4/2001

OFFICIAL SEAL

MARIETTA PETERSEN

Notary Public, State of litinois

My Commission Expires: 12/04/01

7a

APPENDIX D

AFFIDAVIT OF THOMAS J. ANDREWS

[Dated May 11, 1999]

THOMAS J. ANDREWS being duly sworn upon his

oath to tell the truth, states as follows:

1. I am an attorney licensed to practice law in the

state of Illinois, and have been admitted to practice in several

Federal Courts, as well as pro hac vice admission in several

States.

zs I have represented J.1. Case (Case Corporation)

for almost 20 years, and have tried several cases on behalf of

Case.

3. I was retained in 1995 to provide legal counsel

to Case regarding Cotton Picker fires. As part of that

representation I attended meetings at Case and wrote letters to

Case legal department regarding those meetings.

4. My purpose in writing to the Case legal

department was not to provide any form of minutes for the

meeting. My correspondence to the legal department did not

copy, nor was it provided to any of the participants in the

meeting. The attorney in the legal department did not attend

the meetings, and was advised by my correspondence of what

generally had occurred, as well as what advice I had given.

It also intended to alert my client to issues that may come up

in future litigation. I never intended my correspondence to

8a

act as a set of minutes for the meetings. I had assumed that

the correspondence between two attorneys for the same client

involving issues which could result in litigation would be

privileged.

Affiant further sayeth naught.

/s/

Thomas J. Andrews

Subscribed and sworn to

before me this 11 day of

May, 1999.

/s/__

Notary Public e

“OFFICIAL SEAL”

BARBARA A. DYBALA

Notary Public, State of Hlinois

My Commission Expires 2/ 18/2001

Johnson & Bell, Ltd.

222 North LaSalle Street

Suite 2200

Chicago, Illinois 60601

(312) 372-0770

9a

~ Tae EIA LE ABN cries et a Mea Ic hw

APPENDIX E

Respondents

B & J Company, Inc.; Darrin Batchelor d/b/a DB Custom

Pickers; Robert Braswell, Sr., d/b/a Braswell Farms; Perry

T. Brock; Marvin Brown; John A. Bryant, Jr.; Terry Wayne

Byrd and Suzanne J. Byrd; Curtis R. Cannon; Bobby

Childress; Commercial Union Insurance Company, as

subrogee of Charles Deal; Cotton States Mutual Insurance

Company, as subrogee of H. R. Tison; William G. Crapps

and Mae Y. Crapps; Kenneth J. Croft; Allen Crosthwait; John

Edd Curry; Bennie James Deal; E & H Farms; Bobby

Eubanks d/b/a Bobby Eubanks Farms, Inc.; Federated Mutual

Insurance Company, as subrogee of Delta Implement

Company of Rolling Fork, Inc., a Mississippi Corporation;

Darrell Fisher; Fireman's Insurance Company of Newark,

NJ, subrogee of Billy Wood and Sue Wood; Royce Fortner

and Alice Fortner; Teresa French d/b/a M & T French Farms;

Sam Smith, Dan Johnson and Donald Atkinson d/b/a GM&B

Custom Services; Georgia Farm Bureau Mutual Insurance

Company, as subrogee of Steve M. Dixon, Charles Israel,

Harold Israel, Jr., Mark Israel, Robert Rushing, Andrew

Smith, and Clay Thompson; Franklin Gleason and Rhett W.

Gleason; Glen Falls Insurance Company, as subrogee of

Dexter Collins, Lilla Collins and Walter Collins; Grange

Mutual Casualty Company, as subrogee of Brian Clenney,

E.V. Clenney, Terry Clenney and Trent Clenney d/b/a CC

Farms; Daniel M. Grebel, Sr.; Henry Hall; Ralph Hardin;

Arthur Thomas Hardy and Della Hardy; Gary Heard d/b/a

Heard Farms; Jared Howell and William Howell; Harold

Israel, Jr., Charles Israel and Mark Israel; Julian Joiner, Earl

10a

Joiner and Jack Joiner d/b/a Joiner Farms, Inc.; Ronald A.

Lassiter d/b/a Lassiter Farms; Timmy Lenderman; Long Lake

Farms; Tim E. Lott; Mike McCarty d/b/a McCarty Farms;

Lucy McDonald and Louisiana Farm Bureau Mutual

Insurance Company; John S. McGill, III; Clovis McHalffey;

Chris McRee and Marjorie McRee; Hershell Neeley; Tommy

Pambianchi; Charles Patterson and Rita Patterson; Danny

Pippinger; R & J Farms; R & L Farms; Robinson Farm

Corporation; Emmitt F. Rouse d/b/a Rouse Farms; Terry R.

Spivey; Howard B. Swanson, Jr.; Tennessee Farmers Mutual

Insurance Company; J. C. Thaggard d/b/a T & T Farms;

Alan Thigpen; James A. Turner; Bill Tyer; Harry A. Ward;

Dewitt Webb; Ted D. West d/b/a Circle "W" Farms; E. F.

Wooten; Bobby Yates and Eric Yates.

lla