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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1225

## Text

_ 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

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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.

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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.

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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

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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

7

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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:

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_ 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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0925%3A1. Public record. Not legal advice.