Federal Evidence Review

Ninth Circuit applies Mohawk Industries' restriction of collateral order jurisdiction on appeals of disclosure orders adverse to the attorney-client privilege; however circuit grants petition for writ of mandamus, directing district court to reconsider trial judge's order granting defense motion to compel 35 documents in plaintiff's privilege log, in Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. May 12, 2010) (No. 09-35085)

As noted by the Federal Evidence Blog on December 14, 2009, the Supreme Court unanimously disapproved of interlocutory appellate review of an attorney-client privilege ruling under the Cohen collateral order doctrine. Writing for the Court, Justice Sonia Sotomayor explained that since “[e]ffective appellate review can be had by other means,” resort to the Collateral Order Doctrine was practically superfluous. See Mohawk Industries, Inc. v. Carpenter, 558 U.S. __, 130 S.Ct. 599 (2009) (No. 08-678); see also Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings .

One of the first circuits to apply the ruling in Mohawk Industries was the Seventh Circuit. It determined that it had no jurisdiction to consider an interlocutory appeal under the Mohawk Industries doctrine and the circuit also rejected a request to “relax” the standard for a petition for a writ of mandamus, so that one might be granted in the case. See In Re: Whirlpool Corp., 604 F.3d 1101-02 (7th Cir. March 3, 2010) (per curiam) (Nos. 09-3777, 09-3795); see also Seventh Circuit Applies Mohawk Industries To Adverse Attorney-Client Privilege Ruling.

In a recent case, the Ninth Circuit has also applied Mohawk Industries to find that an interlocutory appeal under the collateral order doctrine was not available to contest a discovery order for the disclosure of attorney-client communications. In taking this position, the circuit abandoned its pre-Mohawk Industries stand that the collateral order doctrine could permit an interlocutory review of such a discovery order. See, e.g., In re Napster, Inc. Copyright Litigation., 479 F.3d 1078 (1087-89 (9th Cir. 2007) (collateral order doctrine permitted review of order compelling production of attorney-client communication).

In the case, Plaintiff Hermandez filed a civil rights suit against his employer, the City of Vancouver, Washington, and his supervisor. He "assert[ed] claims for race and national origin discrimination based on disparate treatment, retaliation, and a hostile work environment while employed as a mechanic in the City's Fire Shop." The plaintiff's lawyer (Ferguson) interviewed defendant Tanninen, who had been his supervisor, and who "initially corroborated Hernandez's allegations and agreed to provide a signed statement to that effect." However, after speaking with others, the witness changed his tune, retracting his admission. This placed the plaintiff's attorney in a difficult position. As "he might now be a witness to Tanninen's" admission that the plaintiff had been discriminated against, Ferguson referred the case to another attorney. Hernandez, 604 F.3d at 1098.

As discovery in the case progressed, the defendant City of Vancouver sought the disclosure of certain documents. In response the plaintiff "produced a privilege log referencing thirty-five documents [apparently involving former attorney Ferguson] protected by either attorney-client or work product privilege, or both. Although no action was taken on this request, this changed when the defendant moved for summary judgment. The defendant moved to compel production of Ferguson's entire file, "arguing that because Hernandez relied on Ferguson as a witness to Tanninen's conduct, fairness mandated that any privilege that once existed with respect to Ferguson was waived entirely." As a result the trial court "adopted the City's reasoning, found any attorney-client or work product privilege between Hernandez and Ferguson was waived, and ordered the thirty-five documents referenced in the privilege log produced."

This was before the Supreme Courts' decision in Mohawk Industries and at a time when the Ninth Circuit applied a minority rule that the collateral order doctrine permits interlocutory review of a discovery order requiring disclosure of a privilege. See, e.g., In re Napster, Inc. Copyright Litigation., 479 F.3d 1078, 1087-89 (9th Cir. 2007) (collateral order doctrine permitted review of order compelling production of attorney-client communication). Apparently the plaintiff sought review by the circuit of the order as a matter covered by the Cohen collateral order doctrine. But as a result of the Supreme Court's finding in , the circuit was compelled to note and apply:

"The reasoning of Mohawk, which eliminated collateral order jurisdiction on appeals of disclosure orders adverse to the attorney-client privilege, [which] applies likewise to appeals of disclosure orders adverse to the attorney work product privilege. Further, Hernandez concedes that after Mohawk, the collateral order doctrine does not provide us with subject-matter jurisdiction to consider his appeal."

Hernandez, 604 F.3d at 1099.

However, with the direction set by Mohawk Industries, the circuit sought to apply the other mechanisms Mohawk Industries indicated were vehicles for review. The circuit decided to "treat an appeal from an otherwise nonappealable order as a petition for a writ of mandamus." Hernandez, 604 F.3d at 1099 (citing Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc)). The circuit noted Ninth Circuit precedent that “Mandamus is appropriate to review discovery orders when particularly important interests are at stake.” Hernandez v. Tanninen, 604 F.3d at 1099 (citing Perry v. Schwarzenegger, 591 F.3d 1147, 1156-57 (9th Cir. 2010)); see also Mohawk, 130 S.Ct. at 607 (identifying mandamus review as a possible remedy for a particularly injurious attorney-client privilege ruling)).

In the Ninth Circuit, the standard applied in deciding whether to grant Mandamus is guided by "weighing the factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977)," which include:

"five guidelines to determine whether mandamus is appropriate in a given case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court's order raises new and important problems or issues of first impression.”

Hernandez, 604 F.3d at 1099 (citing Perry v. Schwarzenegger, 591 F.3d 1147, 1156-57 (9th Cir. 2010) ("The factors serve as guidelines, a point of departure for our analysis of the propriety of mandamus relief.”)

In conducting its evaluation, the circuit found the first three factors present, and the remaining two absent. As a result, the circuit concluded:

"[B]ecause the first three Bauman factors-including clear error-are met here, and because the district court's order finding a blanket waiver of both the attorney-client and work product privileges is 'particularly injurious' to Hernandez's interests, we conclude that it is appropriate to grant a writ of mandamus to correct the district court's overbroad privilege ruling. Nothing in our opinion should be construed as precluding the district court from concluding that Hernandez has failed to meet his burden of showing that attorney-client or work product privilege applies to the documents at issue, ordering a more complete privilege log, conducting an in camera review, or taking other appropriate action. * * * The district court clearly erred in finding an unlimited waiver of the attorney-client and work product privileges, and the Bauman factors favor granting the petition. Accordingly, we grant the petition for a writ of mandamus. The district court shall reconsider its order granting the City of Vancouver's motion to compel with respect to the thirty-five documents on the privilege log, applying the limited scope of Hernandez's waiver of attorney-client and work product privileges consistent with this opinion."

Hernandez, 604 F.3d at 1102.

The Ninth Circuit's recent Hernandez v. Tanninen case casts an interesting contrast with the Seventh Circuit's Whirlpool Corp. case. Both circuits applied the Supreme Court's decision in Mohawk Industries, to find the Cohen doctrine inapplicable. Yet when it came to employing mandamus - a device specifically cited by the Supreme Court as one tool that, in appropriate circumstances, might facilitate review, the circuits came to different results. The Seventh found that Mandamus would not in the particular case allow interlocutory review of disclosure orders adverse to the attorney-client privilege. In contrast, the Ninth Circuit found that Mandamus would apply to allow interlocutory review of disclosure orders adverse to the attorney-client privilege.