United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2006 Decided February 17, 2006
No. 04-5358
UNITED STATES OF AMERICA,
APPELLEE
v.
BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES, LTD,
BATAS,
APPELLANT
No. 05-5129
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT
OF JUSTICE,
APPELLEE
v.
BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES, LTD,
BATAS,
APPELLANT
Appeals from the United States District Court
for the District of Columbia
(No. 99cv02496)
2
Jack McKay argued the cause for appellant. With him on
the briefs were Barry H. Gottfried and Alvin Dunn.
Mark R. Freeman, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Mark B. Stern and
Alisa B. Klein, Attorneys, Sharon Y. Eubanks, Director, Stephen
D. Brody, Deputy Director, and Frank J. Marine, Senior
Litigation Counsel.
Before: SENTELLE, RANDOLPH and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Intervenor British American
Tobacco Australia Services, Ltd. (“BATAS”) appeals from two
orders of the United States District Court for the District of
Columbia. First, BATAS appeals from Order #670, which
denied its motion for expanded intervention as untimely.
Second, BATAS appeals from Order #896, which overruled
certain trial testimony objections made by British American
Tobacco (Investments) Ltd. (“BATCo”). Because the District
Court did not abuse its discretion by finding BATAS’s motion
for intervention untimely, we affirm Order #670; consequently,
we also dismiss BATAS’s appeal of Order #896 for lack of
standing.
I.
These interlocutory appeals are the latest in a series of
appeals to this court arising out of a civil RICO action filed in
1999 by the United States against several tobacco companies,
including BATCo. See United States v. Philip Morris USA, Inc.,
396 F.3d 1190 (D.C. Cir. 2005); United States v. British Am.
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Tobacco (Invs.) Ltd., 387 F.3d 884 (D.C. Cir. 2004); United
States v. Philip Morris Inc., 347 F.3d 951 (D.C. Cir. 2003)
(“Philip Morris II”); United States v. Philip Morris Inc., 314
F.3d 612 (D.C. Cir. 2003) (“Philip Morris I”). In the underlying
suit, the government did not sue appellant BATAS, which prior
to 1999 was a wholly owned subsidiary of BATCo. British Am.
Tobacco, 387 F.3d at 886. At that time, BATAS was known as
W.D. & H.O. Wills (“Wills”). Id.
BATAS’s appeals concern its attempts to protect its claims
of Australian legal professional privilege, American
attorney–client privilege, and work-product privilege in Wills-
era information. In particular, BATAS regards two documents
as especially important: the Foyle Memorandum and the Gulson
Affidavit. As outside counsel for BATCo and its subsidiary
Wills, Andrew Foyle authored the Foyle Memorandum in 1990.
The Memorandum provided the companies with advice
regarding “Wills’s document-retention polic[ies]” in preparation
for potential litigation. Id. The Gulson Affidavit recounts
confidential legal advice and describes Wills’s document
retention policies. Frederick Gulson, in-house counsel to Wills
in 1989 and 1990, executed the Affidavit as part of a 2003
Australian legal proceeding involving BATAS.
Seeing the documents as relevant to its case against BATCo,
the government sought to use them in its RICO action. To
protect its own privilege interests, BATAS moved in 2003 to
intervene in the underlying suit “for the limited purpose of
asserting and, if necessary, litigating privileges it holds in” the
Foyle Amendment and Gulson Affidavit, among other
documents. The District Court granted BATAS’s limited,
documentary intervention in Order #449, issued on December 5,
2003. Under the terms of the intervention and at BATAS’s
request, therefore, BATAS is not a full party to the suit.
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In March 2004, the government filed its expected witness
list, naming Gulson as a potential trial witness. The witness list
summarized Gulson’s expected testimony as follows:
Fred Gulson is expected to testify regarding BATCo’s . . .
document management and control policies and conduct
including efforts to suppress information by, among other
things, destroying and concealing documents to keep them
from introduction into judicial proceedings and to prevent
their publication in the United States and abroad.
By referring to BATCo’s document management, the summary
directly implicates the subject matter of both the Foyle
Memorandum and the Gulson Affidavit. Though aware that
Gulson’s expected testimony concerned subjects in which it
claimed privilege, BATAS waited until September 1, 2004—a
matter of days before the scheduled start of trial—to file a
“Motion to Protect Its Privilege Rights in Deposition and Trial
Testimony.” On September 30, 2004, the District Court issued
Order #670, denying this motion for expanded intervention as
untimely.
The government subsequently produced Gulson for
deposition and trial testimony. During Gulson’s February 17,
2005, trial appearance, the government read publicly available
portions of the Foyle Amendment to him and asked him to
confirm the statements. BATCo objected on privilege grounds
to parts of Gulson’s testimony. BATAS did not join BATCo’s
objections, nor did it raise its own objections. In Order #896, the
District Court overruled most of the objections, thus allowing
much of Gulson’s testimony into the record.
Trial began in September 2004 and ended on June 9, 2005.
The District Court has not yet issued a final judgment. BATAS
timely filed its notice of appeal of Order #670 on October 5,
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2004. It timely appealed Order #896 on March 30, 2005.
II.
In Order #670, the District Court denied BATAS’s motion
for expanded intervention as “clearly untimely” under Federal
Rule of Civil Procedure 24(a). A prospective intervenor
“claim[ing] an interest relating to the property or transaction
which is the subject of the action” may intervene as of right if
“the disposition of the action may as a practical matter impair or
impede [its] ability to protect that interest, unless [its] interest is
adequately represented by existing parties.” FED. R. CIV. P.
24(a)(2). As a threshold matter, though, Rule 24 requires
prospective intervenors to file a “timely application.” We have
previously stated that
timeliness is to be judged in consideration of all the
circumstances, especially weighing the factors of time
elapsed since the inception of the suit, the purpose for which
intervention is sought, the need for intervention as a means
of preserving the applicant’s rights, and the probability of
prejudice to those already parties in the case.
United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C.
Cir. 1980). We review the District Court’s denial of intervention
for untimeliness under the abuse of discretion standard. NAACP
v. New York, 413 U.S. 345, 366 (1973); Building & Const.
Trades Dept. v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994).
Having considered “all the circumstances,” we hold that the
District Court did not abuse its discretion.
The District Court first found that BATAS had adequate
notice of the possible testimony concerning matters in which it
claimed privilege almost six months—and possibly as much as
a year—before moving to expand its intervention. Specifically,
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the District Court noted that the Gulson Affidavit had become
public information by September 12, 2003, and that the
government had listed Gulson as a witness by March 15, 2004.
BATAS, though, did not act until September 1, 2004. Second,
the District Court found that a late intervention “would further
delay and complicate the massive trial” scheduled to begin only
weeks after BATAS filed its motion.
In its abbreviated timeliness argument, BATAS contends
that it could not have objected on privilege grounds until
Gulson’s testimony occurred either at deposition or trial and
therefore need not have intervened earlier. Furthermore, BATAS
claims that SEC v. Lavin, 111 F.3d 921, 931 (D.C. Cir. 1997),
required it to wait until Gulson’s testimony provided a “concrete
threat” to its privileges. The issue, though, is not the timeliness
of potential objections but the timeliness of its intervention.
Lavin, therefore, is not germane to the issue of intervention.
Furthermore, BATAS misreads Lavin, which merely states the
unremarkable proposition that privilege holders need not
prematurely assert privilege. Id. (“[W]e know of no case . . . that
requires a privilege holder to engage in a preemptive strike to
prevent further disclosure of involuntarily disclosed, privileged
materials . . . .”). Our cases do not require privilege holders to
forego intervention or sit on their rights as BATAS suggests.
See, e.g., In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989)
(stating “privilege must be jealously guarded”).
In lieu of further argument on timeliness, BATAS directs an
inordinate amount of attention at a different issue—whether it
has waived its privileges. Claiming the issue is before this court,
BATAS singles out one sentence in the District Court’s opinion:
“BATAS has clearly waived its right to assert any privilege over
the subject matter covered in [Gulson’s] affidavit.” By
vehemently contending that it has not waived its privileges,
BATAS tilts at windmills: The issue before us is not waiver, nor
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even privilege itself. All we have before us is the timeliness of
BATAS’s motion to intervene. The validity of privilege goes
only to the prospective intervenor’s “interest,” as required by
Rule 24(a)(2). Courts reach the other elements of Rule 24(a)
only after the threshold question of timeliness. Hodgson v.
United Mine Workers of Am., 473 F.2d 118, 129 (D.C. Cir. 1972)
(“[T]imeliness is a prerequisite to any claim for intervention
under Rule 24 . . . .”). Having resolved its analysis without
passing that threshold, the District Court mentioned waiver only
in the context of its broader discussion of timeliness. Therefore,
we do not address whether BATAS waived its privileges because
we affirm the District Court’s ruling on timeliness.
As to the actual question before us, we agree with the
District Court’s findings on timeliness. The District Court
correctly noted that before moving to expand its intervention
BATAS allowed nearly six months to pass after receiving the
government’s witness list. Furthermore, BATAS’s motion came
almost a year after the contents of the Gulson Affidavit became
publicly available. Consequently, BATAS received multiple
early warnings of danger to its privilege. It knew the contents of
the documents—and therefore what privileged information might
be disclosed—and it knew the government’s plans to call Gulson
to the stand, along with the subject matter of his expected
testimony. On these facts, BATAS had a reasonable expectation
of potential disclosure of information in which it claims privilege
well before it filed its motion for expanded intervention.
Although elapsed time alone may not make a motion for
intervention untimely, see United Mine Workers, 473 F.2d at
129, other facts support the District Court’s ruling. BATAS had
already intervened once in the suit. Unquestionably, it could
have requested a broader intervention initially or upon receiving
the government’s witness list (or any time in between or
thereafter). BATAS’s dilatory conduct is, therefore, all the more
8
inexcusable considering that its motion to intervene came
virtually on the eve of trial. The District Court’s forecast of a
complicated trial, spanning nearly nine months, has been borne
out; neither it, nor the parties to the suit, should be hindered by
BATAS’s delay. On such facts, it is impossible to say the
District Court abused its discretion.
III.
BATAS also appeals Order #896, in which the District Court
overruled most of BATCo’s objections to Gulson’s trial
testimony. We begin our inquiry with the issue of standing.
Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 47
(D.C. Cir. 1999) (“Because Article III courts are courts of
limited jurisdiction, we must examine our authority to hear a
case before we can determine the merits.”). Because the District
Court properly denied BATAS’s motion for expanded
intervention, BATAS lacks standing to appeal Order #896.
We have stated many times that failed intervenors may not
appeal District Court actions to which they are not a party. See,
e.g., Alternative Research & Dev. Found. v. Veneman, 262 F.3d
406, 411 (D.C. Cir. 2001) (“[B]ecause the district court correctly
denied intervention, NABR is not a party to the action and lacks
standing to appeal . . . .”). As we have already held, the District
Court did not abuse its discretion by denying BATAS’s motion
to expand its intervention to testimonial evidence. Necessarily,
then, BATAS is not a party to the orders concerning Gulson’s
testimony and cannot appeal them. Moten v. Bricklayers,
Masons & Plasterers Int’l Union of Am., 543 F.2d 224, 227
(D.C. Cir. 1976).
BATAS argues that its initial intervention, granted in Order
#449, provides it with an alternative basis to bring this appeal.
We disagree. BATAS requested intervention only as to its
9
possible privilege in documents and emphasized to the District
Court the limited nature of its intervention. The District Court
accordingly granted only a limited intervention, which did not
extend to testimonial evidence. BATAS’s attempt to expand its
intervention demonstrates that it too believed it could not assert
privilege over testimonial evidence without a broader
intervention. Furthermore, BATAS did not join BATCo’s
objections to Gulson’s testimony, nor did it attempt to raise its
own. Cf. Willoughby v. Potomac Elec. Power Co., 100 F.3d 999,
1002 (D.C. Cir. 1996) (failure to object waives right to raise
objection on appeal). BATAS cannot now—as a nonparty who
did not object—appeal Order #896 overruling BATCo’s
objections.
IV.
For the above reasons, we affirm the District Court’s Order
#670 and dismiss BATAS’s appeal of Order #896 for lack of
standing.