In Re Santa Fe International Corp.

Revised November 13, 2001

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________

No. 01-40421
______________________

In re: SANTA FE INTERNATIONAL CORPORATION,

Petitioner.

______________________

Petition for Writ of Mandamus to the United States
District Court for the Southern District of Texas
______________________

November 7, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Santa Fe International Corporation (“Santa Fe”) petitions for

a writ of mandamus directing the district court to vacate its order

requiring Santa Fe to produce a document for discovery and rejecting

Santa Fe’s “common legal interest” attorney-client privilege claim.1

We deny the petition because the district court’s ruling was not

clearly and indisputably wrong.

1
Although the litigation underlying this discovery dispute
involves multiple defendants and numerous documents, this mandamus
petition concerns only Santa Fe’s claim of privilege as to one
document created in 1991. See infra at 8-9.

1
 I.

Plaintiffs, who are present and former offshore drilling

workers for Santa Fe and some twenty-one other offshore drilling

corporations, filed this action on August 14, 2000, naming those

companies as defendants. The complaint alleges that the defendants

secretly met over the past ten years to set, stabilize, maintain,

or limit the wages and benefits paid to offshore drilling employees.

The plaintiffs seek certification of a class of such employees,

damages for defendants’ alleged antitrust violations, and a

permanent injunction to prevent such conduct in the future.

On January 3, 2001, proceedings were held before the district

court wherein all defendants, including Santa Fe, were represented

by Finis Cowan and David Beck, who said they had been designated

as the spokespersons for the defendants. At that hearing the

parties presented a joint discovery and case management plan which

they recommended to the court. The court accepted the plan with

regard to class certification and established the following

guidelines for resolving any discovery disputes:

All right. If anything looms as a discovery hassle,
don’t file anything. I’m going to be here continuously.
Just call Felicia and let her know there’s a problem and
I’ll accommodate you with an emergency hearing or a
telephone call or whatever will save you expense and
inconvenience.

Plaintiffs’ counsel and the spokesperson-attorneys for the

defendants indicated their approval and agreement with this

2
expedited discovery dispute resolution procedure.2

On March 8, 2001, Ross Citti, who had enrolled as counsel for

Global Marine Drilling Co., scheduled a hearing in accordance with

the trial court’s guidelines for discovery disputes. Mr. Citti

faxed plaintiffs’ counsel the following letter:

This is to advise you that the Court has scheduled a
hearing to resolve outstanding discovery issues in the
above matter for 11:00 a.m. on Friday March 9, 2001.

On March 9, 2001, at a discovery hearing in open court, several

outstanding discovery issues were resolved pursuant to the March 8

letter of notice issued by Mr. Citti. Mr. Anthony Buzbee and Mr.

Richard Melancon appeared for the plaintiffs. Mr. Citti appeared

for defendant Global Marine; Mr. Steve Roberts appeared for

defendant Nabors Drilling; and Mr. James Watkins appeared for

defendant Marine Drilling.

At the discovery hearing, without drawing any objection by the

defendants’ attorneys, the plaintiffs’ counsel asked the district

court to rule on whether the defendants were required to turn over

documents that had been withheld, giving as an example a memorandum

2
See generally Fed. R. Civ. P. 16(c)(“At any [pretrial]
conference under this rule consideration may be given, and the
court may take appropriate action, with respect to . . . (6) the
control and scheduling of discovery, including orders affecting
disclosures and discovery pursuant to Rule 26 and Rules 29 through
37; . . . (12) the need for adopting special procedures for
managing potentially difficult or protracted actions that may
involve complex issues, multiple parties, difficult legal
questions, or unusual proof problems; . . . (16)such other matters
as may facilitate the just, speedy, and inexpensive disposition of
the action.”); Fed. R. Civ. P. 23(d).

3
“which they circulated [in 1994] about their antitrust exposure for

doing what they were doing. . . .”3 Mr. Citti, evidently speaking

for all of the defendants, informed the court that “there’s

basically three categories of documents that have been withheld and

we’ve provided them with the privilege log. The first category of

documents are correspondence from general counsel to employees of

the individual companies.” The court interjected, “That’s

privileged.” Mr. Citti continued:

The second category are mainly E-mails and they are
discussions between employees and an individual company
talking about the memo from the general counsel that they
just received. . . . The third category . . . are
documents from the general counsel of–-we’ll say Global
Marine because that is an actual example. General
counsel at Global Marine sent an opinion letter to
somebody within Global Marine that has to do with the
issues that are involved in this case, potential
antitrust exposure if you do this and do that and do the

3
Notwithstanding the dissent’s contrary view, the plaintiffs
intended to seek discovery of documents at the March 9 hearing, and
not merely an in camera review. Therefore, the plaintiffs did not
“get more than they were asking for.” Mr. Buzbee asked Mr. Citti
the day before the hearing to bring the documents with him so that
the judge could look at them if necessary. But the record clearly
reflects that, from the beginning, Mr. Buzbee’s obvious, ultimate
goal was discovery of the documents. At the hearing, Mr. Buzbee
stated: “And the only other issue that I have, Your Honor, if the
Court will allow it, is [that] the Defendants just aren’t turning
over the documents . . . with no legal basis for withholding them.”
In its petition for mandamus, Santa Fe suggests that the court
should have reviewed the defendants’ documents in camera. However,
it was incumbent on the defendants to ask for an in camera review
if they believed the documents contained critical intrinsic
evidence of privilege. They apparently could not represent to the
court that the documents contained such features, or perhaps
decided, as a matter of strategy, that the court should not view
these documents prior to its ruling on class certification, and
therefore did not ask for an in camera review.

4
 other and don’t do the third thing. That letter was then
shared with general counsel of another drilling
contractor or human relations people who have an interest
in this sort of thing. It was done in a confidential
way. It was--it was--these memos, communications were
done with the understanding that it was legal opinion
from general counsel in another company who had a common
interest in preserving and staving off litigation of this
type.

The district court ruled that the first two categories were

privileged and that any attempt to obtain them would be quashed.

With respect to the third, however, the court ruled: “I think once

the documents albeit the confidential one from general counsel

within the company is transmitted to another company, you

voluntarily waive any privilege. Then it becomes the precise

genesis of antitrust.” The court ordered the production of the

third category of documents “for counsel’s eyes only,” and provided

for their return after the litigation, without retention of copies

or extracted data.4

Contrary to the dissent’s assertion, the district court did not

4
The dissent claims that because the plaintiffs did not follow
the formalities of the Southern District of Texas Local Rules 7.1
and 7.3, which require opposed motions to be in writing, supported
by authority, and filed at least twenty days before submission, the
judge’s ruling on the plaintiffs’ discovery request was erroneous.
However, Local Rule 7.8 allows the district court to “in its
discretion, on its own motion or upon application, entertain and
decide any motion, shorten or extend time periods, and request or
permit additional authority or supporting material.” As noted
above, the district court had outlined rules for a streamlined
discovery dispute process which bypassed the formalities of the
local rules and to which all parties, including Santa Fe (through
its formal representatives, Mr. Cowan and Mr. Beck), agreed.

5
“summarily rule that [the attorney-client] privilege is always

waived when documents are transmitted to a third party, thus

eradicating any common interest privilege in the face of this

circuit’s law to the contrary. . . .” Instead, the district court

concluded that documents falling within the third category of

communications described by Mr. Citti were not privileged because

there had been no showing that at the time the communications were

made--many years before the present litigation--the employers were

potential co-defendants acting under an actual or perceived threat

of litigation.5

After the March 9, 2001 discovery hearing, Santa Fe joined

defendants Global Marine and Noble Drilling in a motion for

reconsideration and clarification of the trial court’s rulings. In

this motion, Santa Fe claimed for the first time a “common interest

privilege,” and sought protection for its disclosure to third

parties of a 1991 memorandum prepared for Santa Fe by its in-house

counsel. Santa Fe attached to the motion an affidavit by its in-

5
The dissent’s argument that the district court was obliged to
examine each document before ruling is not meritorious. The
argument fails to take into account that the claimants of the
attorney-client privilege had the burden of demonstrating that each
document withheld was entitled to protection. The defendants did
nothing to show that the communications to third persons were made
in anticipation of a common defense. On the contrary, the age of
the communications, the lack of evidence of any common defense
agreement, and Santa Fe’s answers to plaintiffs’ requests for
admissions made a strong case against the common interest privilege
claim. See infra at 15-16.

6
house counsel that described the 1991 memorandum and its

dissemination to other offshore drilling companies, which are now

co-defendants with Santa Fe in the present case. In his affidavit,

Santa Fe’s counsel averred that:

I have personal knowledge of attorney-client privileged
communications between Santa Fe and myself, including a
legal memorandum I drafted in May 1991 to Joe Boyd
regarding certain legal issues related to the exchange of
wage and benefit information among the Big 8 . . . as
part of my duties as a legal counselor to Santa Fe. . .
. The May 1991 legal memorandum provided legal advice to
Santa Fe and was made in furtherance of Santa Fe’s
efforts to seek and obtain legal advice on issues in
connection with Santa Fe’s participation in wage and
benefit surveys. . . . The May 1991 legal memorandum
was circulated to certain members of the Big 8 and the
contents of the memorandum were referenced in connection
with a meeting of the IPA in 1999. . . . Santa Fe has
maintained . . . the May 1991 legal memorandum as
confidential. Santa Fe has not disclosed the May 1991
legal memorandum to anyone who did not have a common
legal interest with Santa Fe in the communications.
Specifically, the participants of the Big 8 and the IPA
shared a common interest in complying with the antitrust
laws and avoiding any liability in potential litigation
for allegedly violating those laws. It was and is my
understanding that those companies were all involved in
making decisions concerning the guidelines they would
adopt for participating together in wage and benefits
surveys.

(Paragraph breaks and enumeration omitted).

The district court denied the motion for reconsideration. In

responding to Santa Fe’s petition for mandamus, as instructed by

this court, the district court explained: “The affidavits submitted

by Defendants along with their Motion for Reconsideration do not

undermine but rather strengthen the Court’s opinions in this regard.

7
These affidavits further clarify that the Defendants shared the

allegedly privileged information years ago, in the absence of any

active joint defense of litigation.”6

II.

Turning our attention directly to Santa Fe’s claim for

protection under the “common legal interest” extension of the

attorney-client privilege (“CLI privilege”), we conclude that it has

no merit.

A.

A party asserting a privilege exemption from discovery bears

the burden of demonstrating its applicability.7 Federal Rule of

6
Contrary to the dissent’s impression, the district court cited
Fifth Circuit precedents--and not just “caselaw from other
circuits”--demonstrating that Santa Fe’s document did not fall
within the scope of the common legal interest privilege. See
District Court’s Response at 3-4 (citing Wilson P. Abraham Constr.
Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); In
re Auclair, 961 F.2d 65, 70 (5th Cir. 1992); Hodges, Grant &
Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)).
Those cases recognized the common legal interest privilege, but
described its perimeter in a manner that excludes Santa Fe’s claim.
7
See generally 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2016.1 (2d ed. 1994). See also Hodges, Grant & Kaufmann,
768 F.2d at 721.
Fifth Circuit cases clearly hold that the privilege claimant’s
burden extends to proof of preliminary facts showing that the
matter is eligible for protection. See, e.g., United States v.
Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991) (“As to the claimed
violation of privilege, [defendant] has never indicated any
document from the seized file which constituted a communication or
described a communication between herself and her attorney. The
burden of establishing privilege rests on the party who invokes
it.”).

8
Civil Procedure 26(b)(5) provides that a party claiming a privilege

“shall make the claim expressly and shall describe the nature of the

documents, communications, or things not produced or disclosed in

a manner that, without revealing information itself privileged or

protected, will enable other parties to assess the applicability of

the privilege or protection.” In complex litigation, compliance

with Rule 26(b)(5) is “usually accomplished by submission of a log

identifying documents or other communications by date and by the

names of the author(s) and recipient(s), and describing their

general subject matter. . . .” MANUAL FOR COMPLEX LITIGATION (THIRD) §

21.431 (1995). On January 2, 2001, Santa Fe and the other

defendants agreed to produce privilege logs at a future date. While

some of the defendants complied with this agreement, Santa Fe failed

to provide a privilege log identifying any document or

communication.

The only express claim of privilege by Santa Fe came after the

discovery hearing in its motion for reconsideration, which sought

protection for the dissemination of its in-house counsel’s 1991

memorandum. Thus, the disclosure of the 1991 memorandum to third

persons is the only matter before this court on the petition for

mandamus. After considering the record and briefs, we conclude that

Santa Fe has failed to carry its burden of showing that this

communication meets the established criteria for protection under

the CLI privilege.

9
 According to our circuit precedents, the two types of

communications protected under the CLI privilege are: (1)

communications between co-defendants in actual litigation and their

counsel; see, e.g., Wilson P. Abraham Constr. Corp. v. Armco Steel

Corp., 559 F.2d 250, 253 (5th Cir. 1977); and (2) communications

between potential co-defendants and their counsel. See Hodges,

Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir.

1985); Aiken v. Texas Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 624

(E.D. Tx. 1993). With respect to the latter category, the term

“potential” has not been clearly defined. However, because the

privilege is “an obstacle to truthseeking,” it must “be construed

narrowly to effectuate necessary consultation between legal advisers

and clients.” In re LTV Sec. Litig., 89 F.R.D. 595, 606 (N.D. Tex.

1981)(Higginbotham, J.)(citing Garner v. Wolfinbarger, 430 F.2d 1093

(5th Cir. 1970)).

Considering that caveat, and in looking at other cases

discussing the CLI privilege in this circuit, it appears that there

must be a palpable threat of litigation at the time of the

communication, rather than a mere awareness that one’s questionable

conduct might some day result in litigation, before communications

between one possible future co-defendant and another, such as the

ones here made between one horizontal competitor and another, could

qualify for protection. For example, in Wilson P. Abraham

Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir.

10
1977), this court offered the following discussion of the privilege:

The defendants persuasively argue that in a joint defense
of [an actually filed] conspiracy charge, the counsel of
each defendant is, in effect, the counsel of all for the
purposes of invoking the attorney-client privilege in
order to shield mutually shared confidences. We agree,
and hold that when information is exchanged between
various co-defendants and their attorneys that this
exchange is not made for the purpose of allowing
unlimited publication and use, but rather, the exchange
is made for the limited purpose of assisting in their
common cause.

(Emphasis added).

Later, in Hodges, Grant & Kaufmann, this court again discussed

the privilege: “The [attorney-client] privilege is not . . . waived

if a privileged communication is shared with a third person who has

a common legal interest with respect to the subject matter of the

communication.” 768 F.2d at 721 (citing only Abraham Constr., 559

F.2d at 253) (addressing communications between counsel for co-

defendants during litigation). In Hodges, Grant & Kaufmann, the

United States sought to discover from the defendant taxpayer a

letter containing legal advice written by the defendant’s attorney

and addressed to the defendant and another individual. The

defendant claimed that the letter was written to both recipients as

the attorney’s joint clients. Because the court lacked sufficient

evidence to determine (1) whether the co-recipient of the letter was

actually a client of the defendant’s attorney at the time the

communication was made, and (2) whether both were being represented

jointly in a matter at the time the communication was made, it

11
remanded the case to the district court for further fact finding.

Id. Thus, Hodges, Grant & Kaufmann does not support Santa Fe’s

claim of privilege because the court in that case narrowly construed

“common legal interest” as referencing the interest of clients who

are jointly-represented at the time of their attorney’s

communications to them. In the present case, Santa Fe and the third

parties were not co-clients being jointly represented in ongoing

litigation at the time the communications were made.

In In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992), this court

stated that the CLI privilege extends to communications made among

persons “who consult an attorney together as a group with common

interests seeking common representation.” (Emphasis added). In

Auclair, the privilege was found applicable to communications made

in the face of imminent litigation involving multiple potential

clients who jointly consulted with a single attorney while actively

seeking legal representation in connection with a pending grand jury

investigation.

Although we are not bound by them, we find two of our district

courts’ discussions of the CLI privilege helpful. In Aiken v. Texas

Farm Bureau Mutual Insurance Co., 151 F.R.D. 621, 623 (E.D. Tex.

1993), the court stated: “The attorney-client privilege is waived

if the confidential communication has been disclosed to a third

party, unless made to attorneys for co-parties in order to further

a joint or common interest (known as the common interest rule or the

12
joint defense privilege)” (citing Auclair, 961 F.2d at 69). The

opinion further explains that:

This privilege encompasses shared communications between
various co-defendants, actual or potential, and their
attorneys, prompted by threatened or actual, civil or
criminal proceedings, to the extent that they concern
common issues and are intended to facilitate
representation in possible subsequent proceedings, or
whenever the communication was made in order to
facilitate the rendition of legal services to each of the
clients involved in the conference.

Aiken at 624 (emphasis added) (internal quotations and citations

omitted).

The plaintiff in Aiken sought discovery of audio tapes

containing conversations between various defendants that were

recorded after the defendants had been sued by the plaintiff and had

signed a joint defense agreement. The court conducted an in camera

review of the tapes and found that they were not privileged because

the recorded conversations were merely “examples of schmoozing” and

“were not intended to, and do not in fact, facilitate representation

or the rendition of legal services.” Id. at 624-25 (internal

quotations omitted). So, while it was certainly possible in Aiken

for the CLI privilege to apply, since the parties asserting the

privilege were actual defendants in a lawsuit at the time the

communications were made, the court ruled on the merits that the

communications were not privileged because they did not meet the

basic prerequisites for communications protected by the attorney-

client privilege. Once again, there is no support in Aiken for

13
Santa Fe’s position, since the communications in Aiken were made

between actual co-defendants in ongoing litigation.

The district court in In re LTV Securities Litigation, 89

F.R.D. 595 (N.D. Tex. 1981), opined that:

[D]isclosure of privileged information by an attorney to
actual or potential co-defendants, or to their counsel,
in the course of a joint defense does not constitute a
waiver of the attorney-client privilege.
. . . The privilege is available to co-respondents
in a grand jury investigation as well as to parties made
co-defendants by formal indictment. The privilege also
protects from disclosure communications between various
co-defendants and their attorneys in a civil proceeding.

Id. at 604 (citations omitted).

In LTV, a private securities fraud case, the plaintiff class

of shareholders sought to discover remarks made by the corporation’s

counsel in the presence of representatives of the corporation’s

financial auditor. At the time the communications were made, both

the corporation and its auditor had been served with subpoenas to

appear before the SEC as part of an investigation into the

corporation’s activities by the agency. In finding the

communications protected by the CLI privilege, the court noted that

the “[corporation] has established that the joint conferences

undertaken with representatives of [its auditor] were confidential,

concerned common issues, and were intended to facilitate

representation in proceedings involving the SEC . . . . Both . .

. were subpoenaed by the SEC before the joint discussions which the

class seeks to discover.” Id. The court found that the parties

“had a natural and common interest in consulting about the SEC

14
investigation . . . .” Id. Because the defendants in LTV had been

subpoenaed and targeted in SEC investigatory proceedings at the time

the communications were made, this case also fails to support Santa

Fe’s claim of privilege.

In the present case, Santa Fe admits in the motion for

reconsideration it filed in the district court that the

communications it claims are protected by the privilege were not

made in anticipation of future litigation. Instead, the documents

were “circulated for the purpose of ensuring compliance with the

antitrust laws and minimizing any potential risk associated with the

exchange of wage and benefit information.” Motion for

Reconsideration at 3. In sharing the communications, therefore,

they sought to avoid conduct that might lead to litigation. They

were not preparing for future litigation. Furthermore, Santa Fe

denied, in its responses to the plaintiffs’ requests for admissions,

that it anticipated or perceived a threat of antitrust litigation

against it in May of 1991, when Santa Fe’s senior counsel prepared

the memorandum that was distributed to the company’s competitors.

Considering that the original complaint in this case was not filed

until August 14, 2000, we cannot say that the district court clearly

erred in its implicit finding of fact that Santa Fe’s disclosures

to third persons of the 1991 memorandum were not made for the

purpose of preparing a joint defense to lawsuits based on pre-1991

antitrust law violations.

B.

15
 We also find unpersuasive Santa Fe’s claim that the district

court’s ruling will cause it irreparable harm. The petition for

mandamus states that the “trial court has made it quite clear that

any relief on . . . [the privilege issue] is not available in its

court.” However, in advancing this argument, Santa Fe plainly

misconstrues the March 9 ruling. With respect to Santa Fe’s express

claim of privilege, the district court concluded that: (1) Santa

Fe’s communications of its in-house counsel’s 1991 internal

memorandum to other independently owned offshore drilling

corporations were not entitled to protection by the attorney-client

privilege per se, because the communications were not made by Santa

Fe as a client for the purpose of obtaining legal advice or by an

attorney to a client in the rendition of professional services; and

(2) Santa Fe failed to demonstrate that its disclosure to third

persons of the memorandum Santa Fe received from its in-house

counsel fell within the common legal interest doctrine or privilege.

Except for the 1991 memorandum, Santa Fe did not specifically

identify any other communication as being privileged. The

extraordinary writ of mandamus will not issue to grant Santa Fe’s

blanket request for protection of documents and communications not

expressly claimed and shown to be privileged. See Nguyen v. Excel

Corp., 197 F.3d 200, 206 n.16 (5th Cir. 1999) (“Blanket claims of

privilege are disfavored.”); United States v. El Paso Co., 682 F.2d

530, 539 (5th Cir. 1982) ("The privilege must be specifically

asserted with respect to particular documents."). However, if Santa

16
Fe hereafter invokes the attorney-client privilege with respect to

a particular document or communication, other than the 1991

memorandum, and the district court determines that the privilege has

not been waived by reason of delay, bad faith or other conduct, then

neither the March 9 ruling nor this order would prevent Santa Fe

from properly claiming and demonstrating its entitlement to that

privilege.

C.

While we are convinced that a reasonable jurist could not find

that the district court made clearly erroneous findings or committed

an abuse of discretion, we are even more certain that the

imperfections, if any, in the trial court’s rulings do not warrant

the issuance of mandamus. “It is well-established that the mandamus

remedy is a drastic one, to be invoked only in extraordinary

situations.” In re First S. Sav. Assoc., 820 F.2d 700, 705 (5th

Cir. 1987) (internal quotations and citations omitted). The

petitioner must have a “clear and indisputable” right to the writ.8

8
Mallard v. United States District Court, 490 U.S. 296, 309
(1989); Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 (1978).
In Kerr v. United States District Court, 426 U.S. 394, 402-03
(1976), the Supreme Court explained:
Our treatment of mandamus within the federal court
system as an extraordinary remedy is not without good
reason. . . . [I]n an era of excessively crowded lower
court dockets, it is in the interest of the fair and
prompt administration of justice to discourage piecemeal
litigation. It has been Congress' determination since
the Judiciary Act of 1789 that as a general rule
“appellate review should be postponed . . . until after
final judgment has been rendered by the trial court. . .
.” A judicial readiness to issue the writ of mandamus in

17
“Thus, for [the petitioner] to establish entitlement to mandamus

relief, it must show not only that the district court erred, but

that it clearly and indisputably erred.” In re: Occidental

Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000)(emphasis

omitted). Because the “common legal interest” privilege is such an

amorphous concept, and because this case plainly does not fall

within its core, we simply cannot say with such certitude that the

trial judge was wrong in this case. In its response, the district

court explained its discovery hearing ruling, in pertinent part, as

follows:

Here, the lack of any temporal connection to actual
or threatened litigation is striking. Had these
Defendants been jointly defending a suit, as opposed to
merely discussing concerns, the long elapse of time would
not bear so heavily on the Court’s inquiry. But, when
the threat of litigation is merely a thought rather than
a palpable reality, the joint discussion is more properly
characterized as a common business undertaking, which is
unprivileged, and certainly not a common legal interest.
There is no justification within the reasonable bounds of
the attorney-client privilege for horizontal competitors
to exchange legal information, which allegedly contains
confidences, in the absence of an actual, or imminent, or
at least directly foreseeable, lawsuit.

As the district court’s reasons suggest, the record in this

case is neither clear nor indisputable with respect to Santa Fe’s

motive for sending its in-house counsel’s memorandum to its

horizontal offshore drilling competitors. It is possible that the

anything less than an extraordinary situation would run
the real risk of defeating the very policies sought to be
furthered by that judgment of Congress.
(Citations omitted).

18
disclosures were made to facilitate future price fixing in violation

of the antitrust laws, as the plaintiffs contend.9 Alternatively,

the disclosures were perhaps made in the sole interest of preventing

future antitrust violations, as the defendants argue in their motion

for reconsideration, in which case they hardly could be seen as the

commencement of an allied litigation effort. Furthermore, it is

difficult to find that the disclosures were made for the purpose of

forming a common defense against alleged prior violations of the

antitrust laws, in view of Santa Fe’s stout denials that in 1991 it

anticipated or perceived a threat of future antitrust litigation.

The ambiguity of the record and the cloudiness of the crucial

legal concept involved strongly militate in favor of the conclusion

that, if the district court erred at all, it certainly was not

clearly and indisputably wrong in finding that Santa Fe’s

disclosures of its in-house counsel’s memorandum to its horizontal

competitors were not communications protected under any attorney-

client privilege to which Santa Fe was entitled.

III.

Although Santa Fe’s petition for mandamus should clearly be

denied, and the foregoing reasons would normally suffice to explain

our ruling, we think it is appropriate in this case to also address

and put to rest Santa Fe’s claims that it was denied due process or

9
If so, they would fall outside the scope of any attorney-
client privilege as communications made for criminal or fraudulent
purposes. In re Burlington Northern, Inc., 822 F.2d 518, 524 (5th
Cir. 1987).

19
treated unfairly by the district court.

Santa Fe first contends that it “had no opportunity to be heard

on the common interest privilege issue” because its enrolled counsel

was not present at the March 9 discovery hearing. Mr. Citti was the

only attorney who actually spoke for the defendants during the

hearing,10 and the record does not explicitly reflect that he was

authorized to speak for all of the defendants. However, a reading

of the materials presented in connection with the petition for

mandamus reveals that Mr. Citti did represent all of the defendants,

and Santa Fe does not expressly contend otherwise. In fact, Santa

Fe acknowledges that Mr. Citti acted on the defendants’ behalf in

“discussing . . . the scheduling of the depositions of the

plaintiffs’ experts and the production of the class representatives

for deposition.”11 Mr. Citti likewise represented all defendants in

objecting to the plaintiffs’ answer to an interrogatory. He even

responded to the plaintiffs’ request to take the depositions of CEOs

of defendant companies whose enrolled counsel were not present at

the hearing. Furthermore, when Mr. Buzbee objected to the failure

of the defendants to either produce the requested documents or

establish a legal basis for withholding them, he stated that Mr.

Citti was there “as a spokesperson” for all of the defendants. Far

10
Mr. Roberts, the attorney for Nabors Drilling, and Mr.
Watkins, the attorney for Marine Drilling, stood silent and thereby
indicated their consent to Mr. Citti’s advocacy on their clients’
behalf.
11
Petition for Writ of Mandamus at 11.

20
from rejecting this role, Mr. Citti responded by presenting a

categorical argument in favor of the defendants’ privilege claims;

he did not limit the scope of his advocacy to fewer than all of the

employer-defendants.

In any event, regardless of whether Mr. Citti was implicitly

or expressly authorized to protect all of the defendants’ interests

at the discovery hearing, Santa Fe was not denied an adequate

individual opportunity to present its privilege claim, supporting

evidence, and full written argument. Santa Fe fully briefed the

district court on the issues and submitted an affidavit as to what

its witness would have testified to at an evidentiary hearing.12

The court considered Santa Fe’s brief and affidavit evidence before

denying the motion for reconsideration. The district court

elaborated on the reasons for its ruling in the response it filed

at the direction of this court. Santa Fe does not point to any

actual prejudice it sustained because of the nature of the process

it was afforded. Santa Fe’s due process argument therefore lacks

merit.

Santa Fe also contends that the March 9 hearing was unfair

because the plaintiffs did not give formal written notice of the

oral discovery objections they raised. However, this contention

ignores the defendants’ availment of the trial court’s expedited

process for resolving discovery disputes, a process agreed to by

12
See supra at 7 (quoting the Declaration of Robert S. Preece,
Senior Counsel for Santa Fe).

21
Santa Fe and all other parties to this litigation.13 Mr. Citti

presented the defendants’ objections orally without filing

particularized written notice or motions. Thus, under Santa Fe’s

view, only the defendants were entitled to the benefits of the

court’s streamlined procedure. Neither the record nor simple logic

supports this view.

Moreover, the fax which Mr. Citti sent to notify the plaintiffs

of the March 9 hearing stated that it had been set to resolve the

“outstanding discovery issues”; it did not limit or particularize

the discovery issues that could be taken up at the hearing. It is

undisputed that Mr. Buzbee, plaintiffs’ counsel, called Mr. Citti

prior to the hearing and told him that he would be raising the issue

of whether the requested documents withheld by the defendants were

privileged. In view of the evidence presented to this court, we

conclude that all of the defendants knew or should have known that

the CLI privilege issue would be addressed during the hearing.

Indeed, the presence of counsel for co-defendants Nabors Drilling

and Marine Drilling strongly indicates that all parties were

notified of the discovery hearing, and Santa Fe does not claim that

it was deprived of actual notice and an opportunity to participate

in the hearing.

Finally, the record does not reflect any impropriety on the

district court’s part in conducting the March 9 discovery hearing.

13
See supra note 4.

22
In considering the issues brought up by both defense and plaintiff

counsel, the court simply followed the guidelines which it had

established, and to which all of the parties had agreed, for the

expedited resolution of discovery disputes without the necessity of

filing written motions. Evidently, the participants understood that

this was the nature of the proceeding because no one objected to the

oral presentation of the discovery issues or to the court’s summary

disposition of the disputes without taking further evidence. Thus,

there is no merit to Santa Fe’s suggestion that it was treated

unfairly by the district court.

IV.

For the foregoing reasons, the petition for a writ of mandamus

is DENIED.

23
JERRY E. SMITH, Circuit Judge, dissenting: the purpose of scheduling expert witness
depositions and class representative de-
I. positions . . . . Counsel for three of the
This is a case of compelled document pro- twenty-two defendants were present
duction without adequate warning. In refusing ....
to issue a writ of mandamus, the panel majority
overlooks important details from the course of At the end of that hearing, Plaintiffs’
proceedings, misapplies applicable law and the counsel, without a motion to compel on
local rules, and fails to take account of the re- file and/or a hearing scheduled on
assignment of this case to a different district production of documents, demanded
judge. production of a category of documents
claimed privileged by defendants . . . .
Perhaps even more importantly, the After [a] description by Global Marine’s
plaintiffsSSwho are the movants seeking to ac- counsel of one example of a document at
quire the documents at issueSShave now issue, the trial court ordered all de-
moved to dismiss the district court proceeding, fendants to produce all documents pre-
because the parties have reached a full set- pared by legal counsel that were “trans-
tlement of this litigation. There is, effectively, mitted to another company” . . . .
no longer a case or controversy in this matter,
and the mandamus proceeding is, at least prac- Even though the defendants had no
tically speaking, moot and should be dismissed notice that the trial court would rule on
as such o r held without a ruling. Because of this issue on March 9, even though the
the lack of a case or controversy, the majori- trial court did not allow the submission
ty’s opinion is without precedential force in of evidence and authorities in support of
this circuit or elsewhereSSan exercise in ora- the privilege, even though the trial court
tory without legal significance. did not review a single document in
camera, in this lawsuit with 22 defen-
By insisting on acting on the mandamus pe- dants, it ordered the production of all
tition immediately before final judicial approval privileged documents authored by legal
of the settlement, the panel majoritySSalbeit counsel and transmitted to another com-
presumably with the best of intentionsSSissues pany. The court ruled that all defendants
a ruling that is beyond its judicial power. The had waived their attorney-client
majority offers no explanation of why it per- privilege.
sists in acting at this time and under these
circumstances. Accordingly, I respectfully (Paragraph breaks added.)
dissent.
III.
II. I will elaborate on the majority’s account of
The essence of what occurred to spark the what occurred in this proceeding. At the
mandamus petition appears succinctly in that March 9, 2001, hearing, before The Honorable
petition: Samuel Kent (“the district court”), who issued
the ruling at issue in this mandamus proceed-
On March 9, 2001 the trial court held a ing, the only counsel present were as follows,
hearing requested by one defendant for as set forth in the official transcript:
 For the Plaintiffs: Melancon & Hogue[,] hearing for purposes of scheduling depositions
By: Mr. Richard Melancon[,] By Mr. was notSSand could not have beenSSprepared
Anthony Buzbee [address] to discuss each of the defendants’ arguments
relating to each of the documents alleged to be
For the Defendant Global Marine: Citti covered by the common interest [CLI] privi-
& Associates[,] by Mr. Ross Citti lege, especially in light of the fact that each
[address] defendant was at a different stage of preparing
its privilege logs.”
For the Defendant Nabors Drilling,
USA: Fulbright & Jaworski[,] By: Mr. It is not surprising that Santa Fe was not
Steve Roberts [address] represented. The only formal notice of the
hearing was a one-sentence letter from Mr.
For the Defendant Marine Drilling: Roy- Citti to Melancon, Hogue & Buzbee, L.L.P.,
ston, Rayzor, Vickery & Williams[,] By: dated March 8, 2001SSthe day before the
Mr. James Watkins [address] hearingSSadvising of “a hearing to resolve out-
standing discovery issues.” The letter does not
As is plainly evident, no counsel was present indicate that copies were sent to anyone, al-
for petitioner Santa Fe International Corpor- though other counsels’ presence at the hearing
ation (“Santa Fe”). Nor was there ever an in- suggests that at least some other attorneys
dication that any of the attorneys present was were notified.
authorized to, or did, speak or try to speak on
behalf of Santa Fe or any of the other eighteen Even if Santa Fe’s counsel, Lawrence Gay-
absent defendants. dos of the firm of Haynes & Boone, was told
of the hearing, the document production should
At the beginning of the hearing, Mr. Citti not have been ordered there. As Santa Fe
announced the following: “Ross Citti for explains,
Global Marine, Your Honor.” This contrasts
vividly with the announcement made at the Plaintiffs’ argument that Santa Fe could
January 3, 2001, hearing in this case, at which not have been surprised by their pursuit
attorneys Finis Cowan and David Beck an- of production of the documents in this
nounced, at the beginning, that they had “been case is no answer to Santa Fe’s due pro-
designated as the spokespersons for this hear- cess right to have notice that the issue
ing”; the court reporter listed them as ap- would be raised at a hearing scheduled
pearing “for defendants.” for an entirely different purpose and the
right to be present and to present argu-
At the March 9 hearing, there was no an- ment at the hearing.
nouncement that Mr. Citti was at the March 9
hearing to represent or speak for any defendant IV.
other than his client, Global Marine. In its It is unfortunate enough that the district
petition, Santa Fe explains why, in fact, Mr. court ordered document production without
Citti could not adequately have done so: notice or a hearing or other due process pro-
“Counsel for only three out of twenty-two co- tections. Even more astonishingSSand without
defendants were present at the hearing . . . . explanation or support in the record or in any
The counsel [i.e., Mr. Citti] who requested the caselaw from this circuit or elsewhereSSis that

25
the court actually gave movants more than they Moreover, Mr. Citti, at the hearing, de-
were asking for in regard to production of scribed only one document, using it as an ex-
these documents. ample of a set of documents as to which the
common legal interest (“CLI”) privilege was
Movants’ counsel came to the hearing ask- being claimed. Without even attempting to
ing only for in camera review. What they got, consider the various documents separately, to
instead, was immediate production of the very see whether perhaps some but not all were
documentsSSindeed, all the documentsSSthey privileged, the court just ordered that “I want
had requested.14 The majority’s declaration all of those documents produced.” The court
that the attorneys were seeking immediate pro- added: “I want those documents.”
ductionSSas distinguished from in camera
reviewSSis undermined by what the attorneys Even assumingSScontrary to factSSthat Mr.
said, as reflected in the record. Citti was authorized to speak for Santa Fe, the
court seriously erred not only in failing to look
At the hearing, Mr. Buzbee recounted his at the documents but also in refusing to allow
conversation of the previous day with Mr. some sort of hearing, especially in light of the
Citti, agreeing to the hearing. As Mr. Buzbee lack of warning of the nature of the pro-
explained, plaintiffs were asking only that de- ceeding. After the court declared that “I want
fendants bring the documents so the court those documents,” Mr. Citti at least attempted
could examine them. As Mr. Buzbee put it, some sort of defense, if only on behalf of his
“let the Judge look at them.” Importantly, Mr. client, Global Marine Drilling Company:
Buzbee described the documents as papers that “Your Honor, there is some authority for the
“hurt them [the defendants] badly.” proposition that the privilege that we’re as-
serting exists and what ISSwould the Court
The court apparently never even considered consider a very short briefSS,” to which the
looking at the documents. Instead, it sum- court answered: “No. I’m ordering you to do
marily ordered them produced. That is, as I what you want. Seek mandamus if you don’t
have said, more than the attorneys were even like that but do it within the time frame I’ve
asking for at that time. suggested or I’ll have the special master do it
for you.”

V.
14
I am at a loss to understand the If the documents indeed might have turned
majority’s assertion that the district court out to be privileged, ordering their production
ordered the production of only one document. might have violated the “joint defense” or
At the hearing, the attorneys and the court “CLI” privilege, an expansion of the attorney-
repeatedly referred to multiple documents. As client privilege, recognized by this court, that
I will note, the court ordered that “I want all of prevents a waiver of attorney-client privilege
those documents produced” and added, “I where an attorney discloses privileged infor-
want those documents.” Even more spe- mation to actual or potential co-defendants. In
cifically, Santa Fe, in its mandamus petition, Re LTV Sec. Litig., 89 F.R.D. 595, 604 (N.D.
asks us to direct the court to vacate its “ruling Tex. 1981) (Higginbotham, J.). See Wilson P.
. . . to produce documents claimed to be Abraham Constr. Corp. v. Armco Steel Corp.,
protected.” 559 F.2d 250, 253 (5th Cir. 1977). The pur-

26
pose of the CLI privilege is “to protect the plainly not the law in the Fifth Circuit. Nev-
confidentiality of communications passing from ertheless, the district court, in responding to
one party to the attorney for another party the mandamus petition, justifies its decision by
where a joint defense effort or strategy has citing caselaw from other circuits that imposes
been decided upon and undertaken by the par- a restrictive reading of the CLI doctrine.16
ties and their respective counsel.” United
States v. Schwimmer, 892 F.2d 237, 243 (2d As I have said, in this circuit, “[t]he privi-
Cir. 1989). lege is not . . . waived if a privileged com-
munication is shared with a third person who
Santa Fe correctly argues that the CLI priv- has a common legal interest with respect to the
ilege provides protection during the course of subject matter of the communication.” Hodg-
a joint legal defense effort and is not waived by es, 768 F.2d at 721 (citing Wilson P. Abraham
communication between attorney and client “to Constr. Corp., 559 F.2d at 253).17 There is no
the extent that [the communication] concern[s]
common issues and [is] intended to facilitate
representation in possible subsequent proceed- 16
See Walsh v. Northrop Grumman
ings.” LTV, 89 F.R.D. at 604 (citing Hunydee Corp., 165 F.R.D. 16, 18 (E.D.N.Y. 1996)
v. United States, 355 F.2d 183, 185 (9th Cir. (stating that CLI privilege applies only to
1965)). In other words, the parties claiming parties having a common “legal” interest,
protection under t he rule only need share “a rather than a mere business interest); Schwim-
common legal interest” about a matter, see mer, 892 F.2d at 243 (opining that the CLI
Hodges, Grant & Kaufmann v. United States, privilege is limited to those communications
768 F.2d 719, 721 (5th Cir. 1985),15 and there oriented primarily toward preparing a legal
need be no actual litigation in progress, see defense); Bank Brussels Lambert v. Credit
Schwimmer, 892 F.2d at 243-44. As long as Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447
Santa Fe shows that the documents were given (S.D.N.Y. 1995) (contending that the CLI
in confidence and that the communication privilege does not encompass a joint business
regarded a common legal interest with respect strategy that happens to include as one of its
to the subject matter of the communica- elements a concern about litigation); Griffith v.
tionSSboth assertions that Santa Fe says it can Davis, 161 F.R.D. 687, 692 (C.D. Cal. 1995)
satisfySSthe district court should not order pro- (asserting that a joint defense effort must have
duction. been embarked upon irrespective of whether
litigation has been commenced); Mecom
Responding to Santa Fe’s characterization Holding Co. v. Baxter Travenol Labs., Inc.,
of the documents, the district court stated, “I 689 F. Supp. 841, 844 (N.D. Ill. 1988) (stating
think once the documents albeit the confiden- that the timing of the communications is impor-
tial one from general counsel within the com- tantSSthere must be a strong po ssibility of
pany is transmitted to another company, you litigation).
voluntarily waive any privilege. Then it be-
comes the precise genesis of antitrust.” This is 17
The movants assert that the district
court did not rule that the CLI privilege does
not exist. Instead, they argue that the court
15
Accord United States v. Fortna, 796 ruled that the CLI privilege does not apply to
F.2d 724, 730 (5th Cir. 1986). three specific documents in Santa Fe’s

27
accurate way to decide whether the “common turned over at once.
legal interest” test is satisfied without examin-
ing the documents individually. VII.
As Santa Fe alleges, the district court failed
VI. to abide by the applicable rules of procedure.
Even if the cases the district court now re- The movants never filed a motion for pro-
lies on were binding caselaw in this circuit, the duction of the documents in accordance with
decision should not stand, because the court Southern District of Texas Local Rules 7.1 and
lacks evidence on which to base its conclu- 7.3,18 which require of opposed motions that
sions. As Santa Fe describes it, the district they be in writing and must include or be
court, instead of looking at the documents and accompanied by authority, must be accom-
determining their nature, “summarily ruled that panied by a separate proposed order granting
privilege is always waived when documents are the relief requested and setting forth infor-
transmitted to a third party, thus eradicating mation sufficient to communicate the nature of
any common interest privilege in the face of the relief granted, must contain an averment
this circuit’s law to the contrary [and] [t]hen . that the movant has conferred with the re-
. . refused to reconsider its ruling.” The court spondent and that they cannot agree on the dis-
overlooked Hodges, a case from this circuit position of the motion, and must be filed
that recognizes the expansion of attorney-client twenty days before submission. Because plain-
privilege to encompass the CLI doctrine and tiffs filed no motion and made instead only an
that, based on LTV and Schwimmer, prevents “impromptu oral request” for production, the
such documents from being handed over if it is ruling that the documents are not privileged is
determined that they indeed are privileged. error.

Neither we nor the district court knows The purpose of the March 9 hearing was to
whether the documents are privileged. Neither discuss two issues: the scheduling of the depo-
the district court nor this court has viewed the sitions of the plaintiffs’ experts and the pro-
documents. It may be that some are privileged duction of the class representatives for deposi-
and some are not. All that is recorded in the tion. Moreover, Santa Fe’s assertion that the
transcript of March 9 is Santa Fe’s statement movants “ambushed” them with their request
that they are privileged and the district court’s for the documents provides additional ground
decree that they are not. for enforcement of the local rules, which are
designed to ensure that notice is given to the
More analysis is needed before any such party from whom production is sought.
documents should be ordered produced. In-
stead, however, the district court ordered all In their response to the petition, the mov-
the documents, from all the defendants, to be ants contend that there was no way Santa Fe
could have been surprised by their request, be-
cause “[t]he dispute amongst the parties con-
possession, specific documents that, contrary
to what movants say, are neither discussed nor
18
alluded to by the parties or the district court These local rules impose re-
anywhere in the record, save in movants’ re- quirements in addition to those of FED. R. CIV.
sponse to the petition. P. 7(b).

28
cerning privilege issues had been extant for Chief Judge of the United States District Court
more than a month prior to the [district] for the Southern District of Texas entered an
[c]ourt’s hearing [of March 9].” This assertion order that, with the consent of the district
is not dispositive, however. court, reassigned this case, and eighty-four oth-
ers in which Mr. Melancon was representing
Even if we assume, arguendo, that Santa Fe plaintiffs before the district judge against whom
persuasively could have defended the docu- this mandamus proceeding is brought, to the
ments’ CLI privileged status on March 9, and docket of another judge of the Southern
thus had complete notice of movants’ intention District of Texas.19
to request production at the March 9 hearing,
the district court still denied Santa Fe the op- Mandamus proceedings are brought against
portunity to defend itself on that same day by a specified district judge, in response to an ac-
summarily ruling that the documents are not tion or ruling by that judge, and not against a
protected. Therefore, the notice issue that the district court in the abstract. Here, as I have
movants raise is irrelevant, and the important explained but the majority does not discuss, the
fact is that Santa Fe never was given the op- mandamus petition is brought against a judge
portunity to establish the alleged privilege. who no longer presides over this case. If it
were not for the imminent settlement of this
VIII. litigation, this matter most properly would need
Forcing any party to turn over privileged to be returned for review by the newly-
documents is a serious matter. An order di- assigned district judge, so he would have the
recting the production of such documents easi- opportunity to examine the documents at issue
ly justifies the extraordinary remedy of manda- and exercise his own discretion in regard to
mus. In re Burlington N., Inc., 822 F.2d 518, them. He should not be saddled with the deci-
522 (5th Cir. 1987). Here, we cannot know sions of his predecessor, when it would be so
whether the documents ultimately should be simple and expeditious to send this issue to him
produced, because the district court has not ac- now.
corded Santa Fe its right to an orderly process
to determine the nature of the documents or Accordingly, because the panel majority, for
the history of their dissemination. the reasons I have stated, should not be acting
at this time to deny the petition for writ of
The error that justifies mandamus relief is mandamus, I respectfully dissent from the de-
this procedural failure to allow, after sufficient cision of the majority to insist on issuing its or-
notice, an adequate hearing and in camera re- der now, and from the substance of that order
view, so the parties from whom these allegedly even assuming it were properly issued.
damaging documents are being demanded can
have their fair day in court. The majority
should require adherence to these basic
requirements.

IX.
An additional justification for mandamus re-
lief materialized well after Santa Fe filed its 19
Special Order No. G-01-01 (S.D.
mandamus petition. On July 30, 2001, the Tex. July 30, 2001).

29