United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2814
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In re: General Motors Corporation, *
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Petitioner, * Petition for Writ of Mandamus.
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Submitted: July 10, 1998
Filed: August 20, 1998
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Before FAGG, BEAM, and HANSEN, Circuit Judges.
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BEAM, Circuit Judge.
General Motors Corporation (GM) petitions the court for a writ of mandamus,
seeking relief from the district court's discovery order directing GM to produce six
documents that GM claims are privileged. GM also requests that we reassign the case
to a different district judge. We deny GM's petition in part, and remand with
instructions.
I. BACKGROUND
This case involves a wrongful death action against GM arising from an accident
involving a 1985 Chevrolet Blazer. See Baker v. General Motors Corp., 86 F.3d 811,
814 (8th Cir. 1996), rev'd in part, 118 S. Ct. 657 (1998). The present dispute regards
a pre-trial discovery order granting the plaintiffs' motion for in camera inspection of
certain allegedly privileged documents to determine the applicability of the crime/fraud
exception to the attorney-client privilege.
The plaintiffs filed two motions seeking disclosure of certain documents that had
been identified by GM in a privilege log in an unrelated lawsuit, which was filed in
South Carolina. See Cameron v. General Motors Corp., No. 3-93-1278-07 (D.S.C.).
The district court found a reasonable basis to believe that the crime/fraud exception
applies and granted the plaintiffs' motion for in camera review of eight documents.1
After reviewing the documents, the district court ordered GM to produce six of the
eight documents prior to an additional "in camera hearing." We granted GM's motion
for an emergency stay of discovery. In its petition for a writ of mandamus, GM
requests that we vacate the district court's discovery order and reassign the case to a
different judge on remand.
II. DISCUSSION
Where the district court has rejected a claim of attorney-client privilege, we will
issue a writ of mandamus when the party seeking the writ has no other adequate means
to attain the desired relief and the district court's ruling is clearly erroneous. See, e.g.,
In re Missouri Dep't of Natural Resources, 105 F.3d 434, 436 (8th Cir. 1997). The
extraordinary remedy of mandamus is appropriate because the district court's order
would otherwise destroy the confidentiality of the communications at issue. See Harper
& Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff'd by equally
divided Court, 400 U.S. 348 (1971).
1
We limit our discussion to the eight documents at issue: (1) Document 1; (2)
Document 210; (3) Document 210A; (4) Document 213; (5) Document 216; (6)
Document 224; (7) Document 233; and (8) certain handwritten notes of William
Cichowski, an engineer at GM.
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After reviewing certain relevant, lawfully obtained documents,2 the district court
correctly held that the plaintiffs met the threshold standard of proof to justify in camera
review of the allegedly privileged documents to determine whether the crime/fraud
exception applies. See United States v. Zolin, 491 U.S. 554, 572 (1989) (requiring that
the party opposing the privilege present evidence sufficient to support a reasonable
belief that in camera review may yield evidence that establishes the exception's
applicability).3 The district court then reviewed all eight documents in camera and
2
In an unrelated lawsuit against GM, a Florida trial court recently ordered GM
to produce several documents despite GM's claim that those documents were protected
by the attorney-client privilege. See McGee v. General Motors Corp., No. 92-
23582(25) (Cir. Ct. Broward Co., Fla. Feb. 10, 1998) (ruling remains subject to
appeal). The materials that were produced included Document 210 and Document 213.
Shortly thereafter, a South Carolina trial court found that these two documents were
protected by the attorney-client privilege. See Barnes v. General Motors Corp., No.
96-CP-40-4207 (S.C. Ct. C.P. Apr. 20, 1998). Nonetheless, the plaintiffs in this case
lawfully obtained copies of Document 210 and Document 213 after they were produced
in accordance with the order in McGee. The plaintiffs submitted these documents to
the district court as an exhibit to their motion requesting in camera review of the other
six documents.
3
Although a very close question, we are inclined to believe that this holding did
not exceed the discretion of the district court. In Zolin the Supreme Court said, "we
hold that the threshold showing to obtain in camera review may be met by using any
relevant evidence, lawfully obtained, that has not been adjudicated to be privileged."
491 U.S. at 575. Here, as mentioned in footnote 2, a South Carolina trial court has now
adjudicated the only documents submitted to the district court to be privileged and the
contrary ruling by the Florida court is on appeal. However, in Zolin, the Supreme
Court, for purposes of the threshold inquiry, permitted the use of evidentiary material
containing unwaived attorney-client communications obtained by the IRS in a lawful
manner "from a confidential source." 495 U.S. at 558. Accordingly, we reluctantly
affirm the district court's use of these documents in its threshold inquiry, but note that
in Zolin there is no indication that any court had specifically adjudicated the documents
to be privileged as has occurred in this case. Upon remand, we would not find it error
for the district court to make a new and independent determination of this issue and
then apply the further procedures outlined in this opinion, if necessary.
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ordered GM to produce six of them for the purpose of conducting an "in camera
hearing." The hearing was to take place with both sides present, and was intended to
"flesh out" the dispute over whether the crime/fraud exception applies.
Although it issued an accompanying protective order, the district court erred in
ordering GM to disclose to the plaintiffs the six allegedly privileged documents. Cf.
Laser Indus. Ltd. v. Reliant Technologies, Inc., 167 F.R.D. 417, 439 n.35 (N.D. Cal.
1996) (stating that the judge must determine whether the exception applies prior to
ordering disclosure). By ordering disclosure, the district court effectively destroyed the
confidentiality of the communications. Until it is established that the crime/fraud
exception applies, the district court may not compel disclosure of allegedly privileged
communications to the party opposing the privilege.
On remand, the district court shall conduct in camera review of the documents
and determine whether (1) they are protected by either the attorney-client privilege or
the work-product privilege; and if so, whether (2) the challenger has established, by the
necessary "quantum of proof," that the crime/fraud exception applies. We note that
the Supreme Court has expressly declined to specify the "quantum of proof" required
to establish the crime/fraud exception. See Zolin, 491 U.S. at 563 n.7. Accordingly,
we leave this question to the district court, recognizing that Zolin dictates a higher
standard of proof for public disclosure than for in camera review. See, e.g., Ferguson
v. Lurie, 139 F.R.D. 362, 367 (N.D. Ill. 1991).
The district court need not conduct a formal hearing or receive additional
evidence and argument if it determines that the crime/fraud exception does not apply.
This being a civil case, the district court may not, however, compel production without
permitting the party asserting the privilege, to present evidence and argument. See
Haines v. Liggett Group, Inc., 975 F.2d 81, 97 (3d Cir. 1992) (stating that the party to
the privilege has the absolute right to be heard by evidence and argument). If the
district court decides that the plaintiffs should be present at these proceedings, it must
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conduct such proceedings in a manner that maintains the confidentiality of the
materials. Specifically, the plaintiffs shall not be in any manner privy to the
confidential materials unless the plaintiffs first establish by the necessary "quantum of
proof" that the crime/fraud exception applies. In this regard, we do not believe that the
plaintiffs have a lawful right to insist on being present or represented at the in camera
review, even if GM is permitted to present evidence and argument as outlined above.4
We stress that if the district court ultimately determines that the crime/fraud exception
applies, it should keep the privileged communications under seal to prevent their further
disclosure until all avenues of appeal have been exhausted.
We deny GM's request to reassign the case to another judge on remand. Having
reviewed GM's submissions, we do not find that the circumstances of this case would
cause a reasonable person to question the district judge's impartiality. See United
States v. Tucker, 78 F.3d 1313 (8th Cir. 1996).
III. CONCLUSION
We deny GM's request for reassignment of the case to another judge, and we
remand the case for further proceedings consistent with this opinion.
HANSEN, Circuit Judge, concurring.
I concur in the court's opinion and in its judgment. I write separately to express
my view that the district court would be well advised to heed the suggestion contained
in the last sentence of footnote 3 of the opinion. In this case, where two state trial
4
The plaintiffs suggest the presence of a "guardian ad litem" of sorts to function
as plaintiffs' discovery advocate during any presentations by GM at the in camera
proceeding, presumably with access by the guardian to the privileged documents. Even
with a protective order to preserve confidentiality, we reject any such approach and
direct that the district court not permit this or any similar procedure.
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courts have come to opposite conclusions concerning whether Documents 210 and 213
are privileged, I believe the better practice would have been for the district court to
have made its own determination about whether or not Documents 210 and 213 are
privileged before it made its threshold determination. It did not do so. Our remand
now permits it to do so if, in its discretion, it deems it advisable, notwithstanding our
affirmance of its present threshold decision. If it determines to revisit the threshold
decision and finds that the two documents are privileged, then it must make the
threshold redetermination without considering the two documents as part of the
plaintiffs' evidence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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