Case: 21-40190 Document: 00515958447 Page: 1 Date Filed: 07/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 29, 2021
No. 21-40190
Lyle W. Cayce
Clerk
In re: The Boeing Company,
Petitioner.
Petition for a Writ of Mandamus
to the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CV-507
Before Clement, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
The Boeing Company petitioned our court for a writ of mandamus
after the district court ordered Boeing to produce fifty-three documents that
Boeing contends are protected by attorney-client privilege. Boeing argues
that the district court erred in holding that nineteen of those documents
lacked attorney-client privilege and that the other thirty-four were subject to
the crime-fraud exception. We DENY in part and GRANT in part.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-40190
I. Background
In the case underlying this petition, Plaintiffs allege that Boeing and
Southwest Airlines conspired to defraud the flying public by concealing
various alleged design defects with the Boeing 737 MAX 8 aircraft and
encouraging the public to fly aboard these aircrafts. During discovery,
Boeing turned over several privilege logs, and, after Boeing entered into a
Deferred Prosecution Agreement (“DPA”) with the Department of Justice,
Plaintiffs moved to compel over 200 of the privilege-asserted documents
under the crime-fraud exception. The district court determined that
Plaintiffs established a prima facie case that the crime-fraud exception to
attorney-client privilege applied to the requested documents and ordered
Boeing to produce them for in camera review. Upon review, the court
ordered Boeing to produce fifty-three documents, concluding that nineteen
of them lacked attorney-client privilege and thirty-four of them were subject
to the crime-fraud exception.
Boeing unsuccessfully moved to stay the district court’s order so that
it could seek appellate review and certify its order for interlocutory appeal
under 28 U.S.C. § 1292(b). Consequently, Boeing filed this mandamus
petition.
II. Discussion
A writ of mandamus “is an extraordinary remedy for extraordinary
causes.” In re United States ex rel. Drummond, 886 F.3d 448, 449 (5th Cir.
2018) (per curiam) (quotation omitted). As such, we will issue a writ of
mandamus only if (1) the petitioner shows that it has a “clear and
indisputable” right to mandamus relief; (2) the petitioner has “no other
adequate means” to attain the desired relief; and (3) we are satisfied that the
writ is “appropriate under the circumstances.” Id. at 449–50 (quotation
omitted). As explained below, we hold that a writ of mandamus is not
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warranted for the nineteen alleged attorney-client-privileged documents
because Boeing failed to show that it has a clear and indisputable right to
mandamus relief on them, but we hold that mandamus relief is warranted for
the thirty-four crime-fraud-excepted documents.
Nineteen Attorney-Client-Privileged Documents
For a communication to be protected as privileged, the proponent
must prove: “(1) that he made a confidential communication; (2) to a lawyer
or his subordinate; (3) for the primary purpose of securing either a legal
opinion or legal services, or assistance in some legal proceeding.” EEOC. v.
BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (quotation and
emphasis omitted). “Ambiguities as to whether the elements of a privilege
claim have been met are construed against the proponent.” Id. We review a
district court’s finding on attorney-client privilege for clear error. Id.
Based on the record before us, the district court did not clearly err in
finding that the nineteen contested documents were not attorney-client
privileged because Boeing did not explain what kind of “legal advice” its in-
house counsel were providing regarding those documents. See id. at 696
(acknowledging that courts have routinely stated that “simply describing a
lawyer’s advice as ‘legal,’ without more, is conclusory and insufficient to
carry out the proponent’s burden of establishing attorney-client privilege”).
All Boeing said in asserting privilege to these documents—email
communications discussing draft public communications regarding an
accident on a 737 MAX 8 aircraft—was that its counsel “in fact provided
legal advice on the content of th[o]se communications.” We do not
determine as a matter of law that the documents Boeing identified were
indeed unprivileged. We have determined that certain communications
containing legal advice of attorneys, including in-house attorneys, fall under
attorney-client privilege. See, e.g., Exxon Mobil Corp. v. Hill, 751 F.3d 379,
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383 (5th Cir. 2014). We have indeed granted mandamus relief in a number
of cases involving such privilege. See, e.g., In re Schlumberger Tech. Corp., 818
F. App’x 304, 308 (5th Cir. 2020) (per curiam); In re City of Hous., 772 F.
App’x 143, 144 (5th Cir. 2019) (per curiam); In re EEOC, 207 F. App’x 426,
435 (5th Cir. 2006) (per curiam). But with such bare conclusory statements
offered by Boeing regarding these documents, we hold that the district court
did not clearly err in finding that the nineteen documents were not privileged.
We thus DENY Boeing’s petition for a writ of mandamus on this set of
documents.
Thirty-Four Crime-Fraud Excepted Documents
All three prongs for mandamus relief, however, are satisfied with
regard to the thirty-four crime-fraud excepted documents.
First, Boeing has shown a clear and indisputable right to mandamus
relief on the thirty-four crime-fraud excepted documents. For the crime-
fraud exception to apply to attorney-client privileged communications, the
party seeking to invoke the exception must establish a prima facie case that
the privileged communication was intended to further continuing or future
criminal or fraudulent activity. In re Grand Jury Subpoena, 419 F.3d 329, 335
(5th Cir. 2005). Establishing a prima facie case requires producing evidence
that will suffice until contradicted and overcome by other evidence that
(1) “the client intended to further an ongoing or future crime or fraud during
the attorney-client representation” and (2) the communication was
“reasonably relate[d] to the fraudulent activity.” Id. at 336, 346 (quotation
omitted). As with attorney-client privilege, we review a district court’s
finding that the crime-fraud exception applies for clear error. Id. at 335.
Here, as Boeing argues, the district court clearly erred in finding that
Plaintiffs established a prima facie case that the contested documents were
subject to the crime-fraud exception. The district court concluded that the
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contested documents were reasonably connected to the fraud based on one
finding only—that the documents sought “f[e]ll within the period Boeing
admit[ted] to hav[ing] knowingly and intentionally committed fraud” in the
DPA. However, a temporal nexus between the contested documents and the
fraudulent activity alone is insufficient to satisfy the second element for a
prima facie showing that the crime-fraud exception applies. In re
BankAmerica Corp. Sec. Litig., 270 F.3d 639, 643 (8th Cir. 2001) (holding that
the district court erred by assuming, “without any further showing by
plaintiffs,” that once fraud was shown, “all contemporaneous attorney-client
communications ‘could be construed’ as in furtherance of the alleged
fraud”); In re Grand Jury Subpoena, 419 F.3d at 344–45 (referring to In re
BankAmerica Corp. as persuasive authority). Accordingly, the district court
clearly erred in concluding that Plaintiffs established a prima facie case that
the contested documents were subject to the crime-fraud exception, and
Boeing has satisfied the first prong for mandamus relief.
Second, as is often the case where a petitioner claims that the district
court erroneously ordered disclosure of attorney-client privileged
documents, there is no other adequate means of relief. See In re Itron, Inc.,
883 F.3d 553, 567 (5th Cir. 2018). Boeing unsuccessfully moved to certify an
interlocutory appeal under § 1292(b), and an appeal after final judgment will
come too late because the privileged communications will already have been
disclosed.1 Id. at 567–68. Accordingly, we hold that the second prong is met.
1
We acknowledge that the Supreme Court has held that attorney-client privilege
rulings are not appealable under the collateral order doctrine because “postjudgment
appeals generally suffice to protect the rights of litigants and ensure the vitality of the
attorney-client privilege.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 109 (2009).
However, as we have also acknowledged in In re Itron, 883 F.3d at 568–69, we agree with
other circuits that the Supreme Court’s repeated and express reaffirmance that mandamus
remains a “useful safety valve” to correct certain clearly erroneous attorney-client
privilege rulings supports the general notion that appeal of a district court’s disclosure
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Lastly, granting mandamus on the thirty-four privileged documents is
appropriate here. Not only did the district court clearly err and leave Boeing
with no other adequate means of relief, but the issue presented here—the
showing necessary to make out a prima facie crime-fraud-exception case—
has “importance beyond the immediate case.” In re Volkswagen of Am., Inc.,
545 F.3d 304, 319 (5th Cir. 2008) (en banc). We have on only rare occasions
addressed what is sufficient to establish that privileged communication was
reasonably related to the fraud. Thus, if the district court’s views on what
amounts to a sufficient showing for a prima facie case of the crime-fraud
exception were to proliferate, more litigants would be encouraged to seek
production of privileged communications whenever there is evidence a party
committed a crime or fraud, and district courts could mistakenly find that a
prima facie case existed on a mere temporal nexus. Accordingly, we conclude
that mandamus relief is appropriate here. See In re Itron, 883 F.3d at 568–69
(concluding that mandamus relief was appropriate in a similar case where the
district court’s ruling on attorney-client privilege would have consequences
outside of the immediate case); see also In re BankAmerica Corp., 270 F.3d at
644 (granting mandamus relief to ensure that the district court correctly
determine that a threshold prima facie case of the crime-fraud exception is
made).
We thus GRANT Boeing’s petition for a writ of mandamus on this
set of documents.2
order after final judgment is inadequate to vindicate a privilege the very purpose of which
is to prevent the release of those confidential documents. See In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 760–62 (D.C. Cir. 2014) (quoting Mohawk, 558 U.S. at 111) (citing Ninth,
Seventh, and Second Circuit cases).
2
Because we conclude that the district court clearly erred in finding that Plaintiffs
established a prima facie case, we need not, and do not, address Boeing’s alternate
argument that the district court erred by failing to limit the scope of the crime-fraud
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III. Conclusion
For the reasons set forth above, IT IS ORDERED that the petition
for a writ of mandamus is DENIED with respect to the nineteen documents
claimed to be attorney-client privileged and GRANTED with respect to the
thirty-four crime-fraud-excepted documents. We REMAND to the district
court with instructions to VACATE the portion of its order compelling
production of those thirty-four documents.
exception when it directed Boeing to produce the contested documents upon in camera
review.
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