Bush Ranch v. E. I. DuPont

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-9059

D. C. Docket No. 4:95-CV-36(JRE)

IN RE: E.I. DuPONT DE NEMOURS & COMPANY-
BENLATE LITIGATION.

THE BUSH RANCH, INC., WILLIAM R. LAWSON,
individually, YELLOW RIVER GROWERS, C. RAKER & SONS,
INC., a Michigan corporation,

Petitioners-Counter-
Defendants-
Appellees,

C. NEAL POPE, a Georgia resident, POPE, McGLAMRY,
KILPATRICK & MORRISON, a Georgia partnership,

Counter-Defendants,

versus

E.I. DuPONT DE NEMOURS & COMPANY, a
Delaware corporation,

Respondent-Counterclaimant,
Appellant.
 Appeal from the United States District Court
for the Middle District of Georgia

(October 17, 1996)

Before DUBINA, and CARNES, Circuit Judges, and FARRIS*, Senior
Circuit Judge.

DUBINA, Circuit Judge:

________________________
*Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth
Circuit, sitting by designation

2
 This case involves an appeal from a contempt order entered by

the district court against the Defendant-Appellant E.I. Du Pont de

Nemours & Company ("DuPont"). For the reasons that follow, we

reverse the district court's order and remand the case for further

proceedings.
I. Background

This appeal has its origins in four consolidated cases, known

collectively as the Bush Ranch litigation, that were tried before

the district court in 1993. The primary issue at trial was whether

Benlate 50 DF--a fungicide manufactured by DuPont and sold to the

plaintiffs for use at their nurseries--was contaminated with highly

toxic herbicides known as sulfonylureas ("SUs"). After the case

was submitted to the jury, the plaintiffs in the Bush Ranch

litigation offered to settle their claims, and DuPont agreed.

Accordingly, on August 16, 1993, the plaintiffs in the Bush Ranch

litigation voluntarily dismissed their claims with prejudice.

After the settlement, the plaintiffs in a Hawaii Benlate case

requested documents related to testing of Benlate 50 DF from the

Bush Ranch litigation. DuPont resisted, but it eventually produced
the documents pursuant to a court order. Among the test documents

produced in the Hawaii Benlate case were certain raw test data (the

"Alta data") that DuPont had not produced during the course of the

Bush Ranch litigation. The Alta data included analytical findings

which some experts would construe as evidence that Benlate 50 DF

was contaminated with SUs.

3
 As a result of the production of the Alta data in the Hawaii

Benlate case, the Appellees1 returned to the district court--more

than a year and a half after the settlement of the Bush Ranch

litigation--with a petition seeking sanctions against DuPont. The

Appellees charged that DuPont had intentionally withheld evidence

of SU contamination which was in its possession and which the

district court had ordered it to produce. Furthermore, the

petition charged that DuPont had falsely represented to the

district court and to the Appellees that the Alta data it withheld

contained no evidence of SU contamination. In response to the

petition, the district court set a hearing date and ordered DuPont

to appear and show cause why it should not be sanctioned.

DuPont filed a motion to recuse under 28 U.S.C. §§ 144 and

455, a motion to vacate the show cause order, and a motion to

dismiss the Appellees' petition. The district court denied each of

these motions and also dismissed DuPont's counterclaims against the

Appellees. Following the district court's denial of the motion to

recuse, DuPont filed a motion to stay the proceedings to enable it

to seek writs of prohibition and mandamus from this court. The

district court denied the motion to stay the proceedings, and this

court subsequently denied DuPont's emergency motion for a stay and

its petitions for writs of prohibition and mandamus.

The show cause hearing began on May 2, 1995, and continued

1
The Appellees are the plaintiffs from three of the four cases consolidated in
the original Bush Ranch litigation. Specifically, the Appellees consist of The Bush
Ranch, Inc., William R. Lawson, Yellow River Growers, Roy Phillip Barber, Carol
H. Barber, and C. Raker & Sons, Inc.

4
through May 12, 1995. On the basis of the evidence presented at

the hearing, the district court issued an order finding that

DuPont's failure to produce the Alta data had violated its

discovery orders in the Bush Ranch litigation. The district court

specifically found that "DuPont deprived [the Appellees], the

[district court], and the jury of data and documents highly

relevant to the issue which DuPont itself described as the most

critical issue in the case." In re E.I. du Pont de Nemours & Co.,

918 F.Supp. 1524, 1556 (M.D. Ga. 1995). The district court also

found that DuPont's conduct was "willful, deliberate, conscious,

purposeful, deceitful, and in bad faith;" that this deceitful

conduct "affected the rulings and the orders of [the district

court] and interfered with the administration of justice;" and that

this discovery abuse rendered the trial, which had lasted

approximately six weeks, "a farce." Id.

Accordingly, the district court entered a sanctions order

against DuPont consisting of the following four components:

(1) The district court directed DuPont to send copies
of the sanctions order and the withheld documents
to the Appellees and the rest of the plaintiffs in
the Bush Ranch litigation.

(2) The district court found that the plaintiffs in the
Bush Ranch litigation had together expended
$6,843,837.53 in preparation for the trial and
assessed a sanction in that amount against DuPont.
The district court assessed another sanction for
the same amount against DuPont to pay for the
"wasted time, inconvenience, and waste of judicial
resources inflicted upon [the district court] and
the jury for the pretrial and trial of the
consolidated cases." Id. at 1557. The district
court ordered that the total sum--$13,687,675.06--
be paid into the registry of the court.

5
 (3) The district court partially vacated the order
entered upon settlement of the Bush Ranch
litigation, thereby reinstating several orders
finding discovery abuses by DuPont during the
course of the trial. The district court
specifically reinstated a conditional $1 million
sanction it had imposed upon DuPont during the
trial. The district court also assessed a sanction
of $100 million against DuPont for its conduct
during the previous litigation and during the show
cause hearing. The district court announced that
it would permit DuPont to purge itself of the $1
million and $100 million sanctions by complying
with all other sanctions orders and by publishing a
full page advertisement in the Wall Street Journal
and in the most widely circulated newspapers in
Alabama, Georgia, and Michigan acknowledging its
wrongdoing and giving notice of the district
court's orders and sanctions. The form of the
advertisement was to be submitted to the district
court for its approval.

(4) The district court ordered DuPont to file, within
25 days, a certificate of compliance signed by
DuPont's chief executive officer confirming that
DuPont was in full compliance with the terms of the
sanctions order. The district court warned DuPont
that it would impose additional sanctions of
$30,000 a day for each day after the termination of
the 25-day grace period during which DuPont had not
both fully complied with the sanctions order and
filed the requisite certificate of compliance.

DuPont requested a stay of the sanctions order to enable it to

appeal to this court. The district court granted the stay, and

this appeal followed.
II. Issues Presented

In its effort to defeat the contempt order, DuPont presents

three issues which we must discuss in order to decide this appeal.2

First, DuPont argues that the district court lacked jurisdiction to

entertain the proceedings which culminated in the issuance of the

2
We do not address the remaining issues raised by the parties, because our
resolution of these first three issues is dispositive of this appeal.

6
contempt order. Second, DuPont contends that the district court

erred in imposing criminal contempt sanctions in a civil

proceeding.3 Third, DuPont claims that its failure to produce the

Alta data violated no order of the district court.
III. Standards of Review

We review the district court's assertion of jurisdiction de

novo. See Mutual Assurance, Inc. v. United States, 56 F.3d 1353,

1355 (11th Cir. 1995). We also review de novo the district court's

characterization of these proceedings as civil, and not criminal,

in nature. See International Union, United Mine Workers of America

v. Bagwell, ___ U.S. ___, ___, 114 S.Ct. 2552, 2561-63, 129 L.Ed.2d

642 (1994); Martin v. Guillot, 875 F.2d 839, 845 (11th Cir. 1989).

As will be discussed infra, DuPont's challenge to the existence of

an order requiring production of the Alta data presents a question

of evidence sufficiency which we review de novo. See United States

v. Keller, 916 F.2d 628, 632 (11th Cir. 1990), cert. denied, 499

U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991).
IV. Discussion

A. Jurisdiction.
DuPont argues that the district court "lacked jurisdiction to

3
The district court invoked several sources of authority for imposing sanctions
on DuPont. See In re E.I. du Pont de Nemours & Co., 918 F. Supp. at 1540-41.
However, we are persuaded that none of these sources of authority could support
the sanctions order without the assistance of the district court's inherent contempt
power--a fact that the Appellees themselves recognize. See Appellees' Br. at 24
("Having jurisdiction, and because no single rule was up to the task, the [district
court] properly relied on its inherent powers to sanction DuPont.") (emphasis
added). Thus, we need examine only the constitutionality of the district court's
exercise of its inherent contempt power to determine whether the sanctions order
can stand.

7
entertain an independent civil action for sanctions based on

alleged misconduct in the long-dismissed Bush Ranch litigation."

DuPont's Br. at 17. We disagree. Every district court "has the

power to conduct an independent investigation in order to determine

whether it has been the victim of fraud." Chambers v. NASCO, Inc.,

501 U.S. 32, 44, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991)

(citing Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 66

S.Ct. 1176, 90 L.Ed. 1447 (1946)). In addition, the district court

was free to vacate its earlier judgment, in whole or in part, and

to resume proceedings on the same jurisdictional basis as it

possessed in the underlying case. See Chambers, 501 U.S. at 44

("Of particular relevance here, the inherent power also allows a

federal court to vacate its own judgment upon proof that a fraud

has been perpetrated upon the court.") (citing Hazel-Atlas Glass

Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed.

1250 (1994); Universal Oil, 328 U.S. at 580). For this reason, the

Supreme Court has specifically held that "[a] court may make an

adjudication of contempt and impose a contempt sanction even after

the action in which the contempt arose has been terminated."

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447,
2456, 110 L.Ed.2d 359 (1990) (citations omitted). Thus, we

conclude that the district court possessed jurisdiction to conduct

the challenged proceedings.

B. Nature of the Sanctions.

DuPont contends that the district court committed reversible

error in imposing criminal sanctions in a civil proceeding. It is

8
indisputable that the district court did not afford DuPont the

procedural protections the Constitution requires for the imposition

of criminal contempt sanctions.4 Thus, the proceedings were civil

in nature, and DuPont's entitlement to relief on appeal turns on

our characterization of the contempt order as being either civil or

criminal in nature. See Blalock v. United States, 844 F.2d 1546,

1560 n.20 (11th Cir. 1988) (per curiam) (Tjoflat, J., specially

concurring) ("It requires no citation of authority to say that a

district court may not, even unwittingly, employ a civil contempt

proceeding to impose what, in law, amounts to a criminal contempt

sanction. . . . When a district court employs civil contempt

procedures to punish a contemner, it necessarily deprives the

contemner of his constitutional rights and renders his contempt

citation a nullity.").

The Supreme Court has instructed that "conclusions about the

civil or criminal nature of a contempt sanction are properly drawn,

not from the subjective intent of [the court imposing the

4
The Supreme Court summarized these requirements in the following passage:

[T]his Court has found that defendants in criminal contempt
proceedings must be presumed innocent, proved guilty beyond a
reasonable doubt, and accorded the right to refuse to testify against
themselves; must be advised of charges, have a reasonable opportunity
to respond to them, and be permitted the assistance of counsel and the
right to call witnesses; must be given a public trial before an unbiased
judge; and must be afforded a jury trial for serious contempts.

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99, 107 S.Ct.
2124, 2133, 95 L.Ed.2d 740 (1987) (citing Gompers v. Buck's Stove & Range Co.,
221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Cooke v. United States, 267 U.S.
517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); In re Oliver, 333 U.S. 257, 68 S.Ct. 499,
92 L.Ed. 682 (1948); and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20
L.Ed.2d 522 (1968)).

9
sanction], but from an examination of the character of the relief

itself." International Union, United Mine Workers of America v.
Bagwell, ___ U.S. ___, ___, 114 S.Ct. 2552, 2557, 129 L.Ed.2d 642

(1994) (citation and internal quotation marks omitted). If the

relief is designed to compensate a complainant for losses or to

coerce a party into complying with a court order, the contempt

sanction is civil in nature. See id., 114 S.Ct. at 2558; Martin v.

Guillot, 875 F.2d 839, 845 (11th Cir. 1989). By contrast, "if a

court seeks to vindicate its authority by punishing a contemnor,

then [the] contempt is criminal in nature." Martin, 875 F.2d at

845 (citations omitted). Thus, we must determine whether the

specific sanctions ordered by the district court were compensatory

and coercive in nature, or instead were punitive in nature.

We have little trouble concluding that the sanctions the

district court imposed were overwhelmingly punitive--and thus

criminal--in nature. First, there was no compensatory aspect to

the contempt order. The only provision even arguably geared toward

compensation of the parties was the first command that DuPont pay

a sum of $6,843,837.53. Although the district court chose this

figure because it represented the cost to the plaintiffs in

preparing for and conducting the underlying trial, the district

court did not order that this sum be paid to the Appellees or to

any of the other plaintiffs in the original Bush Ranch litigation.
Instead, the district court ordered the sum to be paid into the

registry of the court. The Supreme Court has provided few

"straightforward rules" for distinguishing between civil and

10
criminal contempts, Hicks ex rel. Feiock v. Feiock, 485 U.S. 624,

631-32, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988), but it has

held that "[i]f the relief provided is a fine, it is remedial [and

thus civil in nature] when it is paid to the complainant, and

punitive when it is paid to the court . . .." Id., 485 U.S. at

632. Thus, under Hicks, this portion of the sanctions order must

be characterized as punitive in nature.

Second, there was no coercive aspect to the district court's
5
contempt order. At the time the district court entered the

contempt order, DuPont could no longer comply with the discovery

orders because the Bush Ranch litigation had terminated. Although

the district court did have the power to set aside the settlement

agreement and re-open the discovery portion of the earlier case,

see Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 2132,

115 L.Ed.2d 97 (1991), it chose not to do so. Where "the contemnor

[can] not avoid the sanction by agreeing to comply with the

original order to produce the documents," the sanctions order is

determinate and therefore criminal in nature.6 Hicks, 485 U.S. at

5
The final section of the contempt order was clearly intended to coerce DuPont
into complying with the order's three other sections. Thus, when considered in
isolation, this part of the order could be characterized as a coercive civil sanction.
However, because it was intended to coerce compliance with the other sanctions,
which were punitive in nature, it must fall with the rest of the contempt order. See
Hicks, 485 U.S. at 638 n.10 ("[I]f both civil and criminal relief are imposed in the
same proceeding, then the criminal feature of the order is dominant and fixes its
character for purposes of review.") (citations and internal quotation marks omitted).
6
There is an exception to the general rule that determinacy of sanctions renders
them criminal rather than civil in nature, and the Appellees argue that the exception
applies in this case. In Hicks, the Court stated that "[i]f the relief imposed . . . is in
fact a determinate sentence with a purge clause, then it is civil in nature." Hicks,
485 U.S. at 640 (citations omitted). The Appellees claim that the $1 million and
$100 million sanctions contained in the third part of the contempt order are civil in

11
634 n.6.

We are persuaded that the sanctions imposed by the district

court were neither compensatory nor coercive in nature, but instead

were designed to punish DuPont for flouting the authority of the

district court. Accordingly, even though DuPont and its counsel

may very well have engaged in criminal acts, 7 we must reverse the

contempt order because the district court did not afford DuPont the

procedural protections the Constitution requires for the imposition

of criminal contempt sanctions.

C. Violation of an Order.

DuPont claims that it "cannot be held in contempt for failing

to produce the Alta [data] for the simple reason that there was no

order requiring [their] production." DuPont's Br. at 17. If

DuPont is correct in its assertion that it was never ordered to

produce the Alta data, then it cannot be held in contempt for

failing to produce the Alta data during the Bush Ranch litigation.

Since a ruling on this issue will either confirm or remove

permanently a risk of the imposition of serious criminal contempt

sanctions against DuPont, we now turn to a discussion of whether

the evidence that DuPont was ever ordered to produce the Alta data

is sufficient to allow this case to proceed further.

nature because, even though determinate, DuPont was free to purge them by taking
out ads in several newspapers confessing wrongdoing. But this publication option
was itself neither compensatory nor coercive, but instead was punitive in nature.
When a party must choose between two sanctions that are both punitive in nature,
the character of the ultimate relief will necessarily be punitive.
7
In light of the serious nature of the allegations against DuPont and its counsel,
we assume that the appropriate United States Attorney will shortly begin an
investigation of this matter (if he or she has not already done so).

12
 As previously explained, the sanctions imposed by the district

court were criminal in nature. In the context of criminal

contempt, the existence vel non of an order is a question for the
finder of fact. See United States v. Turner, 812 F.2d 1552, 1563

(11th Cir. 1987) (listing, as one of the essential elements of

criminal contempt, a finding that the district court "entered a

lawful order of reasonable specificity"); see also In re McDonald,

819 F.2d 1020, 1024 (11th Cir. 1987) (holding that whether an order

is reasonably specific is a question of fact which must be proven

beyond a reasonable doubt to sustain a conviction for criminal

contempt). Thus, in order to grant DuPont's request that we

declare at this stage of the proceedings that no order requiring

production of the Alta data existed, we would have to find that the

record contains insufficient evidence to enable a reasonable finder

of fact to conclude beyond a reasonable doubt that the district

court entered a lawful order of reasonable specificity requiring

DuPont to produce the Alta data. An order meets the "reasonable

specificity" requirement only if it is a "clear, definite, and

unambiguous" order requiring the action in question. See, United

States v. Koblitz, 803 F.2d 1523, 1527 (11th Cir. 1986); Jordan v.

Wilson, 851 F.2d 1290, 1292 n.2 (11th Cir. 1988); see also Int'l

Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n, 389 U.S.

64, 76 (1967) (union could not be held in contempt for violating

order which did not clearly apply to union).

Mindful of this standard, and having undertaken a thorough

review of the record, we cannot agree with DuPont that there is

13
insufficient evidence from which a reasonable finder of fact could

conclude that there was a reasonably specific order requiring

DuPont to produce the Alta data. In reaching this conclusion, we

have applied the familiar doctrine that the evidence is to be

viewed, and all credibility issues to be decided, in the light most

favorable to the charge, and all reasonable inferences drawn in

support of a guilty verdict. See, e.g., Jackson v. Virginia, 443

U.S. 316, 319 (1979); United States v. Starrett, 55 F.3d 1525, 1541

(11th Cir. 1995); United States v. Perez, 956 F.2d 1098, 1101 (11th

Cir. 1992). Of course, we do not mean, by our ruling on this issue,

to predetermine the outcome of the criminal contempt proceeding.

More specifically, we do not mean to intimate that no reasonable

finder of fact could have a reasonable doubt about the existence of

a sufficiently specific order. Rather, we merely hold that the

record contains sufficient evidence from which a reasonable finder

of fact could find beyond a reasonable doubt that DuPont was

ordered to produce the Alta data. We turn now to a discussion of

that evidence.

The plaintiffs' first request for document production was very

broad. In it, DuPont was asked to produce, inter alia:
All documents reflecting, referencing, and/or relating to
any analytical findings (including identification of
peaks) from mass spectrometry [and] high performance
liquid chromatography . . . in any way relating to the
use and/or administration of Benlate 50 DF;

* * * *

all documents reflecting, referencing, and/or relating to
any assays . . . conducted, in whole or in part, for the
purpose of determining the presence, if any, of any
sulfonylurea compound in Benlate 50 DF; [and]

14
 * * * *

all documents relating to and/or referencing any report
or finding from any person, or entity, whether or not
employed by the defendant, of other pesticidal compounds,
including, but not limited to, herbicides, in Benlate 50
DF.

Plaintiffs' First Request for Production of Documents to Defendant

E.I. du Pont de Nemours & Company ¶¶ 18, 55, and 65. The Alta data

consist of documentation of the results of liquid chromatography

testing which was done to detect the possible presence of Benlate

50 DF in soils taken from the plaintiffs' nurseries. Thus, the

request for production of documents would appear to cover the Alta

data. Nevertheless, DuPont argues that this request for production

of documents could not include the Alta data, both because the

district court treated materials generated by non-testifying

experts differently from materials generated by testifying experts

and non-experts, and because the Alta data were generated long

after the first request for production of documents was prepared.

These arguments are not strong enough to establish DuPont's

position as a matter of law; a reasonable factfinder could reject

them.

There is no phrase in the request for document production

suggesting that the plaintiffs intended or desired for the request

to be limited to documents produced by testifying experts or by

non-experts. In addition, there is no phrase in the request

suggesting that the plaintiffs intended or desired the request to

be limited to documents in existence on or before the date DuPont

15
received the document request.8 Thus, a reasonable finder of fact

could conclude beyond a reasonable doubt that this request, on its

face, covered the Alta data.

DuPont raised a number of objections to this request for

production, each of which was subsequently overruled by the

district court. In particular, DuPont claimed that it was not

required to turn over the requested documents because the discovery

request sought "information or materials which have been gathered

or prepared in anticipation of or in the course of litigation, or

which otherwise is subject to [the] work-product doctrine."

Memorandum Opinion and Order on Plaintiffs' Motion to Compel

Discovery Dated June 24, 1992, at 3. The district court noted that

DuPont had failed to make timely and specific claims of privilege

and specifically overruled DuPont's "objections to producing

documents involving Benlate claims and lawsuits and tests that

Defendant has conducted since March, 1991." Id. at 17 (emphasis

8
Although one might intuitively think that the request for production contains
an implicit limitation to documents produced on or before the date the request for
production was issued, there is the following language in Rule 26:

A party who has . . . responded to a request for discovery with a
disclosure or response is under a duty to supplement or correct the
disclosure or response to include information thereafter acquired if
ordered by the court or in the following circumstances:

(1) . . . if the party learns that in some material respect the
information disclosed is incomplete or incorrect and if the
additional or corrective information has not otherwise
been made known to the other parties during the
discovery process or in writing.

Fed. R. Civ. P. 26(e) (emphasis added). Thus, when a party generates responsive
documents which render incomplete or incorrect earlier disclosures, it has an
obligation to inform the opposing party of the new material.

16
added). Nevertheless, the district court reserved ruling on

DuPont's claims of work product protection to give DuPont yet

another opportunity to present adequately its claims of privilege

on or before June 30, 1992. In addition, the district court

specifically ordered DuPont to go back and review the plaintiffs'

first request for production of documents and to answer each

request fully within 15 days from the date of the district court's

order. See id. at 18.

On June 30, 1992, DuPont filed a 498-page privilege log with

the district court listing documents that it wanted to withhold on

grounds of attorney-client privilege and/or the work product

doctrine. See Supplemental Order Dated September 25, 1992, at 3.

DuPont also noted its intention to withhold four categories of

documents that were not individually logged. One of these

categories of non-individually logged documents was described as

"documents generated during ongoing testing conducted in 1992 by

defendant with outside experts retained to evaluate crop damage

claims and to determine the causes of damage." Id. The district

court then made the following statement:

This Court concludes that defendant's expressed
intent to raise additional claims of such privileges and
protections, long after its responses to plaintiffs'
first interrogatories and plaintiffs' first request for
production were due and long after the June 30, 1992,
date upon which this Court directed defendant to file a
detailed log specifically setting forth any and all
claims of attorney-client privilege and work-product
protection, is contrary to applicable law as set forth
above and in violation of this Court's directives.

Id. at 21. The district court further stated:

[T]he Court has determined that management of these

17
 cases, consolidated for the purpose of discovery, must
not be further delayed by the non-production of documents
by this defendant, nor by a continued delayed filing of
claims of attorney-client privilege and work-product
protection. The consequences to this defendant, if any,
resulting from the rulings herein made, will result
solely from the failure of this defendant to respond
timely to the plaintiffs' discovery requests.

Id. at 26 (emphasis added).

As a result of DuPont's refusal to review its documents and

make adequate claims of work product protection, the district court

issued an order to apply throughout the Bush Ranch litigation that

no further claims of work product protection asserted by DuPont

would be entertained unless DuPont made a showing of extraordinary

need. Id. at 27-28 ("The matter here considered will be limited to

the question of the plaintiffs' first discovery requests directed

to the defendant and the question of whether the defendant, by its

acts and conduct, has waived the right to file any further claims

of attorney-client privilege or work-product protection as to

individual documents responsive to those discovery requests. . .

. Only an assertion of privilege by defendant upon a showing of

extraordinary need will be hereafter considered.") (emphasis

added). Thus, a reasonable finder of fact could conclude beyond a

reasonable doubt that the district court, by order, specifically

altered the general process contained in Rule 26 for addressing

claims of work product protection relating to documents prepared by

DuPont in anticipation of litigation.9

9
The procedure adopted by the district court--viz., requiring the non-producing
party to identify documents withheld under a claim of work product protection
before forcing the party seeking production to make a showing of substantial need
for the documents--is substantially in line with an amendment to Rule 26 adopted

18
 As a result of DuPont's abuse of the discovery process, the

district court set up a special procedure for reviewing future work

product claims by DuPont. A reasonable finder of fact could well

conclude that DuPont's attorneys were clever enough to figure out

the import of the district court's enunciated procedure for

reviewing all future claims of work product protection in the case.

Indeed, after the district court adopted this procedure, it

specifically ordered DuPont to go back and review its responses to

the plaintiffs' first request for document production and to fill

in immediately "all gaps in documents responsive to Plaintiffs'

original discovery requests." Order Imposing Sanctions Dated March

15, 1993, at 4 (emphasis added). Significantly, the Alta data were

generated only a couple months after the district court issued its

gap-filling order.

We do recognize that there is evidence in the record which

could cause a factfinder to have a reasonable doubt about the

existence of a clear, definite, and unambiguous order requiring

DuPont to produce the Alta data. For example, DuPont points to a

shortly after the termination of the Bush Ranch litigation. See Fed. R. Civ. P.
26(b)(5) ("When a party withholds information otherwise discoverable under these
rules by claiming that it is privileged or subject to protection as trial preparation
material, the party 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.").
Arguably, the content of subdivision (b)(5) was already implicit in the scheme of
Rule 26 at the time of the Bush Ranch litigation. At any rate, the question before
this court is not what the Federal Rules of Civil Procedure required DuPont to
produce, but instead what a reasonable finder of fact could conclude that the district
court ordered DuPont to produce. If the district court's order to produce the
documents sought in the first request for document production was clear, then
DuPont was not entitled to decide unilaterally to disregard the order simply because
it did not track precisely the procedure set up in Rule 26.

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joint motion, signed by plaintiffs' lead counsel and submitted to

the district court upon settlement of the case which states that

"Plaintiffs have agreed that, during the course of the case, DuPont

did come in compliance with the Court's Orders and its discovery

obligations." Joint Motion and Supporting Memorandum of Plaintiffs

and Defendant for an Order Vacating Prior Discovery Orders and

Sanctions Dated August 16, 1993, at 3. As noted by DuPont, it is

undisputed that Neal Pope, the lead counsel for the plaintiffs,

signed that joint motion at a time when he knew that the Alta data

had not been turned over during the course of discovery. We agree

with DuPont that Mr. Pope's written representation, as an officer

of the court, that DuPont had complied with its discovery

obligations is evidence in its favor. But it is not conclusive

evidence.

A factfinder is entitled to make credibility determinations,

and we are not prepared to rule out the possibility that a

reasonable factfinder might find that, notwithstanding his

obligations as an officer of the court, Mr. Pope's representations

were less than literally true and were made as a matter of

expedience to ensure the success of the settlement. We hope that

expedience and deliberate misrepresentation is not the explanation;

if, however, that turns out to be the case, the district court

should take appropriate action. It may be that there is a

satisfactory, innocent explanation for the inconsistency between

Mr. Pope's representations to the district court on behalf of the
plaintiffs in the settlement agreement, and the position plaintiffs

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have taken in this proceeding, but we leave that matter to further

development upon remand. The district court should insist upon an

explanation, and the factfinder can make the necessary credibility

determinations about any explanation that is offered.

For present purposes, it is enough to view all of the

evidence, make all of the credibility decisions, and draw all of

the reasonable inferences in favor of the contempt charge. Doing

that, we conclude that a reasonable finder of fact could conclude

beyond a reasonable doubt that the plaintiffs' first request for

production of documents covered the Alta data. In addition, a

reasonable finder of fact could conclude beyond a reasonable doubt

that the district court overruled DuPont's objections to that

request and ordered DuPont to produce the Alta data. In sum, we

hold that a reasonable finder of fact could conclude beyond a

reasonable doubt that the district court entered a lawful order of

sufficient specificity commanding DuPont to produce the Alta data

and that it willfully failed to obey that order.
V. Conclusion

For the foregoing reasons, we reverse the contempt order and

remand this case to the district court for further proceedings

consistent with this opinion.

REVERSED and REMANDED.

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