FILED
NOT FOR PUBLICATION MAR 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: PROGRESSIVE CHOICE No. 12-73128
INSURANCE COMPANY,
D.C. No. 3:11-cv-00466-BEN-
NLS
PROGRESSIVE CHOICE INSURANCE
COMPANY,
MEMORANDUM*
Petitioner,
v.
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, SAN DIEGO,
Respondent,
CHRISTINA ELIZABETH PALMER
GERACI,
Real Party in Interest.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted February 7, 2013**
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Petitioner Progressive Choice Insurance Co. (“Progressive”) petitions for
mandamus to vacate the district court’s order requiring Progressive to produce
emails it claims are protected by attorney-client privilege. The magistrate judge
held that Progressive waived its attorney-client privilege under California law
based on its prior disclosures. The district court adopted the magistrate judge’s
order.
This court considers five factors in granting mandamus:
(1) whether the petitioner has no other adequate means, such as a direct
appeal, to obtain the desired relief; (2) whether the petitioner will be
damaged or prejudiced in any way not correctable on appeal; (3) whether
the district court’s order is clearly erroneous as a matter of law; (4) whether
the district court’s order is an oft repeated error or manifests a persistent
disregard of the federal rules; and (5) whether the district court’s order
raises new and important problems or issues of first impression.
Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (citing Bauman v.
U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977)). “[T]he absence of the
third factor, clear error, is dispositive.” Id. (quoting Burlington N. & Santa Fe Ry.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005)) (internal quotation marks
omitted).
The district did not clearly err in determining that Progressive waived its
privilege under California law. Because the district court’s interpretation finds
support under current California case law, mandamus is inappropriate. Progressive
cannot establish the necessary third factor, and so we deny the petition.
Progressive’s motion for judicial notice is denied.
DENIED.
3