IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-60834
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In Re: TERRA INTERNATIONAL, INC.,
Petitioner.
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On Petition for Writ of Mandamus to the United States
District Court for the
Southern District of Mississippi
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January 26, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
Petitioner Terra International, Inc. seeks a writ of
mandamus compelling the district court to vacate certain
discovery orders entered by the magistrate judge (and affirmed by
the district court) in a civil suit between Terra International,
Inc. and Mississippi Chemical Corporation. We grant the petition
for writ of mandamus in part and deny it in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Litigation
On December 13, 1994, an explosion occurred at Terra
International’s (“Terra”) ammonium nitrate facility in Port Neal,
Iowa, killing four people, injuring eighteen others, and causing
substantial property damage. Shortly thereafter, Terra formed an
“Incident Investigation Committee” (the “Committee”) to
investigate the cause of the accident. The Committee’s
membership consisted of Terra employees, outside consulting
experts, Terra’s general counsel, and an outside attorney.
On June 8, 1995, Terra released a report (the “Report”)
prepared by the Committee containing its conclusion that the
explosion was principally caused by the faulty design of a
“sparger,” an apparatus used to feed nitric acid into a closed
vessel known as a neutralizer in which Terra processed liquid
ammonium nitrate. Mississippi Chemical Corporation (“MCC”) had
designed the sparger and licensed the design to Terra. Terra
released the report to interested parties as required by OSHA
regulations, as well as to others in the fertilizer industry.
Terra employees also conducted press conferences at which they
reiterated the Report’s conclusion that a defect in the sparger’s
design caused the explosion.1
On August 31, 1995, Terra filed a products liability suit
against MCC in federal district court in the Northern District of
Iowa, alleging that MCC’s defective sparger design proximately
caused the explosion at Terra’s plant. Shortly thereafter, MCC
filed suit in federal district court in the Southern District of
Mississippi, asserting a claim of defamation based upon Terra’s
dissemination of the Report and its conclusion that MCC’s sparger
design caused the explosion as well as a claim for a declaratory
judgment that MCC-designed equipment did not cause the explosion.
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The magistrate judge made this factual conclusion
regarding the scope of Terra’s dissemination of the reports and
its contents. Terra does not dispute it.
2
Terra’s products liability action was subsequently transferred to
the Mississippi district court.
This petition for writ of mandamus arises out of the
district court’s affirmation of certain discovery orders entered
by the magistrate judge in the underlying litigation. These
include (1) orders requiring Terra to produce certain categories
of documents that Terra alleges are undiscoverable (the
“Production Orders”) and (2) an order granting MCC’s motion for a
protective order sequestering fact witnesses prior to their
depositions and barring fact witnesses from attending the
depositions of other witnesses (the “Sequestration Order”).
B. The Production Orders
On August 10, 1996, MCC filed a motion to compel the
production of a number of categories of documents relating to the
Committee’s preparation of the Report. Terra responded with a
motion for protective order, asserting that a number of
categories of documents that were responsive to MCC’s motion to
compel were protected from discovery by the attorney-client
privilege, the work product rule, and Rule 26(b)(4)(B) of the
Federal Rules of Civil Procedure, the rule that limits discovery
of facts known or opinions held by a party’s nontestifying
expert. On December 4, 1996, the magistrate judge entered the
first Production Order, which granted in part and denied in part
MCC’s motion to compel and Terra’s motion for protective order.
In the first Production Order, the magistrate judge concluded
that the following categories of documents for which Terra
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asserted privilege or other protection from discovery were
discoverable:
(1) Terra’s counsel’s notes of confidential employee
interviews;
(2) documents prepared by Terra employees at the
request of Terra’s counsel or counsel’s experts;
(3) documents prepared by Terra’s counsel’s experts
containing test results and analyses; and
(4) certain scientific and engineering literature used
by Terra’s counsel’s experts.
The parties each objected to the first Production Order, and, in
a July 16, 1997 order, the district court remanded the case to
the magistrate judge for further fact-finding and clarification
of certain portions of the first Protective Order.
On July 27, 1997, the magistrate judge issued the second
Production Order, in which he made a number of clarifications as
to the legal bases for his conclusion that the four categories of
documents enumerated above were discoverable. First, the
magistrate judge concluded that the attorney-client privilege
never applied to the first and second categories because the
employees about whom Terra’s counsel made notes and who prepared
documents at the request of counsel or counsel’s experts were not
clients. Second, he concluded that, with respect to these two
categories of documents, MCC had made the requisite showing of
substantial need and undue hardship necessary to overcome the
protection afforded them by the work product doctrine. Third, he
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concluded that the third and fourth categories of documents were
discoverable under Rule 26(b)(4)(B) because, although they
constituted the work of nontestifying experts, MCC had made the
requisite showing of exceptional circumstances necessary to
render them discoverable in light of the fact that (1) the
condition of the explosion site had changed through the passage
of time and (2) the documents contained in these two categories
were necessary to support MCC’s defamation claim. On October 30,
1997, the district court entered an order affirming the
magistrate judge’s Production Orders.
C. The Sequestration Order
On February 19, 1997, MCC moved for a protective order under
Rule 26(c)(5), seeking to prohibit all fact witnesses from
attending the depositions of other fact witnesses and to prevent
counsel from disclosing any prior deposition testimony to any
prospective fact witness. MCC’s motion was not supported by
affidavits or other evidence, but merely alleged that Terra
employees might feel a sense of camaraderie or feel pressure from
Terra that might taint their testimony and preclude counsel from
obtaining the witness’s “raw reactions.” MCC contended that
these factors constituted the “good cause” necessary to justify
sequestration during discovery under Rule 26(c)(5). On April 14,
1997, the magistrate judge issued the Sequestration Order, which
granted MCC’s motion and directed that (1) when preparing
witnesses for their depositions, attorneys may not refer
“directly or indirectly by innuendo, to what other witnesses say
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about the facts;” (2) attorneys and officers of any party may not
reveal prior deposition testimony to any witness prior to that
witness’s deposition; and (3) a party may not designate more than
two corporate representatives to attend depositions before the
representatives themselves have been deposed and may have only
six corporate representatives overall, two of whom will not be
deposed. In support of his decision to grant MCC’s motion, the
magistrate judge stated:
[T]he court finds validity in the contentions of MCC
that most fact witnesses are subject to substantial
influence and even perhaps subtle pressures from their
relationships with Terra. The court further finds that
MCC has made a substantial showing of exceptional
circumstances that make it appropriate for the court to
fashion a reasonable protective order.
On October 30, 1997, the district court issued an order affirming
the Sequestration Order.
Terra seeks a writ of mandamus to compel the district court
to vacate its orders of October 30, 1997 affirming the magistrate
judge’s Production Orders and Sequestration Order.
II. ANALYSIS
“[T]he writ of mandamus is an extraordinary remedy reserved
for extraordinary situations” and “is not to be used as a
substitute for appeal.” In re American Marine Holding Co., 14
F.3d 276, 277 (5th Cir. 1994). “Mandamus is appropriate ‘when
the trial court has exceeded its jurisdiction or has declined to
exercise it, or when the trial court has so clearly and
indisputably abused its discretion as to compel prompt
intervention by the appellate court.’” See In re Dresser Indus.,
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972 F.2d 540, 543 (5th Cir. 1992) (quoting In re Chesson, 897
F.2d 156, 159 (5th Cir. 1990)). We will grant a writ of mandamus
only when the petitioner demonstrates that its right to the writ
is “clear and indisputable.” Id.
We conclude that Terra has failed to meet the above standard
with respect to its challenge to the district court’s order
affirming the magistrate judge’s Production Orders. Terra’s
petition for writ of mandamus is therefore denied in this regard.
We intimate no view as to the merits of Terra’s claims of
privilege and other limitations on discovery. However, we
conclude that Terra has met the standard with respect to the
district court’s order affirming the magistrate judge’s
Sequestration Order.
In 1993, Rule 30(c) of the Federal Rules of Civil Procedure
was amended to make clear that, in the typical case, deposition
witnesses are not subject to sequestration. See FED. R. CIV. P.
30(c) advisory committee notes. Rule 30(c) now provides in
relevant part that “[e]xamination and cross-examination of
witnesses [at oral depositions] may proceed as permitted at the
trial under the provisions of the Federal Rules of Evidence
except Rules 103 and 615.” FED. R. CIV. P. 30(c) (emphasis
added). Rule 615 of the Federal Rules of Evidence establishes
the right of any party at trial to request that the court “order
witnesses excluded so that they cannot hear the testimony of
other witnesses.” FED. R. EVID. 615. Rule 30(c)’s exclusion of
depositions from the strictures of Rule 615 was intended to
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establish a general rule that “other witnesses are not
automatically excluded from a deposition simply by the request of
a party.” FED. R. CIV. P. 30(c) advisory committee notes.
Rather, exclusion of other witnesses requires that the court
grant a protective order pursuant to Rule 26(c)(5) of the Federal
Rules of Civil Procedure.
Rule 26(c)(5) provides as follows:
(c) Protective Orders. Upon motion by a party or by
the person from whom discovery is sought, accompanied
by a certification that the movant has in good faith
conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without
court action, and for good cause shown, the court in
which the action is pending or alternatively, on
matters relating to a deposition, the court in the
district where the deposition is to be taken may make
any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the
following:
. . .
(5) that discovery be conducted with no one present
except persons designated by the court . . . .
FED. R. CIV. P. 26(c)(5) (emphasis added). Rule 26(c)’s
requirement of a showing of good cause to support the issuance of
a protective order indicates that “[t]he burden is upon the
movant to show the necessity of its issuance, which contemplates
a particular and specific demonstration of fact as distinguished
from stereotyped and conclusory statements.” United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978); see also
8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2035, at
483-86 (2d ed. 1994).
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In this case, MCC made nothing more than a conclusory
allegation that a substantial majority of the fact witnesses in
the underlying litigation are employees of Terra and that they
will therefore be subject to Terra’s influence and will be
inclined to protect each other through a sense of “camaraderie.”
MCC did not support its motion for protective order with any
affidavits or other evidence that might provide support for this
simple assertion. The district court’s entry of the protective
order requested by MCC was therefore unsupported by a “particular
and specific demonstration of fact” and therefore constituted a
clear abuse of discretion. Garrett, 571 F.2d at 1326 n.3. To
conclude otherwise would indicate that good cause exists for
granting a protective order any time fact witnesses in a case are
employed by the same employer or are employed by a party in the
case. Such a conclusion is inconsistent with this court’s
admonition that a district court may not grant a protective order
solely on the basis of “stereotyped and conclusory statements.”
Id.; see also Tuszkiewicz v. Allen Bradley Co., 170 F.R.D. 15, 17
(E.D. Wis. 1996) (denying a request for a protective order based
on the fact that several fact witnesses were employed by the
defendant and worked together because a finding of good cause
based on this showing alone “would surely mandate the same result
in all cases in which there was more than one fact witness on an
issue and where the movant alleges that prejudice could result”);
BCI Comm. Sys., Inc. v. Bell Atlanticom Sys., Inc., 112 F.R.D.
154, 155, 160 (N.D. Ala. 1986) (holding that the defendant’s
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allegations regarding the need to preclude plaintiff’s witnesses,
some of whom were the plaintiff’s employees, “from hearing or
being exposed to deponents’ testimony” did not constitute
“anything more than ordinary garden variety or boilerplate ‘good
cause’ facts which will exist in most civil litigation”). The
district court therefore clearly abused its discretion in
affirming the magistrate’s sequestration order on the present
record.
III. CONCLUSION
For the foregoing reasons, we DENY Terra’s petition for a
writ of mandamus as to the magistrate judge’s Production Orders,
and we GRANT Terra’s petition for writ of mandamus as to the
magistrate judge’s Sequestration Order and REMAND with
instructions to vacate that order.
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