UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10492
TSAI-SON NGUYEN; ROBERT GARDNER; JORGE VEGA;
EMMA RODRIGUEZ; PROCOPIO CHAVEZ, JR.; JORGE
RAMIREZ; OSBELIA TRUJILLO; JOSE ALDABA; GREGORIA
MARTINEZ; TRINIDAD PEREZ; FERMIN REYES; SALVADOR
TORRES,
Plaintiffs-Appellees,
versus
EXCEL CORPORATION, a corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
December 15, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
POLITZ, Circuit Judge:
Excel Corporation appeals an order requiring its counsel to submit to
deposition. Excel contends that it did not waive the attorney-client privilege; that
if it waived the privilege, its executives rather than its counsel should be deposed
about the previously privileged matters; and that if its counsel should be deposed,
the scope of the questions authorized by the district court is too broad. For the
reasons assigned we affirm the order requiring defense counsel to submit to
depositions, subject to the modification of the scope as set forth herein.
BACKGROUND
Invoking the Fair Labor Standards Act, 2300 hourly employees brought suit
against Excel, alleging that they were entitled to payment for time spent donning
and doffing protective and sanitary clothing, and for time spent washing themselves
and their equipment at shifts’ end.1 The employees note that non-union hourly
employees at other plants are compensated for the time spent in these activities.
The employees assert that Excel’s actions were willful, entitling them to
compensation for a period of three years from the date of the filing of the
complaint. The employees also seek liquidated damages equal to the overtime
compensation that they claim is due.
We begin by noting that 29 U.S.C. § 203(o) permits collective bargaining
agreements, or custom and practice under such agreements, to exclude from
compensable time the time employees spend changing clothes and washing before
and after their shifts. Here, the Collective Bargaining Agreement provided that an
employee’s compensable time would start when work commenced at a station on
the sequential production line, and would terminate when work ceased at that
station. Excel maintains that the existing CBA, as well as the CBAs through the
years, excluded from compensable time that for which the employees now seek
payment. The employees counter that they are not changing into and out of
personal clothing but, rather, equipment peculiar to the industry, required as a
condition of employment, and owned by Excel. The employees contend that the
Department of Labor agrees with their interpretation. A letter opinion of the DOL
1
The district court has consolidated this case with another pending FLSA case involving
the claims of 1,259 other Excel employees. Zapata v. Excel, Inc., No. 2:97-CV-420 (N.D.
Tex.). Another similar case, Berumen v. Excel, Inc., No. 2:97-CV-216 (N.D. Tex.), was
tried to a jury which rendered a verdict favorable to plaintiffs.
2
provides that compensable time includes time spent putting on, taking off, or
washing protective safety equipment that is integral to the performance of an
employee’s principal duties; further, compensable time includes time spent treating
other equipment that is integral to the performance of an employee’s principal
duties. Excel responds that the DOL’s recent interpretation represents an attempt
to nullify administratively a legislative enactment.
Excel denies that it acted improperly; it denies that it acted willfully; and it
affirmatively asserts two statutory good faith defenses. First, Excel contends that,
consistent with 29 U.S.C. § 259,2 its actions were in good faith conformity with and
in reliance on an administrative practice or enforcement policy regarding the class
of employers to which it belonged. Second, Excel contends that the employees are
not entitled to liquidated damages because, consistent with 29 U.S.C. § 260,3 its
actions were in good faith and it had reasonable grounds for believing that its acts
or omissions did not violate the FLSA.
Excel maintains that it will prove its good faith defenses under §§ 259 and
2
In pertinent part, 29 U.S.C. § 259 provides: “[N]o employer shall be subject to any
liability . . . on account of the failure of the employer to pay minimum wages or overtime
compensation under the [FLSA] . . . if he pleads and proves that the act or omission
complained of was in good faith in conformity with and in reliance on any written
administrative regulation, order, ruling, approval, or interpretation, of the [Administrator of
the Wage and Hour Division of the Department of Labor], or any administrative practice or
enforcement policy of such agency with respect to the class of employers to which he
belonged.”
3
In pertinent part, 29 U.S.C. § 260 provides: “In any action . . . to recover unpaid
minimum wages, unpaid overtime compensation, or liquidated damages, under the [FLSA],
if the employer shows to the satisfaction of the court that the act or omission giving rise to
such action was in good faith and that he had reasonable grounds for believing that his act
or omission was not a violation of the [FLSA], the court may, in its sound discretion, award
no liquidated damages or award any amount thereof . . . .”
3
260 by showing its knowledge of historical pay practices within the industry, the
knowledge of the key Excel executives regarding the enforcement policies and
practices of the Wage and Hour Division of the DOL concerning § 203(o), and that,
in fact, Excel acted in a manner consistent with those DOL policies and practices.
Excel contends that the DOL has approved its basis for measuring compensable
time as well as similar bases employed by other companies. Excel asserts that its
executives kept abreast of DOL policies on this issue, entitling it to the defense
provided by § 259. Excel concedes that it consulted with its attorneys regarding the
obligations imposed upon it by the FLSA, but contends that it has not asserted and
will not assert reliance on advice of counsel as a predicate for its good faith beliefs.
The employees counter that Excel’s reliance on the practices of others in the
industry should be viewed with skepticism because IBP, the largest company in
Excel’s industry, is paying the non-exempt hourly workers the disputed wages at
union plants.
According to the employees, during depositions Excel executives could not
articulate the basis of the company’s good faith belief without stating their reliance
upon counsel or without first taking a break in their depositions to confer with
counsel. The employees contended that they were entitled to depose counsel
because Excel placed at issue the knowledge of its executives when they offered
reliance on the advice of counsel as a grounds for its good faith defense. The
magistrate judge denied the request to depose counsel, but permitted the request to
be renewed after other discovery avenues had been exhausted.
4
When the employees renewed their request, the magistrate judge ordered that
the depositions of defense counsel4 could proceed; the district court overruled
Excel’s objections. Excel appealed, and the district court stayed these depositions
pending this court’s resolution of the matter. Excel raises three issues on appeal –
whether it waived the attorney-client privilege; if so, whether defense counsel
should be deposed; and, if so, whether the scope of the questions to be posed during
the depositions is sufficiently limited.
ANALYSIS
Jurisdiction
Although neither party disputes that this court has jurisdiction, we address
the issue briefly. Generally, an order compelling deposition testimony is not a final
decision within the meaning of 28 U.S.C. § 1291, and in order to obtain
interlocutory review of such a discovery order the party seeking review must refuse
to comply with the order, be cited for contempt, and then appeal the contempt
citation. When a subpoenaed third party does not have a direct and personal
interest in suppression of the requested information, however, the third party is not
likely to risk a contempt citation. Some attorneys may be willing to submit to a
contempt citation to protect a client’s confidences; some client-intervenors might
find themselves denied meaningful review by attorneys unwilling to make such a
sacrifice. We therefore have treated as an appealable final decision a trial court’s
4
The depositions of Robert Overman, trial counsel, and Bryan Pioske, in-house counsel,
were authorized. According to one executive, Excel solicited advice equally from Overman
and Pioske regarding its compliance with the FLSA.
5
order directing the testimony of counsel regarding a client’s knowledge. 5
Waiver of Attorney-Client Privilege
Excel contends that the district court erred6 in finding that it waived its
attorney-client privilege when its executives referred to counsel’s advice. Excel
maintains that mere assertion of a good faith defense does not waive the attorney
client privilege.7 Excel contends that, despite the fact that the advice of counsel
might be relevant to the inquiry as a permissible basis of establishing the good faith
defense, it did not and never intended to raise reliance-on-advice-of-counsel as
support for its good faith defense. Excel further contends that there was no waiver
of the attorney-client privilege, even if it revealed that it would rely on the advice
5
Conkling v. Turner, 883 F.2d 431 (5th Cir. 1989).
6
Excel cites Ninth Circuit precedent for the proposition that de novo review should be
applied to the issue whether the attorney-client privilege has been waived. United States
v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990); see also Chaudhry v. Gallerizzo, 174 F.3d
394 (4th Cir.), cert. denied, _____ U.S. _____, 120 S.Ct. 215 (1999); In re Grand Jury
Proceedings, 78 F.3d 251 (6th Cir. 1996). Other circuits review for abuse of discretion.
Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695 (10th Cir. 1998) (reviewing waiver
of attorney-client privilege for abuse of discretion, factual findings for clear error, and purely
legal questions de novo); Livingstone v. North Belle Vernon Borough, 91 F.3d 515 (3d Cir.
1996) (reviewing waiver of attorney-client privilege for abuse of discretion), cert. denied,
520 U.S. 1142 (1997); United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (same);
Greater Newburyport Clamshell Alliance v. Pub. Serv. Co., 838 F.2d 13 (1st Cir. 1988)
(same). We have described the application of the attorney-client privilege as being a
question of fact, United States v. Neal, 27 F.3d 1035 (5th Cir. 1994), cert. denied, 513 U.S.
1179 (1995), but we have not clearly stated that the question whether a client waives the
attorney-client privilege is subject to a clearly erroneous standard of review. Whatever the
standard of review, the district court did not err, clearly err, or abuse its discretion in the
challenged order.
7
In re Burlington N., Inc., 822 F.2d 518 (5th Cir. 1987); Ward v. Succession of
Freeman, 854 F.2d 780 (5th Cir. 1988).
6
of counsel, because plaintiffs first put defense counsel’s advice at issue.8
According to Excel, its executives’ admissions that privileged communications
occurred do not waive the attorney-client privilege, nor do their “generic”
references to communications with counsel. Finally, Excel contends that mere
relevance of the privileged communication is inadequate for a court to authorize
disclosure, instead the information must be “vital” to the party seeking disclosure.
Therefore, according to Excel, it did not waive the privilege.
Appellees respond that the invocation of an affirmative defense, such as §
260, places at issue all steps taken by Excel to ascertain what the FLSA requires,
including the solicitation of legal advice regarding the requirements of the Act and
whether its actions would comply with the Act. Appellees note that the subjective
element of § 260 demands that Excel prove it had an honest intention to ascertain
the dictates of the FLSA and act accordingly.9 According to appellees, Excel
placed at issue the advice of counsel because it raised the issue concerning the
knowledge of its executives regarding Excel’s compliance with wage-hour laws.
Appellees maintain that if Excel can control what information it relied upon for its
8
Excel contends that appellees first raised the issue of its executives’ states of mind by
asserting that the FLSA violations were “willful.” Excel notes that an order of the district
court that appellees may discover “if in truth Excel suspected or had reason to suspect that
it was not in compliance with the Act,” speaks just as directly to willfulness as it does to
good faith. The argument possesses logical force. The Third Circuit, addressing another
point, chose language that undermines this contention. Rhone-Poulenc Rorer Inc. v. Home
Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) (“[I]n a patent suit, where an infringer is
alleged to have acted willfully, . . . the advice of the infringer’s counsel is not placed in issue
. . . .”). Our resolution of the issue at bar does not turn on this point.
9
E.g., Dybach v. Fla. Dept. of Corrections, 942 F.2d 1562 (11th Cir. 1991).
7
affirmative defense, then it will not disclose information about which it had
knowledge that revealed the illegality of its conduct. Such non-disclosure,
according to appellees, would run contrary to the “honest intentions” that Excel
seeks to establish. Appellees chiefly rely on cases from the Eleventh and Second
circuits10 for its conclusion that invocation of a good faith defense waives the
attorney-client privilege.
We need not and do not adopt the position as pressed by appellees; rather, we
view the matter more narrowly but conclude that the district court committed no
reversible error in determining that Excel waived the attorney-client privilege
herein. Alternative grounds support this conclusion. By failing to assert the
attorney-client privilege when privileged information was sought, Excel waived the
privilege. Then, Excel selectively disclosed portions of the privileged confidential
communication, thereby implicitly waiving the privilege.
A corporate client has a privilege to refuse to disclose, and prevent its
attorneys from disclosing, confidential communications between its representatives
and its attorneys when the communications were made to obtain legal services.11
10
Cox v. Adm’r United States Steel & Carnegie, 17 F.3d 1386, 1419 (11th Cir. 1994)
(“Having gone beyond mere denial, affirmatively to assert good faith, [the defendant]
injected the issue of its knowledge of the law into the case and thereby waived the attorney-
client privilege.”); Bilzerian, 926 F.2d at 1294 (affirming ruling that mere denial of
allegation would not waive the privilege but assertions regarding defendant’s good faith
would be inextricably intertwined with his state of mind and would waive the privilege to
determine the basis for such belief) (criminal context); see generally Swidler & Berlin v.
United States, 118 S. Ct. 2081, 2087 (1998) (“[T]here is no case authority for the
proposition that the privilege applies differently in criminal and civil cases . . . .”).
11
3 JACK B. WEINSTEIN ET AL., WEINSTEIN’S FEDERAL EVIDENCE §§ 503.10, 503.11, at
503-14-15 (2d ed. 1999); see also Upjohn Co. v. United States, 449 U.S. 383 (1981)
(continuing the Court’s assumption that the privilege applies when the client is a
8
A client waives the attorney-client privilege, however, by failing to assert it when
confidential information is sought in legal proceedings.12 Inquiry into the general
nature of the legal services provided by counsel does not necessitate an assertion
of the privilege because the general nature of services is not protected by the
privilege.13 Further inquiry into the substance of the client’s and attorney’s
discussions does implicate the privilege and an assertion is required to preserve the
privilege. A client’s specific request to an attorney and pertinent information
related thereto fall within the reaches of the privilege.14 Additionally, the research
undertaken by an attorney to respond to a client’s request also falls within the
corporation); see generally FED R. CIV. P. 26(b)(1) (“Parties may obtain discovery regarding
any matter, not privileged . . . .”).
12
FED. R. CIV. P. 26(b)(5) (“When a party withholds information otherwise discoverable
under these rules by claiming that it is privileged . . ., the party shall make the claim
expressly . . . .”); United States v. Sanders, 979 F.2d 87 (7th Cir. 1992) (failing to object to
question about communication waives the attorney-client privilege); Hollins v. Powell, 773
F.2d 191 (8th Cir. 1985) (same); 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2016.1, at 228-29 (2d ed. 1994) (“Failure to assert the privilege objection
correctly can mean the privilege is waived. . . . In the deposition context, . . . the objection
should ordinarily be asserted when a question seeking privileged material is asked . . . .”).
13
United States v. White, 887 F.2d 267, 271 (D.C. Cir. 1989) (“A general assertion
lacking substantive content that one’s attorney has examined a certain matter is not sufficient
to waive the attorney-client privilege.”); 3 WEINSTEIN’S FEDERAL EVIDENCE § 503.14[5][f],
at 503-51.
14
Swidler & Berlin, 118 S. Ct. at 2086 (“[B]usinesses . . . may regularly consult their
attorneys about a variety of problems arising in the course of business. These confidences
may not come close to any sort of admission of criminal wrongdoing, but nonetheless be
matters which the client would not wish divulged.”); Upjohn Co., 449 U.S. at 390 (“[T]he
privilege exists to protect not only the giving of professional advice to those who can act on
it but also the giving of information to the lawyer to enable him to give sound and informed
advice.”); id. at 396 (“The client cannot be compelled to answer the question, ‘What did you
say . . . to the attorney?’ . . . .”) (citation omitted).
9
reaches of the privilege.15
Though Excel raised some privilege-based objections,16 it did not object to
all questions designed to elicit information about privileged communications. The
district court observed that Excel did not object to all questions designed to elicit
information about confidential communications, and that Excel did not halt its
executives’ responses to all such questions. These questions were designed to elicit
information beyond the general nature of the legal services provided; they were
designed to elicit information about the substance of the communication, touching
on the directions given to counsel and the legal materials reviewed in addressing
the question presented.17 Excel waived the attorney-client privilege by its failure
15
Chaudhry, 174 F.3d at 402-03 (holding that the attorney-client privilege protects
against the disclosure of confidential information regarding legal advice, including the
identity of the federal statutes researched by the attorney); United States v. Amlani, 169
F.3d 1189, 1195 (9th Cir. 1999) (holding that the attorney-client privilege protects against the
disclosure of the “specific nature of the services provided, such as researching particular
areas of law”); see generally United States v. Ballard, 779 F.2d 287, 290 (5th Cir. 1986) (A
“lawyer’s responses to [a client’s] inquiries are privileged”).
16
Blanket claims of privilege are disfavored. United States v. El Paso Co., 682 F.2d
530, 539 (5th Cir. 1982) (“The privilege must be specifically asserted with respect to
particular documents.”); 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §
26.47[1], at 26-148 (3d ed. 1999) (“A bald assertion of privilege is insufficient . . . . [A]
claim of privilege must be directed to specific questions . . ., so that the trial court has
enough information so as to rule on the privilege claim.”) (footnotes omitted); 3 WEINSTEIN’S
FEDERAL EVIDENCE § 503.20[4][b], at 503-66.
17
E.g., Appellees’ Record Excerpts, #6 (deposition of William F. Rupp) (Q [by appellees
to Excel executive]: Have you had discussions with [counsel] about them [Reich v. Monfort,
Inc. and Reich v. IBP, Inc., the pertinent cases]? . . . A: . . . I have had general overall
discussions with [counsel]. . . . Q: Has [counsel] given you input with respect to his
interpretation of what those cases mean as it relates to Excel’s compliance or noncompliance
. . . with the [FLSA]? A: We– [counsel] and I discussed the case and discussed how we
perceive that that impacts Excel and our position with regard to the change time and the
donning and doffing equipment, et cetera. Q: And did you come to the conclusion that that
is something that Excel does not owe the workers for in a union plant? A: That would be my
10
to assert the privilege.
As related, but alternative, grounds for affirming the district court’s order,
Excel waived the attorney-client privilege by selectively disclosing confidential
communications. When relayed to a third party that is not rendering legal services
on the client’s behalf, a communication is no longer confidential, and thus it falls
outside of the reaches of the privilege.18 Therefore, a client implicitly waives the
attorney-client privilege by testifying about portions of the attorney-client
understanding of the cases.”); Appellees’ Record Excerpts, #7 (deposition of William A.
Buckner) (“Q: Have you had any discussion with [counsel] about those matters [the Monfort
and IBP cases]? A: Yes. . . . Q: Would it be a fair statement to say that when this issue first
arose in the industry that [counsel] was contacted and requested to research this area and
determine whether or not . . . Excel was in compliance with the [FLSA]?” . . . A: Yes. Q:
Would it be a fair statement to say that you asked him to determine or give you his opinion
as to whether or not Excel was in compliance with the wage and hour aspects of the [FLSA]
in light of these new cases? A: That’s correct. Q: Would it be fair to say that [counsel] is
more than just an outside litigator but that he advised you with regard to the meaning of the
[FLSA] and Excel’s compliance or noncompliance with it? A: That’s correct. . . . Q: Have
you . . . had any discussions with [counsel] about the December 3, 1997 Department of
Labor opinion letter? A: I’ve had discussions with [counsel]. Q: About this letter? A:
Yes.”).
18
Indus. Clearinghouse, Inc. v. Browning Mfg. Div. of Emerson Elec. Co., 953 F.2d
1004, 1007 (5th Cir. 1992) (“The privilege protects only confidential communications . . . .”);
El Paso Co., 682 F.2d at 539 (“The need to cloak [confidential] communications with
secrecy . . . ends when the secrets pass through the client’s lips to others.”); 3 WEINSTEIN’S
FEDERAL EVIDENCE § 503.15[1], at 503-57 (“The lawyer-client privilege applies only when
the communication is confidential. A communication is confidential when the circumstances
indicate that it was not intended to be disclosed to third persons other than (1) those to whom
disclosure is in furtherance of the rendition of legal services to the client, or (2) those
reasonably necessary for the transmission of the communication.”) (footnotes omitted).
In accord with this principle is a client’s inability to, at once, employ the privilege as
both a sword and a shield. Bilzerian, 926 F.2d at 1292; see generally FED. R. EVID. 501
(“[T]he privilege . . . shall be governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason and experience”).
Attempts at such improper dual usage of the privilege result in a waiver by implication.
11
communication.19
As discussed above, the Excel executives testified about privileged attorney-
client communications. They testified about the directions that they provided their
attorneys, and they testified about the legal research undertaken by their attorneys.
Objections were raised when appellees sought to elicit the attorneys’ conclusions
as to their research, but these objections were too little, too late. “[D]isclosure of
any significant portion of a confidential communication waives the privilege as to
the whole.”20
Because of the importance of the attorney-client privilege, we pause to
reaffirm that the privilege serves the valuable purpose of encouraging full and frank
communication between clients and their attorneys, thereby promoting the broad
public interests in the observance of law and the administration of justice.21 That
executives may have struggled to enumerate bases for Excel’s good faith belief,
other than the advice of counsel, does not mandate the outcome of this issue.22 We
conclude that Excel waived the attorney-client privilege by its own failures – its
19
United States v. Woodall, 438 F.2d 1317, 1324 (5th Cir. 1970) (en banc) (“[A] client’s
offer of his own or his attorney’s testimony as to a specific communication constitutes a
waiver as to all other communications on the same matter [because] ‘the privilege of secret
communication is intended only as an incidental means of defense, and not as an independent
means of attack, and to use it in the latter character is to abandon it in the former.’” (quoting
8 JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 2327, at 638 (1961)).
20
Indus. Clearinghouse, Inc., 953 F.2d at 1007; El Paso Co., 682 F.2d at 538.
21
El Paso Co., 682 F.2d at 538.
22
Swidler & Berlin, 118 S. Ct. at 2087; Burlington N., 822 F.2d at 533 (“Attorney/client
[confidences] may be quite helpful in making out [plaintiff’s] claim . . ., but this is not a
sufficient basis for abrogating the privilege.”).
12
failure to object and its failure to maintain the confidentiality of its
communications. Deposing Defense Counsel
Excel next maintains that, even if it waived the privilege, its executives
rather than its counsel should be deposed regarding matters no longer privileged.
Excel encourages this court to adopt the inquiry of the Eighth Circuit and forbid a
party from deposing opposing counsel unless (1) no other means exist to obtain the
information, (2) the information sought is relevant and non-privileged, and (3) the
information is crucial to the preparation of the case.23 Excel contends that
appellees cannot establish any of the three criteria.
Regarding the first factor, Excel contends that the information could be
obtained from the Excel executives themselves rather than defense counsel. Excel
asserts that it raised privilege-based objections during the depositions when
appellees attempted to question Excel executives about their communications with
counsel, but if the privilege were waived, then appellees should depose the
executives rather than defense counsel. Regarding the second factor, Excel
reasserts that the information requested is privileged. Regarding the third factor,
Excel maintains that the information requested is not crucial to appellees’
preparation of the case. Excel contends that it has disclosed the bases for its good
faith defense, and those bases do not include reliance upon the advice of counsel,
so testimony from defense counsel is not crucial to appellees’ preparation to
undermine the bases that will be offered at trial. Appellees simply adopt as their
23
Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986).
13
position the district court’s orders.
Rule 26(c) of the Rules of Civil Procedure empowers a district court to issue
an order to protect a party or witness from whom discovery is sought.24 For good
cause shown, a district court may order that discovery be had by a method other
than that selected by the party seeking discovery.25 Because depositions of
opposing counsel are disfavored generally and should be permitted in only limited
circumstances,26 one would suspect that a request to depose opposing counsel
generally would provide a district court with good cause to issue a protective order.
The district court, however, did not abuse its discretion 27 in authorizing the
depositions of defense counsel, even assuming the applicability of the Shelton
inquiry. As to the first factor – a deposition of defense counsel should not be
ordered when the information sought could be otherwise obtained – the district
court determined, and Excel does not contest, that the only source of information
24
FED. R. CIV. P. 26(c).
25
FED. R. CIV. P. 26(c)(3).
26
Shelton, 805 F.2d at 1327 (discussing that deposing counsel opposite “disrupts the
adversarial system[,] . . . lowers the standards of the profession, . . . adds to the already
burdensome time and costs of litigation[, and] . . . detracts from the quality of client
representation”); see also Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680
n.2 (2d Cir. 1987) (noting that the tactic of seeking discovery from opposing counsel is
generally disfavored).
27
As a general proposition, a district court can exercise its sound discretion in
determining how far to restrict discovery; and, in particular, the decision whether to grant
or deny a request for a protective order is entrusted to the district court’s sound discretion.
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 28 F.3d
1388, 1394 (5th Cir. 1994); see also Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990) (“An
abuse of discretion occurs only when the trial court based its decision on an erroneous
conclusion of law or where there is no rational basis in the evidence for the ruling.”).
14
besides defense counsel is Excel’s executives. According to the district court,
Excel’s executives offered only “vague and non-specific” explanations in response
to appellees’ questions about their good faith beliefs. On at least one occasion, an
Excel executive requested a break in the deposition to confer with counsel before
he would be able to provide with specificity the bases underlying his belief that
Excel acted in good faith. The district court found, without clear error, that Excel
responded to interrogatories with answers so incomplete and ambiguous that they
were without meaning, and that the executives had made no writings that might
enable them to respond to future inquiries posed by appellees. Excel suggests that
additional questions be posed to its executives, and were we addressing the issue
anew, we might agree. In light of Excel’s responses to the questions posed,
however, we cannot conclude that Excel has established that the district court
abused its discretion in determining that its executives could not respond
meaningfully to the questions to be posed.28
As to the second factor, the information sought is relevant and non-
privileged.29 As to third factor, the information sought is crucial to appellees’
preparation of the case. Excel seeks to establish its good faith compliance with the
law. Appellees seek to explore the legal advice received by Excel, in light of its
28
Conkling, 883 F.2d at 433 (affirming the district court’s order that counsel must submit
to deposition after the client provided unsatisfactory, non-specific answers to written
interrogatories about matters no longer privileged without giving the client an additional
opportunity to respond); see generally S. Ry. Co. v. Lanham, 403 F.2d 119, 130 (5th Cir.
1968) (“A lawsuit is not a contest in concealment . . . .”).
29
See supra.
15
waiver of the attorney-client privilege, to counter Excel’s assertion of good faith.
The district court did not abuse its discretion in concluding that defense counsel
were subject to deposition by appellees.
Scope of Deposition Inquiry
Finally, Excel maintains that, if it waived the attorney-client privilege and
if the depositions of its counsel are permitted, the scope of the questions to be
posed to defense counsel during these depositions is overly broad. The district
court noted with approval the magistrate judge’s order regarding the reaches of
permissible discovery. The magistrate judge limited discoverable matters to:
the “good faith” defense including, but not limited to inquiring about
advice rendered to defendant or defendant’s representatives
concerning the applicability of the F.L.S.A. with regard to issues
pertinent to this case, the meaning of Reich v. I.B.P. and its
applicability to defendant’s operations, and defendant’s compliance or
non-compliance with the F.L.S.A. and case law interpreting the
requirements of the F.L.S.A. as applicable to this case. Plaintiffs may
also inquire as to counsels’ understanding of what defendant and/or
defendant’s representatives perceived as compliance or non-
compliance with applicable statutes and case law relevant to the issues
raised in this case, as well as defendant’s perceptions of industry
practice and the positions of employee unions. Counsel may also be
queried concerning their opinions as to whether their advice
concerning the above-noted areas was followed and/or relied upon.
The inquiry shall only be allowed for the period up to the filing of the
instant law suit, and inquiry shall not be allowed with respect to
counsel’s work product, mental impressions, and confidential
attorney-client communications which occurred subsequent to the
filing of this lawsuit.
District courts typically review written questions to be posed to counsel; here, no
written questions were provided to the district court and the court did not request
same. Further, the district court expressed its belief that written discovery was not
16
an adequate substitute for oral depositions in this case.30
The first sentence of the magistrate judge’s order deals with inquiry into
objective facts: what the client said, what counsel said, and when they said it. We
previously have permitted such inquiry.31
The second sentence of the magistrate judge’s order permits inquiry into
counsels’ understanding of defendant’s perceptions, and the third sentence of the
order permits inquiry into counsels’ opinions. These inquiries are impermissible.
“An attorney’s thoughts [are] inviolate . . . .”32 Even though an attorney’s mental
impressions and opinions fall outside of the attorney-client privilege, they also
“fall[] outside the arena of discovery [as their disclosure would] contravene[] the
public policy underlying the orderly prosecution and defense of legal claims.”33 In
Hickman v. Taylor, the Supreme Court addressed whether an attorney’s work
product warranted protection, but the offered rationale for protecting the work
product was the protection of the attorney’s mental impressions and opinions.34
30
Excel challenges this conclusion but offers nothing necessitating reversal on this point.
31
Conkling, 883 F.2d at 435.
32
Hickman v. Taylor, 329 U.S. 495, 511 (1947); El Paso Co., 682 F.2d at 542 (The
“invasion of a lawyer’s private thoughts would demoralize the profession.”); see generally
FED. R. CIV. P. 26(b)(3) (“[T]he court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney . . . of a party concerning
the litigation.”).
33
Hickman, 329 U.S. at 510.
34
Id. at 508-14; 6 MOORE’S FEDERAL PRACTICE § 26.70[2][c], at 26-209 (“[C]ourts have
protected an attorney’s thoughts, mental processes, strategy, and opinions from disclosure,
regardless of the discovery method employed. . . . Courts have continued to apply Hickman
to prevent circumventing the work product doctrine by attempting to elicit an attorney’s
thought processes through depositions or interrogatories.”).
17
The magistrate judge recognized as much by forbidding inquiry into counsel’s work
product and mental impressions. However, inquiry into counsels’ perceptions and
opinions was authorized. Such inquiry is inappropriate. Additionally, appellees
effectively seek counsels’ assessment of Excel’s compliance with the law.
“Discovery[,however,] was hardly intended to enable a learned profession to
perform its functions . . . on wits borrowed from the adversary.”35 The magistrate
judge’s order exceeds allowable bounds in permitting such herein.
CONCLUSION
For the reasons assigned, the order requiring defense counsel to submit to
depositions is affirmed. The scope of the inquiry permitted is to be limited in a
manner consistent herewith.
As modified, AFFIRMED.
35
Hickman, 329 U.S. at 516 (Jackson, J., concurring).
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