ANDREW BARTON; KENNETH BORENSTEIN; GERRI MARIN; TRISHIA MEDEMA; and JAMES MEYTHALER v. UNITED STATES DISTRICT D.C. No. COURT FOR THE CENTRAL CV-01-07937-MRP DISTRICT OF…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANDREW BARTON; KENNETH
BORENSTEIN; GERRI MARIN; TRISHIA
MEDEMA; and JAMES MEYTHALER,
Petitioners,
v. No. 05-71086
UNITED STATES DISTRICT D.C. No.
COURT FOR THE CENTRAL CV-01-07937-MRP DISTRICT OF CALIFORNIA, OPINION AND Respondent, ORDER
SMITHKLINE BEECHAM
CORPORATION, dba
GlaxoSmithKline, A Pennsylvania
Corporation,
Real Party in Interest. 
Petition for Writ of Mandamus to the
United States District Court for the
Central District of California
Mariana R. Pfaelzer, District Judge, Presiding
Argued and Submitted
May 12, 2005—San Francisco, California
Filed June 9, 2005
Before: Andrew J. Kleinfeld, Michael Daly Hawkins, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Kleinfeld
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COUNSEL
Robert M. Brava-Partain and Karen Barth Menzies, Baum
Hedlund, A Professional Corp., Los Angeles, California, for
the petitioners.
James D. Miller, King & Spaulding LLP, Washington, D.C.,
and Vernon I. Zvoleff, Drinker Biddle & Reath LLP, San
Francisco, California, for the real party in interest.
OPINION
KLEINFELD, Circuit Judge:
We grant a writ of mandamus to prevent disclosure of com-
munications by prospective clients to their lawyers.
Facts.
Plaintiffs sued SmithKline Beecham Corporation, which
does business as GlaxoSmithKline. They claim injury from
Paxil, a medication manufactured by SmithKline. Plaintiffs
did not initiate contact with their lawyers by walking into the
law office. Instead, the law firm posted a questionnaire on the
internet, seeking information about potential class members
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for a class action the law firm contemplated.1 The district
court ordered plaintiffs to produce the four plaintiffs’ answers
to the questionnaire.2 Plaintiffs seek, and we grant, a writ of
mandamus vacating the district court’s order compelling pro-
duction.3
The law firm that now represents the plaintiffs posted a
questionnaire relating to the antidepressant Paxil on the inter-
net. Although the firm in its briefs calls the questionnaire an
“intake” questionnaire, it did not call it that on the net. The
law firm’s presentation on the web does not say that those
who answer the questionnaire are submitting themselves to
the firm as potential clients.
The questionnaire is entitled “PAXIL WITHDRAWAL
LITIGATION INITIAL CONTACT.” Its introduction, in
boldface, says that its purpose is “to gather information.” The
subject of the information is “potential class members,” but
responses are requested, not only from potential class mem-
bers, but also from “loved ones” who would presumably
include siblings, parents of adult children, and others who
knew of another person’s Paxil use, but who could not be
plaintiffs in a lawsuit for damages from Paxil.4
1The district court did not certify a class. A large number of Paxil cases
have been consolidated by the Judicial Panel on Multidistrict Litigation,
with five plaintiffs, including the four who returned questionnaires, to go
to trial first.
2A motion to stay the order pending the petition for a writ of mandamus
was filed March 1, 2005, and granted by a motions panel of this court
March 23, 2005, and the matter was placed on a May calendar for argu-
ment.
3There are five plaintiffs, but only four submitted answers to the firm’s
internet questionnaire. Thousands of other answers to the questionnaire
were submitted to the law firm, but the order being reviewed and the peti-
tion do not address the other questionnaires. The district court order says
“this Court GRANTS GSK’s motion to compel web site questionnaires
completed by the four trial plaintiffs.”
4The boldface text states, in full:
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The questionnaire asks for extensive information about use
of Paxil and symptoms. At the end, it suggests that “you do
not sign nor return” a form that GlaxoSmithKline might send
requesting an authorization for release of medical records.
Then, in order to cause the filled-out questionnaire to be e-
mailed to the law firm, the person filling it out has to check
a “yes” box. The “yes” box acknowledges that the question-
naire “does not constitute a request for legal advice and that
I am not forming an attorney client relationship by submitting
this information.”5
The law firm, as it has acknowledged, was careful to avoid
committing itself to an attorney-client relationship. It might
(and did) receive many thousands of responses, and did not
The purpose of this questionnaire is to gather information
about potential class members who have suffered withdrawal
symptoms as a result of stopping the use of Paxil or decreas-
ing the dose of Paxil in an effort to stop taking it. We will also
use your contact information to keep you updated on devel-
opments of the litigation including whether a class is certified,
either formally or for settlement purposes.
If you believe that you or a loved one has been adversely
affected by GlaxoSmithKline, the makers of Paxil (generically
known as Paroxetine), please fill out the form below:
5The “yes” box acknowledgment states, in full:
I agree that the above does not constitute a request for legal
advice and that I am not forming an attorney client relationship
by submitting this information. I understand that I may only
retain an attorney by entering into a fee agreement, and that I am
not hereby entering into a fee agreement. I agree that any infor-
mation that I will receive in response to the above questionnaire
is general information and I will not be charged for a response to
this submission. I further understand that the law for each state
may vary, and therefore, I will not rely upon this information as
legal advice. Since this matter may require advice regarding my
home state, I agree that local counsel may be contacted for refer-
ral of this matter.
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want to leave itself open to suits for malpractice to those who
answered, such as for letting the statutes of limitations run.
More important than what the law firm intended is what the
clients thought. Here, there is ambiguity. On the one hand, the
form can be filled out by “a loved one” rather than by the
potential client, and the person sending it in has to acknowl-
edge that he is not requesting legal advice and is not forming
an attorney client relationship by sending it in. The form also
states that the person will not have retained an attorney until
he signs a fee agreement and that “local counsel may be con-
tacted for referral of this matter.” The form states that its pur-
pose is to “gather information about potential class members,”
not to consider accepting them as clients. On the other hand,
the stated purpose of gathering “information about potential
class members” suggests that the firm is indeed trolling for
clients.
The manufacturer sought the four plaintiffs’ questionnaires
in discovery “to juxtapose against what they are now claiming
in discovery to determine whether or not the two fit and
whether there’s any information that provides for fertile cross-
examination at trial.” The plaintiffs opposed production on
the basis of the attorney-client privilege. No privilege relating
to confidential medical disclosures is asserted, no doubt
because the nature of the claims, damages from Paxil with-
drawal, would make the medical information disclosed in the
questionnaires discoverable, if the same questions were put
fully to plaintiffs in interrogatories or depositions.
The district court concluded that the attorney-client privi-
lege did not apply because the disclaimer established that the
communications were not “confidential” and that checking
the “yes” box waived the privilege. The district court
acknowledged that under California law6 the privilege applied
6It is undisputed that California law controls whether the questionnaires
are privileged, under the following sentence in Federal Rule of Evidence
501:
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to pre-employment communications with an attorney by a
prospective client with a view to employing the attorney.
Although the district court did not label any part of its deci-
sion “findings of fact,” its decision states that the law firm
posted the questionnaire online to find potential clients, that
the four individuals submitted answers “because they were
seeking legal representation,” and that as a result of submit-
ting the questionnaires they obtained representation by the
law firm.
What tipped the district court in favor of disclosure was the
checked “yes box” disclaimer that included “I agree that the
above does not constitute a request for legal advice and that
I am not forming an attorney client relationship by submitting
this information.” The district court concluded that the plain-
tiffs’ attorneys could not assert the attorney-client privilege
against the defendants when they insisted on “a disclaimer of
confidentiality” to protect themselves.
Analysis.
Plaintiffs seek a writ of mandamus because once the infor-
mation is out of the bag, you can’t stuff it back in. Defendant
opposes the writ, arguing that the disclaimers on the question-
naire establish that by submitting answers, the plaintiffs were
not seeking legal advice, and were not assured that their
answers would be confidential.
[1] Mandamus is a “ ‘drastic’ ” remedy limited to “ ‘ex-
traordinary situations.’ ”7 The writ may be denied even where,
However, in civil actions and proceedings, with respect to an ele-
ment of a claim or defense as to which State law supplies the rule
of decision, the privilege of a witness, person, government, State,
or political subdivision thereof shall be determined in accordance
with State law.
7Spencer v. United States Dist. Court, 393 F.3d 867, 869 (9th Cir. 2004)
(quoting Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976)).
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on an appeal or petition for review, we would conclude that
the petitioner was correct. We apply the “Bauman factors” in
exercising our discretion whether to grant the writ:8
(1) The party seeking the writ has no other adequate
means, such as a direct appeal, to attain the relief he
or she desires. (2) The petitioner will be damaged or
prejudiced in a way not correctable on appeal. (3)
The district court’s order is clearly erroneous as a
matter of law. (4) The district court’s order is an oft-
repeated error, or manifests a persistent disregard of
the federal rules. (5) The district court’s order raises
new and important problems, or issues of law of first
impression.9
Like all multi-factor tests, this one gives an appearance of
more precision than it really has, but it nevertheless furnishes
useful guidance.
[2] The first and second factors are satisfied, because once
the questionnaires are disclosed to the defendant, the disclo-
sure cannot be undone, by appeal or otherwise. But that does
not distinguish this case from the myriad discovery disputes
for which we do not grant interlocutory relief. There is noth-
ing to support the fourth factor, “oft-repeated error,” or “per-
sistent disregard” of the rules.
[3] The third and fifth factors are determinative in this case,
particularly the fifth. As required by the fifth factor, the prob-
lem is “new and important.” Part of the importance is that,
although only four questionnaires are before us, thousands
more are waiting in the wings because this is a consolidated
multidistrict litigation with thousands of plaintiffs. Of even
greater salience is the fundamental importance of the
8Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.
1977).
9Spencer, 393 F.3d at 869 (citing Bauman, 557 F.2d at 654-55).
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attorney-client privilege to our adversarial system of justice.
What is “new” about the case is attorneys trolling for clients
on the internet and obtaining there the kind of detailed infor-
mation from large numbers of people that used to be provided
only when a potential client physically came into a lawyer’s
office. Two things had to happen to bring this about: the
change in law in the 1970s that permitted attorney advertising,10
and the sufficiently widespread use of the internet, within the
past five or ten years, that makes internet advertising worth-
while.
Of course, these reasons for granting the writ justify it only
if the “district court’s order is clearly erroneous as a matter of
law.”11 We conclude that it is.
The first determination the district court made was whether,
absent consideration of the disclaimer, the questionnaires
were submitted “in the course of” an attorney-client relation-
ship12 and thus ordinarily protected under California’s
attorney-client privilege. Concluding that they were, the dis-
trict court next considered whether the disclaimer at the bot-
tom of the questionnaire acted as a waiver of the protections
afforded under the attorney-client privilege. This second step
is where the district court clearly erred.
In considering the first step, the district court said that
“[t]he four individuals who filled out the questionnaires, in
turn, did so only because they were seeking legal representa-
tion with regard to the same matter. Indeed, by filling out the
questionnaire, these four plaintiffs did, in fact, secure legal
representation.” Under Federal Rule of Civil Procedure 52(a),
findings of fact “are unnecessary on decisions of motions.”
Thus, no findings of fact were necessary to decide Glaxo-
SmithKline’s motion to compel discovery. It is not clear
10See Bates v. State Bar of Ariz., 433 U.S. 350 (1977).
11Spencer, 393 F.3d at 869 (citing Bauman, 557 F.2d at 654-55).
12Cal. Evid. Code § 952.
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whether the district court intended the quoted sentence to be
a finding of fact. If it did, then we would review it for clear
error under Valley Engineers Inc. v. Electric Engineering Co.13
If it did not, we would come to the same conclusion our-
selves.
That is not to say that the question whether the respondents
were trying to secure legal services is without doubt. Arguing
that they were is (1) the response of at least one of them that
he was trying “to get in the class action,” (2) the nature of the
information they provided (detailed accounts of their psycho-
logical and physical symptoms and medical histories relating
to Paxil), (3) the context of supplying information to lawyers
who apparently were bringing a Paxil class action, and (4) the
ultimate representation of these four plaintiffs. Arguing that
they were not was (1) the elusive wording of the question-
naire, (2) the disclaimers, (3) the response of at least one of
them that she was furnishing information and “if they needed
me, call me,” and (4) the law firm’s statement that the lawyers
were attempting to “gather information about potential class
members,”14 not that they were soliciting them as clients. The
questionnaire is ambiguous, but the plaintiffs should not be
penalized for the law firm’s ambiguity. It is their privilege,
not any right of the lawyers, that is at stake. A layman seeing
the law firm’s internet material would likely think he was
being solicited as a potential client. In all likelihood, a very
high proportion of questionnaire submitters completed the
questionnaire “with a view to retention of” the law firm,15 and
thus submitted them “in the course of” an attorney-client rela-
tionship.16
13Valley Eng’rs Inc. v. Electric Eng’g Co., 158 F.3d 1051, 1052 (9th
Cir. 1998).
14(Emphasis added).
15See Beery v. State Bar of Cal., 739 P.2d 1289, 1293 (Cal. 1987).
16Cal. Evid. Code § 952.
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Given this determination, a statement on the questionnaire
that it is intended to be “confidential” is not required to pro-
tect the questionnaire from disclosure. Under California law,
once it is determined that a communication was made in “the
course of the lawyer-client” relationship, “the communication
is presumed to have been made in confidence and the oppo-
nent of the claim of privilege has the burden of proof to estab-
lish that the communication was not confidential.”17
[4] The opponent of the privilege in this case is Glax-
oSmithKline, and it thus has the burden of showing that the
answers to the questionnaires were not intended to be confi-
dential. The district court found that GlaxoSmithKline had
met this burden because of the disclaimer at the bottom of the
questionnaire which disclaimed any formation of an attorney-
client relationship. The district court clearly erred in treating
the disclaimer of an attorney-client relationship as a dis-
claimer of confidentiality.
[5] First, the district court based its conclusion on a misun-
derstanding that the law firm had made “a disclaimer of confi-
dentiality.” It did not. Neither the word “confidentiality” nor
the substance of a disclaimer of confidentiality can be found
in the online questionnaire. The text in the checked box to
which the court referred is potentially confusing to clients (as
their ambiguous responses suggest) and the law firm should
have spoken clearly to the laymen to whom its website was
addressed about what commitments it did and did not make.
A risky and expensive trip to this court could have been
avoided by a plain English explanation on the website. But
the vagueness and ambiguity of the law firm’s prose does not
amount to a waiver of confidentiality by the client. Our focus
is on the clients’ right, not the lawyers.’ And the words just
do not say what the district court thought they said, that “con-
fidentiality” was waived.
17Cal. Evid. Code § 917.
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[6] Second, the law in California requires that the attorney-
client privilege apply, even though the plaintiffs filled out the
questionnaires before the law firm represented them and with
no assurance that it would. Under California law, a client’s
communication to a lawyer is confidential if made “in the
course of that relationship,”18 which by itself might seem to
imply that communications prior to establishment of the rela-
tionship would not be privileged. But the phrase does not
mean that the lawyer has to take the person on as a client
before the privilege applies, because the word “client” is
defined to mean a person who consults a lawyer for the pur-
poses of “retaining the lawyer,” “securing legal service,” or
securing “advice.”19 All three can precede the lawyer’s accep-
tance of the client.
[7] The check box on the law firm’s website protected the
law firm by requiring the questionnaire submitter to disclaim
a purpose of “request[ing] legal advice,” and to acknowledge
that the submitter is not “forming an attorney client relation-
ship” by sending in the answers. But the box does not dis-
claim the purpose of “securing legal service.” The
questionnaire is designed so that a person filling it out and
submitting it is likely to think that he is requesting that the
law firm include him in the class action mentioned at the
beginning of the form.
[8] Prospective clients’ communications with a view to
obtaining legal services are plainly covered by the attorney-
client privilege under California law, regardless of whether
they have retained the lawyer, and regardless of whether they
ever retain the lawyer. Under Beery, “[t]he fiduciary relation-
ship existing between lawyer and client extends to prelimi-
nary consultation by a prospective client with a view to
retention of the lawyer, although actual employment does not
18Cal. Evid. Code § 952.
19Id. § 951.
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result.”20 Applying that principle, the California Supreme
Court held in Beery that a lawyer was subject to discipline
when a person, not then a client, came in to ask the lawyer
about writing a will for him (but did not hire him to do it), and
the lawyer talked the person into an investment that his fidu-
ciary duty would prohibit him from selling to a client.21
[9] There is nothing anomalous about applying the privi-
lege to such preliminary consultations. Without it, people
could not safely bring their problems to lawyers unless the
lawyers had already been retained. “The rationale for this rule
is compelling,” because “no person could ever safely consult
an attorney for the first time with a view to his employment
if the privilege depended on the chance of whether the attor-
ney after hearing his statement of the facts decided to accept
the employment or decline it.”22 The privilege does not apply
where the lawyer has specifically stated that he would not rep-
resent the individual and in no way wanted to be involved in
the dispute,23 but the law firm did not do that in this case —
it just made it clear that it did not represent the submitter yet.
Under People v. SpeeDee Oil Change Systems, Inc.,24 when
the communication between a lawyer and possible client pro-
ceeds “beyond initial or peripheral contacts” to acquisition by
the lawyer of information that would be confidential were
there to be representation, the privilege applies.25
In deciding that the district court plainly erred, and that a
writ of mandamus must be granted, our judgment is not based
on a mechanical application of verbal formulas. We are influ-
enced by how fundamental the lawyer-client privilege is to
20Beery, 739 P.2d at 1293 (quotations and citation omitted).
21Id. at 1289.
22People v. Gionis, 892 P.2d 1199, 1205 (Cal. 1995) (quotations and
citation omitted).
23Id. at 1206.
24People v. SpeeDee Oil Change Sys., Inc., 980 P.2d 371 (Cal. 1999).
25Id. at 380.
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the operation of an adversarial legal system. Potential clients
must be able to tell their lawyers their private business with-
out fear of disclosure, in order for their lawyers to obtain hon-
est accounts on which they may base sound advice and
skillful advocacy. There would be no room for confusion had
the communication been in the traditional context of a poten-
tial client going into a lawyer’s office and talking to the law-
yer. The changes in law26 and technology27 that allow lawyers
to solicit clients on the internet and receive communications
from thousands of potential clients cheaply and quickly do not
change the applicable principles.
GlaxoSmithKline cannot be permitted access to a commu-
nication that a plaintiff made confidentially to his lawyer in
order to compare it to what the same individual said at a depo-
sition. But that is exactly what GlaxoSmithKline seeks. It
must be conceded that if a plaintiff says one thing to his law-
yer, and says another at his deposition, keeping the first dis-
closure secret creates a risk to the honest and accurate
resolution of the dispute. That risk is mitigated by the plain-
tiffs’ lawyers ethical duties of candor toward the tribunal and
fairness to the opposing party and counsel.28 The privilege
does not mean that the plaintiffs may lie about their symp-
toms, or that their lawyers may allow them to lie. A lawyer
can be disbarred for offering evidence that the lawyer knows
to be false, failing to disclose a material fact when disclosure
is necessary to prevent a fraud by the client, or assisting a wit-
ness to testify falsely.29 Most lawyers’ sense of honor would
prevent them from doing these things even if they were not
at risk of losing their licenses if they did. These restraints of
honor and ethics, rather than court-ordered disclosure of con-
26See Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (allowing attorney
advertising).
27See Cal. Evid. Code § 952.
28See ABA Model Rules of Prof’l Conduct 3.3, 3.4; State Bar of Cali-
fornia Rule of Prof’l Conduct 5-200.
29See supra note 28.
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fidential communications, are the means that our system uses
to deal with the risk of clients saying one thing to their law-
yers and another to opposing counsel, the judge, or the jury.
ORDER
[10] We grant a writ of mandamus, and vacate the district
court’s order compelling disclosure of the four plaintiffs’
questionnaires posted by their law firm on the internet.
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