United States v. 2010-05-12 | 09-35085 | ROLANDO HERNANDEZ V. MARK TANNINEN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROLANDO HERNANDEZ,
Plaintiff-Appellant, No. 09-35085
v. D.C. No.
 3:04-cv-05539-FDBMARK TANNINEN; CITY OF
VANCOUVER, OPINION
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted December 10, 2009
Submission Withdrawn December 11, 2009
Resubmitted May 12, 2010
Seattle, Washington
Filed May 12, 2010
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Roger T. Benitez, District Judge.*
Opinion by Judge Benitez
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
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COUNSEL
Philip A. Talmadge and Sidney C. Tribe, Talmadge/
Fitzpatrick PLLC, Tukwila, Washington, and Thomas S.
Boothe, Portland, Oregon, for the plaintiff-appellant.
Daniel G. Lloyd, City Attorney’s Office, Vancouver, Wash-
ington, and Barran Liebman LLP, Portland, Oregon, for the
defendants-appellees.
OPINION
BENITEZ, District Judge:
Rolando Hernandez appeals the district court’s decision
finding that any attorney-client or work product privilege
between Hernandez and his prior attorney, Gregory Ferguson,
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was waived and ordering the production of all thirty-five doc-
uments referenced in a privilege log.
I
Hernandez filed suit against the City of Vancouver and
Mark Tanninen in 2004, asserting claims for race and national
origin discrimination based on disparate treatment, retaliation,
and a hostile work environment while employed as a
mechanic in the City’s Fire Shop. Additionally, he alleges that
Mark Tanninen and the City conspired to cover up their
actions and to conceal proof of his claims in violation of 28
U.S.C. § 1985(3).
Hernandez was initially represented by Ferguson. During
their initial meeting, Hernandez told Ferguson that Tanninen
witnessed the discrimination and would corroborate Her-
nandez’s story. In the course of investigating Hernandez’s
claims, Ferguson had a series of conversations with Tanninen
over three days.
Tanninen initially corroborated Hernandez’s allegations
and agreed to provide a signed statement to that effect. After
Tanninen spoke with Deputy Fire Chief Steve Streissguth,
however, he indicated that he had known Streissguth for a
long time, that he “could not do that to [Streissguth],” and that
his getting involved would not be good for Streissguth and
everyone involved. Realizing that he might now be a witness
to Tanninen’s conduct, Ferguson referred the case to another
attorney. The tort claim was amended to include an allegation
of conspiracy to cover up wrongdoing at the City Fire Shop.
In response to a request for production of documents, Her-
nandez produced a privilege log referencing thirty-five docu-
ments protected by either attorney-client or work product
privilege, or both. No action was taken with regard to the
request or the privilege log at that time. When the City moved
for summary judgment, Hernandez provided his own affida-
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vit, an affidavit from Ferguson, and some of Ferguson’s hand-
written notes as evidence in opposition to the motion. The
district court granted summary judgment for the City, but a
prior panel of our court reversed based, in part, on Ferguson’s
and Hernandez’s affidavits. Hernandez v. City of Vancouver,
277 Fed. App’x 666, 671-72 (9th Cir. 2008).
Following remand, the City moved to compel production of
Ferguson’s entire file, arguing that because Hernandez relied
on Ferguson as a witness to Tanninen’s conduct, fairness
mandated that any privilege that once existed with respect to
Ferguson was waived entirely.
The district court adopted the City’s reasoning, found any
attorney-client or work product privilege between Hernandez
and Ferguson was waived, and ordered the thirty-five docu-
ments referenced in the privilege log produced.
II
[1] When this interlocutory appeal was filed, we had juris-
diction to consider it under the collateral order doctrine. In re
Napster, Inc. Copyright Litig., 479 F.3d 1078 (9th Cir. 2007).
However, two days before oral argument, the Supreme Court
decided Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599
(2009), holding that “the collateral order doctrine does not
extend to disclosure orders adverse to the attorney-client priv-
ilege.” Id. at 609; see also id. at 604 n.1 (identifying the con-
flict among the circuits, including our decision in In re
Napster). “We, of course, have jurisdiction to determine our
own jurisdiction.” Special Invs., Inc. v. Aero Air, Inc., 360
F.3d 989, 992 (9th Cir. 2004). The reasoning of Mohawk,
which eliminated collateral order jurisdiction on appeals of
disclosure orders adverse to the attorney-client privilege,
applies likewise to appeals of disclosure orders adverse to the
attorney work product privilege. Further, Hernandez concedes
that after Mohawk, the collateral order doctrine does not pro-
vide us with subject-matter jurisdiction to consider his appeal.
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[2] We may treat an appeal from an otherwise nonappeal-
able order as a petition for a writ of mandamus. Miller v.
Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc).
Whether we construe the appeal as a writ of mandamus
depends on whether mandamus is itself justified. Z-Seven
Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215,
1219-20 (9th Cir. 2000).
III
“We have authority to issue a writ of mandamus under the
‘All Writs Act,’ 28 U.S.C. § 1651.” Cohen v. U.S. Dist.
Court, 586 F.3d 703, 708 (9th Cir. 2009). “Mandamus is
appropriate to review discovery orders when particularly
important interests are at stake.” Perry v. Schwarzenegger,
591 F.3d 1147, 1156-57 (9th Cir. 2010) (internal quotation
marks omitted); see also Mohawk, 130 S. Ct. at 607 (identify-
ing mandamus review as a possible remedy for a particularly
injurious attorney-client privilege ruling). Mandamus is a
“drastic and extraordinary remedy reserved for really extraor-
dinary causes,” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380
(2004) (internal quotation marks omitted), and “only excep-
tional circumstances amounting to a judicial usurpation of
power, or a clear abuse of discretion, will justify the invoca-
tion of this extraordinary remedy.” Id. (internal quotation
marks and citations omitted). “Although we determine de
novo whether the writ should issue, we must be firmly con-
vinced that the district court has erred.” Cohen, 586 F.3d at
708.
“Whether a writ of mandamus should be granted is deter-
mined case-by-case, weighing the factors outlined in Bauman
v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977).”
Cole v. U.S. Dist. Court, 366 F.3d 813, 816-17 (9th Cir.
2004). In Bauman, “we established five guidelines to deter-
mine whether mandamus is appropriate in a given case: (1)
whether the petitioner has no other means, such as a direct
appeal, to obtain the desired relief; (2) whether the petitioner
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will be damaged or prejudiced in any way not correctable on
appeal; (3) whether the district court’s order is clearly errone-
ous 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 impres-
sion.” Perry, 591 F.3d at 1156 (citing Bauman, 557 F.2d at
654-55). “The factors serve as guidelines, a point of departure
for our analysis of the propriety of mandamus relief.” Id. (cit-
ing Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1491
(9th Cir. 1989)). “Not every factor need be present at once.”
Id. “In fact, rarely if ever will a case arise where all the guide-
lines point in the same direction or even where each guideline
is relevant or applicable.” Special Invs., 360 F.3d at 994
(internal quotation marks omitted).
A
[3] We begin with the third factor, clear error, because “the
absence of the third factor . . . is dispositive.” Perry, 591 F.3d
at 1156; see also Cohen, 586 F.3d at 708 (“We will begin by
analyzing the district court’s opinion for clear error, as this
factor is highly significant and failure to show clear error may
be dispositive of the petition.” (internal quotation marks omit-
ted)). “The clear error standard is significantly deferential and
is not met unless the reviewing court is left with a ‘definite
and firm conviction that a mistake has been committed.’ ”
Cohen, 586 F.3d at 708 (quoting Concrete Pipe & Prods. v.
Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993)).
[4] The attorney-client privilege is intended “to encourage
clients to make full disclosure to their attorneys,” recognizing
that sound advice “depends upon the lawyer’s being fully
informed by the client.” Upjohn Co. v. United States, 449
U.S. 383, 389 (1981) (internal quotation marks omitted). The
work product doctrine is a “qualified privilege” that protects
“certain materials prepared by an attorney acting for his client
in anticipation of litigation.” United States v. Nobles, 422 U.S.
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225, 237-38 (1975) (internal quotation marks omitted). Both
privileges may be waived. United States v. Plache, 913 F.2d
1375, 1379 (9th Cir. 1990) (attorney-client); Nobles, 422 U.S.
at 239 (work product); see also Tennenbaum v. Deloitte &
Touche, 77 F.3d 337, 340-41 (9th Cir. 1996) (finding that
waiver prevents selective disclosure—disclosing that which
supports a cause while hiding the unfavorable).
[5] The district court did not clearly err by concluding that
Hernandez waived both privileges as they pertained to the
conspiracy claim. Disclosing a privileged communication or
raising a claim that requires disclosure of a protected commu-
nication results in waiver as to all other communications on
the same subject. Nobles, 422 U.S. at 239-40; Weil v.
Inv./Indicators, Research & Mgmt., 647 F.2d 18, 24 (9th Cir.
1981) (“[V]oluntary disclosure of the content of a privileged
attorney communication constitutes waiver of the privilege as
to all other such communications on the same subject.”);
Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir.
1992) (“Where a party raises a claim which in fairness
requires disclosure of the protected communication, the privi-
lege may be implicitly waived.”). In opposing the City’s
motion for summary judgment, Hernandez disclosed commu-
nications between him and Ferguson about Tanninen. He also
disclosed favorable portions of Ferguson’s communications
with Tanninen and produced some of Ferguson’s notes of
those conversations.
[6] Disclosure constitutes a waiver of the attorney-client
privilege, however, “only as to communications about the
matter actually disclosed.” Chevron, 974 F.2d at 1162 (quot-
ing Weil, 647 F.2d at 25); see also Plache, 913 F.2d at 1380
(finding disclosure of a privileged communication waived the
privilege “on all other communications on the same subject”);
United States v. Mendelsohn, 896 F.2d 1183, 1189 (9th Cir.
1990) (affirming decision confining testimony based on
waiver to the subject of the waiver). Hernandez disclosed only
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his communications with Ferguson about Tanninen, waiving
attorney-client privilege only as to that matter.
[7] The work product privilege is also only waived “with
respect to matters covered in . . . testimony.” Nobles, 422 U.S.
at 239-40. Hernandez produced notes from Ferguson’s com-
munications with Tanninen that were protected work product,
but that constituted a waiver of work product privilege only
as to that subject. See McKenzie v. McCormick, 27 F.3d 1415,
1420 (9th Cir. 1994) (applying Hickman v. Taylor, 329 U.S.
495, 512-13 (1947), and Upjohn, 449 U.S. at 399, and finding
that notes of interviews with a witness were protected work
product).1
[8] Because Hernandez only waived privilege with respect
to his communications with Ferguson about Tanninen, as well
as Ferguson’s communications and work product relating to
Ferguson’s interaction with Tanninen, the district court
clearly erred in finding a blanket waiver of the attorney-client
and work product privileges as to the entire case.
B
[9] Having identified clear error as to the district court’s
conclusion that Hernandez’s disclosure constituted a blanket
waiver of attorney-client and work product privilege, we turn
to the remaining Bauman factors. The first factor, whether
Hernandez has no other means to obtain the desired relief, is
met because collateral order appeal is no longer available to
Hernandez and “[a] discovery order . . . is interlocutory and
non-appealable.” Perry, 591 F.3d at 1157 (quoting City of Las
Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984)); see also
Admiral, 881 F.2d at 1491 (finding mandamus was the only
method available for review of a disclosure order adverse to
the attorney-client privilege).
1While not applied in this case, new Federal Rule of Evidence 502 also
limits any waiver by disclosure to the subject matter disclosed.
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[10] The second factor, whether Hernandez will be dam-
aged in any way not correctable on appeal, is also satisfied.
In Admiral, we found the second factor was satisfied by a dis-
closure order adverse to the attorney-client privilege because
“an appeal after disclosure of the privileged communication
is an inadequate remedy” for the “irreparable harm a party
likely will suffer if erroneously required to disclose privileged
materials or communications.” 881 F.2d at 1491. Although
the Mohawk court found that “postjudgment appeals generally
suffice to protect the rights of litigants and assure the vitality
of the attorney-client privilege,” Mohawk, 130 S. Ct. at 606,
the Court observed that other “discretionary review mecha-
nisms,” including a writ of mandamus, are available “for
promptly correcting serious errors.” Id. at 607-08 (quoting
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
883 (1994)). These other avenues, however, are only appro-
priate for a “particularly injurious or novel privilege ruling.”
Id. at 607.
In accord with this guidance, we consider whether the dis-
trict court’s ruling is particularly injurious or novel. There is
nothing novel about Hernandez’s claim to the attorney-client
or work product privileges or the scope of either. The blanket
waiver, however, is particularly injurious. The finding of a
blanket waiver of both privileges could result in matters far
beyond the scope of the waiver being disclosed, including
case strategy, the strengths and weaknesses of Hernandez’s
claims, and all communications between Ferguson and Her-
nandez. With such a broad finding, Ferguson might be forced
to testify about his evaluation of matters unrelated to Tan-
ninen or the conspiracy claim. The breadth of the waiver find-
ing, untethered to the subject-matter disclosed, constitutes a
particularly injurious privilege ruling.
Neither the fourth nor fifth factor is met. The fourth factor,
whether the error is oft repeated or manifests a persistent dis-
regard of the federal rules, is not satisfied because there is
nothing before us that suggests this error has been made more
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than once. See Cole, 366 F.3d at 823 n.13. And the fifth fac-
tor, whether the order raises new and important problems or
issues of first impression, is also not satisfied because there
is nothing particularly new about a waiver of either privilege.
[11] Nonetheless, because the first three Bauman factors—
including clear error—are met here, and because the district
court’s order finding a blanket waiver of both the attorney-
client and work product privileges is “particularly injurious”
to Hernandez’s interests, we conclude that it is appropriate to
grant a writ of mandamus to correct the district court’s over-
broad privilege ruling. Nothing in our opinion should be con-
strued as precluding the district court from concluding that
Hernandez has failed to meet his burden of showing that
attorney-client or work product privilege applies to the docu-
ments at issue, ordering a more complete privilege log, con-
ducting an in camera review, or taking other appropriate
action.
IV
[12] The district court clearly erred in finding an unlimited
waiver of the attorney-client and work product privileges, and
the Bauman factors favor granting the petition. Accordingly,
we grant the petition for a writ of mandamus. The district
court shall reconsider its order granting the City of Vancou-
ver’s motion to compel with respect to the thirty-five docu-
ments on the privilege log, applying the limited scope of
Hernandez’s waiver of attorney-client and work product privi-
leges consistent with this opinion.
PETITION GRANTED.
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