In Re: Santa Fe, et al

1Although the litigation underlying this discovery dispute
involves multiple defendants and numerous documents, this mandamus
petition concerns only Santa Fe’s claim of privilege as to one
document created in 1991. See infra at 8-9.
1
Revised November 13, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 01-40421
______________________
In re: SANTA FE INTERNATIONAL CORPORATION,
Petitioner.
______________________
Petition for Writ of Mandamus to the United States
District Court for the Southern District of Texas
______________________
November 7, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Santa Fe International Corporation (“Santa Fe”) petitions for
a writ of mandamus directing the district court to vacate its order
requiring Santa Fe to produce a document for discovery and rejecting
Santa Fe’s “common legal interest” attorney-client privilege claim.1
We deny the petition because the district court’s ruling was not
clearly and indisputably wrong.

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2
I.
Plaintiffs, who are present and former offshore drilling
workers for Santa Fe and some twenty-one other offshore drilling
corporations, filed this action on August 14, 2000, naming those
companies as defendants. The complaint alleges that the defendants
secretly met over the past ten years to set, stabilize, maintain,
or limit the wages and benefits paid to offshore drilling employees.
The plaintiffs seek certification of a class of such employees,
damages for defendants’ alleged antitrust violations, and a
permanent injunction to prevent such conduct in the future.
On January 3, 2001, proceedings were held before the district
court wherein all defendants, including Santa Fe, were represented
by Finis Cowan and David Beck, who said they had been designated
as the spokespersons for the defendants. At that hearing the
parties presented a joint discovery and case management plan which
they recommended to the court. The court accepted the plan with
regard to class certification and established the following
guidelines for resolving any discovery disputes:
All right. If anything looms as a discovery hassle,
don’t file anything. I’m going to be here continuously.
Just call Felicia and let her know there’s a problem and
I’ll accommodate you with an emergency hearing or a
telephone call or whatever will save you expense and
inconvenience.
Plaintiffs’ counsel and the spokesperson-attorneys for the
defendants indicated their approval and agreement with this

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2See generally Fed. R. Civ. P. 16(c)(“At any [pretrial]
conference under this rule consideration may be given, and the
court may take appropriate action, with respect to . . . (6) the
control and scheduling of discovery, including orders affecting
disclosures and discovery pursuant to Rule 26 and Rules 29 through
37; . . . (12) the need for adopting special procedures for
managing potentially difficult or protracted actions that may
involve complex issues, multiple parties, difficult legal
questions, or unusual proof problems; . . . (16)such other matters
as may facilitate the just, speedy, and inexpensive disposition of
the action.”); Fed. R. Civ. P. 23(d).
3
expedited discovery dispute resolution procedure.2
On March 8, 2001, Ross Citti, who had enrolled as counsel for
Global Marine Drilling Co., scheduled a hearing in accordance with
the trial court’s guidelines for discovery disputes. Mr. Citti
faxed plaintiffs’ counsel the following letter:
This is to advise you that the Court has scheduled a
hearing to resolve outstanding discovery issues in the
above matter for 11:00 a.m. on Friday March 9, 2001.
On March 9, 2001, at a discovery hearing in open court, several
outstanding discovery issues were resolved pursuant to the March 8
letter of notice issued by Mr. Citti. Mr. Anthony Buzbee and Mr.
Richard Melancon appeared for the plaintiffs. Mr. Citti appeared
for defendant Global Marine; Mr. Steve Roberts appeared for
defendant Nabors Drilling; and Mr. James Watkins appeared for
defendant Marine Drilling.
At the discovery hearing, without drawing any objection by the
defendants’ attorneys, the plaintiffs’ counsel asked the district
court to rule on whether the defendants were required to turn over
documents that had been withheld, giving as an example a memorandum

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3 Notwithstanding the dissent’s contrary view, the plaintiffs
intended to seek discovery of documents at the March 9 hearing, and
not merely an in camera review. Therefore, the plaintiffs did not
“get more than they were asking for.” Mr. Buzbee asked Mr. Citti
the day before the hearing to bring the documents with him so that
the judge could look at them if necessary. But the record clearly
reflects that, from the beginning, Mr. Buzbee’s obvious, ultimate
goal was discovery of the documents. At the hearing, Mr. Buzbee
stated: “And the only other issue that I have, Your Honor, if the
Court will allow it, is [that] the Defendants just aren’t turning
over the documents . . . with no legal basis for withholding them.”
In its petition for mandamus, Santa Fe suggests that the court
should have reviewed the defendants’ documents in camera. However,
it was incumbent on the defendants to ask for an in camera review
if they believed the documents contained critical intrinsic
evidence of privilege. They apparently could not represent to the
court that the documents contained such features, or perhaps
decided, as a matter of strategy, that the court should not view
these documents prior to its ruling on class certification, and
therefore did not ask for an in camera review.
4
“which they circulated [in 1994] about their antitrust exposure for
doing what they were doing. . . .”3 Mr. Citti, evidently speaking
for all of the defendants, informed the court that “there’s
basically three categories of documents that have been withheld and
we’ve provided them with the privilege log. The first category of
documents are correspondence from general counsel to employees of
the individual companies.” The court interjected, “That’s
privileged.” Mr. Citti continued:
The second category are mainly E-mails and they are
discussions between employees and an individual company
talking about the memo from the general counsel that they
just received. . . . The third category . . . are
documents from the general counsel of–-we’ll say Global
Marine because that is an actual example. General
counsel at Global Marine sent an opinion letter to
somebody within Global Marine that has to do with the
issues that are involved in this case, potential
antitrust exposure if you do this and do that and do the

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4The dissent claims that because the plaintiffs did not follow
the formalities of the Southern District of Texas Local Rules 7.1
and 7.3, which require opposed motions to be in writing, supported
by authority, and filed at least twenty days before submission, the
judge’s ruling on the plaintiffs’ discovery request was erroneous.
However, Local Rule 7.8 allows the district court to “in its
discretion, on its own motion or upon application, entertain and
decide any motion, shorten or extend time periods, and request or
permit additional authority or supporting material.” As noted
above, the district court had outlined rules for a streamlined
discovery dispute process which bypassed the formalities of the
local rules and to which all parties, including Santa Fe (through
its formal representatives, Mr. Cowan and Mr. Beck), agreed.
5
other and don’t do the third thing. That letter was then
shared with general counsel of another drilling
contractor or human relations people who have an interest
in this sort of thing. It was done in a confidential
way. It was--it was--these memos, communications were
done with the understanding that it was legal opinion
from general counsel in another company who had a common
interest in preserving and staving off litigation of this
type.
The district court ruled that the first two categories were
privileged and that any attempt to obtain them would be quashed.
With respect to the third, however, the court ruled: “I think once
the documents albeit the confidential one from general counsel
within the company is transmitted to another company, you
voluntarily waive any privilege. Then it becomes the precise
genesis of antitrust.” The court ordered the production of the
third category of documents “for counsel’s eyes only,” and provided
for their return after the litigation, without retention of copies
or extracted data.4
Contrary to the dissent’s assertion, the district court did not

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5The dissent’s argument that the district court was obliged to
examine each document before ruling is not meritorious. The
argument fails to take into account that the claimants of the
attorney-client privilege had the burden of demonstrating that each
document withheld was entitled to protection. The defendants did
nothing to show that the communications to third persons were made
in anticipation of a common defense. On the contrary, the age of
the communications, the lack of evidence of any common defense
agreement, and Santa Fe’s answers to plaintiffs’ requests for
admissions made a strong case against the common interest privilege
claim. See infra at 15-16.
6
“summarily rule that [the attorney-client] privilege is always
waived when documents are transmitted to a third party, thus
eradicating any common interest privilege in the face of this
circuit’s law to the contrary. . . .” Instead, the district court
concluded that documents falling within the third category of
communications described by Mr. Citti were not privileged because
there had been no showing that at the time the communications were
made--many years before the present litigation--the employers were
potential co-defendants acting under an actual or perceived threat
of litigation.5
After the March 9, 2001 discovery hearing, Santa Fe joined
defendants Global Marine and Noble Drilling in a motion for
reconsideration and clarification of the trial court’s rulings. In
this motion, Santa Fe claimed for the first time a “common interest
privilege,” and sought protection for its disclosure to third
parties of a 1991 memorandum prepared for Santa Fe by its in-house
counsel. Santa Fe attached to the motion an affidavit by its in-

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7
house counsel that described the 1991 memorandum and its
dissemination to other offshore drilling companies, which are now
co-defendants with Santa Fe in the present case. In his affidavit,
Santa Fe’s counsel averred that:
I have personal knowledge of attorney-client privileged
communications between Santa Fe and myself, including a
legal memorandum I drafted in May 1991 to Joe Boyd
regarding certain legal issues related to the exchange of
wage and benefit information among the Big 8 . . . as
part of my duties as a legal counselor to Santa Fe. . .
. The May 1991 legal memorandum provided legal advice to
Santa Fe and was made in furtherance of Santa Fe’s
efforts to seek and obtain legal advice on issues in
connection with Santa Fe’s participation in wage and
benefit surveys. . . . The May 1991 legal memorandum
was circulated to certain members of the Big 8 and the
contents of the memorandum were referenced in connection
with a meeting of the IPA in 1999. . . . Santa Fe has
maintained . . . the May 1991 legal memorandum as
confidential. Santa Fe has not disclosed the May 1991
legal memorandum to anyone who did not have a common
legal interest with Santa Fe in the communications.
Specifically, the participants of the Big 8 and the IPA
shared a common interest in complying with the antitrust
laws and avoiding any liability in potential litigation
for allegedly violating those laws. It was and is my
understanding that those companies were all involved in
making decisions concerning the guidelines they would
adopt for participating together in wage and benefits
surveys.
(Paragraph breaks and enumeration omitted).
The district court denied the motion for reconsideration. In
responding to Santa Fe’s petition for mandamus, as instructed by
this court, the district court explained: “The affidavits submitted
by Defendants along with their Motion for Reconsideration do not
undermine but rather strengthen the Court’s opinions in this regard.

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6Contrary to the dissent’s impression, the district court cited
Fifth Circuit precedents--and not just “caselaw from other
circuits”--demonstrating that Santa Fe’s document did not fall
within the scope of the common legal interest privilege. See
District Court’s Response at 3-4 (citing Wilson P. Abraham Constr.
Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); In
re Auclair, 961 F.2d 65, 70 (5th Cir. 1992); Hodges, Grant &
Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)).
Those cases recognized the common legal interest privilege, but
described its perimeter in a manner that excludes Santa Fe’s claim.
7See generally 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2016.1 (2d ed. 1994). See also Hodges, Grant & Kaufmann,
768 F.2d at 721.
Fifth Circuit cases clearly hold that the privilege claimant’s
burden extends to proof of preliminary facts showing that the
matter is eligible for protection. See, e.g., United States v.
Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991) (“As to the claimed
violation of privilege, [defendant] has never indicated any
document from the seized file which constituted a communication or
described a communication between herself and her attorney. The
burden of establishing privilege rests on the party who invokes
it.”).
8
These affidavits further clarify that the Defendants shared the
allegedly privileged information years ago, in the absence of any
active joint defense of litigation.”6
II.
Turning our attention directly to Santa Fe’s claim for
protection under the “common legal interest” extension of the
attorney-client privilege (“CLI privilege”), we conclude that it has
no merit.
A.
A party asserting a privilege exemption from discovery bears
the burden of demonstrating its applicability.7 Federal Rule of

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9
Civil Procedure 26(b)(5) provides that a party claiming a privilege
“shall make the claim expressly and shall describe the nature of the
documents, communications, or things not produced or disclosed in
a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the applicability of
the privilege or protection.” In complex litigation, compliance
with Rule 26(b)(5) is “usually accomplished by submission of a log
identifying documents or other communications by date and by the
names of the author(s) and recipient(s), and describing their
general subject matter. . . .” MANUAL FOR COMPLEX LITIGATION (THIRD) §
21.431 (1995). On January 2, 2001, Santa Fe and the other
defendants agreed to produce privilege logs at a future date. While
some of the defendants complied with this agreement, Santa Fe failed
to provide a privilege log identifying any document or
communication.
The only express claim of privilege by Santa Fe came after the
discovery hearing in its motion for reconsideration, which sought
protection for the dissemination of its in-house counsel’s 1991
memorandum. Thus, the disclosure of the 1991 memorandum to third
persons is the only matter before this court on the petition for
mandamus. After considering the record and briefs, we conclude that
Santa Fe has failed to carry its burden of showing that this
communication meets the established criteria for protection under
the CLI privilege.

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10
According to our circuit precedents, the two types of
communications protected under the CLI privilege are: (1)
communications between co-defendants in actual litigation and their
counsel; see, e.g., Wilson P. Abraham Constr. Corp. v. Armco Steel
Corp., 559 F.2d 250, 253 (5th Cir. 1977); and (2) communications
between potential co-defendants and their counsel. See Hodges,
Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir.
1985); Aiken v. Texas Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 624
(E.D. Tx. 1993). With respect to the latter category, the term
“potential” has not been clearly defined. However, because the
privilege is “an obstacle to truthseeking,” it must “be construed
narrowly to effectuate necessary consultation between legal advisers
and clients.” In re LTV Sec. Litig., 89 F.R.D. 595, 606 (N.D. Tex.
1981)(Higginbotham, J.)(citing Garner v. Wolfinbarger, 430 F.2d 1093
(5th Cir. 1970)).
Considering that caveat, and in looking at other cases
discussing the CLI privilege in this circuit, it appears that there
must be a palpable threat of litigation at the time of the
communication, rather than a mere awareness that one’s questionable
conduct might some day result in litigation, before communications
between one possible future co-defendant and another, such as the
ones here made between one horizontal competitor and another, could
qualify for protection. For example, in Wilson P. Abraham
Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir.

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11
1977), this court offered the following discussion of the privilege:
The defendants persuasively argue that in a joint defense
of [an actually filed] conspiracy charge, the counsel of
each defendant is, in effect, the counsel of all for the
purposes of invoking the attorney-client privilege in
order to shield mutually shared confidences. We agree,
and hold that when information is exchanged between
various co-defendants and their attorneys that this
exchange is not made for the purpose of allowing
unlimited publication and use, but rather, the exchange
is made for the limited purpose of assisting in their
common cause.
(Emphasis added).
Later, in Hodges, Grant & Kaufmann, this court again discussed
the privilege: “The [attorney-client] privilege is not . . . waived
if a privileged communication is shared with a third person who has
a common legal interest with respect to the subject matter of the
communication.” 768 F.2d at 721 (citing only Abraham Constr., 559
F.2d at 253) (addressing communications between counsel for co-
defendants during litigation). In Hodges, Grant & Kaufmann, the
United States sought to discover from the defendant taxpayer a
letter containing legal advice written by the defendant’s attorney
and addressed to the defendant and another individual. The
defendant claimed that the letter was written to both recipients as
the attorney’s joint clients. Because the court lacked sufficient
evidence to determine (1) whether the co-recipient of the letter was
actually a client of the defendant’s attorney at the time the
communication was made, and (2) whether both were being represented
jointly in a matter at the time the communication was made, it

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12
remanded the case to the district court for further fact finding.
Id. Thus, Hodges, Grant & Kaufmann does not support Santa Fe’s
claim of privilege because the court in that case narrowly construed
“common legal interest” as referencing the interest of clients who
are jointly-represented at the time of their attorney’s
communications to them. In the present case, Santa Fe and the third
parties were not co-clients being jointly represented in ongoing
litigation at the time the communications were made.
In In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992), this court
stated that the CLI privilege extends to communications made among
persons “who consult an attorney together as a group with common
interests seeking common representation.” (Emphasis added). In
Auclair, the privilege was found applicable to communications made
in the face of imminent litigation involving multiple potential
clients who jointly consulted with a single attorney while actively
seeking legal representation in connection with a pending grand jury
investigation.
Although we are not bound by them, we find two of our district
courts’ discussions of the CLI privilege helpful. In Aiken v. Texas
Farm Bureau Mutual Insurance Co., 151 F.R.D. 621, 623 (E.D. Tex.
1993), the court stated: “The attorney-client privilege is waived
if the confidential communication has been disclosed to a third
party, unless made to attorneys for co-parties in order to further
a joint or common interest (known as the common interest rule or the

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13
joint defense privilege)” (citing Auclair, 961 F.2d at 69). The
opinion further explains that:
This privilege encompasses shared communications between
various co-defendants, actual or potential, and their
attorneys, prompted by threatened or actual, civil or
criminal proceedings, to the extent that they concern
common issues and are intended to facilitate
representation in possible subsequent proceedings, or
whenever the communication was made in order to
facilitate the rendition of legal services to each of the
clients involved in the conference.
Aiken at 624 (emphasis added) (internal quotations and citations
omitted).
The plaintiff in Aiken sought discovery of audio tapes
containing conversations between various defendants that were
recorded after the defendants had been sued by the plaintiff and had
signed a joint defense agreement. The court conducted an in camera
review of the tapes and found that they were not privileged because
the recorded conversations were merely “examples of schmoozing” and
“were not intended to, and do not in fact, facilitate representation
or the rendition of legal services.” Id. at 624-25 (internal
quotations omitted). So, while it was certainly possible in Aiken
for the CLI privilege to apply, since the parties asserting the
privilege were actual defendants in a lawsuit at the time the
communications were made, the court ruled on the merits that the
communications were not privileged because they did not meet the
basic prerequisites for communications protected by the attorney-
client privilege. Once again, there is no support in Aiken for

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14
Santa Fe’s position, since the communications in Aiken were made
between actual co-defendants in ongoing litigation.
The district court in In re LTV Securities Litigation, 89
F.R.D. 595 (N.D. Tex. 1981), opined that:
[D]isclosure of privileged information by an attorney to
actual or potential co-defendants, or to their counsel,
in the course of a joint defense does not constitute a
waiver of the attorney-client privilege.
. . . The privilege is available to co-respondents
in a grand jury investigation as well as to parties made
co-defendants by formal indictment. The privilege also
protects from disclosure communications between various
co-defendants and their attorneys in a civil proceeding.
Id. at 604 (citations omitted).
In LTV, a private securities fraud case, the plaintiff class
of shareholders sought to discover remarks made by the corporation’s
counsel in the presence of representatives of the corporation’s
financial auditor. At the time the communications were made, both
the corporation and its auditor had been served with subpoenas to
appear before the SEC as part of an investigation into the
corporation’s activities by the agency. In finding the
communications protected by the CLI privilege, the court noted that
the “[corporation] has established that the joint conferences
undertaken with representatives of [its auditor] were confidential,
concerned common issues, and were intended to facilitate
representation in proceedings involving the SEC . . . . Both . .
. were subpoenaed by the SEC before the joint discussions which the
class seeks to discover.” Id. The court found that the parties
“had a natural and common interest in consulting about the SEC

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15
investigation . . . .” Id. Because the defendants in LTV had been
subpoenaed and targeted in SEC investigatory proceedings at the time
the communications were made, this case also fails to support Santa
Fe’s claim of privilege.
In the present case, Santa Fe admits in the motion for
reconsideration it filed in the district court that the
communications it claims are protected by the privilege were not
made in anticipation of future litigation. Instead, the documents
were “circulated for the purpose of ensuring compliance with the
antitrust laws and minimizing any potential risk associated with the
exchange of wage and benefit information.” Motion for
Reconsideration at 3. In sharing the communications, therefore,
they sought to avoid conduct that might lead to litigation. They
were not preparing for future litigation. Furthermore, Santa Fe
denied, in its responses to the plaintiffs’ requests for admissions,
that it anticipated or perceived a threat of antitrust litigation
against it in May of 1991, when Santa Fe’s senior counsel prepared
the memorandum that was distributed to the company’s competitors.
Considering that the original complaint in this case was not filed
until August 14, 2000, we cannot say that the district court clearly
erred in its implicit finding of fact that Santa Fe’s disclosures
to third persons of the 1991 memorandum were not made for the
purpose of preparing a joint defense to lawsuits based on pre-1991
antitrust law violations.
B.

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16
We also find unpersuasive Santa Fe’s claim that the district
court’s ruling will cause it irreparable harm. The petition for
mandamus states that the “trial court has made it quite clear that
any relief on . . . [the privilege issue] is not available in its
court.” However, in advancing this argument, Santa Fe plainly
misconstrues the March 9 ruling. With respect to Santa Fe’s express
claim of privilege, the district court concluded that: (1) Santa
Fe’s communications of its in-house counsel’s 1991 internal
memorandum to other independently owned offshore drilling
corporations were not entitled to protection by the attorney-client
privilege per se, because the communications were not made by Santa
Fe as a client for the purpose of obtaining legal advice or by an
attorney to a client in the rendition of professional services; and
(2) Santa Fe failed to demonstrate that its disclosure to third
persons of the memorandum Santa Fe received from its in-house
counsel fell within the common legal interest doctrine or privilege.
Except for the 1991 memorandum, Santa Fe did not specifically
identify any other communication as being privileged. The
extraordinary writ of mandamus will not issue to grant Santa Fe’s
blanket request for protection of documents and communications not
expressly claimed and shown to be privileged. See Nguyen v. Excel
Corp., 197 F.3d 200, 206 n.16 (5th Cir. 1999) (“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."). However, if Santa

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8Mallard v. United States District Court, 490 U.S. 296, 309
(1989); Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 (1978).
In Kerr v. United States District Court, 426 U.S. 394, 402-03
(1976), the Supreme Court explained:
Our treatment of mandamus within the federal court
system as an extraordinary remedy is not without good
reason. . . . [I]n an era of excessively crowded lower
court dockets, it is in the interest of the fair and
prompt administration of justice to discourage piecemeal
litigation. It has been Congress' determination since
the Judiciary Act of 1789 that as a general rule
“appellate review should be postponed . . . until after
final judgment has been rendered by the trial court. . .
.” A judicial readiness to issue the writ of mandamus in
17
Fe hereafter invokes the attorney-client privilege with respect to
a particular document or communication, other than the 1991
memorandum, and the district court determines that the privilege has
not been waived by reason of delay, bad faith or other conduct, then
neither the March 9 ruling nor this order would prevent Santa Fe
from properly claiming and demonstrating its entitlement to that
privilege.
C.
While we are convinced that a reasonable jurist could not find
that the district court made clearly erroneous findings or committed
an abuse of discretion, we are even more certain that the
imperfections, if any, in the trial court’s rulings do not warrant
the issuance of mandamus. “It is well-established that the mandamus
remedy is a drastic one, to be invoked only in extraordinary
situations.” In re First S. Sav. Assoc., 820 F.2d 700, 705 (5th
Cir. 1987) (internal quotations and citations omitted). The
petitioner must have a “clear and indisputable” right to the writ.8

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anything less than an extraordinary situation would run
the real risk of defeating the very policies sought to be
furthered by that judgment of Congress.
(Citations omitted).
18
“Thus, for [the petitioner] to establish entitlement to mandamus
relief, it must show not only that the district court erred, but
that it clearly and indisputably erred.” In re: Occidental
Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000)(emphasis
omitted). Because the “common legal interest” privilege is such an
amorphous concept, and because this case plainly does not fall
within its core, we simply cannot say with such certitude that the
trial judge was wrong in this case. In its response, the district
court explained its discovery hearing ruling, in pertinent part, as
follows:
Here, the lack of any temporal connection to actual
or threatened litigation is striking. Had these
Defendants been jointly defending a suit, as opposed to
merely discussing concerns, the long elapse of time would
not bear so heavily on the Court’s inquiry. But, when
the threat of litigation is merely a thought rather than
a palpable reality, the joint discussion is more properly
characterized as a common business undertaking, which is
unprivileged, and certainly not a common legal interest.
There is no justification within the reasonable bounds of
the attorney-client privilege for horizontal competitors
to exchange legal information, which allegedly contains
confidences, in the absence of an actual, or imminent, or
at least directly foreseeable, lawsuit.
As the district court’s reasons suggest, the record in this
case is neither clear nor indisputable with respect to Santa Fe’s
motive for sending its in-house counsel’s memorandum to its
horizontal offshore drilling competitors. It is possible that the

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9If so, they would fall outside the scope of any attorney-
client privilege as communications made for criminal or fraudulent
purposes. In re Burlington Northern, Inc., 822 F.2d 518, 524 (5th
Cir. 1987).
19
disclosures were made to facilitate future price fixing in violation
of the antitrust laws, as the plaintiffs contend.9 Alternatively,
the disclosures were perhaps made in the sole interest of preventing
future antitrust violations, as the defendants argue in their motion
for reconsideration, in which case they hardly could be seen as the
commencement of an allied litigation effort. Furthermore, it is
difficult to find that the disclosures were made for the purpose of
forming a common defense against alleged prior violations of the
antitrust laws, in view of Santa Fe’s stout denials that in 1991 it
anticipated or perceived a threat of future antitrust litigation.
The ambiguity of the record and the cloudiness of the crucial
legal concept involved strongly militate in favor of the conclusion
that, if the district court erred at all, it certainly was not
clearly and indisputably wrong in finding that Santa Fe’s
disclosures of its in-house counsel’s memorandum to its horizontal
competitors were not communications protected under any attorney-
client privilege to which Santa Fe was entitled.
III.
Although Santa Fe’s petition for mandamus should clearly be
denied, and the foregoing reasons would normally suffice to explain
our ruling, we think it is appropriate in this case to also address
and put to rest Santa Fe’s claims that it was denied due process or

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10Mr. Roberts, the attorney for Nabors Drilling, and Mr.
Watkins, the attorney for Marine Drilling, stood silent and thereby
indicated their consent to Mr. Citti’s advocacy on their clients’
behalf.
11Petition for Writ of Mandamus at 11.
20
treated unfairly by the district court.
Santa Fe first contends that it “had no opportunity to be heard
on the common interest privilege issue” because its enrolled counsel
was not present at the March 9 discovery hearing. Mr. Citti was the
only attorney who actually spoke for the defendants during the
hearing,10 and the record does not explicitly reflect that he was
authorized to speak for all of the defendants. However, a reading
of the materials presented in connection with the petition for
mandamus reveals that Mr. Citti did represent all of the defendants,
and Santa Fe does not expressly contend otherwise. In fact, Santa
Fe acknowledges that Mr. Citti acted on the defendants’ behalf in
“discussing . . . the scheduling of the depositions of the
plaintiffs’ experts and the production of the class representatives
for deposition.”11 Mr. Citti likewise represented all defendants in
objecting to the plaintiffs’ answer to an interrogatory. He even
responded to the plaintiffs’ request to take the depositions of CEOs
of defendant companies whose enrolled counsel were not present at
the hearing. Furthermore, when Mr. Buzbee objected to the failure
of the defendants to either produce the requested documents or
establish a legal basis for withholding them, he stated that Mr.
Citti was there “as a spokesperson” for all of the defendants. Far

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12See supra at 7 (quoting the Declaration of Robert S. Preece,
Senior Counsel for Santa Fe).
21
from rejecting this role, Mr. Citti responded by presenting a
categorical argument in favor of the defendants’ privilege claims;
he did not limit the scope of his advocacy to fewer than all of the
employer-defendants.
In any event, regardless of whether Mr. Citti was implicitly
or expressly authorized to protect all of the defendants’ interests
at the discovery hearing, Santa Fe was not denied an adequate
individual opportunity to present its privilege claim, supporting
evidence, and full written argument. Santa Fe fully briefed the
district court on the issues and submitted an affidavit as to what
its witness would have testified to at an evidentiary hearing.12
The court considered Santa Fe’s brief and affidavit evidence before
denying the motion for reconsideration. The district court
elaborated on the reasons for its ruling in the response it filed
at the direction of this court. Santa Fe does not point to any
actual prejudice it sustained because of the nature of the process
it was afforded. Santa Fe’s due process argument therefore lacks
merit.
Santa Fe also contends that the March 9 hearing was unfair
because the plaintiffs did not give formal written notice of the
oral discovery objections they raised. However, this contention
ignores the defendants’ availment of the trial court’s expedited
process for resolving discovery disputes, a process agreed to by

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13See supra note 4.
22
Santa Fe and all other parties to this litigation.13 Mr. Citti
presented the defendants’ objections orally without filing
particularized written notice or motions. Thus, under Santa Fe’s
view, only the defendants were entitled to the benefits of the
court’s streamlined procedure. Neither the record nor simple logic
supports this view.
Moreover, the fax which Mr. Citti sent to notify the plaintiffs
of the March 9 hearing stated that it had been set to resolve the
“outstanding discovery issues”; it did not limit or particularize
the discovery issues that could be taken up at the hearing. It is
undisputed that Mr. Buzbee, plaintiffs’ counsel, called Mr. Citti
prior to the hearing and told him that he would be raising the issue
of whether the requested documents withheld by the defendants were
privileged. In view of the evidence presented to this court, we
conclude that all of the defendants knew or should have known that
the CLI privilege issue would be addressed during the hearing.
Indeed, the presence of counsel for co-defendants Nabors Drilling
and Marine Drilling strongly indicates that all parties were
notified of the discovery hearing, and Santa Fe does not claim that
it was deprived of actual notice and an opportunity to participate
in the hearing.
Finally, the record does not reflect any impropriety on the
district court’s part in conducting the March 9 discovery hearing.

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23
In considering the issues brought up by both defense and plaintiff
counsel, the court simply followed the guidelines which it had
established, and to which all of the parties had agreed, for the
expedited resolution of discovery disputes without the necessity of
filing written motions. Evidently, the participants understood that
this was the nature of the proceeding because no one objected to the
oral presentation of the discovery issues or to the court’s summary
disposition of the disputes without taking further evidence. Thus,
there is no merit to Santa Fe’s suggestion that it was treated
unfairly by the district court.
IV.
For the foregoing reasons, the petition for a writ of mandamus
is DENIED.

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JERRY E. SMITH, Circuit Judge, dissenting:
I.
This is a case of compelled document pro-
duction without adequate warning. In refusing
to issue a writ of mandamus, the panel majority
overlooks important details from the course of
proceedings, misapplies applicable law and the
local rules, and fails to take account of the re-
assignment of this case to a different district
judge.
Perhaps even more importantly, the
plaintiffsSSwho are the movants seeking to ac-
quire the documents at issueSShave now
moved to dismiss the district court proceeding,
because the parties have reached a full set-
tlement of this litigation. There is, effectively,
no longer a case or controversy in this matter,
and the mandamus proceeding is, at least prac-
tically speaking, moot and should be dismissed
as such or held without a ruling. Because of
the lack of a case or controversy, the majori-
ty’s opinion is without precedential force in
this circuit or elsewhereSSan exercise in ora-
tory without legal significance.
By insisting on acting on the mandamus pe-
tition immediately before final judicial approval
of the settlement, the panel majoritySSalbeit
presumably with the best of intentionsSSissues
a ruling that is beyond its judicial power. The
majority offers no explanation of why it per-
sists in acting at this time and under these
circumstances. Accordingly, I respectfully
dissent.
II.
The essence of what occurred to spark the
mandamus petition appears succinctly in that
petition:
On March 9, 2001 the trial court held a
hearing requested by one defendant for
the purpose of scheduling expert witness
depositions and class representative de-
positions . . . . Counsel for three of the
twenty-two defendants were present
. . . .
At the end of that hearing, Plaintiffs’
counsel, without a motion to compel on
file and/or a hearing scheduled on
production of documents, demanded
production of a category of documents
claimed privileged by defendants . . . .
After [a] description by Global Marine’s
counsel of one example of a document at
issue, the trial court ordered all de-
fendants to produce all documents pre-
pared by legal counsel that were “trans-
mitted to another company” . . . .
Even though the defendants had no
notice that the trial court would rule on
this issue on March 9, even though the
trial court did not allow the submission
of evidence and authorities in support of
the privilege, even though the trial court
did not review a single document in
camera, in this lawsuit with 22 defen-
dants, it ordered the production of all
privileged documents authored by legal
counsel and transmitted to another com-
pany. The court ruled that all defendants
had waived their attorney-client
privilege.
(Paragraph breaks added.)
III.
I will elaborate on the majority’s account of
what occurred in this proceeding. At the
March 9, 2001, hearing, before The Honorable
Samuel Kent (“the district court”), who issued
the ruling at issue in this mandamus proceed-
ing, the only counsel present were as follows,
as set forth in the official transcript:

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25
For the Plaintiffs: Melancon & Hogue[,]
By: Mr. Richard Melancon[,] By Mr.
Anthony Buzbee [address]
For the Defendant Global Marine: Citti
& Associates[,] by Mr. Ross Citti
[address]
For the Defendant Nabors Drilling,
USA: Fulbright & Jaworski[,] By: Mr.
Steve Roberts [address]
For the Defendant Marine Drilling: Roy-
ston, Rayzor, Vickery & Williams[,] By:
Mr. James Watkins [address]
As is plainly evident, no counsel was present
for petitioner Santa Fe International Corpor-
ation (“Santa Fe”). Nor was there ever an in-
dication that any of the attorneys present was
authorized to, or did, speak or try to speak on
behalf of Santa Fe or any of the other eighteen
absent defendants.
At the beginning of the hearing, Mr. Citti
announced the following: “Ross Citti for
Global Marine, Your Honor.” This contrasts
vividly with the announcement made at the
January 3, 2001, hearing in this case, at which
attorneys Finis Cowan and David Beck an-
nounced, at the beginning, that they had “been
designated as the spokespersons for this hear-
ing”; the court reporter listed them as ap-
pearing “for defendants.”
At the March 9 hearing, there was no an-
nouncement that Mr. Citti was at the March 9
hearing to represent or speak for any defendant
other than his client, Global Marine. In its
petition, Santa Fe explains why, in fact, Mr.
Citti could not adequately have done so:
“Counsel for only three out of twenty-two co-
defendants were present at the hearing . . . .
The counsel [i.e., Mr. Citti] who requested the
hearing for purposes of scheduling depositions
was notSSand could not have beenSSprepared
to discuss each of the defendants’ arguments
relating to each of the documents alleged to be
covered by the common interest [CLI] privi-
lege, especially in light of the fact that each
defendant was at a different stage of preparing
its privilege logs.”
It is not surprising that Santa Fe was not
represented. The only formal notice of the
hearing was a one-sentence letter from Mr.
Citti to Melancon, Hogue & Buzbee, L.L.P.,
dated March 8, 2001SSthe day before the
hearingSSadvising of “a hearing to resolve out-
standing discovery issues.” The letter does not
indicate that copies were sent to anyone, al-
though other counsels’ presence at the hearing
suggests that at least some other attorneys
were notified.
Even if Santa Fe’s counsel, Lawrence Gay-
dos of the firm of Haynes & Boone, was told
of the hearing, the document production should
not have been ordered there. As Santa Fe
explains,
Plaintiffs’ argument that Santa Fe could
not have been surprised by their pursuit
of production of the documents in this
case is no answer to Santa Fe’s due pro-
cess right to have notice that the issue
would be raised at a hearing scheduled
for an entirely different purpose and the
right to be present and to present argu-
ment at the hearing.
IV.
It is unfortunate enough that the district
court ordered document production without
notice or a hearing or other due process pro-
tections. Even more astonishingSSand without
explanation or support in the record or in any
caselaw from this circuit or elsewhereSSis that

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26
the court actually gave movants more than they
were asking for in regard to production of
these documents.
Movants’ counsel came to the hearing ask-
ing only for in camera review. What they got,
instead, was immediate production of the very
documentsSSindeed, all the documentsSSthey
had requested.14 The majority’s declaration
that the attorneys were seeking immediate pro-
ductionSSas distinguished from in camera
reviewSSis undermined by what the attorneys
said, as reflected in the record.
At the hearing, Mr. Buzbee recounted his
conversation of the previous day with Mr.
Citti, agreeing to the hearing. As Mr. Buzbee
explained, plaintiffs were asking only that de-
fendants bring the documents so the court
could examine them. As Mr. Buzbee put it,
“let the Judge look at them.” Importantly, Mr.
Buzbee described the documents as papers that
“hurt them [the defendants] badly.”
The court apparently never even considered
looking at the documents. Instead, it sum-
marily ordered them produced. That is, as I
have said, more than the attorneys were even
asking for at that time.
Moreover, Mr. Citti, at the hearing, de-
scribed only one document, using it as an ex-
ample of a set of documents as to which the
common legal interest (“CLI”) privilege was
being claimed. Without even attempting to
consider the various documents separately, to
see whether perhaps some but not all were
privileged, the court just ordered that “I want
all of those documents produced.” The court
added: “I want those documents.”
Even assumingSScontrary to factSSthat Mr.
Citti was authorized to speak for Santa Fe, the
court seriously erred not only in failing to look
at the documents but also in refusing to allow
some sort of hearing, especially in light of the
lack of warning of the nature of the pro-
ceeding. After the court declared that “I want
those documents,” Mr. Citti at least attempted
some sort of defense, if only on behalf of his
client, Global Marine Drilling Company:
“Your Honor, there is some authority for the
proposition that the privilege that we’re as-
serting exists and what ISSwould the Court
consider a very short briefSS,” to which the
court answered: “No. I’m ordering you to do
what you want. Seek mandamus if you don’t
like that but do it within the time frame I’ve
suggested or I’ll have the special master do it
for you.”
V.
If the documents indeed might have turned
out to be privileged, ordering their production
might have violated the “joint defense” or
“CLI” privilege, an expansion of the attorney-
client privilege, recognized by this court, that
prevents a waiver of attorney-client privilege
where an attorney discloses privileged infor-
mation to actual or potential co-defendants. In
Re LTV Sec. Litig., 89 F.R.D. 595, 604 (N.D.
Tex. 1981) (Higginbotham, J.). See Wilson P.
Abraham Constr. Corp. v. Armco Steel Corp.,
559 F.2d 250, 253 (5th Cir. 1977). The pur-
14 I am at a loss to understand the
majority’s assertion that the district court
ordered the production of only one document.
At the hearing, the attorneys and the court
repeatedly referred to multiple documents. As
I will note, the court ordered that “I want all of
those documents produced” and added, “I
want those documents.” Even more spe-
cifically, Santa Fe, in its mandamus petition,
asks us to direct the court to vacate its “ruling
. . . to produce documents claimed to be
protected.”

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27
pose of the CLI privilege is “to protect the
confidentiality of communications passing from
one party to the attorney for another party
where a joint defense effort or strategy has
been decided upon and undertaken by the par-
ties and their respective counsel.” United
States v. Schwimmer, 892 F.2d 237, 243 (2d
Cir. 1989).
Santa Fe correctly argues that the CLI priv-
ilege provides protection during the course of
a joint legal defense effort and is not waived by
communication between attorney and client “to
the extent that [the communication] concern[s]
common issues and [is] intended to facilitate
representation in possible subsequent proceed-
ings.” LTV, 89 F.R.D. at 604 (citing Hunydee
v. United States, 355 F.2d 183, 185 (9th Cir.
1965)). In other words, the parties claiming
protection under t he rule only need share “a
common legal interest” about a matter, see
Hodges, Grant & Kaufmann v. United States,
768 F.2d 719, 721 (5th Cir. 1985),15 and there
need be no actual litigation in progress, see
Schwimmer, 892 F.2d at 243-44. As long as
Santa Fe shows that the documents were given
in confidence and that the communication
regarded a common legal interest with respect
to the subject matter of the communica-
tionSSboth assertions that Santa Fe says it can
satisfySSthe district court should not order pro-
duction.
Responding to Santa Fe’s characterization
of the documents, the district court stated, “I
think once the documents albeit the confiden-
tial one from general counsel within the com-
pany is transmitted to another company, you
voluntarily waive any privilege. Then it be-
comes the precise genesis of antitrust.” This is
plainly not the law in the Fifth Circuit. Nev-
ertheless, the district court, in responding to
the mandamus petition, justifies its decision by
citing caselaw from other circuits that imposes
a restrictive reading of the CLI doctrine.16
As I have said, in this circuit, “[t]he privi-
lege is not . . . waived if a privileged com-
munication is shared with a third person who
has a common legal interest with respect to the
subject matter of the communication.” Hodg-
es, 768 F.2d at 721 (citing Wilson P. Abraham
Constr. Corp., 559 F.2d at 253).17 There is no
15 Accord United States v. Fortna, 796
F.2d 724, 730 (5th Cir. 1986).
16 See Walsh v. Northrop Grumman
Corp., 165 F.R.D. 16, 18 (E.D.N.Y. 1996)
(stating that CLI privilege applies only to
parties having a common “legal” interest,
rather than a mere business interest); Schwim-
mer, 892 F.2d at 243 (opining that the CLI
privilege is limited to those communications
oriented primarily toward preparing a legal
defense); Bank Brussels Lambert v. Credit
Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447
(S.D.N.Y. 1995) (contending that the CLI
privilege does not encompass a joint business
strategy that happens to include as one of its
elements a concern about litigation); Griffith v.
Davis, 161 F.R.D. 687, 692 (C.D. Cal. 1995)
(asserting that a joint defense effort must have
been embarked upon irrespective of whether
litigation has been commenced); Mecom
Holding Co. v. Baxter Travenol Labs., Inc.,
689 F. Supp. 841, 844 (N.D. Ill. 1988) (stating
that the timing of the communications is impor-
tantSSthere must be a strong po ssibility of
litigation).
17 The movants assert that the district
court did not rule that the CLI privilege does
not exist. Instead, they argue that the court
ruled that the CLI privilege does not apply to
three specific documents in Santa Fe’s

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28
accurate way to decide whether the “common
legal interest” test is satisfied without examin-
ing the documents individually.
VI.
Even if the cases the district court now re-
lies on were binding caselaw in this circuit, the
decision should not stand, because the court
lacks evidence on which to base its conclu-
sions. As Santa Fe describes it, the district
court, instead of looking at the documents and
determining their nature, “summarily ruled that
privilege is always waived when documents are
transmitted to a third party, thus eradicating
any common interest privilege in the face of
this circuit’s law to the contrary [and] [t]hen .
. . refused to reconsider its ruling.” The court
overlooked Hodges, a case from this circuit
that recognizes the expansion of attorney-client
privilege to encompass the CLI doctrine and
that, based on LTV and Schwimmer, prevents
such documents from being handed over if it is
determined that they indeed are privileged.
Neither we nor the district court knows
whether the documents are privileged. Neither
the district court nor this court has viewed the
documents. It may be that some are privileged
and some are not. All that is recorded in the
transcript of March 9 is Santa Fe’s statement
that they are privileged and the district court’s
decree that they are not.
More analysis is needed before any such
documents should be ordered produced. In-
stead, however, the district court ordered all
the documents, from all the defendants, to be
turned over at once.
VII.
As Santa Fe alleges, the district court failed
to abide by the applicable rules of procedure.
The movants never filed a motion for pro-
duction of the documents in accordance with
Southern District of Texas Local Rules 7.1 and
7.3,18 which require of opposed motions that
they be in writing and must include or be
accompanied by authority, must be accom-
panied by a separate proposed order granting
the relief requested and setting forth infor-
mation sufficient to communicate the nature of
the relief granted, must contain an averment
that the movant has conferred with the re-
spondent and that they cannot agree on the dis-
position of the motion, and must be filed
twenty days before submission. Because plain-
tiffs filed no motion and made instead only an
“impromptu oral request” for production, the
ruling that the documents are not privileged is
error.
The purpose of the March 9 hearing was to
discuss two issues: the scheduling of the depo-
sitions of the plaintiffs’ experts and the pro-
duction of the class representatives for deposi-
tion. Moreover, Santa Fe’s assertion that the
movants “ambushed” them with their request
for the documents provides additional ground
for enforcement of the local rules, which are
designed to ensure that notice is given to the
party from whom production is sought.
In their response to the petition, the mov-
ants contend that there was no way Santa Fe
could have been surprised by their request, be-
cause “[t]he dispute amongst the parties con-
possession, specific documents that, contrary
to what movants say, are neither discussed nor
alluded to by the parties or the district court
anywhere in the record, save in movants’ re-
sponse to the petition.
18 These local rules impose re-
quirements in addition to those of FED. R. CIV.
P. 7(b).

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29
cerning privilege issues had been extant for
more than a month prior to the [district]
[c]ourt’s hearing [of March 9].” This assertion
is not dispositive, however.
Even if we assume, arguendo, that Santa Fe
persuasively could have defended the docu-
ments’ CLI privileged status on March 9, and
thus had complete notice of movants’ intention
to request production at the March 9 hearing,
the district court still denied Santa Fe the op-
portunity to defend itself on that same day by
summarily ruling that the documents are not
protected. Therefore, the notice issue that the
movants raise is irrelevant, and the important
fact is that Santa Fe never was given the op-
portunity to establish the alleged privilege.
VIII.
Forcing any party to turn over privileged
documents is a serious matter. An order di-
recting the production of such documents easi-
ly justifies the extraordinary remedy of manda-
mus. In re Burlington N., Inc., 822 F.2d 518,
522 (5th Cir. 1987). Here, we cannot know
whether the documents ultimately should be
produced, because the district court has not ac-
corded Santa Fe its right to an orderly process
to determine the nature of the documents or
the history of their dissemination.
The error that justifies mandamus relief is
this procedural failure to allow, after sufficient
notice, an adequate hearing and in camera re-
view, so the parties from whom these allegedly
damaging documents are being demanded can
have their fair day in court. The majority
should require adherence to these basic
requirements.
IX.
An additional justification for mandamus re-
lief materialized well after Santa Fe filed its
mandamus petition. On July 30, 2001, the
Chief Judge of the United States District Court
for the Southern District of Texas entered an
order that, with the consent of the district
court, reassigned this case, and eighty-four oth-
ers in which Mr. Melancon was representing
plaintiffs before the district judge against whom
this mandamus proceeding is brought, to the
docket of another judge of the Southern
District of Texas.19
Mandamus proceedings are brought against
a specified district judge, in response to an ac-
tion or ruling by that judge, and not against a
district court in the abstract. Here, as I have
explained but the majority does not discuss, the
mandamus petition is brought against a judge
who no longer presides over this case. If it
were not for the imminent settlement of this
litigation, this matter most properly would need
to be returned for review by the newly-
assigned district judge, so he would have the
opportunity to examine the documents at issue
and exercise his own discretion in regard to
them. He should not be saddled with the deci-
sions of his predecessor, when it would be so
simple and expeditious to send this issue to him
now.
Accordingly, because the panel majority, for
the reasons I have stated, should not be acting
at this time to deny the petition for writ of
mandamus, I respectfully dissent from the de-
cision of the majority to insist on issuing its or-
der now, and from the substance of that order
even assuming it were properly issued.
19 Special Order No. G-01-01 (S.D.
Tex. July 30, 2001).

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