5th Cir. 1970), we deny the petition. I. In the underlying civil… v. Sealed

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-20379
_______________
IN RE:
OCCIDENTAL PETROLEUM CORPORATION,
Petitioner.
_________________________
Petition for Writ of Mandamus to
the United States District Court
for the Southern District of Texas
_________________________
June 28, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This matter involves a discovery order
granted despite assertions of attorney-client
privilege by petitioner Occidental Petroleum
Corporation (“Occidental”), which seeks a
writ of mandamus instructing the district court
to vacate that order. Finding no clear error,
because the plaintiff class is not subject to Oc-
cidental’s attorney-corporate client privilege
under Garner v. Wolfinbarger, 430 F.2d 1093,
1103-4 (5th Cir. 1970), we deny the petition.
I.
In the underlying civil litigationSSCroucher
v. MidCon Corp. Employee Stock Ownership
Plan Admin. Committee, the plaintiff class
consists of employees of the MidCon Cor-
poration (“MidCon”). Before this litigation
began, MidCon was a wholly-owned subsid-
iary of Occidental. For the benefit of MidCon
employees, Occidental established the MidCon
Employee Stock Ownership Plan (“ESOP”),
funded by 1.4 million shares of Occidental pre-
ferred stock originally valued at $1.4 billion.
That stock was designed to track the value of
MidCon. Occidental subsequently sold Mid-
Con and entered into a negotiated settlement
with the ESOP trustee, the U.S. Trust Com-
pany of California, N.A., respecting the pre-
ferred shares.

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2
Plaintiffs sued Occidental and others under
ERISA,1 alleging various breaches of fiduciary
duty relating to the ESOP. Pursuant to that
litigation, the district court granted plaintiffs’
request for discovery of nearly 200 Occidental
documents, over Occidental’s claim of attor-
ney-client privilege.
II.
To obtain mandamus relief,2 Occidental
must do more than prove merely that the court
erred.3 “Mandamus is an extraordinary rem-
edy reserved for extraordinary cases,” one
granted “not as a matter of right, but in the ex-
ercise of a sound judicial discretion.”4 A mere
showing of error, after all, may be corrected
on appeal: “[I]t is more than well-settled that
a writ of mandamus is not to be used as a sub-
stitute for appeal.”5
Thus, for Occidental to establish entitle-
ment to mandamus relief,6 it must show not
only that the district court erred, but that it
clearly and indisputably erred.7 Moreover,
Occidental must show that the “clear and in-
disputable” error is irremediable on ordinary
appeal,8 thereby justifying emergency relief in
1 Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq.
2 See 28 U.S.C. § 1651; FED. R. APP. P. 21(a).
3 See In re United States, 878 F.2d 153, 158
(5th Cir. 1989) (noting that “generally discovery
and similar pretrial orders, even erroneous ones,
are not reviewable on mandamus”).
4 Southern Pac. Transp. Co. v. City of San
Antonio, 748 F.2d 266, 270 (5th Cir. 1984)
(citations omitted).
5 In re American Marine Holding Co., 14 F.3d
276, 277 (5th Cir. 1994). Cf. Holiday Inns, Inc. v.
Fay, 451 F.2d 343, 344 (5th Cir. 1971) (“Our
denial of mandamus at this time is without pre-
(continued...)
(...continued)
judice to reconsideration of the petition on the re-
cord as further developed, should it be requested
after proceedings below are completed.”).
6 See American Marine, 14 F.3d at 277.
7 See, e.g., In re Dresser Indus., Inc., 972 F.2d
540, 542-43 (5th Cir. 1992) (“We will therefore
grant the writ only if the petitioner can show its
right to the writ is clear and indisputable. Man-
damus is appropriate when the trial court has ex-
ceeded its jurisdiction or has declined to exercise it,
or when the trial court has so clearly and indis-
putably abused its discretion as to compel prompt
intervention by the appellate court.”) (citations
omitted); Texaco Inc. v. Louisiana Land & Ex-
ploration Co., 995 F.2d 43, 43 (5th Cir. 1993)
(“We denied relief, stating, in an unpublished or-
der, ‘We are not persuaded that petitioners have
met the high standards for the extraordinary writs
[of either mandamus or prohibition], despite not
insubstantial arguments that the courts below erred
in their treatment of privilege.’”); In re Terra Int’l,
Inc., 134 F.3d 302, 305-6 (5th Cir. 1998) (holding
that, because “[w]e will grant a writ of mandamus
only when the petitioner demonstrates that its right
to the writ is clear and indisputable,” there was no
need to “intimate . . . view as to the merits of
Terra’s claims of privilege and other limitations on
discovery”) (citation omitted).
8 See Maloney v. Plunkett, 854 F.2d 152,
(continued...)

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3
the form of mandamus.9 Occidental notes In re Burlington N., Inc.,
822 F.2d 518 (5th Cir. 1987), in which we
granted mandamus relief, without explicitly re-
quiring a showing of clear error, from a dis-
covery order in purported violation of, inter
alia, attorney-client privilege. But we noted
the existence of various other special factors
supporting the finding of “extraordinary cir-
cumstances,” none of which is present here.
See id. at 522.
First, the claim of mere error in Burlington
was purely one of law. Id. at 523. The district
court had utterly failed to undertake “a proper
factual determination.” Id. at 534.10 By
(...continued)
154-55 (7th Cir. 1988) (“Ordinarily even a clear
error in an interlocutory ruling is not a ground for
the extraordinary remedy of mandamus. Clear er-
ror is a necessary condition, and one easily sat-
isfied here as we have just seen, but it is not a
sufficient condition. Not only must the error be
clear; it must be irremediable by the regular ap-
pellate remedies. And ordinarily the inconvenience,
lost time, and sunk costs of such further pro-
ceedings as could have been avoided by correcting
the trial judge’s error are not considered the kind of
irremediable harm that will satisfy the stringent
requirements for issuing a writ of mandamus. It
could of course be argued that when the error is
clear, of course the appellate court should correct
it at once; the court will have to do it sooner or
laterSS-why not sooner? But the court may not
have to do it later; the error may be mooted by the
victory of the party against whom it was com-
mitted. And to determine whether an error is clear
enough to warrant immediate correction can itself
be a time-consuming endeavor. . . . If as we have
seen the ordinary inconvenience of a new trial
cannot justify the use of the writ, still, extra-
ordinary inconveniences may do so.”).
9 We acknowledge that, if it is able to show that
the district court clearly erred in ordering discovery
because the requested documents are privileged,
Occidental is likely also to be able to prove the
necessity for mandamus relief. See In re Spalding
Sports Worldwide, Inc., 203 F.3d 800, 804 (Fed.
Cir. 2000) (observing that “mandamus is appro-
priate ‘because maintenance of the attorney-client
privilege up to its proper limits has substantial im-
portance to the administration of justice, and be-
cause an appeal after disclosure of the privileged
communication is an inadequate remedy.’”) (quot-
ing In re Regents of Univ. of Cal., 101 F.3d 1386,
1387 (Fed. Cir. 1996)); In re General Motors
Corp., 153 F.3d 714, 715 (8th Cir. 1998) (“The
(continued...)
(...continued)
extraordinary remedy of mandamus is appropriate
because the district court’s order would otherwise
destroy the confidentiality of the communications
at issue.”); Harper & Row Publishers, Inc. v.
Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff’d,
400 U.S. 348 (1971) (stating that “because main-
tenance of the attorney-client privilege up to its
proper limits has substantial importance to the
administration of justice, and because an appeal
after disclosure of the privileged communication is
an inadequate remedy, the extraordinary remedy of
mandamus is appropriate”).
10 Cf. Sealed Appellees v. Sealed Appellants,
112 F.3d 173, 174 (5th Cir. 1997) (denying man-
damus, holding that “[t]he preferable practice in
factual patterns, such as here, is for the [district]
court to examine a sufficient number of the con-
tested documents to insure the informed protection
of the privilege protecting the thought processes of
an attorney. That examination can be conducted
by the court or a special master or magistrate judge
as the district court may choose. . . . [We there-
fore] stay the order of production pending further
order of the district court. Our stay left, as it is, in
the control of the district court is to allow the in
(continued...)

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4
contrast, Occidental concedes that it is chal-
lenging not a conclusion of law, but merely the
court’s document review and resulting factual
determination, and that the “abstract principle
of law” at issue “is undisputed.”
Second, the issues raised in the Burlington
mandamus petition called for “an important
and potentially far-reaching decision . . .
appropriate . . . for our immediate review.”
Id. at 523. The challenged discovery went “to
the heart of the controversy” between the par-
ties and thus would “likely have a deter-
minative impact on the course of the case.”
Id. at 522. Moreover, the legal issue resolved
in Burlington was of significant precedential
value, involving a question “which is likely to
recur in future cases” and thus of “importance
beyond the immediate lawsuit.” Id. at 523.
See also In re American Airlines, Inc., 972
F.2d 605, 609 (5th Cir. 1992). Occidental,
however, has made no showing that resolution
of the instant controversy on mandamus re-
view will have such an extraordinary impact,
either within or beyond the confines of this
dispute.
Finally, the order challenged in Burlington
was of extraordinary size and scope, directing
the production of several thousand documents.
See 822 F.2d at 522. The instant order, by
contrast, involves fewer than 200.
III.
The district court ordered discovery on the
ground that the documents relate to matters
triggering Occidental’s fiduciary duty to the
plaintiffs as plan administrator and thus fall
within the fiduciary-duty exception to the
attorney-client privilege.11 Occidental takes
exception, arguing that the district court found
only that Occidental owed plaintiffs some fidu-
ciary duties, without additionally determining
that each requested document concerned the
particular matters for which Occidental owed
that duty.12
We deny mandamus relief, but on alter-
native grounds. See Burlington, 822 F.2d
at 533. Irrespective of whether it owes plain-
tiffs a fiduciary duty as plan administrator,
Occidental fails to show how the court would
have erred had it ordered discovery on the
ground that the ESOP, as Occidental share-
holder, was entitled to pierce the corporation’s
attorney-client privilege under Garner, 430
F.2d at 1103-04. We therefore find no clear
error.
Under Garner, a corporation may invoke
only a limited attorney-client privilege against
the discovery demands of a shareholder. After
all, “management is not managing for itself,”
(...continued)
camera examination of documents the district court
may order.”); In re Oswalt, 607 F.2d 645, 647 (5th
Cir. 1979) (granting mandamus relief only after
determining that “district court’s factual findings
were clearly erroneous.”) (emphasis added).
11 See Wildbur v. ARCO Chem. Co., 974 F.2d
631, 645 (5th Cir. 1992) (opining that “an ERISA
fiduciary cannot assert the attorney-client privilege
against a plan beneficiary about legal advice deal-
ing with plan administration”).
12 See, e.g., In re Long Island Lighting Co.,
129 F.3d 268, 271 (2d Cir. 1997) (“[A]n employer
acts as an ERISA fiduciary only in plan man-
agement or administration, not in the plan’s design
or amendment. The employer’s ability to invoke
the attorney-client privilege to resist disclosure
sought by plan beneficiaries turns on whether or
not the communication concerned a matter as to
which the employer owed a fiduciary obligation to
the beneficiaries.”) (citations omitted).

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5
but rather on behalf of the shareholder. Id.
at 1101. We outlined the scope of this limited
attorney-corporate client privilege as follows:
The attorney-client privilege still has vi-
ability for the corporate client. The cor-
poration is not barred from asserting it
merely because those demanding infor-
mation enjoy the status of stockholders.
But where the corporation is in suit
against its stockholders on charges of
acting inimically to stockholder inter-
ests, protection of those interests as well
as those of the corporation and of the
public require that the availability of the
privilege be subject to the right of the
stockholders to show cause why it
should not be invoked in the particular
instance.
Id. at 1103-04.
Occidental argues that Garner ought not
apply, because the plaintiffs are not Occidental
stockholders. The ESOP is an Occidental
stockholder, however, and the plaintiffs are en-
titled to sue as plan beneficiaries on behalf of
the plan under 29 U.S.C. § 1132(a).13
Occidental responds by noting that the plain-
tiffs brought this case as a class action, but
does not explain why only an individual share-
holderSSand not an entire class of share-
holdersSSis entitled to recover.14
There is good cause for applying Garner
here. As we have stated,
There are many indicia that may con-
tribute to a decision of presence or ab-
sence of good cause, among them
[1] the number of shareholders and the
percentage of stock they represent;
[2] the bona fides of the shareholders;
[3] the nature of the shareholders’ claim
and whether it is obviously colorable;
[4] the apparent necessity or desirability
of the shareholders having the infor-
mation and the availability of it from
other sources; [5] whether, if the share-
holders’ claim is of wrongful action by
the corporation, it is of action criminal,
or illegal but not criminal, or of doubtful
legality; [6] whether the communication
related to past or to prospective actions;
13 See 29 U.S.C. § 1132(a) (“A civil action may
be brought . . . (2) . . . by a participant, beneficiary
or fiduciary for appropriate relief under [29 U.S.C.
§ 1109]”); 29 U.S.C. § 1109(a) (“Any person who
is a fiduciary with respect to a plan who breaches
any of the responsibilities, obligations, or duties
imposed upon fiduciaries by this subchapter shall
be personally liable to make good to such plan any
losses to the plan resulting from each such breach,
and to restore to such plan any profits of such
fiduciary which have been made through the use of
assets of the plan by the fiduciary, and shall be
subject to such other equitable or remedial relief as
the court may deem appropriate”). See also Tol-
(continued...)
(...continued)
son v. Avondale Indus., Inc., 141 F.3d 604, 610
(5th Cir. 1998) (“Section 1132(a)(2) allows a ben-
eficiary to bring a standard breach of fiduciary du-
ty suit for the benefit of the subject plan.”); Mas-
sachusetts Mut. Life Ins. Co. v. Russell, 473 U.S.
134, 136, 140 (1985) (permitting § 1132(a)(2) suit
by “a beneficiary under two employee benefit plans
administered by petitioner . . . [and] funded from
the general assets of petitioner”).
14 Recovery under 29 U.S.C. § 1109(a) and 29
U.S.C. § 1132(a)(2) is limited to that which “in-
ures to the benefit of the plan as a whole.” Russell,
473 U.S. at 140. Extracontractual compensatory
or punitive damages are therefore not appropriate.
Id. at 138.

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6
[7] whether the communication is
of advice concerning the litigation
itself; [8] the extent to which the
communication is identified versus
the extent to which the share-
holders are blindly fishing; [9] the
risk of revelation of trade secrets or
other information in whose con-
fidentiality the corporation has an
interest for independent reasons.
Garner, 430 F.2d at 1104.
As applied to this dispute, these factors col-
lectively argue against recognizing the privi-
lege. First, the ESOP holds Occidental pre-
ferred stock originally valued at $1.4 billion.
Second, Occidental does not question the
plaintiffs’ good faith in initiating this action.
Third, Occidental makes no claim that these
actions are frivolous. Fourth, the plaintiffs
present sufficient necessity for the requested
documents. Fifth, the plaintiffs allege unlawful
conduct tantamount to fraud. Sixth, the docu-
ments were created before the allegedly un-
lawful acts. Seventh, the documents were
created before this litigation. Eighth, the
plaintiffs have identified the particular docu-
ments for which they seek discovery. Ninth,
Occidental claims no risk of trade secret or
other proprietary interest.
It is true, of course, that the plaintiffs stand
in adverse position to Occidental’s common
shareholders. Under Garner, a stockholder’s
demand for discovery “must be germane to his
interest as stockholder, and the interests of the
corporation and other shareholders may con-
trol to deny inspection.” Id. at 1104 n.21.
But opposing parties in litigation are inevitably
and by definition adverse to one another. In-
deed, in Garner “we specifically elected . . . to
open up to shareholders . . . communications
between management and counsel where some
pecuniary interests are necessarily adverse.”
Ward v. Freeman, 854 F.2d 780, 785 (5th Cir.
1988).
The concern expressed in Garner was with
a shareholder’s attempt to pierce the attorney-
corporate client privilege to vindicate interests
other than those of a shareholderSSfor exam-
ple, a shareholder of two competing compan-
ies who seeks to pierce the privilege adversely
to one company to benefit himself as a share-
holder of the other. That concern is not trig-
gered here. The plaintiffs’ interest in the re-
quested documents is limited to protecting
their rights as (derivative) holders of Occi-
dental preferred stockSSand nothing more.
That is to say, the plaintiffs seek discovery on-
ly to uphold Occidental’s fiduciary duties to
the ESOP, and that discovery should in no
way undermine Occidental’s fiduciary duties to
its common shareholders.
The petition for writ of mandamus is
DENIED.

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