Harper & Row Publishers, Inc. v. Decker
| Citation | 423 F.2d 487 |
| Decision Date | 04 May 1970 |
| Docket Number | No. 18008.,18008. |
| Parties | HARPER & ROW PUBLISHERS, INC., et al., Petitioners, v. Honorable Bernard M. DECKER, United States District Judge, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Schiff, Hardin, Waite, Dorschel & Britton, Sonnenschein, Levinson, Carlin, Nath & Rosenthal, Lee N. Abrams, H. Templeton Brown, Robert L. Stern, Chicago, Ill., Weil, Gotshal & Manges, New York City, for William Morrow & Co., Inc.
W. Donald McSweeney, William A. Montgomery, Chicago, Ill., for The Bobbs-Merrill Co., Inc., G. P. Putnam's Sons.
Earl E. Pollock, Alan Silberman, Chicago, Ill., for Baker & Taylor Co.
Ira M. Millstein, Peter Gruenberger, New York City, for Charles Scribner's Sons, E. P. Dutton & Co., Inc., Grossett & Dunlap, Inc., Harper & Row Publishers, Inc., Henry Z. Walck, Inc.
Satterlee, Warfield & Stephens, White & Case, Greenbaum, Wolff & Ernst, Linden & Deutsch, Shea, Gallop, Climenko & Gould, New York City, Leibman, Williams, Bennett, Baird & Minow, Chadwell, Keck, Kayser, Ruggles & McLaren, Brown, Fox & Blumberg, Winston, Strawn, Smith & Patterson, Bergstrom & Olson, Bell, Boyd, Lloyd, Haddad & Burns, McDermott, Will & Emery, Chicago, Ill., Choate, Hall & Stewart, Conrad W. Oberdorfer, Brinton P. Roberts, Boston, Mass., for Houghton Mifflin Co.
William E. Stockhausen, John Horton, New York City, for Holt, Rinehart and Winston, Inc.
Earl A. Jinkinson, John W. Stack, Chicago, Ill., for Franklin Watts, Inc.
Edgar E. Barton, Kevin L. Carroll, New York City, for McGraw-Hill Book Co.
John J. McHugh, Chicago, Ill., for Charles M. Gardner Co., Imperial Book Co., Associated Libraries, Inc., Melton Book Co., Inc., Sather Gate Book Shop.
Leo Rosen, Roger Hunting, New York City, for Thomas Y. Crowell Co., David McKay Co., Inc.
Samuel Weisbard, David Porter, Chicago, Ill., for Golden Press, Inc.
Bella L. Linden, David Blasband, New York City, for The MacMillan Co.
John T. Loughlin, John C. Christie, Charles A. Tausche, Chicago, Ill., for E. M. Hale and Co.
Bruce Hecker, New York City, David P. List, Kenneth A. Manaster, Chicago, Ill., for Campbell & Hall, Inc.
Nathan Blumberg, Robert W. Bergstrom, Chicago, Ill., for Follett Library Book Co.
Lee A. Freeman, Lee A. Freeman, Jr., Chicago, Ill., William J. Scott, Atty. Gen., John P. Meyer, Sp. Asst. Atty. Gen., State of Ill., Chauncey H. Browning, Jr. Atty. Gen., Gene Hal Williams, Deputy Atty. Gen., State of W. Va., Theodore L. Sendak, Atty. Gen., Wendell C. Hamacher, Asst. Atty. Gen., State of Ind., Crawford C. Martin, Atty. Gen., Richard W. Chote, Asst. Atty. Gen., State of Tex., Paul W. Brown, Atty. Gen., Donald Weckstein, Ted B. Clevenger, Asst. Attys. Gen., State of Ohio, Douglas M. Head, Atty. Gen., Roger E. Montgomery, Asst. Atty. Gen., State of Minn., Robert W. Warren, Atty. Gen., George F. Sieker, Theodore L. Priebe, Asst. Attys. Gen., State of Wis., Kent Frizzel, Atty. Gen., J. Eugene Balloun, Special Asst. Atty. Gen., State of Kan., Raymond F. Simon, Corp. Counsel, City of Chicago, John A. Murray, St. Paul, Minn., for City of St. Paul, and others, David J. Young, Columbus, Ohio, for Archbishop and Bishops of the Six Catholic Dioceses in Ohio, Robert E. Kendrick, Deputy Metropolitan Atty., Metropolitan Government of Nashville and Davidson County, Tenn., for respondents Honorable Bernard M. Decker and the Treble Damage Plaintiffs.
Before KILEY, FAIRCHILD and CUMMINGS, Circuit Judges.
Certiorari Granted May 4, 1970. See 90 S.Ct. 1523.
In more than forty separate antitrust actions brought in eight judicial districts, plaintiffs, state and local governments, public schools, and public libraries, sought damages from twenty-three defendants (petitioners here), publishers and wholesalers, for alleged conspiracies to inflate the prices for children's editions of library books. Pursuant to 28 U.S.C. § 1407 these actions were transferred for consolidated discovery and pretrial proceedings to the United States District Court for the Northern District of Illinois, Eastern Division, the Honorable Bernard M. Decker, presiding. Petitioners seek mandamus to compel the district judge to vacate an order dated October 17, 1969 insofar as it permitted plaintiffs to inspect and copy certain memoranda, all but one of which were prepared by attorneys while "debriefing" a number of persons (each an employee or former employee of one of petitioners) shortly after each had testified before a federal grand jury investigating various aspects of the publishing industry.
Plaintiffs sought production of these memoranda under Rule 34, F.R.Civ.P. Petitioners countered with the claim that the debriefing memoranda were protected by the attorney-client privilege or as attorneys' work product. The judge ordered petitioners to submit the memoranda under seal, and to file a precise factual statement setting forth the circumstances of the preparation of each.
The judge did not examine the memoranda. In every instance but two, he decided that neither an attorney-client privilege nor any status as work product excused discovery.
The judge refused to make a certification under 28 U.S.C. § 1292(b), for the purpose of appeal. Petitioners sought mandamus, and because an appeal, ultimately, from the final decision would be an inadequate remedy, we ordered an answer and briefs.
The claims made by petitioners fall under the following topics: (1) Whether the relationship between the person interviewed and the attorney was such as to make the communication privileged. (2) Whether the relationship between the person interviewed and the attorney's corporate client was such as to make the communication privileged. (3) Whether the memoranda were protected work product of the attorney. (4) Whether good cause was shown for discovery of work product.
(1) Whether the relationship between the person interviewed and the attorney was such as to make the communication privileged.
The judge had before him assertions on this point in affidavits and depositions. In at least three instances (Davidson, Rose and Rowe), there was a difference between the statement of the attorney and of the person interviewed which raised a degree of ambiguity. There was at least one assertion of the existence of a personal attorney-client relationship with respect to Moorman, Hood, Thompson, Sciosia, Patella, Guerney, Heidelberger, Stokes, Street, Davidson, Rose, Rowe, Callaway, and witnesses "A" and "B" of Golden Press.
The judge decided that there was no personal attorney-client relationship in these instances because it failed to appear that the attorney did (1) render personal legal advice to the witnesses, (2) advise them on personal matters, or (3) bill them for services. He concluded that the witnesses talked to the attorneys as a favor to the respective corporations.1
Petitioners can not assert the privilege of the individuals, if such privilege existed. The attorneys could presumably assert their obligation to the individuals, although the attorneys are before this court only as counsel for petitioners.
In any event we do not find the existence of personal attorney-client relationships so clearly established that mandamus is appropriate to compel the district court to recognize the privilege which would arise therefrom.
(2) Whether the relationship between the person interviewed and the attorney's corporate client was such as to make the communication privileged.
Some of the persons interviewed were no longer employees at the time of the interview; others were employed by one of petitioners at the time of interview, but were interviewed by counsel for ananother petitioner. Neither group need be considered under this topic.
Messrs. Moorman, Hood, Thompson, Sciosia, Patella, Guerney, Heidelberger, Rowe (as to Thomas Y. Crowell Company), Stokes, Davidson, Callaway, Witness A of Golden Press, Walker, Dyckman, Mitchell, Andrus, and Hoocker were employees of the corporate client at the time of the interview. It is sufficiently clear that each employee made his disclosure to the attorney at the direction of his corporate employer and on its behalf; and that the subject matter of his grand jury testimony and of the debriefing interview was germane to the duties of his employment. On the other hand, although some of these employees had supervisory or even policy making responsibilities with respect to the branch of the corporate business with which they worked, it was not demonstrated that any of these employees was in a position to control or take a substantial part in a decision about action which the corporation may take upon the advice of the attorney, nor that he was a member of a group having that authority.2
The district judge substantially followed the "control group" test of the relationship between corporate client and persons making the communication to the attorney which must exist if the communication is to be protected by the corporation's attorney-client privilege. This test was formulated by Judge Kirkpatrick in City of Philadelphia v. Westinghouse Electric Corp. (E.D.Pa., 1962), 210 F.Supp. 483. A similar test appears in Rule 5-03(a) (3), Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, March, 1969.
If the control group test be wholly adequate, it has not been shown that the district judge erred in his application of it.
Judge Kirkpatrick's control group test has been applied by other courts. E. g., Natta v. Hogan (10th Cir., 1969), 392 F.2d 686, 692; Garrison v. General Motors Corp. (S.D.Cal., 1963), 213 F.Supp. 515. It has been criticized. Burnham, Confidentiality and the Corporate Lawyer: The Attorney-Client Privilege and "Work Product" in Illinois, 56 Ill.B.J. 542, 545-48 (1968); Heininger, The Attorney-Client Privilege as it Relates to Corporations, 53 Ill.B.J. 376, 384 (1965)....
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...515 (S.D.Cal.1963); Philadelphia v. Westinghouse Elec. Corp., 210 F.Supp. 483 (E.D.Pa.1962). But see Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir. 1970), aff'd per curiam by equally divided court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971) (privilege applies......
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Table of Cases
...Haring v. Prosise, 462 U.S. 306 (1983), 257 Harmon v. Gordon, 712 F.3d 1044 (7th Cir. 2013), 246 Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d , 400 U.S. 348 (1971), 105, 107 Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991), 100 Harris v. City o......