Ross v. City of Memphis

• Citation: 423 F.3d 596
• Decision Date: 14 September 2005
• Docket Number: No. 04-5298.,04-5298.
• Parties: Herlancer ROSS, Plaintiff-Appellee, v. CITY OF MEMPHIS, Defendant-Appellant, Walter Crews and Alfred Gray, Individually, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 596

423 F.3d 596

Herlancer ROSS, Plaintiff-Appellee, v. CITY OF MEMPHIS, Defendant-Appellant, Walter Crews and Alfred Gray, Individually, Defendants.

No. 04-5298.

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2005.

Decided and Filed: September 14, 2005.

ARGUED: Louis P. Britt III, Ford & Harrison, Memphis, Tennessee, for Appellant. David M. Sullivan, Memphis, Tennessee, for Appellee. ON BRIEF: Louis P. Britt III, Keith R. Thomas, Ford & Harrison, Memphis, Tennessee, for Appellant. David M. Sullivan, Memphis, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and GADOLA, District Judge.^*

OPINION

BOGGS, Chief Judge.

Regardless of the way this case is captioned, the real dispute is between the City of Memphis (the "City") and its former police director, Walter Crews, who has also been sued in his individual capacity. The City asserts the attorney-client privilege as to the content of conversations between Crews, while he was police director, and various attorneys employed by the City. However, in the present lawsuit, Crews has raised the advice of counsel as the basis of his qualified immunity defense. Thus, we are asked to determine whether Crews's invocation of the advice of counsel impliedly waives the attorney-client privilege held by the City. To answer this question, we must first decide whether a municipality can hold the attorney-client privilege. Holding that a municipality can maintain the privilege and that Crews's litigation choices cannot waive the City's privilege, we reverse the district court and remand for further proceedings.

I

This case is an interlocutory appeal from an ongoing suit in federal district court. Herlancer Ross, a black police officer employed by the City, took part in the 2000 promotion process in hope of becoming a sergeant. The test included a component for which some officers were able to procure the answers in advance of taking the test. Plaintiff was one of these officers, but it remains unclear whether she knew at the time that the questions and answers she was given would appear on the test. Because this component of the test had been compromised, the City eliminated it from the process and evaluated the applicants on the other three components: a written test, performance evaluations, and seniority. Ross was not promoted. In September 2000, she joined fifty-one other officers in suing the City, challenging the promotion processes used in 2000, and later the process in 2003, under Title VII. This case is still ongoing. See Johnson v. City of Memphis, 355 F.Supp.2d 911 (W.D.Tenn.2005) (granting plaintiffs partial summary judgment); see also Johnson v. City of Memphis, 73 F. App'x 123 (6th Cir.2003) (denying motion to intervene filed by officers successful in 2000 process). Crews, though very involved in the events leading to the Johnson case, is not a named defendant in that action.

The suit that is the subject of this appeal arises from events related to the Johnson litigation. Ross filed an affidavit in support of plaintiffs' motion for summary judgment and was deposed in the case. She also filed a complaint with the EEOC in January 2001. However, because Ross was one of the officers who had been given test answers in advance, she was also a target in internal disciplinary proceedings. On April 24, 2001, the City initiated disciplinary proceedings against Ross and thirteen other officers. On May 15th, Ross, through counsel, informed defendants that she was a plaintiff in Johnson and had provided testimony. She warned them not to retaliate and threatened to sue the City and individual officers if they did.

The City proceeded to hold a hearing on June 11, 2001. Following the hearing, defendant Alfred Gray, Crews's deputy, demoted Ross from her then-current rank of "Patrol Officer II" to "Patrol Officer II Probationary," which resulted in a loss of pay and seniority. The Civil Service Commission reviewed plaintiff's demotion in October 2001. It unanimously rejected the City's reasoning and ordered it to restore plaintiff to her previous position.

On June 7, 2002, plaintiff brought suit against the City, Crews, and Gray. Both Crews and Gray were sued in their individual capacities. She alleged that the defendants violated her rights under 42 U.S.C. §§ 1981, 1983, and 2000e-3, as well as provisions of the Tennessee Constitution and Tennessee Code § 4-21-401 (prohibiting racial discrimination in employment). Crews retired in March 2003.

During discovery, Crews's defense theory emerged. He admitted reviewing Ross's May 15, 2001 letter. He claimed to have talked to attorneys either employed by the City or hired by the City to work on the Johnson case about how to proceed. Relying on their advice, Crews claimed, he decided to proceed with Ross's hearing. Crews argues that his reliance on their advice renders his behavior reasonable thus entitling him to a defense of qualified immunity. However, Crews has also consistently declined to reveal the content of the advice he received because it is protected by attorney-client privilege.

The magistrate judge ordered Crews to reveal the contents of the conversations for the reason that Crews had injected the attorney's advice into litigation. The City objected to the magistrate judge's order on the grounds that it held the privilege as to those conversations and, therefore, Crews could not impliedly waive its privilege. The district court held that Crews could not assert the privilege after having injected into the litigation the content of legal advice. It issued an opinion ordering Crews to disclose the contents of the conversations. Ross v. City of Memphis, 224 F.R.D. 411 (W.D.Tenn.2004). It reasoned that, in the particular context of a City official claiming qualified immunity based on advice of counsel, the City's privilege "must give way" so that Crews can mount his defense. Id. at 414; see also id. at 413-14 (outlining reasoning).

II

The City filed an interlocutory appeal, which is the present case, and a petition for a writ of mandamus. Though two of our sister circuits allow immediate review of discovery orders involving claims of privilege under the collateral order doctrine articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), see United States v. Philip Morris, 314 F.3d 612, 617 (D.C.Cir.2003); In re Ford Motor Co., 110 F.3d 954, 964 (3d Cir.1997), this court does not ordinarily do so. See FDIC v. Ernst & Whinney, 921 F.2d 83, 85 (6th Cir.1990) (denying jurisdiction under the collateral doctrine in case involving governmental privileges); In re Grand Jury Proceedings-Gordon, 722 F.2d 303, 305-06 (6th Cir.1983) ("Gordon") (noting in case involving attorney-client privilege that "an order compelling testimony or denying a motion to quash a grand jury subpoena is not appealable."). An exception exists, however, for those situations where a party claiming a privilege is "powerless to avert the mischief of the order." Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 62 L.Ed. 950 (1918); see Gordon, 722 F.2d at 306-07 (6th Cir.1983) (applying Perlman exception in instances compelling testimony from an attorney). Because the City cannot prevent Crews from complying with the discovery order, a motions panel determined that this court did have jurisdiction over this case. It also dismissed appellant's mandamus petition.

Appellee continues to contest this court's jurisdiction, arguing that the attorney-client privilege has not been established and, thus, this court lacks jurisdiction. Appellee's argument misunderstands the nature of this court's jurisdiction. Our jurisdiction does not depend on the validity of the appellant's underlying claims for relief. In Perlman v. United States, the Supreme Court reviewed the interlocutory motion even though it ultimately found against the petitioner. See 247 U.S. at 13-15, 38 S.Ct. 417 (reviewing Perlman's claim on interlocutory appeal but finding no violation of the Fifth Amendment in government's subsequent use of exhibits made public in previous litigation). Our analysis does not differ because a claim of privilege has been asserted in the litigation. As this court held in Gordon, jurisdiction over this dispute is proper because the City cannot prevent Crews from disclosing allegedly privileged information. 722 F.2d at 306-07. As in that case, we are free to decide that the appellant does not have the privilege. See id. at 307-08 (deciding privilege had not been implicated). Doing so, however, presents no challenge to our jurisdiction. We therefore now turn to the issues raised in this interlocutory appeal.

III

"The attorney-client privilege protects from disclosure `confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client.'" In re Grand Jury Subpoena (United States v. Doe), 886 F.2d 135, 137 (6th Cir.1989) ("Doe") (quoting In re Grand Jury Investigation, 723 F.2d 447, 451 (6th Cir.1983)). Whether the attorney-client privilege applies to a given situation is a mixed question of law and fact that this court reviews de novo. E.g., In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 293-94 (6th Cir.2002) ("Columbia/HCA Healthcare").

This privilege is "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (citing 8 J. Wigmore, Evidence § 2290 (McNaughton rev.1961)). Federal courts interpret the privilege's scope "guided by `the principles of the common law ... as interpreted by the courts ... in the light of reason and experience.'" Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998) (omissions in original) (quoting Fed.R.Evid. 501). The privilege's primary purpose is to encourage "`full and frank...