Bogosian v. Gulf Oil Corp.
| Decision Date | 08 February 1984 |
| Docket Number | No. 84-3013,84-3013 |
| Citation | 738 F.2d 587 |
| Parties | , 1984-2 Trade Cases 66,085, 16 Fed. R. Evid. Serv. 435 Paul BOGOSIAN and Louis Parisi, on behalf of themselves and all others similarly situated, Petitioners, v. GULF OIL CORPORATION, American Oil Company, Exxon Corporation, Mobil Oil Corporation, Phillips Petroleum Company, Shell Oil Company, Sun Oil Company of Pennsylvania, Texaco, Inc., Cities Service Company, Atlantic Richfield Company, Union Oil Company of California, Amerada Hess Corporation, Getty Oil Company, Chevron Oil Co., and BP Oil, Inc., Respondents, and Honorable Donald W. VanArtsdalen, Judge, United States District Court, Nominal Respondent. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
David Berger, H. Laddie Montague, Jr., Warren D. Mulloy, Howard Langer, Martin I. Twersky, Alan Sandals, Berger & Montague, P.C., Philadelphia, Pa., Harold Brown, Boston, Mass., Norman Zarwin, Zarwin & Baum, P.C., Philadelphia, Pa., for petitioners/class representatives.
Charles I. Thompson, Jr., Michael L. Lehr, George E. Moore, Stephen D. Schutt, Ballard, Spahr, Andrews & Ingersoll, Ralph W. Brenner, Howard D. Scher, Gilbert F. Casellas, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., William Simon, Howrey & Simon, Washington, D.C., Adlai S. Hardin, Jr., Milbank, Tweed, Hadley & McCloy, New York City, Andrew J. Kilcarr, Donovan, Leisure, Newton & Irvine, Washington, D.C., Edward W. Mullinix, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Henry H. Janssen, Warren L. Simpson, Jr., Rawle & Henderson, Philadelphia, Pa., Hoyt H. Harmon, Jr., The Gulf Companies, Houston, Tex., David L. Doyle, Chicago, Ill., John H. Lewis, Morgan, Lewis & Bockius, Philadelphia, Pa., Thomas O. Kuhns, Fred H. Bartlit, Jr., Kirkland & Ellis, Chicago, Ill., Joseph P. Foley, Texaco Inc., White Plains, N.Y., for respondents.
Before GIBBONS, SLOVITER and BECKER, Circuit Judges.
Before us is a Petition for Mandamus filed by representatives of a national class action brought under the antitrust laws against the fifteen major oil companies on behalf of their lessee dealers. Petitioners seek the writ to direct the district court to vacate its orders compelling production of certain memoranda prepared by petitioners' counsel that petitioners contend are protected from discovery because they consist of work product containing solely mental impressions, thought processes, opinions and legal theories of counsel. The district court directed production because these memoranda were reviewed by expert witnesses who are scheduled to give what the parties agree are to be treated as trial depositions. In resolving this issue, we must analyze the interaction between Fed.R.Civ.P. 26(b)(3) and 26(b)(4), an issue which has received only scant consideration in the case law.
In the antitrust suit, petitioners allege concerted action by the defendants in imposing a tying arrangement on their lessee-dealers that eliminated or lessened price competition with respect to sales of gasoline. The allegations were reviewed in our prior decision, Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978), which reversed the district court's entry of summary judgment in favor of certain defendants and remanded the class certification issue for reconsideration. Petitioners concede that they will rely primarily on expert testimony to prove their claims. They have designated eight trial experts hired to testify concerning gasoline marketing, statistics, economics, chemistry and automotive engineering. The district court ruled, and counsel agreed, that all designated trial experts will be subject to deposition pursuant to Fed.R.Civ.P. 26(b)(4)(A).
In Class Action Order No. 83, entered on November 29, 1983, the district court ordered petitioners to identify and produce documents with respect to expert witnesses. That order provided:
1. Exxon's motion to compel plaintiffs to answer Interrogatory No. 17 and to identify and produce certain documents with respect to each expert witness is denied, subject, however, that plaintiffs' obligation to identify and produce documents (whether or not subject to any past, pending or future interrogatory, request to produce, subpoena or any other discovery) in reference to each expert witness shall be limited to identifying and producing the following documents:
(1) All documents including final reports (but not preliminary or draft notes or reports), prepared in whole or in part by the expert on the subject matter and in connection with those matters about which the expert is expected to testify at trial.
(2) All documents sent to the expert by the plaintiffs or their counsel in reference to this litigation.
(3) All documents upon which the expert will rely for the opinion or opinions that the expert will express at trial.
(4) All documents utilized, relied upon, consulted and/or reviewed by the expert in connection with this litigation to the best of the expert's recollection.
(5) All documents setting forth any compensation agreement between plaintiffs and the expert.
(6) Transcripts of testimony given by the expert in any litigation, provided, however, that plaintiffs may object to producing transcripts on the ground that production would unduly invade the privacy of the expert. Plaintiffs shall, however, identify by court, term, number and date any and all litigation wherein the expert was either a party or testified as a witness.
(7) All documents used or relied upon by the expert in preparing answers to expert interrogatories.
(8) All documents that have been or will be shown to the expert during or in preparation of the expert's testimony at deposition or trial.
(9) All documents, including a curriculum vitae, that plaintiffs contend will establish the expert's qualifications for trial purposes.
App. at B.
Because plaintiffs' counsel had objected to the production of documents that constituted their work product, Class Action Order No. 83 permitted plaintiffs only to identify without producing documents as to which they asserted an attorney-client privilege or work product protection. The order provided:
3. Any document as to which plaintiffs assert an attorney-client privilege or work product immunity shall be expressly identified as to date, author, recipients and such description of the subject matter as will provide an adequate basis to determine the validity of the claims without revealing the privileged or immune content, but such document need not be produced, subject to agreement of counsel or order of court.
App. at B.
Following the entry of Class Action Order No. 83, petitioners produced over 700 documents and identified hundreds of additional documents which were otherwise publicly available. They identified but did not produce an additional 115 documents specified as attorney work product. Thereafter, one of the defendants filed a motion to compel production of these additional documents.
On December 30, 1983, the district court issued Class Action Order No. 88, directing plaintiffs "to produce forthwith to defendants each of the documents identified by plaintiffs in their Identification of Documents pursuant to Class Action Order No. 83 but not produced on the ground of work product immunity." App. at E. Plaintiffs' motion for reconsideration of Class Action Order No. 88 was denied in an order denominated Class Action Order No. 91. Petitioners sought certification of the district court's order pursuant to 28 U.S.C. Sec. 1292(b). In denying that motion, the district court judge explained that he was unable to certify that an immediate appeal, with the concomitant requested stay, "may materially advance the ultimate termination of the litigation," which is part of the certification required under 28 U.S.C. Sec. 1292(b). The court acknowledged plaintiffs' intention to file an application for a writ of mandamus, and stated, "Personally, I would welcome a review of the ruling by the appellate courts, by whatever procedure such may be obtained." App. at A.
In explanation of its ruling requiring plaintiffs to produce work product documents, the district court reasoned that because the depositions of the experts could also be used as trial depositions, and because it was important that defendants have the right of thorough and complete examination of the experts, the need of the attorneys to prepare themselves before such depositions entitled them to "all of the information which the expert had and was given to him by counsel or otherwise." Tr. at 39, App.F. The court believed that "logic dictates that an attorney should not be able to converse with a hired expert of his choosing and have all such communications protected simply because the attorney expresses some opinion." Id.
The court had earlier recognized that plaintiffs' counsel contended that the documents at issue "contained our thought processes" and "our own intellectual process or otherwise that we put down on a piece of paper and give to an expert." Tr. at 72, App.C. However, the court stated:
It is obvious to me that there is a tension between the two sections of Rule 26 in situations where an attorney provides in writing to an expert witness retained by the attorney's client the attorney's thoughts or opinions about the case, which is sometimes called opinion work product. Under Rule 26(b)(3) such thought processes are to be protected. Yet, under Rule 26(b)(4) the opposing party is entitled to the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
I emphasize "the grounds for each opinion."
Clearly, the attorney's thoughts and opinions given to an expert witness can...
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