von Bulow, In re

• Decision Date: 10 September 1987
• Citation: 828 F.2d 94
• Parties: , 8 Fed.R.Serv.3d 897, 23 Fed. R. Evid. Serv. 862 In re Claus VON BULOW, Petitioner. Martha VON BULOW, by her next friends Alexander AUERSPERG, and Annie Laurie Auersperg-Kneissl, Plaintiffs, v. Claus VON BULOW, Defendant. Docket 87-3006. . Motion for writ of Mandamus
• Court: U.S. Court of Appeals — Second Circuit

Page 94

828 F.2d 94

56 USLW 2177, 8 Fed.R.Serv.3d 897, 23

Fed. R. Evid. Serv. 862

In re Claus VON BULOW, Petitioner Martha VON BULOW, by her next friends Alexander AUERSPERG and Annie Laurie Auersperg-Kneissl, Plaintiffs, v. Claus VON BULOW, Defendant.

Docket 87-3006.

United States Court of Appeals Second Circuit.

Motion for writ of Mandamus Submitted April 7, 1987.

Decided Sept. 10, 1987.

Patterson, Belknap, Webb & Tyler, New York City, submitted for petitioner Claus von Bulow.

Frederic Parnon, New York City (Barrett Smith Schapiro Simon & Armstrong, New York City, of counsel), for plaintiffs.

Before LUMBARD, OAKES and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Petitioner Claus von Bulow seeks a writ of mandamus directing the United States District Court for the Southern District of New York (Walker, J.) to vacate its discovery order of February 12, 1987, 114 F.R.D. 71, granting plaintiff the right to discover certain conversations between petitioner and his attorneys. Because the discovery order raises significant issues of first impression, mandamus is an appropriate remedy. Hence, the petition is granted.

FACTS

On July 6, 1981 petitioner was indicted by a Newport County, Rhode Island, grand jury on two counts of assault with intent to murder for allegedly injecting his wife Martha von Bulow with insulin causing her to lapse into an irreversible coma. After a widely publicized jury trial, von Bulow was convicted on both counts on March 16, 1982. In April 1982 petitioner retained Harvard law professor Alan M. Dershowitz to represent him on appeal. In May 1982 von Bulow was sentenced to 30-years imprisonment, but granted bail pending appeal. On April 27, 1984 the Rhode Island Supreme Court reversed both convictions, State v. von Bulow, 475 A.2d 995 (R.I.), cert. denied, 469 U.S. 875, 105 S.Ct. 233, 83 L.Ed.2d 162 (1984), and upon retrial, he was acquitted on June 10, 1985.

Shortly after the acquittal, petitioner's wife, by her next friends, Alexander Auersperg and Annie Laurie Auersperg-Kneissal, Martha von Bulow's children from a prior marriage (plaintiff), commenced this civil action in federal court against petitioner alleging common law assault, negligence, fraud, and RICO violations. These claims arose out of the same facts and circumstances as the Rhode Island criminal prosecution.

In May 1986 Random House published a book entitled Reversal of Fortune--Inside the von Bulow Case, authored by attorney Dershowitz, which chronicles the events surrounding the first criminal trial, the successful appeal, and von Bulow's ultimate acquittal. After obtaining an advance copy of the book, plaintiff's counsel notified petitioner on April 23, 1986 that it would view publication as a waiver of the attorney-client privilege. Von Bulow's counsel responded that no waiver had occurred and that, accordingly, he would not act to stop the book's publication. After the book was released, von Bulow and attorney Dershowitz appeared on several television and radio shows to promote it.

Plaintiff then moved to compel discovery of certain discussions between petitioner and his attorneys based on the alleged waiver of the attorney-client privilege with respect to those communications related in the book. In order to avoid piecemeal rulings on each communication, counsel stipulated in July 1986 as to those controversial subjects appearing in Reversal of Fortune. On February 12, 1987 the United States District Court for the Southern District of New York (Walker, J.) found a waiver of the attorney-client privilege and ordered von Bulow and his attorneys to comply with discovery requested by plaintiff. Von Bulow By Auersperg v. von Bulow, 114 F.R.D. 71 (S.D.N.Y.1987).

Von Bulow now petitions this Court for a writ of mandamus directing the district court to vacate its discovery order. Because the relief sought is an extraordinary writ, we consider whether mandamus is an appropriate remedy and, if so, whether it should issue in this case.

DISCUSSION

I The Availability of The Writ

Under the All Writs Statute, a Court of Appeals is empowered to "issue all writs necessary or appropriate in aid of [its] ... jurisdiction[ ] and agreeable to the usages and principles of law." 28 U.S.C. Sec. 1651(a) (1982). This power "is meant to be used only in the exceptional case," Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953), and not as "a substitute for an appeal." Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964). See also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam) (mandamus is "to be invoked only in extraordinary situations"). As we have noted, "the touchstones ... of review by mandamus are usurpation of power, clear abuse of discretion and the presence of an issue of first impression." American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 283 (2d Cir.1967).

Generally, of course, discovery orders are not reviewable by mandamus, see, e.g., American Express Warehousing, 380 F.2d at 284, only occasionally does there arise a discovery order presenting an important question of law. See, e.g., Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39. In such case, mandamus provides a logical method by which to supervise the administration of justice within the Circuit. See Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 280, 19 L.Ed.2d 305 (1967) (noting the vital corrective and didactic function of mandamus); La Buy v. Howes Leather Co., 352 U.S. 249, 259-60, 77 S.Ct. 309, 315, 1 L.Ed.2d 290 (1957) (acknowledging important function of mandamus to monitor district courts); see generally 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 110.28, at 312 (2d ed. 1987); Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595, 618 n. 96 (1973) ("In precisely such areas as discovery, advisory mandamus would be expected to have its greatest value.").

Recognizing this, we stated in American Express Warehousing that "[w]hen a discovery question is of extraordinary significance or there is extreme need for reversal of the district court's mandate before the case goes to judgment," the writ of mandamus provides an escape hatch from the finality rule. 380 F.2d at 282; see also Investment Properties Int'l, Ltd. v. IOS, Ltd., 459 F.2d 705, 707 (2d Cir.1972) (discovery issue found to be "the heart of the controversy"). Several reasons persuade us that the extraordinary writ should issue in this case.

A. Novel Question of Law Raised

First and foremost the petition raises significant novel questions of law justifying the issuance of a writ of mandamus. The district court held that the publication by an attorney of a book chronicling his client's case waives the attorney-client privilege--not just as to information actually disclosed in the book--but with respect to all communications underlying the subjects raised in it. It held that all such communications between petitioner and attorney Dershowitz, the author of Reversal of Fortune, were unprivileged. As the discussion below demonstrates, the district court's holding in extending the "fairness doctrine" to extrajudicial disclosures raises an issue which, so far as discernible, has not been previously litigated in this Circuit. In what the district court itself regarded as a novel and unprecedented ruling, it went on further to hold that communications between von Bulow and all of his trial and appellate counsel were similarly unprivileged.

In our view, mandamus properly lies to review these issues of first impression. See Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39 ("That this issue was substantial is underscored by the fact that the challenged order ... appears to be the first of its kind in any reported decision in the federal courts...."); Sporck v. Peil, 759 F.2d 312, 315 (3d Cir.) ("petitioner raises an issue new to this court and discussed in only a few reported district court decisions...."), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591-92 (3d Cir.1984) ("the legal issue presented by this petition is new to this court ... there is only sparse discussion of it in the reported cases."); Sanderson v. Winner, 507 F.2d 477, 479 (10th Cir.1974) (per curiam) (issuing mandamus directing district court to vacate its discovery order due to "unwarranted extension" of the law), cert. denied, 421 U.S. 914, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975). See also In re Cement Antitrust Litig., 688 F.2d 1297, 1304 (9th Cir.1982) ("[W]e are faced with the need to resolve a significant question of first impression where the failure to do so may adversely affect the efficient operation of the district courts."), aff'd by absence of quorum pursuant to 28 U.S.C. Sec. 2109, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983).

Relying on Xerox Corp. v. SCM Corp., 534 F.2d 1031 (2d Cir.1976) (per curiam), plaintiff urges that despite the novelty of the issues mandamus is nevertheless inappropriate in this case. In Xerox, appellate review was sought of pretrial discovery orders of documents assertedly protected by the attorney-client privilege. We stated that absent a 28 U.S.C. Sec. 1292(b) certification, a persistent disregard of the Rules of Civil Procedure, or a manifest abuse of discretion, interlocutory review of pretrial discovery orders is not generally permitted. Id. at 1031-32. But, we also noted that the case presented no legal question of first impression or of extraordinary significance. Id. at 1032; see also In re United States, 565 F.2d 19, 22 (2d Cir.1977) (discussing Xerox ), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). Since the district court's discovery order here raises such questions, granting mandamus in this case is not inconsistent with Xerox.

B. The Importance of Granting...