San Juan Dupont Plaza Hotel Fire Litigation, In re

• Citation: 859 F.2d 1007
• Decision Date: 09 June 1988
• Docket Number: No. 88-1436,88-1436
• Parties: In re SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION. Petition of the PLAINTIFFS' STEERING COMMITTEE. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1007

859 F.2d 1007

57 USLW 2234

In re SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.

Petition of the PLAINTIFFS' STEERING COMMITTEE.

No. 88-1436.

United States Court of Appeals, First Circuit.

Heard June 9, 1988.

Decided Sept. 29, 1988.

David C. Indiano, San Juan, P.R., with whom Scott Labarre was on brief for petitioner.

Norman C. Kleinberg with whom Michael E. Salzman, Michael T. Isbell and Hughes Hubbard & Reed, New York City, for appellees Collins & Aikman Corp., with whom Benjamin Acosta, Jr., San Juan, P.R., for La Cor Wicker.

Anderson, Moss, Russo & Cohen, P.A., Miami, Fla., for Otis Elevator.

Brown, Todd & Heyburn, Louisville, Ky., for Firestone Tire & Rubber Co., Dow Chemical Co., Future Foam, Inc., Sealed Air Corp., Texaco Chemical Co., PPG Industries, Inc., Olin Corp., Quantum Chemical Corp., ICI Americas Inc., Goodyear Tire & Rubber Co., EI DuPont de Nemours & Co., BASF Corp., Amoco Fabrics & Fibers Co., W.R. Grace & Co., Union Carbide Corp., Products Research & Chemical Corp., Allied-Signal, Inc., and Vasallo Industries, Inc.

Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for Mitchell-Mann, Inc. and 2M Design Studio, Inc.

Fendig, McLemore, Taylor & Whitworth, Brunswick, Ga., for G.A. Marse Associates, Inc.

Kaye, Scholer, Fierman, Hays & Handler, Washington, D.C., for ADT Security Systems, Inc.

Kirkland & Ellis, Washington, D.C., for Ralph Wilson Plastics Co.

Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, Philadelphia, Pa., for The Sheraton Corp.

Paxton & Seasongood, Cincinnati, Ohio, for Shelby-Williams, Inc. White & Case, Washington, D.C., for Tarkett, Inc., join on brief.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This matter arises on an infrastructure of important concerns involving the prophylaxis to be accorded to attorneys' work product and the scope of trial judges' authority to confront case management exigencies in complex multi-district litigation. The critical question is somewhat novel. We delve rather deeply into the doctrinal underpinnings of the work product rule and the emergent need for increased judicial intervention in the early stages of the adjudicative process in explaining our affirmance of the challenged district court order.

I. BACKGROUND

On New Year's Eve 1986, a conflagration engulfed the San Juan Dupont Plaza Hotel. The blaze resulted in ninety-six deaths, numerous personal injuries, and extensive property damage. Upwards of 2,000 persons sued. Many of the suits were brought in, or removed to, federal district courts. Under the aegis of the Judicial Panel on Multi-District Litigation, those actions were consolidated for discovery purposes in the United States District Court for the District of Puerto Rico. The litigation has attained heroic proportions: there are roughly two hundred defendants and ten times that number of plaintiffs.

Pretrial discovery has proven to be a gargantuan undertaking. More than 2,000,000 documents have been produced; countless interrogatories have been served; and depositions are proceeding daily along fourteen simultaneous tracks. The trial judge recently estimated that over 2,000 depositions would be required before discovery closed. Due to the immensity of the litigation, the district court has necessarily assumed an active managerial role. As the linchpin of that endeavor, the court entered an elaborate forty-five page case management order (CMO). We described certain facets of the CMO in a recent opinion, In re Recticel Foam Corp., 859 F.2d 1000, 1001 (1st Cir.1988), and will not repastinate that ground. It suffices for today to state that, inter alia, the CMO set out general discovery guidelines, established a phased schedule for pretrial preparation, and ordered formation of a joint discovery committee (JDC). From time to time, as appropriate, the court has supplemented the CMO with additional orders and refinements, whilst repeatedly imploring counsel "to explore novel methods of discovery that would ensure expeditious progress of the litigation." Recticel, supra, at 1001.

Not surprisingly, discovery disputes occurred with monotonous regularity. On February 24, 1988, the magistrate who the judge had appointed to oversee discovery held a hearing anent one such dispute. The defense representatives on the JDC sought to require parties taking depositions to identify, five days beforehand, the exhibits which they intended to utilize at deposition. Plaintiffs' representatives complained that such a paradigm, if sanctioned, would require disclosure of attorney work product. The magistrate turned a deaf ear to the protest and adopted the identification protocol.

Upon entry of the magistrate's order, the plaintiffs' steering committee (PSC), a coterie of lawyers representing the shared interests of all of the claimants, prosecuted an appeal to the district judge. See Fed.R.Civ.P. 72(a). The judge upheld the magistrate. In essence, the district court concluded that a document list of the type required was not attorney work product; that, even if such a list could be so categorized, it was at most qualifiedly privileged--and the privilege was overborne in this instance by the special needs of the sprawling litigation; and that, therefore, the order was not clearly erroneous or contrary to law. The judge appended to his affirmance a set of guidelines aimed at easing application of the identification protocol. The guidelines modified the order slightly by requiring all parties who wished to examine at the deposition to prepare and submit document lists. Yet the PSC's basic grievance was not mollified.

After the district court certified its order for interlocutory appeal under 28 U.S.C. Sec. 1292(b), ¹ the PSC requested that we hear the matter, and we agreed.

II. DISCUSSION

Appellant makes a well-constructed four-part argument which runs along the following lines: (1) PSC members sifted through millions of pieces of paper in order to locate and identify approximately 70,000 documents which they thought relevant to the litigation; (2) although the documents themselves are not protected work product, the identification protocol requires plaintiffs' lawyers to reveal to their opponents the mental processes, impressions, and opinions of the attorneys who culled the wheat from the chaff; (3) these mental processes, impressions, and opinions constitute "opinion" work product which--unlike its poor relation, "ordinary" work product--should enjoy absolute protection; and (4) inasmuch as preidentification of relevant documents necessarily divulges the results of the attorneys' selection process, the work product doctrine interdicts the challenged order. We address this quadripartite contention by examining, first, the source of the district court's authority to manage litigation and the etiology of the disputed order. We then proceed to discuss the general nature of the work product doctrine and to chart the terrain at which the trial court's case management power intersects with the demands of that doctrine. Finally, we apply the relevant principles to the matter at hand.

A. The Judicial Role. Traditionally, the American adjudicative process has been initiated and controlled by litigants--plaintiffs and defendants. The court has played the role of a guru, overseeing litigation, deciding questions of fact, ruling on points of law, and settling disputes among the parties. See generally A. Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281, 1285-86 (1976) (discussing the jurist's place in the "traditional" adjudicative model). Although trial judges were often described as more than mere moderators, e.g., Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933), such statements invariably applied to the judge's role in the conduct of the trial itself. See, e.g., United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988). In the pretrial phases of a civil case, the judge did little heavy lifting; the parties (and their counsel) set their own agenda and were afforded considerable leeway. Prior to, and in the early days after, the adoption of the Federal Rules of Civil Procedure in 1939, this sort of Olympian oversight was generally thought sufficient to ensure the smooth operation of our adversarial system of justice.

The inauguration of the Civil Rules, however, heralded the dawning of a new day. Once absorbed by the bar, they transformed the very nature of litigation. Relaxation of the strictures governing joinder of claims and parties "shifted the focus of the lawsuit from legal theory to factual context...." Chayes, supra, at 1290; see also Fed.R.Civ.P. 13, 14, 20. The introduction of expansive pretrial discovery, Fed.R.Civ.P. 26-36, accelerated and enhanced this transmogrification. As lawyers became more adept at utilizing the liberalized rules, litigation became larger and more intricate: the joinder rules stimulated growth in the size and complexity of cases by the addition of parties and claims, and the discovery rules stimulated growth in the size and complexity of cases by multiplying the opportunities for pretrial work per party and per claim. Paper manufacturers sang hosannas.

The combined effect of these changes was explosive. Lawsuits became increasingly more complicated, and the preparatory phases of these ever-more-complex actions took on a nightmarish quality: discovery swelled to unwieldy proportions in case after case, and often became prohibitively expensive. Trial lawyering gradually became a global, rather than a local, art--and its practitioners grew ever more peripatetic. In this auxetic environment, the courts' traditional oversight powers were too limp a set of reins with which to attempt to control--let alone manage--the pretrial aspects of modern litigation. See, e.g., ACF Indus., Inc. v. EEOC, 439 U.S. 1081, 1086-87, 99 S.Ct. 865, 868-69, 59 L.Ed.2d 52 (1979) (Powell, J., dissenting from...