Burlington Northern, Inc., In re, No. 82-1036

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: McMILLIAN
• Citation: 679 F.2d 762
• Parties: 29 Fair Empl.Prac.Cas. 565, 30 Empl. Prac. Dec. P 33,035 In re BURLINGTON NORTHERN, INC., Petitioner.
• Docket Number: No. 82-1036
• Decision Date: 04 June 1982

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679 F.2d 762 29 Fair Empl.Prac.Cas. 565,
30 Empl. Prac. Dec. P 33,035 In re BURLINGTON NORTHERN, INC., Petitioner. No. 82-1036. United States Court of Appeals,
Eighth Circuit. Submitted Feb. 10, 1982.
Decided June 4, 1982.

Martin M. Lucente, Lawrence I. Kipperman, James S. Whitehead, J. Andrew Schlickman, David F. Johnson, Sidley & Austin, Chicago, Ill., Barry McGrath, St. Paul, Minn., for petitioner.

Charles Barnhill, Jr., Bridget Arimond, Davis, Miner, Barnhill & Galland, Chicago, Ill., Paul C. Sprenger, Eric L. Olson, Robert L. Shutes, Sprenger, Olson & Shutes, P. A., Minneapolis, Minn., Michael J. Connolly, Gen. Counsel, Philip B. Sklover, Acting Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Justine S. Lisser, Atty., EEOC, Washington, D. C., for plaintiffs.

Before STEPHENSON, ^* Senior Circuit Judge, and McMILLIAN and JOHN R. GIBSON, ^** Circuit Judges.

McMILLIAN, Circuit Judge.

Burlington Northern Inc. petitions this court pursuant to 28 U.S.C. § 1651 ¹ for a writ of mandamus directing the Honorable Miles W. Lord, United States District Judge for the District of Minnesota, to vacate his

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order entered December 17, 1981, compelling Francis J. Coyne to answer certain deposition questions. For the reasons discussed below, we deny the petition for writ of mandamus.

Burlington Northern and several unions are the defendants in several employment discrimination cases which were transferred by the Judicial Panel on Multidistrict Litigation in April 1979 to the Northern District of Illinois (the transferee court) and assigned to the Honorable John Powers Crowley for consolidated and coordinated pretrial proceedings. (After Judge Crowley resigned from the bench in June 1981, the Judicial Panel on Multidistrict Litigation assigned the Honorable George N. Leighton to the case in September 1981.) According to Burlington Northern, the parties have been engaged in extensive discovery across the northern and western parts of the United States, from Chicago to Seattle, pursuant to various pretrial orders issued by the transferee court. In re Burlington Northern Inc. Employment Practices Litigation, MDL No. 374, Civil No. 78-C-269 (N.D.Ill.).

On November 3, 1980, one of the attorneys for the consolidated plaintiffs took the deposition of Francis J. Coyne in Minneapolis, Minnesota. Coyne at the time of the deposition was Director of Manpower Planning in Burlington Northern's Personnel Department; Coyne has since been made Assistant Vice-President of Burlington Northern's Human Resources Department. Coyne is a resident of Woodbury, Minnesota, and works at Burlington Northern's headquarters in St. Paul, Minnesota. Coyne was not subpoenaed but appeared pursuant to notice by agreement of counsel. As Director of Manpower Planning, Coyne developed a manpower planning system, did organizational planning, supervised equal employment opportunity activities, and prepared Burlington Northern's affirmative action plans. Counsel for the plaintiffs asked Coyne several questions about the development of the employment goals and timetables contained in Burlington Northern's affirmative action plans. Upon the instructions of Burlington Northern's counsel, Coyne refused to answer twelve questions ² on the ground that the information sought was privileged because it would have disclosed Burlington Northern's self-critical subjective analysis of its employment practices. The rest of Coyne's deposition was completed that day.

Burlington Northern represents that it asserted this self-critical subjective analysis privilege before the taking of the Coyne deposition when it refused to disclose certain documents to the consolidated plaintiffs.

On November 18, 1980, the consolidated plaintiffs filed a motion to compel the production

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of documents in the transferee court. This motion to compel production sought a determination of the existence and scope of the self-critical subjective analysis privilege asserted by Burlington Northern in resisting production of the documents. The motion is pending before Judge Leighton.

In November 1981 the consolidated plaintiffs filed a motion to compel Coyne to answer certain deposition questions in the District Court for the District of Minnesota (the deposition court). The consolidated plaintiffs filed the motion in Minnesota because, in their view, Coyne was not a party to the employment discrimination litigation and therefore the motion to compel testimony had to be made "to the court in the district where the deposition is being taken." Fed.R.Civ.P. 37(a)(1). ³ Following the submission of written memoranda and a hearing, Judge Lord ruled from the bench on December 17, 1981, that the testimony sought was not protected by the self-critical subjective analysis privilege and granted the motion to compel. Judge Lord further directed that the deposition be scheduled at a time when he could preside and rule on any specific objections. This is the ruling challenged in Burlington Northern's petition for writ of mandamus.

On December 18, 1981, the following day, Burlington Northern filed a motion in the transferee court for an expedited ruling on the consolidated plaintiffs' pending motion to compel the production of documents which Burlington Northern asserted were protected by the self-critical subjective analysis privilege. At a status hearing on January 13, 1982, in the transferee court, Judge Leighton inquired about the status of the proceedings in the deposition court and the Eighth Circuit. Counsel for Burlington Northern informed Judge Leighton that Judge Lord had granted the consolidated plaintiffs' motion to compel testimony, thus ruling against Burlington Northern's assertion of privilege. Counsel for Burlington Northern further stated that a petition for writ of mandamus had been filed in the Eighth Circuit on January 11, 1982. Judge Leighton then indicated that he would await disposition of the matter by the Eighth Circuit. On January 15, 1982, this court issued an order directing the consolidated plaintiffs to file any response to the petition for writ of mandamus by February 1, 1982; oral argument was scheduled on an expedited basis. During oral argument counsel for the consolidated plaintiffs stated that the transferee court had issued a general protective order covering all documents produced in the course of the employment practices litigation discovery and that completion of Coyne's deposition had been delayed pending appeal.

Burlington Northern argues that appellate review of Judge Lord's order is appropriate by way of mandamus under the rationale of Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 953-55 (8th Cir.), cert. denied, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979). In Bagley we treated the notice of appeal as a petition for writ of mandamus, id. at 953 & n.3, and reviewed the district court order dissolving a protective order limiting the disclosure and use of certain documents which Iowa Beef Processors asserted contained confidential business information. We emphasized, however, that

(our) opinion should not be construed as meaning that review by way of mandamus is available whenever a district court compels disclosure of material claimed to be protected by privilege or other interest in confidentiality. The rationale for invoking mandamus in such situations is two-fold: (1) disclosure of the allegedly

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privileged or confidential information renders impossible any meaningful appellate review of the claim of privilege or confidentiality; and (2) the disclosure involves questions of substantial importance to the administration of justice. Where the case involves the attorney-client privilege, the importance of the privilege itself may serve to satisfy the second requirement. In other cases where the claim of confidentiality is not so intrinsically a part of the administration of justice, some further showing is required.

Id. at 955 n.7 (citation omitted).

Here, Burlington Northern argues that the disclosure of information allegedly subject to the self-critical subjective analysis privilege will render impossible any meaningful appellate review of the claim of privilege because the consequences of disclosure are irreversible. Burlington Northern argues that this information, once disclosed, cannot be segregated from other information. Burlington Northern argues that disclosure will have an immediate and irreparable "chilling effect" on Burlington Northern's affirmative action program and on the individual Burlington Northern officials involved in the "candid, frank appraisal" of Burlington Northern's affirmative action program and its performance thereunder. Petition for Writ of Mandamus at 8. Burlington Northern further argues that the self-critical subjective analysis privilege involves questions of substantial importance to the administration of justice. Burlington Northern argues that this privilege has "far-reaching policy implications with respect to the effective implementation of the policy of affirmative action and affirmative action programs," id. at 9, and to the management of consolidated discovery proceedings in multidistrict litigation, particularly...