Conkling v. Turner, 88-3631

• Decision Date: 20 September 1989
• Docket Number: No. 88-3631,88-3631
• Citation: 883 F.2d 431
• Parties: , RICO Bus.Disp.Guide 7319 Richard L. CONKLING, Plaintiff-Appellant, Cross-Appellee. v. Bert S. TURNER, Nichols Construction Corp., David R. Carpenter, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 431

883 F.2d 431

15 Fed.R.Serv.3d 132, RICO Bus.Disp.Guide 7319

Richard L. CONKLING, Plaintiff-Appellant, Cross-Appellee. v. Bert S. TURNER, Nichols Construction Corp., David R Carpenter, et al., Defendants-Appellees, Cross-Appellants.

No. 88-3631.

United States Court of Appeals Fifth Circuit.

Sept. 20, 1989.

Donald L. Beckner, William G. Bennett, Baton Rouge, La., for plaintiff-appellant, cross-appellee & intervenor, Carmen L. St. Clair, et al.

Harry J. Philips, Jr., Tom F. Phillips, Fredrick R. Tulley, Baton Rouge, La., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Middle District of Louisiana.

Before POLITZ and JOLLY, Circuit Judges, and HUNTER, ^* District Judge.

POLITZ, Circuit Judge:

In this case we examine the parameters within which a party may depose the attorney for the opposing party. The defendants sought to depose the plaintiff's present and former attorneys of record, contending that the depositions were essential to defendants' plea of prescription. The district court directed the attorneys to submit to limited questioning, specifying the questions which could be posed. The plaintiff appeals, contending that the court's order permits intrusion into protected attorney work product. Defendants cross-appeal, contending that the trial court unreasonably restricted the scope of their requested discovery. For the reasons assigned we affirm.

Background

On November 11, 1985 Richard L. Conkling filed suit under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq., against Bert S. Turner and several corporations, alleging that he was the victim of a scheme to defraud. Conkling is a former executive officer of Nichols Construction Company, one of the defendant corporations. Conkling claims that on June 28, 1963 he was fraudulently induced by Turner's false assertion that he (Turner) owned 100% of Nichols to relinquish an 8.69565% stock ownership interest in the corporation. Conkling maintains that the defendants furthered their scheme to defraud by numerous acts of mail and securities fraud.

Originally represented by Robert J. Collins, Conkling is currently represented by Donald L. Beckner. Beckner also represents Carmen L. St. Clair in a related suit against the defendants. St. Clair is a former executive officer of Nichols, a party to the 1963 agreement, and an intervenor in this appeal.

The facts relevant to the instant appeal were set in motion on September 19, 1986 when Conkling attested to the following statement in an affidavit:

On November 20, 1984, I retained the law firm of Donald L. Beckner, Counselors and Attorneys at Law. A copy of the retainer agreement is attached hereto as Exhibit "Conkling 4-7." Subsequently, I detailed to Mr. Beckner the facts and documents surrounding my acquisition of Nichols stock in 1962, and the June 28, 1963 "Agreement." During one of these discussions Mr. Beckner informed me that it was his opinion that the statement in the June 28, 1963 "agreement" that Turner owned 100% of the stock of Nichols was false. No one had informed me of the falsity of this statement prior to this discussion. I did not know that Turner's statement was false until I was so informed.

Conkling's affidavit was filed in response to the defendants' summary judgment contention that Conkling's claims were prescribed because Conkling had full knowledge of all facts underlying the alleged scheme in 1963. ¹ The district court denied that motion for summary judgment.

On June 10, 1987 the defendants propounded requests for admission of facts and posed interrogatories, seeking to obtain Conkling's admission that Beckner relied solely upon facts supplied by Conkling for the advice about the false statement. The interrogatories stated that if Conkling refused to admit such he should identify all facts and all documents on which his attorney relied which were not previously known by Conkling. The defendants also sought to compel the production of documents and to depose Conkling's attorneys. On October 20, 1987 the district court sustained Conkling's objection to the requested admissions and to the deposition of his attorneys, but ordered Conkling to respond to the interrogatories. Conkling's answers to the interrogatories referred the defendants to deposition testimony provided by Turner in May 1985 as well as all documents produced by the defendants in the St. Clair litigation.

Not satisfied with this response the defendants served another set of interrogatories asking for a specification of all facts and documents reflecting the time Conkling became aware of the defendants' alleged fraudulent conduct. Before Conkling responded to the second set of interrogatories the defendants renewed their motion to compel deposition testimony from Beckner and Collins. The district court ordered the defendants to submit a list of proposed questions that would be asked of the attorneys. The 33 questions submitted are set forth in the Addendum attached hereto.

After reviewing the questions the district court ordered the attorneys to answer questions 1, 2, 3, 4, 14, 15, 19, 20, 21, 22, 30, and 31. The court stated that in responding to these questions the attorneys did not have to provide any legal theories, mental impressions, or trial strategy developed in the case.

Analysis

1. Jurisdiction

The defendants' jurisdictional challenge falters despite the general rubric that an order compelling testimony is not a final decision within the meaning of 28 U.S.C. Sec. 1291. Typically, in order to obtain interlocutory review of a discovery order, the person wishing to resist must refuse to comply and then appeal the court's contempt citation. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). The rule admits of an exception.

When the subpoenaed party does not have a direct and personal interest in suppression of the information that person is not likely to risk a contempt citation. For all practical purposes, the discovery order is final as to the person otherwise powerless to prevent compliance. Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Applying this exception in In re Grand Jury Proceedings in Matter of Fine, 641 F.2d 199 (5th Cir.1981), we exercised jurisdiction over an appeal by a client whose attorney was subpoenaed to give testimony which the client claimed was protected by the attorney-client privilege. We reasoned:

Although we cannot say that attorneys in general are more or less likely to submit to a contempt citation rather than violate a client's confidence, we can say without reservation that some significant number of client-intervenors might find themselves denied all meaningful appeal by attorneys unwilling to make such a sacrifice. That serious consequence is enough to justify a holding that a client-intervenor may appeal an order compelling testimony from the client's attorney.

Id. at 203 (footnote omitted); see also In re International Systems & Controls Corp. Sec. Litig., 693 F.2d 1235, 1238 n. 1 (5th Cir.1982) (holding the same with respect to a client's claim of work product immunity); Velsicol Chemical Corp. v. Parsons, 561 F.2d 671 (7th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978). The teaching of these precedents is clear: the order directing the testimony of Conkling's attorneys is appealable by Conkling. ²

2. The Discovery Order

Conkling claims that the four-year civil RICO statute of limitations has been tolled in his case because, until informed by Beckner in 1985, he did not know that Turner's 1963 assertion that he owned 100% of Nichols stock was false. As we understand their argument, defendants contend that because Conkling raised this issue they are entitled to discovery of evidence relevant to whether Conkling knew or should have known of the falsity of Turner's statement prior to November 11, 1981. If so, Conkling's suit filed on November 11, 1985, is barred by the four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). The defendants claim that as part of this discovery they are entitled to depose Conkling's attorneys to learn when Conkling actually knew or should have known that Turner's statement was false.

The attorney-client privilege "was intended as a shield, not a sword." Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 446 (S.D.Fla.1980). "[W]hen confidential communications are made a material issue in a judicial proceeding, fairness demands treating the defense as a waiver of the privilege." United States v. Mierzwicki, 500 F.Supp. 1331, 1335 (D.Md.1980). The great weight of authority holds that the attorney-client privilege is waived when a litigant "place[s] information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would be manifestly unfair to the opposing party." Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975); see also Armstrong v. United States, 440 F.2d 658 (5th Cir.1971); United States v. Exxon Corp., 94 F.R.D. 246 (D.D.C.1981); Russell v. Curtin Matheson Scientific, Inc., 493 F.Supp. 456 (S.D.Tex.1980); Pitney-Bowes, 86 F.R.D. 444; Mierzwicki, 500 F.Supp. 1331; Haymes v. Smith, 73 F.R.D. 572 (W.D.N.Y.1976); International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88 (D.Del.1974).

Conkling concedes this point but maintains on appeal that the trial court's order violates the protected realm of attorney work product, Fed.R.Civ.P. 26(b)(3). Conkling argues that in Kent Corp. v. NLRB, 530 F.2d 612 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976), this court adopted an absolute rule prohibiting discovery of attorney work product.

The defendants disagree, contending that just as the attorney-client privilege can be waived, the protection normally afforded to...