Continental Oil Company v. United States

Decision Date27 March 1964
Docket NumberNo. 19044.,19044.
PartiesCONTINENTAL OIL COMPANY, a corporation, et al., Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

A. T. Biggers, Houston, Tex., Shimmel, Hill, Kleindienst & Bishop, and Donald D. Meyers, Phoenix, Ariz., Pillsbury, Madison & Sutro, Wallace L. Kaapcke, Thomas E. Haven, and James O'M. Tingle, San Francisco, Cal., and Ryley, Carlock & Ralston, Phoenix, Ariz., for appellants.

William H. Orrick, Jr., Asst. Atty. Gen., Lionel Kestenbaum, Gerald Kadish, and Arthur J. Murphy, Jr., Dept. of Justice, Washington, D. C., for appellee.

Before ORR, POPE and KOELSCH, Circuit Judges.

POPE, Circuit Judge.

After this matter had been submitted, the court was of the view that the circumstances here were such as to require an immediate ruling. Accordingly this court stated the facts in the matter and announced its decision in a preliminary order reading as follows:

"In this matter the court has been advised that a prompt decision is important. As noted shortly, the facts rose out of subpoenas issued in aid of a Federal Grand Jury proceeding in Phoenix, Arizona. It is the information of the court that the life of the Grand Jury will terminate shortly and we therefore consider that justice demands that this case be decided before that time arrives. Accordingly we are here announcing our decision in the case by way of conclusions, without further delay. Our opinion stating the reasons for our conclusions will be filed hereafter.
"During the proceedings of the Grand Jury certain employees and executives of the appellants Standard Oil Company of California, and Continental Oil Company, were summoned to testify before it. Before and after their appearance before the Grand Jury these witnesses were interviewed by their respective counsel. The record shows that counsel who carried on the interview were attorneys not only for the corporations but for the witnesses themselves. Counsel who conducted these interviews prepared memoranda concerning the information received from such witnesses and relating to the clients\' appearance before the Grand Jury. After these memoranda had been received, counsel representing Standard Oil Company, and its employees who had testified, and counsel representing Continental Oil Company, and its employees who had testified, exchanged such memoranda in confidence in order to apprise each other as to the nature and scope of the inquiry proceeding before the Grand Jury. The appellants here assert that this was done in order to make their representation of their clients in connection with the Grand Jury investigation and any resulting litigation, more effective.
"Thereafter subpoenas duces tecum were served upon Standard Oil Company of California, its vice-president, and on attorneys for Standard Oil Company of California. In like manner subpoenas were issued in aid of the Grand Jury in Phoenix directed to and served on Continental Oil Company, its executives, and their attorneys. The subpoenas called for the production before the Grand Jury of the aforesaid memoranda prepared by the lawyers and remaining in their possession.
"All the persons subpoenaed moved to quash all of such subpoenas asserting 1, that these memoranda were confidential and within the attorney-client privilege; and 2, that they were not required to be produced because they represented counsel\'s work product within the meaning of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. The motions to quash were denied by the district court. Appellants have appealed from that order and upon being met with an assertion by the United States that the order is not final or appealable, have asked that if this court should find the order not appealable, we should treat the petition as one for mandamus or prohibition and grant relief under such a writ.
"It is asserted by the United States that the attorney-client privilege, if such originally existed in respect to these memoranda, was waived when counsel for the two groups of appellants exchanged memoranda; and that since the documents sought related to a Grand Jury proceeding, the work product rule has no application here. These are matters for decision by the court.
"We have concluded that the appellants-petitioners are entitled to relief either by way of appeal, see Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950, Schwimmer v. United States, 8 cir., 232 F.2d 855, or by way of mandamus or prohibition, see La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, Atlass v. Miner, 7 Cir., 265 F.2d 312, United States v. Cobb, 9 cir., 328 F.2d 115. Accordingly, the order of the United States District Court for the District of Arizona, entered the 7th day of November, 1963, denying appellants\' motions to quash subpoenas duces tecum, is ordered set aside and vacated and the said court is directed and ordered to quash said subpoenas."

We now proceed to state the considerations which have led us to the conclusions above indicated.

Government counsel contend that the attorney-client privilege is not applicable here first, because the attorneys did not represent the witnesses from whom the...

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