EX PARTE WATER WORKS AND SEWER BD. OF CITY OF BIRMINGHAM

• Decision Date: 30 October 1998
• Citation: 723 So.2d 41
• Parties: Ex parte The WATER WORKS AND SEWER BOARD OF the CITY OF BIRMINGHAM. (Re The Water Works and Sewer Board of the City of Birmingham v. American Water Works Association et al.)
• Court: Alabama Supreme Court

723 So.2d 41

Ex parte The WATER WORKS AND SEWER BOARD OF the CITY OF BIRMINGHAM.

(Re The Water Works and Sewer Board of the City of Birmingham v. American Water Works Association et al.)

1971545.

Supreme Court of Alabama.

October 30, 1998.

Charlie D. Waldrep, K. Mark Parnell, and Mary H. Thompson of Gorham & Waldrep, P.C., Birmingham; and Billy L. Church and Alan Lasseter of Church & Seay, P.C., Pell City, for petitioner.

M. Clay Ragsdale and E. Ansel Strickland of Law Offices of M. Clay Ragsdale, Birmingham; A. Dwight Blair of Blair, Holladay & Parsons, Pell City; and Gayle Gear of Dawson & Gear, Birmingham, for respondent Larry Wallace.

KENNEDY, Justice.

The Water Works and Sewer Board of the City of Birmingham (the "Water Works") petitions for a writ of mandamus compelling Judge William E. Hereford, of the St. Clair Circuit Court, to vacate his order requiring production of certain documents.

A petition for the writ of mandamus is the proper means for obtaining review of the question "whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders." Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala.1996).

On May 9, 1997, the Water Works filed a declaratory judgment action in the Jefferson Circuit Court, seeking a declaration that expenditures totalling approximately $806,000 made by it to over 100 separate charitable entities between October 1993 and October 1996 were within its corporate powers, were in furtherance of a public purpose, and provided a corporate benefit. On July 1, 1997, the Jefferson Circuit Court granted motions to intervene filed by the attorney general and by Water Works customer Larry Wallace.¹ The attorney general and Wallace were realigned as plaintiffs against the Water Works. The court transferred the case to the St. Clair Circuit Court.

On February 12, 1998, the Water Works and the attorney general moved for a consent order, attempting to settle the dispute between the Water Works and the attorney general. On February, 20, 1998, Wallace requested production of documents from the Water Works and the attorney general, asking for

"all correspondence, internal memorandums, notes, inclusive of all electronically maintained or generated or transmitted, mail, or records, reports, memorandums, or other similar materials existing in any form or medium which reference or relate to any communications, and/or negotiations between [Water Works] (and any of its agents or representatives, including attorneys thereof) and the Office of the Attorney General (and any agent, representative, or attorney thereof) regarding the subject matter of this action and/or the terms, conditions, or subject matter of the proposed settlement."

The Water Works and the attorney general objected to this discovery request. Following a hearing, the court entered an order denying the motion for a consent order and ordered the Water Works and the attorney general to immediately produce the documents requested by Wallace. The court also ordered that, "To the extent either the Attorney General or [the Water Works] contend[s] that the request includes materials within the attorney-client privilege, the producing parties are required to submit a privilege log identifying all documents withheld from production."

On May 12, 1998, the Water Works filed a "motion to reconsider," along with a list of documents that it asserted were privileged. The attorney general did not join the motion to reconsider. The trial court denied the Water Works' motion to reconsider, holding that the communications between the Water Works and the attorney general were not privileged under either the work-product doctrine or the attorney-client privilege. The court noted that the attorney general was not then objecting to the production of documents in his file, but had not produced them yet.

In its order, the trial court stated:

"Wallace contends in his Motion to Compel that the documents are relevant and could lead to the discovery of admissible evidence regarding the propriety of the entry of a consent order, including whether the negotiations between [the Water Works] and the Attorney General were in good faith or the product of collusion, and whether the consent order should be entered in light of the prior pending action filed by Wallace.

"It should be plain to both [the Water Works] and the Attorney General that communications between them are not subject to the attorney-client privilege nor the attorney work product protection. These parties are supposedly in direct conflict with one another; in fact, the Jefferson County Circuit Court, before transferring this action to St. Clair County, realigned the Attorney General as a plaintiff against [the Water Works] which was realigned as a defendant. The work product protection has been extended to include communications among parties having a `common interest.' This doctrine protects the sharing of information among parties which have a common defense or claim. However, the Attorney General and [the Water Works] take a seriously inconsistent position; on the one hand, claiming that they are adversaries who have reached a settlement in the best interest of the ratepayers and on the other hand, sharing a common interest or purpose. In either case, the Court finds that communications between these parties are not privileged under either the work product doctrine or the attorney-client privilege.

"The claim that these privileges extend to communications against supposed adversaries is further undermined by the public character of the parties asserting the claims and the nature of the dispute. The consent order is an apparent effort to address the issue of whether [the Water Works] breached its duties to its ratepayers in paying over $800,000 of public monies to various charitable organizations. [The Water Works] maintains that these negotiations must be kept secret and the Attorney General, by continuing to refuse to produce the records despite this Court's Order, apparently agrees. The Court can find no reason why these public entities should be permitted to maintain the secrecy of their negotiations under the circumstance presented here.

"Finally, not only has the Attorney General not joined in the Motion to Reconsider filed by [the Water Works], but [he] has reaffirmed his intention to produce the disputed documents that are maintained in his file. The Attorney General is reminded of this Court's Order of May 1, 1998 directing the immediate production of the records. Given ...

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