Hernandez v. Tanninen

• Decision Date: 12 May 2010
• Docket Number: No. 09-35085.,09-35085.
• Citation: 604 F.3d 1095
• Parties: Rolando HERNANDEZ, Plaintiff-Appellant,v.Mark TANNINEN; City of Vancouver, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

604 F.3d 1095

Rolando HERNANDEZ, Plaintiff-Appellant,v.Mark TANNINEN; City of Vancouver, Defendants-Appellees.

No. 09-35085.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 2009.

Submission Withdrawn Dec. 11, 2009.

Resubmitted May 12, 2010.

Filed May 12, 2010.

COPYRIGHT MATERIAL OMITTED

Philip A. Talmadge and Sidney C. Tribe, Talmadge/Fitzpatrick PLLC, Tukwila, WA, and Thomas S. Boothe, Portland, OR, for the plaintiff-appellant.

Daniel G. Lloyd, City Attorney's Office, Vancouver, WA, and Barran Liebman LLP, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No. 3:04-cv-05539-FDB.

Before: RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges, and ROGER T. BENITEZ, District Judge.^*

BENITEZ, District Judge:

Rolando Hernandez appeals the district court's decision finding that any attorney-client or work product privilege between Hernandez and his prior attorney, Gregory Ferguson, was waived and ordering the production of all thirty-five documents referenced in a privilege log.

I

Hernandez filed suit against the City of Vancouver and Mark Tanninen in 2004, asserting claims for race and national origin discrimination based on disparate treatment, retaliation, and a hostile work environment while employed as a mechanic in the City's Fire Shop. Additionally, he alleges that Mark Tanninen and the City conspired to cover up their actions and to conceal proof of his claims in violation of 28 U.S.C. § 1985(3).

Hernandez was initially represented by Ferguson. During their initial meeting, Hernandez told Ferguson that Tanninen witnessed the discrimination and would corroborate Hernandez's story. In the course of investigating Hernandez's claims, Ferguson had a series of conversations with Tanninen over three days.

Tanninen initially corroborated Hernandez's allegations and agreed to provide a signed statement to that effect. After Tanninen spoke with Deputy Fire Chief Steve Streissguth, however, he indicated that he had known Streissguth for a long time, that he “could not do that to [Streissguth],” and that his getting involved would not be good for Streissguth and everyone involved. Realizing that he might now be a witness to Tanninen's conduct, Ferguson referred the case to another attorney. The tort claim was amended to include an allegation of conspiracy to cover up wrongdoing at the City Fire Shop.

In response to a request for production of documents, Hernandez produced a privilege log referencing thirty-five documents protected by either attorney-client or work product privilege, or both. No action was taken with regard to the request or the privilege log at that time. When the City moved for summary judgment, Hernandez provided his own affidavit, an affidavit from Ferguson, and some of Ferguson's handwritten notes as evidence in opposition to the motion. The district court granted summary judgment for the City, but a prior panel of our court reversed based, in part, on Ferguson's and Hernandez's affidavits. Hernandez v. City of Vancouver, 277 Fed.Appx. 666, 671-72 (9th Cir.2008).

Following remand, the City moved to compel production of Ferguson's entire file, arguing that because Hernandez relied on Ferguson as a witness to Tanninen's conduct, fairness mandated that any privilege that once existed with respect to Ferguson was waived entirely.

The district court adopted the City's reasoning, found any attorney-client or work product privilege between Hernandez and Ferguson was waived, and ordered the thirty-five documents referenced in the privilege log produced.

II

When this interlocutory appeal was filed, we had jurisdiction to consider it under the collateral order doctrine. In re Napster, Inc. Copyright Litig., 479 F.3d 1078 (9th Cir.2007). However, two days before oral argument, the Supreme Court decided Mohawk Industries, Inc. v. Carpenter, --- U.S. ----, 130 S.Ct. 599, --- L.Ed.2d ---- (2009), holding that “the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege.” Id. at 609; see also id. at 604 n. 1 (identifying the conflict among the circuits, including our decision in In re Napster ). “We, of course, have jurisdiction to determine our own jurisdiction.” Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir.2004). The reasoning of Mohawk, which eliminated collateral order jurisdiction on appeals of disclosure orders adverse to the attorney-client privilege, applies likewise to appeals of disclosure orders adverse to the attorney work product privilege. Further, Hernandez concedes that after Mohawk, the collateral order doctrine does not provide us with subject-matter jurisdiction to consider his appeal.

We may treat an appeal from an otherwise nonappealable order as a petition for a writ of mandamus. Miller v. Gammie, 335 F.3d 889, 895 (9th Cir.2003) (en banc). Whether we construe the appeal as a writ of mandamus depends on whether mandamus is itself justified. Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215, 1219-20 (9th Cir.2000).

III

“We have authority to issue a writ of mandamus under the ‘All Writs Act,’ 28 U.S.C. § 1651.” Cohen v. U.S. Dist. Court, 586 F.3d 703, 708 (9th Cir.2009). “Mandamus is appropriate to review discovery orders when particularly important interests are at stake.” Perry v. Schwarzenegger, 591 F.3d 1147, 1156-57 (9th Cir.2010) (internal quotation marks omitted); see also Mohawk, 130 S.Ct. at 607 (identifying mandamus review as a possible remedy for a particularly injurious attorney-client privilege ruling). Mandamus is a “drastic and extraordinary remedy reserved for really extraordinary causes,” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks omitted), and “only exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion, will justify the invocation of this extraordinary remedy.” Id. (internal quotation marks and citations omitted). “Although we determine de novo whether the writ should issue, we must be firmly convinced that the district court has erred.” Cohen, 586 F.3d at 708.

“Whether a writ of mandamus should be granted is determined case-by-case, weighing the factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977).” Cole v. U.S. Dist. Court, 366 F.3d 813, 816-17 (9th Cir.2004). In Bauman, “we established five guidelines to determine whether mandamus is appropriate in a given case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court's order raises new and important problems or issues of first impression.” Perry, 591 F.3d at 1156 (citing Bauman, 557 F.2d at 654-55). “The factors serve as guidelines, a point of departure for our analysis of the propriety of mandamus relief.” Id. (citing Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1491 (9th Cir.1989)). “Not every factor need be present at once.” Id. “In fact, rarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable.” Special Invs., 360 F.3d at 994 (internal quotation marks omitted).

A

We begin with the third factor, clear error, because “the absence of the third factor ... is dispositive.” Perry, 591 F.3d at 1156; see also Cohen, 586 F.3d at 708 (“We will begin by analyzing the district court's opinion for clear error, as this factor is highly significant and failure to show clear error may be dispositive of the petition.” (internal quotation marks omitted)). “The clear error standard is significantly deferential and is not met unless the reviewing court is left with a 'definite and firm conviction that a mistake has been committed.' ” Cohen, 586 F.3d at 708 (quoting Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993)).

The attorney-client privilege is intended “to encourage clients to make full disclosure to their attorneys,” recognizing that sound advice “depends upon the lawyer's being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (internal quotation marks omitted). The work product doctrine is a “qualified privilege” that protects “certain materials prepared by an attorney acting for his client in anticipation of litigation.” United States v. Nobles, 422 U.S. 225, 237-38, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (internal quotation marks omitted). Both privileges may be waived. United States v. Plache, 913 F.2d 1375, 1379 (9th Cir.1990) (attorney-client); Nobles, 422 U.S. at 239, 95 S.Ct. 2160 (work product); see also Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340-41 (9th Cir.1996) (finding that waiver prevents selective disclosure-disclosing that which supports a cause while hiding the unfavorable).

The district court did not clearly err by concluding that Hernandez waived both privileges as they pertained to the conspiracy claim. Disclosing a privileged communication or raising a claim that requires disclosure of a protected communication results in waiver as to all other communications on the same subject. Nobles, 422 U.S. at 239-40; Weil v. Inv./Indicators, Research & Mgmt., 647 F.2d 18, 24 (9th Cir.1981) (“[V]oluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.”); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir.1992) (“Where a...