In re Santa Fe International Corporation

Decision Date07 November 2001
Docket NumberNo. 01-40421,01-40421
Citation272 F.3d 705
Parties(5th Cir. 2001) In re: SANTA FE INTERNATIONAL CORPORATION, Petitioner
CourtU.S. Court of Appeals — Fifth Circuit

Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Santa Fe International Corporation ("Santa Fe") petitions for a writ of mandamus directing the district court to vacate its order requiring Santa Fe to produce a document for discovery and rejecting Santa Fe's "common legal interest" attorney-client privilege claim.1 We deny the petition because the district court's ruling was not clearly and indisputably wrong.


Plaintiffs, who are present and former offshore drilling workers for Santa Fe and some twenty-one other offshore drilling corporations, filed this action on August 14, 2000, naming those companies as defendants. The complaint alleges that the defendants secretly met over the past ten years to set, stabilize, maintain, or limit the wages and benefits paid to offshore drilling employees. The plaintiffs seek certification of a class of such employees, damages for defendants' alleged antitrust violations, and a permanent injunction to prevent such conduct in the future.

On January 3, 2001, proceedings were held before the district court wherein all defendants, including Santa Fe, were represented by Finis Cowan and David Beck, who said they had been designated as the spokespersons for the defendants. At that hearing the parties presented a joint discovery and case management plan which they recommended to the court. The court accepted the plan with regard to class certification and established the following guidelines for resolving any discovery disputes:

All right. If anything looms as a discovery hassle, don't file anything. I'm going to be here continuously. Just call Felicia and let her know there's a problem and I'll accommodate you with an emergency hearing or a telephone call or whatever will save you expense and inconvenience.

Plaintiffs' counsel and the spokesperson-attorneys for the defendants indicated their approval and agreement with this expedited discovery dispute resolution procedure.2

On March 8, 2001, Ross Citti, who had enrolled as counsel for Global Marine Drilling Co., scheduled a hearing in accordance with the trial court's guidelines for discovery disputes. Mr. Citti faxed plaintiffs' counsel the following letter:

This is to advise you that the Court has scheduled a hearing to resolve outstanding discovery issues in the above matter for 11:00 a.m. on Friday March 9, 2001.

On March 9, 2001, at a discovery hearing in open court, several outstanding discovery issues were resolved pursuant to the March 8 letter of notice issued by Mr. Citti. Mr. Anthony Buzbee and Mr. Richard Melancon appeared for the plaintiffs. Mr. Citti appeared for defendant Global Marine; Mr. Steve Roberts appeared for defendant Nabors Drilling; and Mr. James Watkins appeared for defendant Marine Drilling.

At the discovery hearing, without drawing any objection by the defendants' attorneys, the plaintiffs' counsel asked the district court to rule on whether the defendants were required to turn over documents that had been withheld, giving as an example a memorandum "which they circulated [in 1994] about their antitrust exposure for doing what they were doing. . . ."3 Mr. Citti, evidently speaking for all of the defendants, informed the court that "there's basically three categories of documents that have been withheld and we've provided them with the privilege log. The first category of documents are correspondence from general counsel to employees of the individual companies." The court interjected, "That's privileged." Mr. Citti continued:

The second category are mainly E-mails and they are discussions between employees and an individual company talking about the memo from the general counsel that they just received. . . . The third category . . . are documents from the general counsel of--we'll say Global Marine because that is an actual example. General counsel at Global Marine sent an opinion letter to somebody within Global Marine that has to do with the issues that are involved in this case, potential antitrust exposure if you do this and do that and do the other and don't do the third thing. That letter was then shared with general counsel of another drilling contractor or human relations people who have an interest in this sort of thing. It was done in a confidential way. It was--it was--these memos, communications were done with the understanding that it was legal opinion from general counsel in another company who had a common interest in preserving and staving off litigation of this type.

The district court ruled that the first two categories were privileged and that any attempt to obtain them would be quashed. With respect to the third, however, the court ruled: "I think once the documents albeit the confidential one from general counsel within the company is transmitted to another company, you voluntarily waive any privilege. Then it becomes the precise genesis of antitrust." The court ordered the production of the third category of documents "for counsel's eyes only," and provided for their return after the litigation, without retention of copies or extracted data.4

Contrary to the dissent's assertion, the district court did not "summarily rule that [the attorney-client] privilege is always waived when documents are transmitted to a third party, thus eradicating any common interest privilege in the face of this circuit's law to the contrary. . . ." Instead, the district court concluded that documents falling within the third category of communications described by Mr. Citti were not privileged because there had been no showing that at the time the communications were made--many years before the present litigation--the employers were potential co-defendants acting under an actual or perceived threat of litigation.5

After the March 9, 2001 discovery hearing, Santa Fe joined defendants Global Marine and Noble Drilling in a motion for reconsideration and clarification of the trial court's rulings. In this motion, Santa Fe claimed for the first time a "common interest privilege," and sought protection for its disclosure to third parties of a 1991 memorandum prepared for Santa Fe by its in-house counsel. Santa Fe attached to the motion an affidavit by its in-house counsel that described the 1991 memorandum and its dissemination to other offshore drilling companies, which are now co-defendants with Santa Fe in the present case. In his affidavit, Santa Fe's counsel averred that:

I have personal knowledge of attorney-client privileged communications between Santa Fe and myself, including a legal memorandum I drafted in May 1991 to Joe Boyd regarding certain legal issues related to the exchange of wage and benefit information among the Big 8 . . . as part of my duties as a legal counselor to Santa Fe. . . . The May 1991 legal memorandum provided legal advice to Santa Fe and was made in furtherance of Santa Fe's efforts to seek and obtain legal advice on issues in connection with Santa Fe's participation in wage and benefit surveys. . . . The May 1991 legal memorandum was circulated to certain members of the Big 8 and the contents of the memorandum were referenced in connection with a meeting of the IPA in 1999. . . . Santa Fe has maintained . . . the May 1991 legal memorandum as confidential. Santa Fe has not disclosed the May 1991 legal memorandum to anyone who did not have a common legal interest with Santa Fe in the communications. Specifically, the participants of the Big 8 and the IPA shared a common interest in complying with the antitrust laws and avoiding any liability in potential litigation for allegedly violating those laws. It was and is my understanding that those companies were all involved in making decisions concerning the guidelines they would adopt for participating together in wage and benefits surveys.

(Paragraph breaks and enumeration omitted).

The district court denied the motion for reconsideration. In responding to Santa Fe's petition for mandamus, as instructed by this court, the district court explained: "The affidavits submitted by Defendants along with their Motion for Reconsideration do not undermine but rather strengthen the Court's opinions in this regard. These affidavits further clarify that the Defendants shared the allegedly privileged information years ago, in the absence of any active joint defense of litigation."6


Turning our attention directly to Santa Fe's claim for protection under the "common legal interest" extension of the attorney-client privilege ("CLI privilege"), we conclude that it has no merit.


A party asserting a privilege exemption from discovery bears the burden of demonstrating its applicability.7 Federal Rule of Civil Procedure 26(b)(5) provides that a party claiming a privilege "shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." In complex litigation, compliance with Rule 26(b)(5) is "usually accomplished by submission of a log identifying documents or other communications by date and by the names of the author(s) and recipient(s), and describing their general subject matter. . . ." Manual for Complex Litigation (Third) 21.431 (1995). On January 2, 2001, Santa Fe and the other defendants agreed to produce privilege logs at a future date. While some of the defendants complied with this agreement, Santa Fe failed to provide a privilege log identifying any document or communication.

The only express claim of privilege by Santa Fe came after the discovery...

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