In the Texas state appellate system, petitions for writs of mandamus are a recurrent feature of the pretrial litigation landscape.
In federal court, however, the U.S. Court of Appeals for the Fifth Circuit is famously reluctant to grant a mandamus petition. A recent opinion, for example, invoked authority from 1881 as the reason for denial. Another found that the “substantial settlement pressure” arising from a multi-week bellwether trial in a mass tort case was not an appropriate injury for a writ of mandamus to address.
But last week, in a case called In re: Itron that received almost no attention, a Fifth Circuit panel granted mandamus relief as to a finding of an extensive waiver of attorney-client privilege. Judge Stephen Higginson wrote the majority opinion, joined by Judge Leslie Southwick; Judge James Dennis dissented.
While the Itron opinion does not signal any “sea change” as to the Court’s willingness to consider mandamus petitions, it vividly shows how even a skeptical court can be persuaded to issue the writ.
Itron, a large manufacturer of “smart meters” for electric companies, paid about $100 million to acquire SmartSynch. Shortly before closing, in an unrelated transaction, SmartSynch entered a contract with Consert. After the closing, Itron alleged that this contract had not been disclosed to it and sued Consert to have the contract voided. The litigation ultimately settled for $18 million.
Itron then sued three former officers of SmartSynch for alleged misrepresentations about the contract, seeking recovery of the settlement amount as damages. In response, the defendants sought discovery from Itron about its attorney-client communications, arguing that Itron’s lawsuit waived its privilege as to all communications about the Consert settlement.
Itron replied that it had never affirmatively relied on or disclosed any privileged communication. Itron lost in district court, and after unsuccessful efforts to take an interlocutory appeal under 28 U.S.C. § 1292(b), petitioned for a writ of mandamus as the production deadline drew near.
The Fifth Circuit’s analysis in Itron focused on three questions: “(1) whether the petitioner has demonstrated that it has ‘no other adequate means to attain the relief [it] desires’; (2) whether the petitioner’s ‘right to issuance of the writ is clear and indisputable’; and (3) whether we, in the exercise of our discretion, are ‘satisfied that the writ is appropriate under the circumstances.’” It answered those questions as follows:
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- Itron showed the “inadequacy of relief by other means” as to the erroneous disclosure of privileged documents, especially since it had “exhausted every other opportunity for interlocutory review of the magistrate judge”s order compellig production.”
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- The Court reviewed the legal issue presented about waiver de novo, and found a clear abuse of discretion: “[T]he magistrate judge failed to apply Mississippi”s Jackson Medicaltest for waiver, and misapplied even the broad, erroneous waiver test Defendants urge instead. . . . [B]oth aspects of this error are obvious and purely legal in nature.”
- The Court concluded that “correcting this error is a proper exercise of our discretion,” noting “the issue’s ‘importance beyond the immediate case’” in other disputes about privilege, as “more district courts could mistakenly find waiver whenever attorney-client communications would be relevant.” It also observed the “sheer magnitude of the error’s effect on this particular case,” as the order required Itron “to divulge approximately the entire universe of privileged documents from the Consert litigation — litigation that engaged around fifteen of Itron’s attorneys for two-and-a-half years, right up to the eve of trial.”
Itron describes a litigation “perfect storm” – what the Fifth Circuit saw as a clear legal error, with substantial consequences both in the case at hand and in other litigation, with no opportunity for redress before trial. That description provides a “road map” for counsel considering a mandamus petition, who can analyze whether the facts of his or her case are more – or less – compelling than what Itron showed.
But even as the Fifth Circuit provided this map in Itron, it sounded a cautionary note about how individual judges hold subjective personal views about the three mandamus factors. Itron was a 2-1 decision; a short dissent argued that the legal error was not one that justified mandamus relief.
And the panel majority was written by Judge Higginson, who dissented from the panel opinion (and also, the later denial of en banc review) in the venue case of In re: Radmax, 720 F.3d 285 (5th Cir. 2013) – in no small part, on the issue of whether the legal error was sufficiently clear.
Personal judgment plays a substantial part in the review of a mandamus petition, and will always play the role of a “wild card” in the analysis of any particular case.
David Coale is an appellate law expert at Lynn Pinker Cox & Hurst and the author of the 600 Camp Blog, which chronicles activity at the Fifth Circuit in New Orleans.