IN RE VON BULOW Docket 87-3006.
828 F.2d 94 (1987)
In re Claus VON BULOW, Petitioner. Martha VON BULOW, by her next friends Alexander AUERSPERG, and Annie Laurie Auersperg-Kneissl, Plaintiffs, v. Claus VON BULOW, Defendant.
United States Court of Appeals, Second Circuit.
Decided September 10, 1987.
Patterson, Belknap, Webb & Tyler, New York City, submitted for petitioner Claus von Bulow.
Frederic Parnon, New York City (Barrett Smith Schapiro Simon & Armstrong, New York City, of counsel), for plaintiffs.
Before LUMBARD, OAKES and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
Petitioner Claus von Bulow seeks a writ of mandamus directing the United States District Court for the Southern District of New York (Walker, J.) to vacate its discovery order of February 12, 1987, 114 F.R.D. 71, granting plaintiff the right to discover certain conversations between petitioner and his attorneys. Because the discovery order raises significant issues of first impression, mandamus is an appropriate remedy. Hence, the petition is granted.
On July 6, 1981 petitioner was indicted by a Newport County, Rhode Island, grand jury on two counts of assault with intent to murder for allegedly injecting his wife Martha von Bulow with insulin causing her to lapse into an irreversible coma. After a widely publicized jury trial, von Bulow was convicted on both counts on March 16, 1982. In April 1982 petitioner retained Harvard law professor Alan M. Dershowitz to represent him on appeal. In May 1982 von Bulow was sentenced to 30-years imprisonment, but granted bail pending appeal. On April 27, 1984 the Rhode Island Supreme Court reversed both convictions, State v. von Bulow,
Shortly after the acquittal, petitioner's wife, by her next friends, Alexander Auersperg and Annie Laurie Auersperg-Kneissal, Martha von Bulow's children from a prior marriage (plaintiff), commenced this civil action in federal court against petitioner alleging common law assault, negligence, fraud, and RICO violations. These claims arose out of the same facts and circumstances as the Rhode Island criminal prosecution.
In May 1986 Random House published a book entitled Reversal of Fortune — Inside the von Bulow Case, authored by attorney Dershowitz, which chronicles the events surrounding the first criminal trial, the successful appeal, and von Bulow's ultimate acquittal. After obtaining an advance copy of the book, plaintiff's counsel notified petitioner on April 23, 1986 that it would view publication as a waiver of the attorney-client privilege. Von Bulow's counsel responded that no waiver had occurred and that, accordingly, he would not act to stop the book's publication. After the book was released, von Bulow and attorney Dershowitz appeared on several television and radio shows to promote it.
Plaintiff then moved to compel discovery of certain discussions between petitioner and his attorneys based on the alleged waiver of the attorney-client privilege with respect to those communications related in the book. In order to avoid piecemeal rulings on each communication, counsel stipulated in July 1986 as to those controversial subjects appearing in Reversal of Fortune. On February 12, 1987 the United States District Court for the Southern District of New York (Walker, J.) found a waiver of the attorney-client privilege and ordered von Bulow and his attorneys to comply with discovery requested by plaintiff. Von Bulow By Auersperg v. von Bulow, 114 F.R.D. 71 (S.D.N.Y.1987).
Von Bulow now petitions this Court for a writ of mandamus directing the district court to vacate its discovery order. Because the relief sought is an extraordinary writ, we consider whether mandamus is an appropriate remedy and, if so, whether it should issue in this case.
I The Availability of The Writ
Under the All Writs Statute, a Court of Appeals is empowered to "issue all writs necessary or appropriate in aid of [its] ... jurisdiction and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a) (1982). This power "is meant to be used only in the exceptional case," Bankers Life & Casualty Co. v. Holland,
Generally, of course, discovery orders are not reviewable by mandamus, see, e.g., American Express Warehousing, 380 F.2d at 284, only occasionally does there arise a discovery order presenting an important question of law. See, e.g., Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39. In such case, mandamus provides a logical method by which to supervise the administration of justice within the Circuit. See Will v. United States,
Recognizing this, we stated in American Express Warehousing that "[w]hen a discovery question is of extraordinary significance or there is extreme need for reversal of the district court's mandate before the case goes to judgment," the writ of mandamus provides an escape hatch from the finality rule. 380 F.2d at 282; see also Investment Properties Int'l, Ltd. v. IOS, Ltd.,
A. Novel Question of Law Raised
First and foremost the petition raises significant novel questions of law justifying the issuance of a writ of mandamus. The district court held that the publication by an attorney of a book chronicling his client's case waives the attorney-client privilege — not just as to information actually disclosed in the book — but with respect to all communications underlying the subjects raised in it. It held that all such communications between petitioner and attorney Dershowitz, the author of Reversal of Fortune, were unprivileged. As the discussion below demonstrates, the district court's holding in extending the "fairness doctrine" to extrajudicial disclosures raises an issue which, so far as discernible, has not been previously litigated in this Circuit. In what the district court itself regarded as a novel and unprecedented ruling, it went on further to hold that communications between von Bulow and all of his trial and appellate counsel were similarly unprivileged.
In our view, mandamus properly lies to review these issues of first impression. See Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39 ("That this issue was substantial is underscored by the fact that the challenged order ... appears to be the first of its kind in any reported decision in the federal courts...."); Sporck v. Peil,
Relying on Xerox Corp. v. SCM Corp.,
B. The Importance of Granting Mandamus
In addition to raising novel issues, this petition also presents two important reasons justifying the issuance of the writ in this case. Without mandamus, petitioner has no other remedy adequate to preserve his confidence. And because the district court's holding raises a legal issue of general applicability, its resolution will aid in this Circuit's effective administration of justice.
1. No Other Adequate Remedy Available
The Supreme Court has stated that in reviewing mandamus a court must consider whether the party seeking the writ has any "other adequate means to attain the relief he desires." Allied Chem. Corp. v. Daiflon, Inc.,
Thus, mandamus is particularly appropriate in the present circumstances where an important question of law is likely to evade review due to the collateral nature of the issue, see Colonial Times Inc. v. Gasch,
Further, an order that information be produced that brushes aside a litigant's claim of a privilege not to disclose, leaves only an appeal after judgment as a remedy. Such a remedy is inadequate at best. Compliance with the order destroys the right sought to be protected. See, e.g., Sporck, 759 F.2d at 314; Bogosian, 738 F.2d at 591;
In fact, the concern that a remedy after final judgment cannot unsay the confidential information that has been revealed may account for the liberal use of mandamus in situations involving the production of documents or testimony claimed to be privileged or covered by other more general interests in secrecy. See, e.g., Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39 (order compelling physical examination); Cipollone, 785 F.2d at 1118 (order amending protective order); Sporck, 759 F.2d at 314 (attorney work-product privilege); Bogosian, 738 F.2d at 591 (same); Jenkins, 670 F.2d at 917 (order requiring disclosure of attorney's files); Usery v. Ritter,
This need for timely protection is particularly urgent where the discovery sought is, as here, allegedly blanketed by the absolute attorney-client privilege. See Kerr v. United States District Court,
2. Aiding the Administration of Justice
In addition, issuing the writ will aid the administration of justice within the Circuit. Mandamus is appropriate "when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice." Colonial Times, Inc. v. Gasch,
The attorney-client privilege is among the oldest common law privileges dating back to the 16th Century. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. ed. 1961) (Wigmore). It exists for the purpose of encouraging full and truthful communication between an attorney and his client and "recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States,
In sum, the issues raised in the instant petition justify the issuance of the extraordinary writ. Having determined that mandamus is available, we turn to the merits.
II The Propriety of the Discovery Order
The district court made several relevant rulings, holding initially that the petitioner waived his attorney-client privilege by acquiescing in and encouraging the publication of Reversal of Fortune. It then examined the scope of that waiver. In so doing, the district judge found that the waiver extended to (1) the contents of the published conversations, (2) all communications between petitioner and attorney Dershowitz relating to the published conversations, and (3) all communications between petitioner and any defense counsel relating to the published conversations. We examine each of these rulings.
A. The Waiver of the Attorney-Client Privilege
By allowing publication of confidential communications in his attorney's book Reversal of Fortune, petitioner was held to have waived his attorney-client privilege. In reaching that conclusion, the district court considered the following facts. First, petitioner knew of, consented to, and actually encouraged attorney Dershowitz's plans to write a book providing an "insider look" into his case. Second, petitioner was warned before publication that such an act might trigger a waiver and, yet, took no active measures to preserve his confidences. Third, after publication, petitioner joined his attorney in enthusiastically promoting the book on television and radio shows. Based on these key facts, the district court determined that von Bulow had waived his attorney-client privilege.
Petitioner argues that this holding is erroneous because only the client — and not his attorney — may waive the privilege. Of course, the privilege belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his client's consent. Republic Gear Co. v. Borg-Warner Corp.,
A client may nonetheless by his actions impliedly waive the privilege or consent to disclosure. See United States ex rel Edney v. Smith,
Applying these principles, it is quite clear that in finding that von Bulow waived his privilege the district court did not abuse its discretion. In light of petitioner's acquiescence in and encouragement of Reversal of Fortune's publication, Judge Walker properly concluded that von Bulow consented to his attorney's disclosure of his confidences and effectively waived his attorney-client privilege. Our discussion now turns to examine the breadth of that waiver.
B. The Scope of the Waiver
1. The Contents of the Published Conversations
The district court held that plaintiffs were entitled to discover "the entire contents of all conversations from which Dershowitz published extracts in Reversal of Fortune." 114 F.R.D. at 79. The four relevant conversations between von Bulow and his attorneys were their initial one, and the ones regarding the bail hearing, appellate strategy, and von Bulow's decision to testify on his own behalf. Id. at 79 n. 2. Under that ruling, plaintiff is permitted to discover those parts of the four identified conversations not made public in the book. Petitioner argues that the district court's holding improperly broadened the fairness doctrine to include extrajudicial disclosures and that, accordingly, the discovery order cannot stand. We agree.
Relying on United States v. Tellier,
These considerations — which underlie "the fairness doctrine" — aim to prevent prejudice to a party and distortion of the judicial process that may be caused by the privilege-holder's selective disclosure during litigation of otherwise privileged information. Under the doctrine the client alone controls the privilege and may or may not choose to divulge his own secrets. But it has been established law for a hundred years that when the client waives the privilege by testifying about what transpired between her and her attorney, she cannot thereafter insist that the mouth of the attorney be shut. Hunt v. Blackburn,
Yet this rule protecting the party, the factfinder, and the judicial process from selectively disclosed and potentially misleading evidence does not come into play when, as here, the privilege-holder or his attorney has made extrajudicial disclosures, and those disclosures have not subsequently been placed at issue during litigation. In fact, the cases finding, as the district court did here, implied waivers on account of fairness involved material issues raised by a client's assertions during the course of a judicial proceeding. See, e.g., Hunt v. Blackburn, 128 U.S. at 470-71, 9 S.Ct. at 127; Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc.,
Neither of the cases relied upon by the district court compel an opposite result. In Tellier,
Applying the fairness doctrine, we hold therefore that the extrajudicial disclosure of an attorney-client communication — one not subsequently used by the client in a judicial proceeding to his adversary's prejudice — does not waive the privilege as to the undisclosed portions of the communication. Hence, though the district court correctly found a waiver by von Bulow as to the particular matters actually disclosed in the book, it was an abuse of discretion to broaden that waiver to include those portions of the four identified conversations which, because they were not published, remain secret.
2. Related Conversations With Dershowitz
The district court next ruled that von Bulow's waiver extended to subject matter areas related to the published conversations with Dershowitz.
For this reason, it too has been invoked most often where the privilege-holder has attempted to use the privilege as both "a sword" and "a shield" or where the attacking party has been prejudiced at trial. See In Re Sealed Case,
For example, in Weil v. Investment/Indicators, Research & Management, Inc.,
Wigmore, supra, § 2327, at 638.
But where, as here, disclosures of privileged information are made extrajudicially and without prejudice to the opposing party, there exists no reason in logic or equity to broaden the waiver beyond those matters actually revealed. Matters actually disclosed in public lose their privileged status because they obviously are no longer confidential. The cat is let out of the bag, so to speak. But related matters not so disclosed remain confidential. Although it is true that disclosures in the public arena may be "one-sided" or "misleading", so long as such disclosures are and remain extrajudicial, there is no legal prejudice that warrants a broad court-imposed subject matter waiver. The reason is that disclosures made in public rather than in court — even if selective — create no risk of legal prejudice until put at issue in the litigation by the privilege-holder. Therefore, insofar as the district court broadened petitioner's waiver to include related conversations on the same subject it was in error.
3. Related Conversations With Other Defense Attorneys
Again invoking the fairness doctrine, the district court found that von Bulow's waiver extended to his conversations with all other defense attorneys which relate to the subject matter disclosed in the book. 114 F.R.D. at 80. Since we have already found that the publication of Reversal of Fortune did not result in a sweeping subject matter waiver, that waiver a fortiori cannot extend to von Bulow's other attorneys.
In sum, mandamus lies in this case because the discovery issue involved is one of first impression and important to the administration of justice. The error asserted concerns a misapprehension of the basic purpose of the fairness doctrine, and its correction will provide direction in developing standards requisite to finding an implied waiver of the attorney-client privilege. Thus, the petition for a writ of mandamus is granted and the district court is directed to vacate its discovery order of February 12, 1987.
Writ of mandamus granted.
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