Rehearing and Rehearing En Banc Denied May 24, 2000.
BEAM, Circuit Judge.
General Motors Corporation (GM) petitions for a writ of mandamus, seeking relief from a magistrate judge's order directing GM to produce six documents for which GM asserts privilege.
Beverly Garner was a passenger in a Chevrolet Blazer that was involved in a head-on collision with another vehicle. After the collision, a fire broke out in the engine compartment of the Blazer. Garner died in the accident. Garner's sons, Kenneth and Steven Baker (the Bakers), then brought a products liability action contending their mother was killed as a result of a faulty fuel pump that caused the engine fire in the Blazer. The Bakers prevailed at trial in 1993. On appeal, we reversed and remanded for a new trial. See Baker v. General Motors Corp., 86 F.3d 811 (8th Cir.1996), rev'd in part by, 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) and, 138 F.3d 1225 (8th Cir. 1998) (ordering remand).
The present discovery dispute centers around a document created by Edward Ivey, a GM employee. The document analyzed the potential expense of the loss of human life per-vehicle due to fuel-fed engine fires. Before the first trial, GM filed a motion arguing that the document should not be admitted because it was irrelevant. As part of its argument, GM asserted that
In 1998, in an unrelated lawsuit involving GM fuel pumps, a Florida trial court ordered GM to produce documents that related to an interview of Ivey conducted by GM's attorneys. See McGee v. General Motors Corp., No. 92-23582(25) (Fla. 17th Jud. Cir. Feb. 10, 1998). Copies of two of these documents were later posted on the Internet. After reading these documents, the Bakers asked the district court for an order instructing GM to produce a number of documents related to interviews of Ivey conducted by GM's litigation team.
The district court ordered GM to produce the documents to the Bakers and to the court for review. We upheld the order instructing GM to produce the documents to the court. See In re General Motors Corp., 153 F.3d 714, 716 (8th Cir.1998). However, we reversed the order instructing GM to produce the documents to the Bakers until the district court had conducted a review to determine whether the documents were protected by the work-product doctrine or attorney-client privilege. See id.
After review, a magistrate judge
When a magistrate judge has rejected a claim of privilege, we will issue a writ of mandamus when the party seeking the writ has no other adequate means to attain the desired relief and the ruling is clearly erroneous. See In re General Motors Corp., 153 F.3d at 715. This extraordinary remedy is appropriate because the judge's order would otherwise destroy the confidentiality of the communications at issue. See id.
In its petition, GM continues to assert that the documents in question are protected by work-product doctrine and by attorney-client privilege. In this diversity case, we apply federal law to resolve work product claims and state law to resolve attorney-client privilege claims. See Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir.1987). The parties disagree as to whether Michigan or Missouri law applies to the attorney-client privilege claims.
A. Work-Product Doctrine
There are two kinds of work product—ordinary work product and opinion work product. Ordinary work product includes raw factual information. See Gundacker v. Unisys Corp., 151 F.3d 842, 848 n. 4 (8th Cir.1998). Opinion work product includes counsel's mental impressions, conclusions, opinions or legal theories. See id. at n. 5. Ordinary work product is not discoverable unless the party seeking discovery has a substantial need for the materials and the party cannot obtain the substantial equivalent of the materials by other means. See Fed. R.Civ.P. 26(b)(3). In contrast, opinion work product enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud. See In re Murphy, 560 F.2d 326, 336 (8th Cir.1977). Initially, we note that these documents were prepared in anticipation of litigation and that there are no special circumstances.
We find the judge clearly erred in holding that the documents were not protected work product. Notes and memoranda of an attorney, or an attorney's agent, from a witness interview are opinion work product entitled to almost absolute immunity. See In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir.1973) (attorney's personal recollections, notes and memoranda from interviews are absolutely protected work product); see also Upjohn Co. v. United States, 449 U.S. 383, 399-400, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ("[f]orcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes"). Attorney notes reveal an attorney's legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant. In this way, attorney notes are akin to an attorney's determination as to which documents are important to a case—the latter being something we have also held to be protected work product. See Petersen v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir.1992). Thus, we find that the judge clearly erred because she ordered disclosure of opinion work product.
In addition, even if we were to assume the documents were ordinary work product, the Bakers have not shown a substantial need for the documents and that the substantial equivalent of the information cannot be procured by other means. Discovery of a witness statement to an attorney is generally not allowed if that witness is available to the other party. See In re Grand Jury Proceedings, 473 F.2d at 849. A party also does not demonstrate substantial need when it merely seeks corroborative evidence. See Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1308 (D.C.Cir.1997) (no substantial need when documents sought would merely reinforce known inconsistencies).
Basically, the Bakers seek these documents to search for evidence to counter the expected testimony of Ivey. At the first trial, Ivey testified that the document he created was only a self-assigned intellectual exercise and that the document had
B. At-Issue Waiver of the Attorney-Client Privilege
The judge also found that any attorney-client privilege claims were waived because GM put the documents at issue in the litigation. The Bakers contend that at-issue waiver of attorney-client privilege would necessitate a finding of waiver for any work-product protection. We are skeptical of this argument. See In re Martin Marietta Corp., 856 F.2d 619, 626 (4th Cir.1988) (waiver of attorney-client privilege does not waive protection accorded to opinion work product). However, we need not resolve this issue because we find the Bakers's argument for at-issue waiver of the attorney-client privilege fails on the merits.
A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication at issue. See Sappington v. Miller, 821 S.W.2d 901, 904 (Mo.Ct.App.1992); McCarthy v. Belcher, 128 Mich.App. 344, 340 N.W.2d 848, 850 (Mich.Ct.App.1983). There are two situations in which at-issue waiver is commonly found. The first is when proof of a party's legal contention implicates evidence encompassed in the contents of an attorney-client communication—for example, when a client uses reliance on legal advice as a defense or when a client brings a legal malpractice action. See State v. Campbell, 913 S.W.2d 832, 837 (Mo.Ct.App.1995); see also People v. Mitchell, 454 Mich. 145, 560 N.W.2d 600, 612 n. 27 (Mich.1997) (defendant who asserts ineffective assistance of counsel waives attorney-client privilege). The second is when a client's testimony refers to a specific privileged document. See, e.g., Charles Woods Television Corp. v. Capital Cities/ABC, Inc., 869 F.2d 1155, 1162 (8th Cir.1989) (applying Missouri law to find no at-issue waiver when witness testified generally about an issue and never mentioned any particular communication); McCarthy, 340 N.W.2d at 850 (attorney-client privilege waived when client testifies on direct examination about a communication).
The Bakers would like to extend the application of at-issue waiver to a situation where a party has used witness testimony and made factual representations that were allegedly contrary to what the privileged documents will reveal. But, courts in both Michigan and Missouri have rejected the extension of at-issue waiver to this type of scenario.
We grant GM's petition to bar discovery of the documents, and we remand for further proceedings consistent with this opinion.
HANSEN, Circuit Judge, concurring.
I join Judge Beam's opinion with respect to Parts I and III, and I concur in the portions of Part II A that address the
I agree entirely with Judge Beam's well-reasoned analysis of the opinion work product doctrine issue.
Our conclusion that General Motors' counsel's notes are protected by the work product doctrine decides this case. We need not address the question of an "at issue" waiver exception to the attorney-client privilege. Unlike the strictly federal question work product issue, the question of the possible "at issue" waiver of the attorney-client privilege turns on an interpretation of either Michigan or Missouri state law. Bedrock principles of comity and federalism suggest that federal courts should not embark upon the task of interpreting state law unless we are required to engage in such rendition. As no such requirement exists in the instant case, I respectfully decline to join those portions of either Judge Beam's or Judge Heaney's opinions addressing the possible "at issue" waiver exception to the attorney client privilege. Additionally, because the appellees did not raise in the district court the contention on appeal that General Motors waived its opinion work product protection, the assertion of such a waiver made on appeal need not be addressed. See Carter v. Chrysler Corp., 173 F.3d 693, 704 n. 9 (8th Cir.1999).
HEANEY, Circuit Judge dissenting.
By allowing a litigant to assert privilege to suppress contradictory evidence, today's opinion gives a litigant free rein to make assertions contradicted by the litigant's own documentary evidence without being branded as untruthful. The district court correctly held that this is an abuse of evidentiary privilege because it permits a party to adhere to what appears to be an unequivocal position when contradictory evidence is available but inadmissible. I find fault with the majority's legal reasoning and with the policy implications of its opinion. Accordingly, I respectfully dissent.
I. AT-ISSUE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE
Missouri privilege and waiver law govern because Missouri has a stronger interest in the conduct of the parties in its courts than does Michigan. Under Missouri law it is clear that GM has waived any privilege claim to the documents by putting their subject matter at issue.
A. Choice of Law
In diversity cases, privileges are determined according to state law. See Fed. R.Evid. 501. In determining which state's substantive law governs, a district court must apply the forum state's conflict of law rules.
In the past, Missouri has looked to the Restatement to provide guidance on its conflict of law questions. See Farmers Ins. Co. v. McFarland, WD 54948, 1998 WL 548738, at *12, (Mo.Ct.App. Sept. 1, 1998) (stating that Missouri has adopted "significant relationship" test of Restatement § 145 for both tort and contract actions); Atlas Intermodal Trucking Serv., Inc. v. United Fire & Cas. Co., 973 S.W.2d 174, 177 (Mo.Ct.App.1998) ("Missouri has adopted sections 188 and 193 of the Restatement ... in deciding choice of law issues regarding insurance contracts."); CMT Partners v. Alaiwat, 969 S.W.2d 885, 887 (Mo.Ct.App.1998) ("When determining choice of law issues, Missouri courts apply the `most significant relationship' test set out in Section 188 of the Restatement ...."). Because Missouri case law provides no clear choice of law rule with regard to privilege, it is appropriate to reference the Restatement:
Restatement (Second) of Conflict of Laws § 139(1) (Supp.1989).
While the actual communications at issue here—the documents—were made in Michigan and involved a Michigan corporation, at-issue waiver of privileged communications is concerned not with the genesis and nature of the communications themselves. Rather, the question is whether a party's conduct in litigation—here, placing the contents of the documents at issue— has operated as a waiver of attorney-client privilege. It is clear that Missouri, as the forum state, has a greater interest in controlling the litigation tactics used in its court than does Michigan. Accordingly, applying Missouri's at-issue waiver law is consistent both with the Restatement and with Missouri's established rule that the forum state controls the admissibility of evidence. See Rosser v. Standard Milling Co., 312 S.W.2d 106, 110 (Mo.1958).
1. Waiver of attorney-client privilege under Missouri law
In Missouri, an attorney may not testify "concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client." Mo.Rev.Stat. § 491.060 (2000). This privilege is not absolute and can be waived by the client. See Sappington v. Miller, 821 S.W.2d 901, 904 (Mo.Ct.App. 1992). By placing the subject matter of a privileged communication at issue, the client waives any claim of attorney-client privilege. See Timmons, 956 S.W.2d at 285.
In Timmons, a criminal defendant brought a pro se motion for a continuance before the court, arguing that he needed more time to secure the presence of two witnesses. The trial court then questioned Timmons' attorney about whether the witnesses were necessary and where the witnesses were. The appellate court held that Timmons' attorney could answer the questions because, by bringing his motion, Timmons had placed the otherwise privileged information held by his attorney at issue. "Because the information revealed by trial counsel was necessary for the resolution of the motion, Mr. Timmons waived the attorney-client privilege as to those communications." Timmons, 956 S.W.2d at 285.
In the case before us, it is clear that under Missouri law GM has waived any attorney-client privilege claim to the documents. During the litigation of this suit, GM presented two motions in limine (one for its 1993 trial, and one for the second pending trial). Both motions sought to exclude the Ivey valuation document from this suit. In support of its first motion in limine, GM argued that the Ivey document was irrelevant in large part because GM did not sanction the document's creation:
(Def.'s First Mot. In Limine to Exclude "Ivey Document" at 1-2; 4-5).
In its second motion in limine to exclude the Ivey document from the pending trial, GM again distanced itself from the document:
(Def.'s Second Mot. In Limine to Exclude "Ivey Document" at 2-3; 7).
GM's assertions that it was not involved in the creation of the Ivey document and that the document was never disseminated among GM employees placed the contents of GM's attorneys' documents at issue, waiving the privilege. This is so because those documents, otherwise privileged, concern GM's relationship with the Ivey document, a subject matter GM put at issue by alleging it had no involvement with the Ivey document. As stated by the Timmons court, "once [a privilege-holder] presented the issue to the court, [it] was not able to use the attorney-client privilege as a shield against the introduction of relevant information necessary for the court to consider in ruling on [its] motion." Timmons, 956 S.W.2d at 285.
GM argues that it did not waive its attorney-client privilege under Missouri law, citing Charles Woods Television Corp. v. Capital Cities/ABC, Inc., 869 F.2d 1155 (8th Cir.1989). However, Charles Woods is factually distinguishable. In that case, our court, applying Missouri law, held that where witnesses talk generally about the effects of a merger but never mention a particular communication, any privilege that attached to that communication is not waived. See id. at 1162. Here, GM was doing much more than musing generally about its costs or its products; it was specifically asserting that Ivey's valuation report was not its brainchild. These pointed assertions put the contents of GM's attorneys' documents relating to the Ivey report at issue, waiving any attorney-client privilege as to those documents.
II. WORK PRODUCT DOCTRINE
GM also disagrees with the district court's holding that the documents in question are not protected as work product. In my view, the district court's decision was not erroneous. The parties agree that work product doctrine is not a substantive privilege under Federal Rule of Evidence 501, and therefore is governed by federal law. Under Civil Rule of Procedure 26(b)(3), a party may not obtain discovery of any items prepared by another party in anticipation of litigation unless it is shown that the party seeking discovery has a substantial need for the material and the party could not obtain the substantial equivalent information without undue hardship.
The plaintiffs clearly satisfied these requirements. First, the documents were needed both for plaintiffs' motion for sanctions against GM and for impeachment at trial, and second, the plaintiffs could not obtain the substantial equivalent of the information because Ivey and GM have consistently made assertions directly contrary to the documents.
The court allowed GM to submit proposed redactions to the documents to protect any of its attorneys' mental impressions or opinions, but ordered the release of any facts contained within the documents. A memorandum written by an attorney during an interview is protected by work product. See Upjohn Co. v. United States, 449 U.S. 383, 399, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Our cases suggest that so-called opinion work-product—the attorney's mental impressions—will be the subject of greater protection. See In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir.1973) (Duffy ). This heightened security should not protect the entire document, but only portions of the document that are attorney opinions and mental impressions.
The district court in this case took the right approach. In Duffy, our court applied near absolute protection against disclosure to an attorney's written notes about a meeting with a client. See id. In
Missouri law should govern the attorney-client privilege and waiver issue, and the privilege was clearly waived under Missouri law. Further, the documents are not protected by the work product doctrine. Although courts have been reluctant to order the release of documents that are written completely by the attorney for fear of revealing the attorney's mental processes, the district court in this case was well within its discretion in releasing the documents after permitting GM to suggest redactions. Accordingly, I would affirm the district court.