EEOC v. Agro Distr LLC

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 28, 2006
• Docket: 06-60969
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 28, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _____________________ Clerk No. 06-60969 _____________________

In Re: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Petitioner --------------------------

---------------------- Petition for Writ of Mandamus to the United States District Court for the Southern District of Mississippi, Hattiesburg ----------------------

Before DEMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Before us is a petition for writ of mandamus filed by the

Equal Employment Opportunity Commission (“EEOC”) after the

district court ordered that an EEOC attorney be deposed and

certain internal documents be produced despite the EEOC’s

assertion of privilege. Because the deposition and documents are

privileged and no exception to privilege has been shown, we GRANT

the writ.

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.

-1- I. FACTUAL AND PROCEDURAL BACKGROUND

This mandamus petition comes at the tail end of a lawsuit

brought by the EEOC against Agro Distribution, L.L.C. (“Agro”)

for alleged violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-213 (2000). To put the current

issues before this court in context, a brief review of the

underlying facts is necessary. As determined by the district

court in its summary judgment order, Henry Velez (“Velez”), an

employee of Agro, was born with a physical impairment that caused

the abnormal development of his skin and the absence of any sweat

glands. According to Velez, he experiences difficulties doing

manual labor when the temperature is greater than eighty degrees

Fahrenheit. To compensate for his condition in warm weather,

Velez takes frequent breaks, stands in front of a fan, and douses

himself with water.

On July 15, 2002, Velez and all the other non-office Agro

employees were ordered to report at 6:00 a.m. on July 16, 2002,

to load empty barrels onto a trailer.1 Velez told his supervisor

that this type of assignment had made him sick before and asked

to be excluded. His supervisor did not exclude him, and Velez

chose not to report for the job or at his regularly assigned

1 A “petite female” was excepted from this requirement.

-2- time. The barrel-loading job was completed by 8:00 a.m. at which

time the temperature had yet to exceed seventy degrees. Velez

was terminated as a result of his failure to report for work.

Velez filed a charge of discrimination with the EEOC, and

the charge was investigated by LaQuida Small (“Small”).

According to Agro, Small was rude during her visit to Agro,

yelling and making demeaning comments, and seemed to have already

made up her mind about Velez’s claim. Small issued a

predetermination notice, advising Agro of her intention to

recommend a cause finding, to which Agro responded by pointing

out several factual errors in Small’s notice. The EEOC then

issued its determination on July 22, 2003, finding that a

violation of the ADA had occurred. The determination letter

sought back pay, reinstatement, and compensatory damages in

excess of $156,000.

The EEOC filed the instant lawsuit on September 27, 2004,

claiming that Agro violated the ADA when it terminated Velez.

There is little evidence that the EEOC attempted meaningful

conciliation of the case prior to and during the litigation,

although the EEOC eventually withdrew its request for

reinstatement and back pay. Notably, Velez had obtained a higher

paying job that he liked better than his job with Agro.

Following substantial discovery, Agro moved for summary

-3- judgment, which the district court granted. In its order, the

district court noted that it “appear[ed] that the EEOC did not

attempt conciliation in good faith . . . .” (Mem. Op. & Order at

10.) However, the district court ultimately granted summary

judgment on the ground that Velez was not “disabled” as defined

by the ADA. The district court found that Velez had held

numerous jobs requiring manual labor, and thus was not

substantially limited in the major life activity of working.

(Id. at 14-15.)

Following the district court’s grant of summary judgment,

Agro moved for attorneys’ fees pursuant to 42 U.S.C. § 12205,

which gives the court discretion to award attorneys’ fees to the

prevailing party in an ADA case. When the prevailing party is

the defendant, as in this case, a court must find that the

plaintiff’s action was “frivolous, unreasonable, or without

foundation, even though not brought in subjective bad faith”

before awarding attorneys’ fees. Christiansburg Garment Co. v.

E.E.O.C., 434 U.S. 412, 421 (1978). Agro contended attorneys’

fees were appropriate because the EEOC refused to conciliate and

continued to press its suit despite knowing that Velez was not

disabled.

While Agro’s motion for attorneys’ fees was under

consideration, Agro filed with the district court an affidavit

-4- from its attorney and a September 7, 2006, decision from the

Merit Systems Protection Board (“MSPB decision”) in a suit

brought by Prisca DeLeonardo (“DeLeonardo”) against the EEOC.

DeLeonardo v. EEOC, AT-1221-06-0340-W-1, 2005 WL 2582680

(M.S.P.B. Sept. 7, 2006). DeLeonardo, an attorney with the EEOC,

alleged she had been retaliated against for whistleblowing. The

administrative judge dismissed DeLeonardo’s complaint for failing

to allege that she had engaged in whistleblowing, but the MSPB

reversed, finding that her allegations were sufficient to state a

claim.

Of particular importance to this case was DeLeonardo’s

allegation that “in May 2005, she disclosed to Gwendolyn Reams,

the agency’s Associate General Counsel, that Mr. Guerrier

‘misrepresented and omitted facts in his report to Headquarters’

in a particular case, so that the case could be approved for

litigation.” Id. at *2. Charles Guerrier was the EEOC’s

Regional Attorney in its Birmingham office, and Velez’s case

against Agro was handled by the EEOC’s Birmingham office.

Agro’s counsel stated in his affidavit that DeLeonardo had

contacted him in May 2005, stating she would be entering an

appearance in Velez’s case. (Ehrhardt Aff. at 3.) Upon

discussing the case with DeLeonardo, Agro’s counsel contends that

DeLeonardo expressed surprise at some of the facts as he relayed

-5- them to her, indicating that this was not the information the

Commission2 had in front of it. (Id.) Specifically, DeLeonardo

seemed unaware that the temperature during the barrel-loading

process never exceeded seventy degrees and that Velez had

previously performed this type of manual labor. (Id.) Agro’s

counsel faxed her several witness statements confirming that

Velez had performed this type of manual labor in the past, and

DeLeonardo “indicated that she was very uncomfortable with the

EEOC’s position . . . .” (Id. at 3-4.)

DeLeonardo ultimately never entered an appearance in the

case. Agro now believes the reference in the MSPB decision to

DeLeonardo’s claim that Guerrier misled the EEOC into filing

litigation refers to the Velez case. Consequently, Agro sought

production of DeLeonardo’s complaint that resulted in the MSPB

decision. The EEOC refused to let DeLeonardo disclose the

complaint. Agro then noticed DeLeonardo’s deposition. The EEOC

filed a motion for protective order, citing attorney-client

privilege, work product privilege, and the deliberative process

privilege.

The district court conducted a telephone conference and

2 As used in this case, “Commission” refers to the five- member commission that heads the EEOC. The Commission’s approval is required to proceed with litigation in certain cases.

-6- denied the EEOC’s motion. In its oral ruling, the district court

ordered that Agro could question DeLeonardo about her mental

impressions regarding the propriety of bringing or continuing the

lawsuit and the motivation for the litigation if the suit was not

justified. The court also ordered that the EEOC produce (1)

Guerrier’s report to the Office of General Counsel in which

Guerrier recommended litigation; and (2) the assessment of the

General Counsel that went to the Commission recommending

litigation.

After the district court denied the EEOC’s motion to stay,

the EEOC filed the instant petition for writ of mandamus with

this court. We stayed the deposition of DeLeonardo so that we

could fully analyze the issues presented in this case. Both

sides have briefed the issues, and we now turn to the merits of

our decision.

II. ANALYSIS

A writ of mandamus is an extraordinary remedy that is

reserved for extraordinary situations. In re Terra Int’l, Inc.,

134 F.3d 302, 305 (5th Cir. 1998) (per curiam). To obtain a writ

of mandamus, the following criteria must be met: (1) the

petitioner must have no other adequate means to obtain the relief

it desires; (2) the petitioner’s right to the writ must be clear

and indisputable; and (3) the issuing court, in the exercise of

-7- its discretion, must be satisfied that the writ is appropriate

under the circumstances. Cheney v. U.S. Dist. Ct. for the Dist.

of Columbia, 542 U.S. 367, 380-81 (2004); In re United States,

397 F.3d 274, 282 (5th Cir. 2005) (per curiam).

As to the first requirement, this court has recognized that

mandamus relief is appropriate in the context of privileged

documents, as an order requiring production of those documents

would not be reviewable on appeal. In re U.S. Dep’t of Homeland

Sec., 459 F.3d 565, 568 (5th Cir. 2006). “[T]he difficulty of

obtaining effective review of discovery orders, the serious

injury that sometimes results from such orders, and the often

recurring nature of discovery issues” support the use of mandamus

in exceptional cases. Id. (quoting In re Burlington N., Inc.,

822 F.2d 518, 522 (5th Cir. 1987)). In this case, the district

court ordered the deposition of an EEOC attorney and the

production of several documents that the EEOC claims are

privileged. Assuming privilege exists, there is no adequate

remedy on appeal for the revelation of this information.

Having satisfied the first requirement of mandamus, the

court now determines whether the EEOC has met its burden with

respect to the second mandamus requirement–demonstrating that its

right to mandamus relief is clear and indisputable.

-8- A. The Parties’ Arguments and the District Court’s Order

To fully analyze the necessity and relevance of the

information Agro seeks to discover, we must first consider what

Agro must prove to receive attorneys’ fees, what Agro hopes to

learn through the DeLeonardo deposition and the production of the

internal EEOC documents, and how that information will support

Agro’s claim.3 As noted earlier, Agro seeks attorneys’ fees as a

prevailing party pursuant to 42 U.S.C. § 12205. This court has

determined that the considerations that govern the ADA’s fee-

shifting provision are the same as those that govern fee-shifting

under Title VII and 42 U.S.C. § 1988. No Barriers, Inc. v.

Brinker Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir. 2001).

Under that standard, a prevailing defendant may not receive fees

“unless a court finds that [the plaintiff’s] claim was frivolous,

unreasonable, or groundless, or that the plaintiff continued to

litigate after it clearly became so.” Id. (quoting

Christiansburg, 434 U.S. at 422). In determining whether a suit

is frivolous, a court should consider factors such as whether the

plaintiff established a prima facie case, whether the defendant

offered to settle, and whether the court dismissed the case or

3 Nothing in this opinion should be construed as a comment one way or the other on the merits of Agro’s motion for attorneys’ fees. We leave that decision to the district court.

-9- held a full trial. Myers v. City of W. Monroe, 211 F.3d 289, 292

(5th Cir. 2000) (construing 42 U.S.C. § 1988); Walker v. City of

Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (same). A suit is

“frivolous” if it is “so lacking in arguable merit as to be

groundless or without foundation . . . .” Walker, 168 F.3d at

240 (internal quotes and citation omitted).

Here, Agro contends that the EEOC either knew or should have

known that Velez was not disabled before it filed suit.

Specifically, Agro argues that Velez had performed similar types

of manual labor in the past. Further, Agro asserts that the EEOC

either knew or should have known that the working conditions on

the day Velez refused to report were not above eighty degrees, so

Velez’s alleged disability would not have caused him any

problems. Stated differently, Agro claims that the facts

available to the EEOC, through Velez’s testimony and the

information received by DeLeonardo, rendered further litigation

frivolous.

In its response, and key to this court’s decision, the EEOC

does not assert that it was unaware of this information or that

it was misled by one of its attorneys into filing suit. Instead,

the EEOC defends against the imposition of attorneys’ fees on the

ground that there were sufficient facts to go forward with the

suit. In other words, in its argument regarding the propriety of

-10- an attorneys’ fees award, the EEOC does not deny that it was

aware of or had access to the information that Agro contends made

this suit frivolous. Therefore, for purposes of this decision,

the information known by Guerrier, regardless of whether he

communicated it to the Commission, and the information obtained

by DeLeonardo, regardless of whom she communicated it to, was

known to the EEOC because it was known by its attorneys.4

To support its claim for attorneys’ fees, Agro seeks to

depose DeLeonardo on several topics. In its argument before the

district court, Agro stated it was interested in (1) what

DeLeonardo communicated in May 2005; (2) when she communicated

it; (3) how she communicated it; (4) what specific facts led her

to believe Guerrier did not properly advise the Commission; and

(5) what action was taken in response to DeLeonardo’s revelation

of the “real truth and the complete truth” to the EEOC.

(Transcript of 10/23/06 hearing at 29.) As stated in its

briefing before this court, Agro is not seeking to discover

DeLeonardo’s or Guerrier’s mental impressions of this case.

(Agro Br. at 19.) Instead, Agro claims it only wants to know why

the EEOC continued to litigate the case after being advised by

4 We do not now decide whether the EEOC could deny that it was aware of information possessed by its own attorneys; however, in this case, the EEOC has not denied it.

-11- DeLeonardo that it had been misled into pursuing this litigation

in the first place. (Id. at 20.)

In sum, based on its arguments to the district court and to

this court, Agro seeks the following information: (1) what

Guerrier said to the Commission; (2) why Guerrier’s statements

were misleading; (3) what DeLeonardo revealed; and (4) why the

litigation continued. As noted above, the district court

required the EEOC to produce the documents sent from Guerrier to

the General Counsel and from the General Counsel to the

Commission regarding possible litigation. (Transcript of

10/23/06 hearing at 35-36.) The district court also ordered that

DeLeonardo be deposed and that Agro could question her about her

mental impressions of the case and why she believed the EEOC

chose to continue with the litigation. (Id. at 32-33.) The EEOC

contends this information is privileged under the attorney-

client, work product, and deliberative process privileges. We

will first consider the attorney-client and work product

privileges.

B. Attorney-Client and Work Product Privileges

As the party asserting privilege, the EEOC bears the burden

of demonstrating that DeLeonardo’s testimony and the internal

EEOC documents are privileged. See United States v. Rodriguez,

948 F.2d 914, 916 (5th Cir. 1991) (“The burden of establishing

-12- privilege rests on the party who invokes it.”). With respect to

the attorney-client privilege, we note that because this case

concerns the adjudication of federal rights, the federal common

law of attorney-client privilege applies. Willy v. Admin. Review

Bd., 423 F.3d 483, 495 (5th Cir. 2005).

The attorney-client privilege is recognized as “the oldest

of the privileges . . . known to the common law.” United States

v. Zolin, 491 U.S. 554, 562 (1989) (internal quotation marks

omitted). Its purpose is “to encourage full and frank

communication between attorneys and their clients and thereby

promote broader public interests in the observance of law and

administration of justice.” Id. (internal quotation marks

omitted); see also In re Grand Jury Subpoena, 419 F.3d 329, 338

(5th Cir. 2005). Simply stated, under this rule, “an attorney

may not disclose his client’s confidences.” Willy, 423 F.3d at

495.

Similarly, the work product privilege “serves to protect the

interests of clients and their attorneys in preventing

disclosures about the case by shielding the lawyer’s mental

processes from his adversary.” In re Grand Jury, 419 F.3d at 339

(internal citations and quotation marks omitted). The work

product privilege extends to and protects documents prepared in

anticipation of litigation. In re Kaiser Aluminum & Chem. Co.,

-13- 214 F.3d 586, 593 (5th Cir. 2000) (citing FED. R. CIV. P.

26(b)(3)).

Here, the information sought by Agro and ordered to be

disclosed by the district court falls within the attorney-client

and work product privileges. With respect to the proposed

testimony from DeLeonardo, Agro seeks to delve into her

discussions with other EEOC attorneys about the merits, or lack

thereof, of this case, specifically, whether the facts warranted

continued litigation. These communications are protected by the

attorney-client privilege. See Cedrone v. Unity Sav. Ass’n, 103

F.R.D. 423, 429 (E.D. Pa. 1984) (finding oral communications

between attorneys in the same office concerning the

representation of a client to be privileged); see also RESTATEMENT

(THIRD) OF THE LAW GOVERNING LAWYERS § 70 cmt. g. (2000). Therefore,

DeLeonardo’s testimony as to what Guerrier told the General

Counsel, what DeLeonardo told other EEOC attorneys, and what

those attorneys told DeLeonardo about why the litigation was

going to continue are all privileged communications.

As to the reports from Guerrier to the General Counsel and

from the General Counsel to the Commission, they are also clearly

privileged. The documents, as described by the parties, contain

an analysis of the facts of Velez’s case, both strengths and

weaknesses, and a recommendation of whether litigation is

-14- appropriate. In NLRB v. Sears, Roebuck & Co., the Supreme Court

considered whether internal memoranda produced by the Office of

General Counsel discussing the General Counsel’s reasons for

filing suit were covered by the work product privilege. 421 U.S.

132 (1975). The Supreme Court held that such documents fell

squarely within the work product protection. Id. at 160. The

Supreme Court noted that “[w]hatever the outer boundaries of the

attorney’s work-product rule are, the rule clearly applies to

memoranda prepared by an attorney in contemplation of litigation

which set forth the attorney’s theory of the case and his

litigation strategy.” Id. at 154.

Agro does not contest that the information it seeks by the

deposition and document production is privileged, except to argue

that the attorney-client and work product privileges do not

protect testimony concerning the factual accuracy of Guerrier’s

report. However, regardless of its accuracy, Guerrier’s report

is still a communication between EEOC attorneys and is protected

by privilege. Further, as discussed in the next section, given

the EEOC’s position on Agro’s claim for attorneys’ fees, the

factual accuracy of Guerrier’s report is not relevant.

Therefore, DeLeonardo’s deposition and the documents ordered to

be produced by the district court are privileged under the

attorney-client and work product doctrines, and Agro must show an

-15- exception to privilege.

C. Necessity Exception

The first possible exception to privilege in this case is

necessity, which appears to be the basis for the district court’s

decision. The district court stated that this was a search for

truth and that it needed the best possible information to make

its decision regarding attorneys’ fees. (Transcript of 10/23/06

hearing at 31-32.) The court also said that there was no other

way for it to get the information it needed. (Id. at 35.)

There is a necessity exception to the work product

privilege, as found in Rule 26(b)(3) of the Federal Rules of

Civil Procedure, which states that documents “prepared in

anticipation of litigation or for trial” may be discovered “only

upon a showing that the party seeking discovery has substantial

need of the materials in the preparation of the party’s case and

that the party is unable without undue hardship to obtain the

substantial equivalent of the materials by other means.”5

However, even in such a case, the court “shall protect against

5 There is a question as to whether the attorney-client privilege is subject to a similar exception based on necessity in these circumstances. See Arcuri v. Trump Taj Mahal Assocs., 154 F.R.D. 97, 105 (D.N.J. 1994) (stating the attorney-client privilege has no “needs” exception). However, because necessity does not provide a reason to disclose the communications in this case, the court need not reach whether the attorney-client privilege is even subject to such an exception.

-16- disclosure of the mental impressions, conclusions, opinions, or

legal theories of an attorney . . . concerning the litigation.”

Id.

Applying this to the order of the district court, it becomes

clear that the district court exceeded what was appropriate in

this case. The documents from Guerrier to the General Counsel

and from the General Counsel to the Commission, as described by

the parties, contain the mental impressions, conclusions,

opinions, and legal theories of attorneys involved in the Velez

case. Thus, despite any “necessity” arguments, under Rule

26(b)(3), the district court cannot order their production.6

There is also little or no need for the district court to

delve into what information Guerrier withheld from the

Commission. The only reason Guerrier’s alleged misleading

communication would be relevant to the issue of attorneys’ fees

is if it could somehow absolve the EEOC of its responsibility for

filing a frivolous lawsuit. However, as noted above, the EEOC

has not defended against the imposition of attorneys’ fees on the

6 Agro argues that the factual portions of the documents could be produced. The district court, however, ordered production of the entire file, not just the factual portions. Further, given the analysis in this case, the factual portions of the documents are not so necessary to the attorneys’ fees argument as to overcome privilege.

-17- ground that it was misled by Guerrier into filing suit.7

Therefore, the EEOC, through Guerrier and later DeLeonardo, was

in possession of the facts that Agro contends made this a

frivolous lawsuit. Whether these facts were appropriately

communicated between different employees and the Commission is

not a question the district court need answer.

Further, there is no “substantial need” for DeLeonardo’s

testimony regarding her belief of the propriety of continuing the

lawsuit or the EEOC’s reasons for doing so. Whether the lawsuit

should have been continued is a question for the district court

to answer in its determination of frivolousness. We are

confident the district court can make that decision without the

opinion testimony of DeLeonardo.

With respect to the EEOC’s reasons for continuing the suit,

Agro argues extensively that it needs to know the EEOC’s

motivation so it can demonstrate bad faith on the part of the

EEOC. However, a bad faith finding is not required for an award

of attorneys’ fees. Christiansburg, 434 U.S. at 421. While we

do not deny that evidence of bad faith would be helpful to Agro’s

case, it does not, in and of itself, justify breaching attorney-

7 Were the EEOC to contend that attorneys’ fees were unwarranted because it had been misled by Guerrier, there would be a strong argument for waiver of privilege.

-18- client privilege. To hold otherwise would open the door to the

routine deposition of attorneys any time a claim of frivolousness

or bad faith is made. Consequently, the necessity exception does

not warrant the deposition of DeLeonardo or the production of the

internal EEOC documents in this case.

D. Crime-Fraud Exception

Agro also argues that the crime-fraud exception warrants

disclosure of the privileged information it seeks. Specifically,

Agro contends that the EEOC’s decision to continue with frivolous

litigation was fraudulent and that this fraud should be

sufficient to overcome privilege. The district court did not

appear to rely on the crime-fraud exception in its ruling, but we

will address it, as it has been raised at both the district court

and appellate levels.

The crime-fraud exception applies to both the attorney-

client and work product privileges. In re Grand Jury, 419 F.3d

at 335. Pursuant to the crime-fraud exception, privilege is

overcome when an attorney-client communication or work product is

intended to further continuing or future criminal or fraudulent

activity. Id. The party seeking discovery of privileged

information bears the burden of establishing a prima facie case

that the attorney-client relationship was intended to further

criminal or fraudulent activity. Id.

-19- Agro did not produce any evidence or argument at the

district court level that the EEOC’s actions constituted a

crime.8 Therefore, the question is whether Agro produced

sufficient evidence that the EEOC and its attorneys were engaged

in ongoing fraudulent activity. It has not. The only evidence

of fraud in this case is Agro’s argument and evidence that the

EEOC’s lawsuit was frivolous, which does nothing to distinguish

it from the many other cases in which the defendant believes the

plaintiff’s claims are meritless. We do not construe the crime-

fraud exception so broadly.

The one unique feature of this case is the fact that Agro

has found an EEOC attorney who appears to agree that the case

lacked merit. This, however, does not mean that the EEOC was

engaged in fraud. Negligent handling of the case or sheer

incompetence could just as easily explain why the EEOC continued

to litigate, assuming the case did, in fact, lack merit.

Further, it is not unusual for attorneys to disagree about the

merits of a case. This disagreement does not, however,

constitute fraud.

8 Agro asserts in a footnote in its brief that Guerrier’s actions in allegedly making a false statement to a government agency may constitute a crime. See 18 U.S.C. § 1001. Agro, however, did not raise this issue before the district court and has, therefore, waived it on appeal. See Tex. Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2005).

-20- We understand the district court’s concern that an EEOC

attorney may have misled the Commission into approving frivolous

litigation. However, the resolution of that issue has little or

no bearing on the question of whether the litigation was actually

frivolous, which is all that is at issue at this stage of the

case. The question of frivolousness can be answered on the facts

of the case without delving into the confidential and privileged

communications of EEOC attorneys.

In sum, the information sought by Agro by way of

DeLeonardo’s deposition and the production of the internal EEOC

documents is privileged and no exception to privilege has been

shown. Therefore, the EEOC has met its burden under the mandamus

analysis of showing that its right to mandamus relief is clear

and indisputable.9 Given the facts of this case, the privileges

at issue, and the analysis above, we, in the exercise of our

discretion, determine that it is appropriate to grant the writ of

mandamus.

III. CONCLUSION

For the foregoing reasons, we GRANT the writ of mandamus.

WRIT GRANTED.

9 Because we reach this decision on the basis of the attorney-client and work product privileges alone, we do not reach the issue of the deliberative process privilege.

-21- Judge DEMOSS would deny the petition for writ of mandamus

and would deny the motion for stay of the discovery proceedings.

-22-