In Re Santa Fe International Corp.

272 F.3d 705, 2001 WL 1381192
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 13, 2001
Docket01-40421
StatusPublished
Cited by85 cases

This text of 272 F.3d 705 (In Re Santa Fe International Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Santa Fe International Corp., 272 F.3d 705, 2001 WL 1381192 (5th Cir. 2001).

Opinions

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.

I.

Plaintiffs, who are present and former offshore drilling workers for Santa Fe and [707]*707some 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 spch 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 [708]*708for 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 [709]*709been 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
272 F.3d 705, 2001 WL 1381192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-santa-fe-international-corp-ca5-2001.