1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-9-1997

In Re: Ford Mtr Co v.

Precedential or Non-Precedential:

Docket 96-2092,96-2133

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1

 IN THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 NOS. 96-2092 and 96-2133 

IN RE: FORD MOTOR COMPANY, 

 Petitioner in No. 96-2092

______________________ 

SUSAN I. KELLY, Administratrix and Personal 

Representative of the Estate of GERALD A. KELLY, 

deceased, on Behalf of Said Decedent’s 

Heirs-At-Law and Next-Of-Kin and on Her Own Behalf, 

 Respondent/Appellee

v. 

 FORD MOTOR COMPANY, 

 Appellant in No. 96-2133

 _______________________________________ 

 Consolidated Petition For A Writ of Mandamus And 

 Appeal From the United States District Court For 

 The Eastern District of Pennsylvania 

 (E.D. PA Civ. No. 94-cv-02579) 

 _________________________________________ 

 Argued: January 28, 1997 

 Before: BECKER, ROTH, Circuit Judges, and 

 ORLOFSKY, District Judge.

*

 _______________ 

 (Filed April 9, 1997) 

JOSEPH V. PINTO, ESQUIRE (ARGUED) 

EVAN S. EISNER, ESQUIRE 

ROBERT TOLAND, II, ESQUIRE 

White and Williams 

1800 One Liberty Place 

1650 Market Street 

Philadelphia, PA 19103-7395 

 

 

* Honorable Stephen M. Orlofsky, United States District 

Judge for the District of New Jersey, sitting by designation. 
2

JOHN M. THOMAS, ESQUIRE 

Ford Motor Company 

Office of General Counsel 

1500 Parklane Towers West 

Suite 1500 

Dearborn, MI 48126 

Attorneys for Petitioner in No. 96-2092

Appellant in No. 96-2133, Ford Motor Company

ROBERT C. DANIELS, ESQUIRE (ARGUED) 

LARRY BENDESKY, ESQUIRE 

Daniels, Saltz, Mongeluzzi & Barrett, LTD. 

One Liberty Place, 34th Floor 

1650 Market Street 

Philadelphia, PA 19103-7395 

Attorneys for Respondent in No. 96-2092

Appellee in No. 96-2133, Susan I. Kelly

 __________________________ 

 OPINION OF THE COURT 

 ___________________________ 

BECKER, Circuit Judge. 

 By this appeal and companion petition for a writ of mandamus 

in one of the Bronco II product liability cases, the defendant 

Ford Motor Company, invoking the attorney-client privilege and/or 

the work product doctrine, challenges a district court order 

denying it protection from disclosure in discovery of certain 

documents requested by the plaintiff, Susan Kelly. The question 

of the appropriate jurisdictional vehicle is precedentially 

important, for our ability to review such disputes is frequently 

called into question. Therefore, as a threshold matter, we 

address the question whether the challenged order is appealable, 

see 28 U.S.C. § 1291, or reviewable by mandamus, see 28 U.S.C. § 

1651. 
3

 We conclude that, because the district court’s order finally 

resolved an important issue separate from the merits that would 

be effectively unreviewable after final judgment, we have 

appellate jurisdiction under the collateral order doctrine. In 

reaching this conclusion, we consider in some detail the anatomy 

of the “importance” facet of that doctrine, and we necessarily 

resolve certain tensions that exist in our recent jurisprudence 

in the area. Because we have appellate jurisdiction, we do not 

review the challenged order by way of mandamus, even though our 

case law would require us to do so if we lacked appellate 

jurisdiction. 

 In contrast, the merits issues are quite straightforward. 

We have examined each of the documents in question in camera. 

They fall into two groups -- minutes of a meeting attended by 

top-level executives of Ford Motor Company regarding the Bronco 

II, and agendas for a discussion of the technical characteristics 

of the Bronco II. We conclude that the minutes of the meeting 

reflect that the recorded communications were for the purpose of 

obtaining legal advice and hence are protected by the attorneyclient privilege. With respect to the agendas and the 

handwritten notes referring to them, we determine that they were 

produced by an agent of an attorney in preparation for litigation 

and hence are protected by the work product doctrine; the other 

requirements for work product doctrine are not at issue. We 

will, therefore, reverse the challenged portions of the district 

court’s order and remand with directions to issue an appropriate 

order protecting the documents from discovery. 
4

 I. FACTS AND PROCEDURAL HISTORY 

 In the underlying lawsuit, Kelly claims that Ford 

defectively designed the Bronco II, a four-wheel drive utility 

vehicle with a relatively high center of gravity, by rendering it 

too susceptible to rollover.1 That defective design, Kelly 

submits, caused the death of her husband, Gerald Kelly, who was 

killed when the Bronco II he was driving rolled over. Kelly 

sought to discover Ford documents related to the development, 

marketing, and safety of the Bronco II. Ford responded, in part, 

by asserting that the attorney-client privilege and the work 

product doctrine shielded certain documents from discovery. Ford 

sought from the district court a protective order that would have 

preserved the confidentiality of those documents. By letter 

ruling of October 4, 1996, the district court held that, for the 

vast majority of documents for which Ford sought protection, the 

attorney-client privilege and/or the work product doctrine 

applied. However, the court found that two sets of documents -- 

those at issue here -- were discoverable. 

 The first set of documents is the final draft of the minutes 

of a November 18, 1982 meeting of Ford’s Policy and Strategy 

Committee. The Policy and Strategy Committee is made up of top 

executives at Ford, and acts as an advisory body to Ford’s chief 

executive officer. At the meeting in question, Ford’s general 

counsel, Henry R. Nolte, Jr., briefed the committee about a 

report he had drafted regarding the Bronco II. According to the 

 

 

1Jurisdiction is based on diversity of citizenship. See 28 

U.S.C. § 1332. 
5

minutes, the committee engaged in an extensive discussion of the 

report and ultimately adopted the recommendations contained 

therein. 

 The second set of documents is composed of a series of 

agendas, one with handwritten notations, for a meeting in 1988, 

and one document pertaining to a 1989 meeting on which 

handwritten notes refer to the 1988 agendas. By 1988, numerous 

lawsuits similar to that brought by Kelly were pending, alleging 

faulty design of the Bronco II. As part of its defense strategy, 

Ford retained an outside technical consultant, Failure Analysis 

Associates (FAA), to assist in the defense of those lawsuits. 

FAA, in turn, relied in part on the help of in-house technical 

assistants to Ford. Ernest Grush, one of these technical 

assistants, prepared the agendas for the 1988 meeting. The 

meeting was called to explain the technical aspects of the Bronco 

II litigation defense strategy, and Ford attorneys were present. 

 Grush has declared that the handwritten notes on the document 

pertaining to the 1989 meeting are his, and that they refer to 

the 1988 meeting. 

 On October 4, 1996, the district court made a letter ruling 

denying protection for the documents here at issue. Ford 

requested that the court reconsider its decision. On November 

13, 1996, the court denied Ford’s request and, by a subsequent 

letter ruling of November 27, 1996, ordered the production of the 

documents by December 18, 1996. The mandamus petition followed. 

 On December 18, the court again ordered the production of the 

documents. Ford sought and we granted a motion for a stay of the 
6

December 18 order. Ford also filed a notice of appeal from the 

December 18 ruling. We consolidated the appeal and the petition 

for a writ of mandamus and will, therefore, consider them 

together. 

II. APPELLATE AND MANDAMUS JURISDICTION 

A. Introduction; The First Prong of Cohen 

 The question of our jurisdiction is somewhat complicated. A 

writ of mandamus is an extraordinary exercise of our 

jurisdiction; moreover, such a writ is not a substitute for 

appeal. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996). 

Because we will not issue a writ of mandamus if relief may be 

granted by way of an ordinary appeal, we must first determine 

whether Ford may appeal the district court’s ruling. See

Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996). 

 A fortiori, only if an appeal is unavailable will we determine 

whether a writ of mandamus will issue. See PAS v. Travelers Ins. 

Co., 7 F.3d 349, 352 (3d Cir. 1993). 

 As a general rule, discovery orders are not final orders of 

the district court for purposes of obtaining appellate 

jurisdiction under 28 U.S.C. § 1291. See Hahnemann Univ., 74 

F.2d at 461. Therefore, discovery orders normally may not be 

appealed until after final judgment. See id. However, the 

collateral order doctrine, first enunciated by the Supreme Court 

in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), 

provides a narrow exception to the general rule permitting 

appellate review only of final orders. An appeal of a nonfinal 

order will lie if (1) the order from which the appellant appeals 
7

conclusively determines the disputed question; (2) the order 

resolves an important issue that is completely separate from the 

merits of the dispute; and (3) the order is effectively 

unreviewable on appeal from a final judgment. See Rhone-Poulenc 

Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 860 (3d Cir. 1994). 

 It is beyond cavil that the first element is satisfied here. 

 The district court’s December 18 order requiring the production 

of the disputed documents leaves no room for further 

consideration by the district court of the claim that the 

documents are protected. 

B. The Second Prong of Cohen 

1. Separability 

 The most familiar aspect of the second prong of Cohen is 

separability from the merits. Kelly submits that a determination 

of the issues of privilege and work product will in fact 

implicate the merits of the underlying dispute. We believe that 

it will not. As we understand the merits of the underlying case, 

Kelly seeks to show what Ford knew about the alleged rollover 

propensity of the Bronco II, when it knew about this alleged 

propensity, and what it did about the alleged propensity. The 

contents of the documents will certainly shed some light on these 

questions. However, our resolution of the privilege and work 

product issues has nothing to do with them. We are not concerned 

at this juncture about what Ford knew, when it gained this 

knowledge, or what it did about it. Our inquiry largely involves 

questions of context -- e.g., who prepared the relevant 

documents, when were they prepared, and what was their purpose. 
8

It involves content only insofar as we must ensure that the 

documents were prepared in certain contexts -- e.g., do the 

documents contain legal advice or do they disclose legal 

strategies? We are not required, nor will we undertake, to 

resolve disputed questions of Ford’s knowledge of and Ford’s 

actions with respect to the alleged rollover propensity. 

 Kelly’s assertions to the contrary notwithstanding, neither 

Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986), 

nor State of New York v. United States Metals Refining Co., 771 

F.2d 796 (3d Cir. 1985) [hereinafter USMR], undermine this 

conclusion. In both Cipollone and USMR, the defendants sought to 

protect materials gathered for or discovered during litigation 

from public dissemination. Each defendant claimed that the 

sought-after material somehow distorted the actual facts and 

would, therefore, mislead the public about those facts.2 That 

claim, we held in both cases, would require us to examine the 

merits of the underlying dispute because we would need to make 

some determination of the actual facts presented by the case so 

as to compare them to the allegedly distorting or misleading 

material. See Cipollone, 785 F.2d at 1117; USMR, 771 F.2d at 

799-800. No such determination need be made here. We can 

resolve the privilege and work product issues without delving 

into the disputed facts about Ford’s knowledge and actions. 

 

 

2In Cipollone, the defendants claimed that the material at 

issue, though not trade secrets, would nonetheless cause 

embarrassment if released. See Cipollone, 785 F.2d at 1121. In 

USMR, the defendant sought to keep confidential a report that the 

plaintiffs had prepared detailing the pollution at the 

defendant’s plant. See USMR, 771 F.2d at 798. 
9

2. Importance 

 The parties have not suggested that the “importance” 

criterion is not satisfied. However, because of our independent 

responsibility to examine our own jurisdiction sua sponte, and 

because the jurisprudence surrounding the importance criterion is 

somewhat murky, we will undertake a close analysis of this aspect 

of the collateral order doctrine. Although “[m]ost courts have 

paid little attention to the ‘importance’ requirement,” John C. 

Nagel, Replacing the Crazy Quilt of Interlocutory Appeals 

Jurisprudence With Discretionary Review, 44 Duke L.J. 200, 207 

(1994), the Supreme Court has recently made patent that confusion 

over the criterion cannot lead to the conclusion that 

“‘importance’ is itself unimportant.” Digital Equip. Corp. v. 

Desktop Direct, Inc., U.S. , 114 S. Ct. 1992, 2001 

(1994).3 Rather, application of the Cohen collateral order 

 

 

3In some formulations of the collateral order doctrine, the 

importance criterion is contained in the second prong of the 

test; in others, it is considered a factor in the third prong. 

See Digital Equip., 114 S. Ct. at 2001. Although the language in 

Cohen itself implies that it is a separate element of the 

collateral order test, see Cohen, 337 U.S. at 546 (“This decision 

appears to fall in that small class which finally determine 

claims of right separable from, and collateral to, rights 

asserted in the action, too important to be denied review and too 

independent of the cause itself to require that appellate 

consideration be deferred until the whole case is adjudicated.”) 

(emphasis added), the most frequently cited Supreme Court 

statement of the test incorporates the importance criterion in 

the second prong, see Coopers & Lybrand v. Livesay, 437 U.S. 463, 

468 (1978) (“To come within the ‘small class’ of decisions 

excepted from the final-judgment rule by Cohen, the order must 

conclusively determine the disputed question, resolve an 

important issue completely separate from the merits of the 

action, and be effectively unreviewable on appeal from a final 

judgment.”) (emphasis added). However, the Supreme Court 

recently suggested that the importance criterion is a necessary 

part of the third prong of the test. See Digital Equip., 114 S. 

Ct. at 2001 (“[T]he third Cohen question . . . simply cannot be 
10

doctrine is incomplete without an analysis of the importance of 

the issue sought to be reviewed. 

 Importance has a particular meaning in this context. It 

does not only refer to general jurisprudential importance. 

Rather, the overarching principle governing “importance” is that, 

for the purposes of the Cohen test, an issue is important if the 

interests that would potentially go unprotected without immediate 

appellate review of that issue are significant relative to the 

efficiency interests sought to be advanced by adherence to the 

final judgment rule.4 In Johnson v. Jones, U.S. , 115 S. 

Ct. 2151 (1995), for example, the Supreme Court noted that any 

analysis of the Cohen test required an examination of the 

competing considerations that underlie finality, i.e., the costs 

 

answered without a judgment about the value of the interests that 

would be lost through rigorous application of the final judgment 

requirement.”). Indeed, the ratio decidendi of this portion of 

the opinion, see infra, has third prong overtones. Yet, in its 

most recent pronouncement on the collateral order doctrine, the 

Court included “importance” as a separate prong. See Quackenbush 

v. Allstate Ins. Co., U.S. , 116 S. Ct. 1712, 1718-19 

(1996). As noted in the text, this court generally incorporates 

the importance criterion within the second prong. No matter 

where it is placed, however, it is clear that it must be examined 

in order to satisfy the collateral order doctrine. 

 

4The Supreme Court has recently described the interests 

protected by the final judgment rule as follows: 

An interlocutory appeal can make it more difficult for trial 

judges to do their basic job -- supervising trial 

proceedings. It can threaten those proceedings with delay, 

adding costs and diminishing coherence. It also risks 

additional, and unnecessary, appellate court work either 

when it presents appellate courts with less developed 

records or when it brings them appeals that, had the trial 

simply proceeded, would have turned out to be unnecessary. 

Johnson v. Jones, U.S. , 115 S. Ct. 2151, 2154 (1995). 
11

of piecemeal review on the one hand against the costs of delay on 

the other. See id. at 2157. The Court in Digital Equipment

stated this in a slightly different manner, noting that the Cohen

test requires a “judgment about the value of the interests that 

would be lost through rigorous application of a final judgment 

requirement,” Digital Equip., 114 S. Ct. at 2001, and that 

“‘important’ in Cohen’s sense [means] being weightier than the 

societal interests advanced by the ordinary operation of final 

judgment principles,” id. at 2002. As a final example, Justice 

Scalia, in a concurrence, stated that a right is important for 

Cohen purposes only if it “overcome[s] the policies militating 

against interlocutory appeals.” See Lauro Lines S.R.L. v. 

Chasser, 490 U.S. 495, 503 (1989) (Scalia, J., concurring). 

 Although one might assume that collateral finality would be 

determined by a bright-line rule, the importance determination 

under the Supreme Court’s jurisprudence is rather a function of a 

balancing process. See, e.g., Behrens v. Pelletier, U.S. 

 116 S. Ct. 834, 844 (1996) (Breyer, J., dissenting) (canvassing 

recent collateral order jurisprudence and noting that the 

importance analysis is a balancing of interests); Johnson, 115 S. 

Ct. at 2157 (stating that in determining appealability a court 

must look to the competing considerations that underlie questions 

of finality, namely “the inconvenience and costs of piecemeal 

review on the one hand and the danger of denying justice by delay 

on the other” (citations omitted)). When engaging in this 

balancing, the Court has relied on a number of factors. We 

mention here only a few contained in recent cases. 
12

 In Quackenbush v. Allstate Ins. Co., U.S. , 116 S. 

Ct. 1712 (1996), the Court allowed the immediate appeal of an 

abstention-based remand in part because the interests implicated 

by the appeal -- namely, the scope of federal jurisdiction and 

the desire for comity between the federal and the individual 

state judicial systems -- were sufficiently important. See id.

at 1719-20. In Digital Equipment, the Court reasoned that a 

right contained in a private settlement agreement was not 

sufficiently important in part because that right did not 

“originat[e] in the Constitution or statutes.” Digital Equip., 

114 S. Ct. at 2001. In Puerto Rico Aqueduct and Sewer Auth. v. 

Metcalf & Eddy, Inc., U.S. , 113 S. Ct. 684 (1993), the 

Court allowed the immediate appeal of a denial of Eleventh 

Amendment immunity in part because the right at issue “involves a 

claim to a fundamental constitutional protection.” Id. at 688. 

And, in Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court 

allowed the immediate appeal of a claim to qualified immunity in 

part because such immunity was intended to reduce “‘the general 

costs of subjecting officials to the risks of trial -- 

distraction of officials from their governmental duties, 

inhibition of discretionary action, and deterrence of able people 

from public service.’” Id. at 526 (quoting Harlow v. Fitzgerald, 

457 U.S. 800, 816 (1982)). 

 In all of these cases, the Court has compared the apple of 

the desire to avoid piecemeal litigation to the orange of, for 

example, federalism.5 In terms of analytic purity, the results 

 

 

5In addition to the collateral order doctrine cases cited 
13

of such comparisons are, of course, debatable. What is important 

for present purposes is that, in a number of the just-cited 

cases, the Court felt that, because of the imperative of 

preventing impairment of some institutionally significant status 

or relationship, the danger of denying justice by reason of delay 

in appellate adjudication outweighed the inefficiencies flowing 

from interlocutory appeal. By the same calipers, we are 

convinced that in the present case the orange of the interests 

protected by the attorney-client privilege (which would be 

eviscerated by forced disclosure of privileged material) is 

sufficiently significant relative to the apple of the interests 

protected by the final judgment rule to satisfy the importance 

criterion of the second Cohen prong. 

 In the few cases in which our court has addressed the 

importance criterion, we have been less than pellucid in our 

 

elsewhere in this opinion, we list in this footnote a number of 

Supreme Court collateral order doctrine cases and the issues that 

were appealed therein as illustrative of the type of balancing 

that might be implicated. The list is not exhaustive, nor does 

the Court explicitly engage in balancing in each of the cases. 

Those cases are: Swint v. Chambers County Comm’n, U.S. , 

115 S. Ct. 1203 (1995) (municipal liability); Midland Asphalt 

Corp. v. United States, 489 U.S. 794 (1989) (public disclosure of 

grand jury matters); Van Cauwenberghe v. Biard, 486 U.S. 517 

(1988) (service of process and forum non conveniens); Gulfstream 

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) 

(abstention-related stay); J.B. Stringfellow, Jr. v. Concerned 

Neighbors in Action, 480 U.S. 370 (1987) (intervention); 

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985) 

(disqualification of counsel); Moses H. Cone Mem’l Hosp. v. 

Mercury Constr. Corp., 460 U.S. 1 (1983) (abstention-related 

stay); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 

(1981) (disqualification of counsel); Helstoski v. Meanor, 442 

U.S. 500 (1979) (Speech and Debate Clause); United States v. 

MacDonald, 435 U.S. 850 (1978) (speedy trial); Abney v. United 

States, 431 U.S. 651 (1977) (double jeopardy). 
14

discussion. For example, we stated in Nemours Found. v. 

Manganaro Corp., New England, 878 F.2d 98 (3d Cir. 1989), that 

the issue on appeal must be important “in a jurisprudential 

sense,” see id. at 100, without explaining what is meant by 

“jurisprudential.” And, in examining whether the relevant issue 

was important, we have from time to time (though not 

consistently) raised the question whether the issue presents “a 

serious and unsettled question.” See, e.g., Federal Ins. Co. v. 

Richard I. Rubin & Co., 12 F.3d 1270, 1282 (3d Cir. 1993); Praxis 

Properties v. Colonial Sav. Bank, 947 F.2d 49, 56 (3d Cir. 1991). 

 “A serious and unsettled question” is a factor mentioned in 

Cohen, see Cohen, 337 U.S. at 547, but, for the most part, it has 

been ignored by the courts, see Robert J. Martineau, Defining 

Finality and Appealability by Court Rule: Right Problem, Wrong 

Solution, 54 U. Pitt. L. Rev. 717, 740 (1993). 

 We believe that presenting a serious and unsettled question 

is merely one means by which an issue may be important under 

Cohen. It is clear that if a question presents a serious and 

unsettled question of law, resolution of that issue in an 

interlocutory appeal protects an interest that is significant 

relative to the interests protected by deferring review until 

final judgment. Resolution of a serious and unsettled question 

has an impact beyond the parties before the court; it not only 

ensures the proper adjudication of the case before the court, but 

also may prevent erroneous adjudications in other cases and head 

off unnecessary appeals in those other cases. These incidental 

effects promote some of the same goals the final judgment rule 
15

promotes. Therefore, though it is not a sine qua non, the 

presence of a serious and unsettled question is sufficient to 

satisfy the importance criterion of the Cohen test.6

 Given our analysis of importance for Cohen purposes, we 

believe that the attorney-client privilege question before us 

also satisfies the importance criterion because the interests 

protected by the privilege are significant relative to the 

interests advanced by adherence to the final judgment rule. It 

is often stated that the attorney-client privilege is at the 

heart of the adversary system; its purpose is to support that 

system by promoting loyalty and trust between an attorney and a 

client. See Recent Case, 108 Harv. L. Rev. 775, 779 n.39 (1995). 

 The privilege is thereby intended to advance the “broad[] public 

interests in the observance of law and administration of 

 

 

6Nixon v. Fitzgerald, 457 U.S. 731 (1982), is a case in 

which the Supreme Court stated that an appeal must present a 

serious and unsettled question to fall within Cohen’s scope. See

id. at 742. However, in so doing, the Court seemed to imply that 

a serious and unsettled question is merely one part of Cohen’s 

importance requirement. In determining that the appeal before it 

did present a serious and unsettled question, the Court relied on 

the fact that it had never ruled on the question; that the Court 

of Appeals had done so did not settle the question for Cohen

purposes. See id. at 743. This is curious reasoning; following 

it to its logical extreme, it would categorize as serious and 

unsettled any issue the Supreme Court has not decided. At all 

events, later in Nixon the Court seems to limit this reasoning. 

It noted that the case before it pertained to sensitive issues 

related to the separation of powers between the executive and 

judicial branches of government. See id. The mention of these 

sensitive issues “might hint that the calculus of appeal includes 

the importance of the interests involved as well as the general 

importance of the question to other litigants.” 15A Charles Alan 

Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice 

and Procedure § 3911.5, at 431 (2d ed. 1994). As is evident in 

the text, our rendering of the importance prong is consistent 

with this discussion. 
16

justice,” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), 

by encouraging the full and frank communication between attorney 

and client necessary for vigorous and effective advocacy. 

Rightly or wrongly, our system assumes that the competition 

between vigorous and effective advocates, when pitted against 

each other in an adversary setting, will help to produce the best 

legal result in any given litigation. In short, the attorneyclient privilege is one of the pillars that supports the edifice 

that is our adversary system. As such, it is “deeply rooted in 

public policy.” Digital Equip., 114 S. Ct. at 2004. 

 Privilege doctrine assumes that protecting that loyalty and 

trust and thereby advancing these broader interests can only be 

accomplished if privileged material is never disclosed, for only 

then will clients be encouraged to make full disclosure to their 

attorneys. By fostering confidentiality, the attorney-client 

privilege, when vindicated, undermines some of the goals the 

final judgment rule seeks to realize. Without the benefit of the 

material protected by the attorney-client privilege, trial courts 

face a more difficult fact-finding task. Ferreting out the facts 

of a case becomes more costly, even if only marginally. Often, 

the privilege will keep trial courts, juries, and appellate 

courts from considering certain facts, thereby forcing them to 

decide cases based on less than complete records. 

 In all, the privilege introduces certain inefficiencies into 

the judicial system, the same inefficiencies with which the final 

judgment rule is concerned. See supra note 4. Yet, every 

jurisdiction in this nation recognizes the attorney-client 
17

privilege. For the reasons set forth supra, the attorney-client 

privilege is thus important in the Cohen sense; the status or 

relationship, deeply embedded in our legal culture, is of 

sufficient importance that the danger of denying justice by delay 

in appellate adjudication (which would result in irremediable 

disclosure of privileged material) outweighs the inefficiencies 

introduced by immediate appeal. Accordingly, prong two of Cohen

is satisfied as to the attorney-client privilege question. 

 For similar reasons, the work product doctrine, at least at 

its “core,” satisfies the importance criterion.7 Like the 

attorney-client privilege, the work product doctrine seeks to 

promote the adversary system. It does so “by protecting the 

confidentiality of papers prepared by or on behalf of attorneys 

in anticipation of litigation.” Westinghouse Elec. Corp. v. 

Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991). 

 Absent such protection, attorneys would “fear that their work 

product will be used against their clients,” id., and may become 

overly circumspect in preparing for litigation thereby reducing 

their effectiveness as advocates. Such circumspection frustrates 

the assumptions on which the adversary system is based. “Core” 

 

 

7By the “core,” we mean the “mental impressions, 

conclusions, opinion, or legal theories of an attorney or other 

representative of a party concerning the litigation.” Fed. R. 

Civ. P. 26(b)(3). 

Such core work product is generally afforded near absolute 

protection from discovery. See 8 Charles Alan Wright, Arthur R. 

Miller & Richard L. Marcus, Federal Practice and Procedure § 2026 

(2d ed. 1994). Because, as we discuss infra, the work product at 

issue here is at the core of the doctrine, we have no occasion to 

discuss whether work product generally is important for Cohen

purposes. 
18

work product thus reflects an institutionally important status or 

relationship in the law. 

 As with the attorney-client privilege, the work product 

doctrine rests on the non-disclosure of information. Some of 

this information is potentially relevant to the disposition of 

the litigation; keeping it confidential might therefore impede 

the efficient functioning of the judicial system. Yet, the work 

product doctrine, or a form of it, is widely recognized. Thus, 

for the same reasons put forth in our treatment of the attorneyclient privilege, core work product, such as at issue here, meets 

the importance criterion and satisfies the second Cohen prong. 

C. Effective Review: The Third Prong of Cohen 

 The only remaining issue is the third element of the Cohen

test, whether Ford can seek effective review of the privilege and 

work product issues on appeal after final judgment. The Supreme 

Court has stated that review after final judgment is ineffective 

if the right sought to be protected would be, for all practical 

and legal purposes, destroyed if it were not vindicated prior to 

final judgment. See, e.g., Lauro Lines, 109 S. Ct. at 1978. In 

the context of mandamus jurisdiction, we have repeatedly held 

that appealing privilege and work product issues after final 

judgment is ineffective. See Rhone-Poulenc, 32 F.3d at 861 

(discussing “privilege or other interests of confidentiality”); 

Haines v. Liggett Group, Inc., 975 F.2d 81, 89 (3d Cir. 1992) 

(discussing both attorney-client privilege and work product 

doctrine protections); Westinghouse, 951 F.2d at 1422 (same); 

Sporck v. Peil, 759 F.2d 312, 314-15 (3d Cir. 1985) (discussing 
19

work product doctrine protections); Bogosian v. Gulf Oil Corp., 

738 F.2d 587, 591 (3d Cir. 1984) (same); see also Hahnemann 

Univ., 74 F.3d at 461 (discussing possible mandamus jurisdiction 

to review claim that documents were protected by, inter alia, a 

state law psychotherapist-patient privilege); Glenmede Trust Co. 

v. Thompson, 56 F.3d 476, 483-84 (3d Cir. 1995) (discussing 

mandamus jurisdiction over review of the terms of a protective 

order); Smith v. BIC Corp, 869 F.2d 194, 198-99 (3d Cir. 1989) 

(discussing the collateral order doctrine in the context of 

reviewing a claim that disputed documents contained trade secrets 

requiring protection); Cipollone v. Liggett Group, Inc., 822 F.2d 

335, 340 (3d Cir. 1987) (discussing mandamus jurisdiction over 

review of a protective order). 

 Undergirding those previous holdings is the notion that, 

once putatively protected material is disclosed, the very “right 

sought to be protected” has been destroyed. Bogosian, 738 F.2d 

at 591. That is so because, as we noted previously, underlying 

the attorney-client privilege is the policy of encouraging full 

and frank communications between an attorney and client, without 

the fear of disclosure, so as to aid in the administration of 

justice. See, e.g., Westinghouse, 951 F.2d at 1423. 

Concomitantly, the work product doctrine is designed to promote 

the adversarial process by maintaining the confidentiality of 

documents prepared by or for attorneys in anticipation of 

litigation. See, e.g., id. at 1428. Appeal after final judgment 

cannot remedy the breach in confidentiality occasioned by 

erroneous disclosure of protected materials. At best, on appeal 
20

after final judgment, an appellate court could send the case back 

for re-trial without use of the protected materials. At that 

point, however, the cat is already out of the bag. 

 As the Second Circuit aptly stated with respect to the 

attorney-client privilege, the limited assurance that the 

protected material will not be disclosed at trial “will not 

suffice to ensure free and full communication by clients who do 

not rate highly a privilege that is operative only at the time of 

trial.” Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 

F.2d 159, 165 (2d Cir. 1992). With respect to material otherwise 

protected by the work product doctrine, the party will be 

similarly irremediably disadvantaged by erroneous disclosure. 

“[A]ttorneys cannot unlearn what has been disclosed to them in 

discovery”; they are likely to use such material for evidentiary 

leads, strategy decisions, or the like. Id. More colorfully, 

there is no way to unscramble the egg scrambled by the 

disclosure; the baby has been thrown out with the bath water. 

 Our conclusions with respect to privilege and work product 

issues are buttressed by Supreme Court decisions allowing 

immediate appeal of official, qualified, and Eleventh Amendment 

immunities; of double jeopardy challenges; and of speech or 

debate challenges. In each of those cases, the Court held that 

the rights asserted protected the claimant against trial, not 

just liability.8 Therefore, delaying review of orders 

 

 

8See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 

Inc., U.S. , 113 S. Ct. 684, 687-89 (1993) (examining 

Eleventh Amendment immunity); Mitchell v. Forsyth, 472 U.S. 511, 

525-27 (1985) (examining qualified immunity); Nixon v. 

Fitzgerald, 457 U.S. 731, 741-43 (1982) (examining absolute 
21

implicating these asserted rights would preclude vindication of 

those very rights because delay would allow trial to proceed. 

The same is true as to privilege and work product issues. Delay 

in such cases would allow the very disclosure against which those 

rules protect. 

 In most of our previous cases in which a party sought 

appellate review of an order requiring the disclosure of 

putatively protected documents, we did not allow review under the 

collateral order doctrine either because it was not raised at all 

by the parties or because the parties did not satisfy either 

element (1) or element (2) of the Cohen test. In only two cases 

did we examine element (3) of the Cohen test in this context. In 

Smith, we held that a party does not have an effective means of 

appealing after a final judgment an order requiring the 

disclosure of trade secrets. As we stated there, “once trade 

secrets are made public, they can obviously never be ‘secrets’ 

again.” Smith, 869 F.2d at 199. Therefore, the court allowed an 

interlocutory appeal under the Cohen test and did not reach the 

question whether a writ of mandamus was appropriate. See id. at 

199 n.3. 

 In the later Rhone-Poulenc case, the other case to examine 

element (3) of the Cohen test, the panel distinguished Smith by 

reasoning that any harm caused by the erroneous disclosure of 

material protected by the attorney-client privilege or the work 

 

immunity); Helstoski v. Meanor, 442 U.S. 500, 506-08 (1979) 

(examining the Speech and Debate Clause); Abney v. United States, 

431 U.S. 651, 660-662 (1977) (examining double jeopardy). 
22

product doctrine can be remedied. According to that panel, an 

appellate court can, after final judgment, vacate the ruling of a 

trial court, remand the case for a new trial, and prohibit the 

use of the protected material or any material derived from the 

protected material at the new trial. See Rhone-Poulenc, 32 F.3d 

at 860. We believe, however, that this part of the holding in 

Rhone-Poulenc is inconsistent with both Smith and the mandamus 

line of cases that hold that there can be no effective review 

after final judgment of an order requiring the disclosure of 

putatively protected material. See supra. In fact, RhonePoulenc seems to say as much when it held that mandamus 

jurisdiction existed because there is “no other adequate means to 

attain relief from the district court’s order that compels the 

disclosure of privileged information and work product,” citing 

the mandamus line of cases for support. Id. at 861. 

 Because they precede Rhone-Poulenc, we are bound by the 

holdings in Smith and the mandamus line of cases. See O. Hommel 

Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel 

of this court cannot overrule a prior panel precedent.”). 

Therefore, we hold that there is no effective means of reviewing 

after a final judgment an order requiring the production of 

putatively protected material. Accordingly, the strictures of 

the collateral order doctrine have been met in this case, and we 

have jurisdiction over the appeal. Our review of the district 

court order will be plenary. 

D. Mandamus

 Because we have appellate jurisdiction, there is no need to 
23

examine whether we have original, mandamus jurisdiction. 

However, we also believe that if we did not have appellate 

jurisdiction, we would have mandamus jurisdiction to review the 

district court’s order. See, e.g., Rhone-Poulenc, 32 F.3d at 861 

(exercising mandamus jurisdiction over review of privilege and 

work product issues); Haines, 975 F.2d at 88-91 (exercising 

mandamus jurisdiction over review of work product issues); 

Westinghouse, 951 F.2d at 1422 (exercising mandamus jurisdiction 

over privilege and work product issues); Sporck, 759 F.2d at 314-

15 (exercising mandamus jurisdiction over work product issues); 

Bogosian, 738 F.2d at 591 (same). 

 The practical difference between appellate jurisdiction and 

mandamus jurisdiction is the standard of review. Our standard of 

review under appellate jurisdiction is plenary; our standard of 

review under mandamus jurisdiction is for a clear error of law. 

See, e.g., Westinghouse, 951 F.2d at 1423. Accordingly, mandamus 

jurisdiction affords an appellate court less opportunity to 

correct district court error in the case before it and less 

opportunity to provide guidance for future cases. Moreover, 

comity between the district and appellate courts is best served 

by resort to mandamus only in limited circumstances. Review 

under appellate jurisdiction is therefore preferable to review 

under mandamus jurisdiction. In light of this preference, the 

wisdom of our holding that an appeal will lie in this case is 

confirmed. 

III. MINUTES OF THE 1982 MEETING; ATTORNEY-CLIENT PRIVILEGE 

 After an in camera review of the relevant documents, we 
24

conclude that the final minutes of the 1982 meeting are protected 

by the attorney-client privilege. Primarily at issue is whether 

the communications memorialized by the minutes were made for the 

purpose of obtaining legal advice. Federal Rule of Evidence 501 

states: 

[I]n civil actions and proceedings, with respect to an element of 

a claim or defense as to which State law supplies the rule 

of decision, the privilege of a witness, person, government, 

State, or political subdivision thereof shall be determined 

in accordance with State law. 

Fed. R. Evid. 501. In this civil, diversity case in which state 

law governs, Rule 501 provides that state law will govern the 

issue of privilege. See Rhone-Poulenc, 32 F.3d at 861-62. 

 It is not clear whether the law of Pennsylvania, the forum 

state, or the law of Michigan, the state in which the 

communications occurred, will supply the rule as to privilege. 

We need not reach this potentially thorny issue, however, because 

the law as to attorney-client privilege in Pennsylvania does not 

differ in any significant way from that in Michigan. The 

elements of the attorney-client privilege are well-known and are 

not, in any material respect, disputed here. We need not, 

therefore, dwell on them, except to note their basic contours in 

Pennsylvania and Michigan. 

 In Pennsylvania, the attorney-client privilege in civil 

matters has been codified. The relevant statutory provision 

reads: 

In a civil matter counsel shall not be competent or permitted to 

testify to confidential communications made to him by his 

client, nor shall the client be compelled to disclose the 

same, unless in either case this privilege is waived upon 

the trial of the client. 
25

42 Pa. Cons. Stat. Ann. § 5928 (West 1982). The communications 

must be for the purpose of obtaining legal advice. See Leonard 

Packel & Anne Bowen Poulin, Pennsylvania Evidence § 501.1(c), at 

306 & n.22 (1987 & Supp. 1995). A corporation may claim the 

privilege for communications between its counsel and its 

employees who have authority to act on its behalf. See Maleski 

v. Corporate Life Ins. Co., 641 A.2d 1, 3 (Pa. Commw. Ct. 1994); 

Packel & Poulin, supra, § 501.1(b). 

 In Michigan, the standard is stated in similar terms. The 

attorney-client privilege “attaches to the confidential 

communications made by a client to his attorney acting as a legal 

adviser and made for the purpose of obtaining legal advice on 

some right or obligation.” Kubiak v. Hurr, 372 N.W. 2d 341, 345 

(Mich. Ct. App. 1985). Case law in Michigan also recognizes the 

right of a corporation to claim the privilege to protect 

communications between certain of its employees and its counsel. 

 See Hubka v. Pennfield Township, 494 N.W. 2d 800, 802 (Mich. Ct. 

App. 1992) (citing Mead Data Central, Inc. v. U.S. Dep’t of the 

Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977) (interpreting 

the federal Freedom of Information Act)), rev’d on other grounds, 

504 N.W. 2d 183 (Mich. 1993). 

 Our brief review of Pennsylvania and Michigan law as to the 

attorney-client privilege reveals that the two states agree in 

the respect most relevant to our case: for a communication to be 

privileged, it must have been made for the purpose of securing 

legal advice. See, e.g., Rhone-Poulenc, 32 F.3d at 862 (setting 

out the traditional elements of the attorney-client privilege and 
26

including the requirement that the communication be made for the 

purpose of securing legal advice); Restatement of the Law 

Governing Lawyers §§ 118, 122 (Proposed Final Draft No. 1 1996) 

(same).9 We now turn to determining whether the communications 

contained in the relevant document satisfy this standard.10

 Our review of the final minutes, the draft minutes, the 

report Nolte summarized at the meeting, and relevant affidavits, 

leads us to conclude that the communications in the meeting were 

made for the purpose of securing legal advice. Ford clearly had 

concerns about the Bronco II; this is not surprising given that 

the product was in the early stages of its development. Nolte 

examined the legal implications of some of those concerns and 

proposed a particular course of action, contained in his report 

to the Policy and Strategy Committee, to address them. The 

Policy and Strategy Committee meeting itself was called in part 

to discuss Nolte’s proposal. The discussion at the meeting, 

then, was intended to secure Nolte’s legal advice. 

 The district court initially ruled that the minutes 

 

 

9It should be noted that the law makes no distinction 

between communications made by a client and those made by an 

attorney, provided the communications are for the purpose of 

securing legal advice. See Restatement of the Law Governing 

Lawyers §§ 118, 120 (Proposed Final Draft No. 1 1996). In other 

words, the entire discussion between a client and an attorney 

undertaken to secure legal advice is privileged, no matter 

whether the client or the attorney is speaking. 

 

10The parties do not dispute that Nolte was Ford’s attorney 

at all relevant times and that the members of the Policy and 

Strategy Committee had the authority to act on behalf of Ford. 

Although Kelly does argue that Ford did not intend for the 

communications to be kept confidential, we find that argument to 

be without merit. Ford’s actions with respect to these documents 

clearly evinced such an intent. 
27

“disclose only factual material, contain no legal discussion, 

were not created in anticipation of litigation . . ., and contain 

no communication to counsel which was intended to be kept 

confidential.” The court later stated that the minutes were 

“business records” that memorialized “essentially business and 

safety decisions.” We disagree with the district court’s 

conclusions as to the nature of the documents. The documents do 

not contain merely factual material nor do they detail mere 

business decisions. Certainly, the ultimate decision reached by 

the Policy and Strategy Committee could be characterized as a 

business decision, but the Committee reached that decision only 

after examining the legal implications of doing so. Even if the 

decision was driven, as the district court seemed to assume, 

principally by profit and loss, economics, marketing, public 

relations, or the like, it was also infused with legal concerns, 

and was reached only after securing legal advice. At all events, 

disclosure of the documents would reveal that legal advice. 

 We thus hold that the minutes of the 1982 meeting are 

protected from discovery by the attorney-client privilege.11

 

 

11Discussion in a published opinion of our conclusions based 

upon an in camera review is necessarily limited. We cannot 

reveal too much about the contents of the documents for fear of 

undermining the very purposes of such review. Our methodology is 

to reveal only as much of the content as is necessary to produce 

a reasoned opinion that can itself be reviewed. If further 

review is necessary, the en banc court or the Supreme Court can 

examine for itself the relevant documents in conjunction with our 

opinion. We recognize that the advocacy of the attorneys 

representing the party seeking allegedly protected documents is 

hampered by their inability to review those same documents. That 

disadvantage is one we must accept; otherwise, the very purpose 

of the privilege will be destroyed. 

 The observations made in this footnote apply equally to our 

discussion of the documents allegedly protected by the work 
28

IV. THE AGENDAS; THE WORK PRODUCT DOCTRINE 

 Similarly, our in camera review leads us to conclude that 

the agendas for the 1988 meeting and the handwritten notes on the 

document pertaining to the 1989 meeting are protected from 

discovery by the work product doctrine.12 Codified in the 

Federal Rules of Civil Procedure, the work product doctrine 

allows a party to discover material prepared in anticipation of 

litigation or for trial only upon a showing that the requesting 

party has a substantial need for the material and cannot obtain 

the material or its equivalent elsewhere without incurring a 

substantial hardship. See Fed. R. Civ. P. 26(b)(3). The rule as 

codified provides that “[i]n ordering discovery of such materials 

when the required showing has been made, the court shall protect 

against disclosure of the mental impressions, conclusions, 

opinions, or legal theories of an attorney or other 

representative of a party concerning the litigation.” Id.

 

product doctrine. 

 

12Ford claims that the agendas are also protected by the 

attorney-client privilege. We disagree. There is no indication 

in the record that the relevant 1988 meeting at which the agendas 

were discussed involved the kind of communications the privilege 

protects. Ford’s assertions to the contrary and the affidavits 

supporting them are nothing more than conclusory. 

 Ford also claims that the handwritten notes on a document 

pertaining to the 1989 meeting are protected by the attorneyclient privilege because they refer to legal advice provided at 

the 1988 meeting. (Ford does not claim that the meeting itself 

or the typewritten portions of the document are protected.) 

Because we do not see the 1988 meeting as involving confidential 

communications made to secure legal advice, we do not believe 

these handwritten notes are privileged. However, these notes do 

refer to the agendas from the 1988 meetings and to the studies on 

which the agendas were based. We will, therefore, consider these 

notes as being equivalent to the 1988 agendas. As we discuss in 

the text, the 1988 agendas are protected by the work product 

doctrine. These notes, then, are similarly protected. 
29

 It is also clear that the work product doctrine protects 

materials prepared by an agent of the attorney, provided that 

material was prepared in anticipation of litigation. See 8 

Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 

Federal Practice and Procedure § 2024, at 359 (2d ed. 1994). 

These elements, like those of the attorney-client privilege, are 

well-known and are not, in any relevant respect, disputed here. 

We need not, therefore, elaborate on them. Rather, the dispute 

over the agendas turns on whether they were prepared in 

anticipation of litigation, since the other elements necessary 

for work product protection are met.13

 It is clear from our review of the record that the agendas 

disclose material prepared as part of Ford’s legal strategy for 

defending the type of case Kelly brought here. The agendas 

outline the results of studies conducted as to the safety of the 

Bronco II and, in so doing, highlight important aspects of those 

studies. Those studies were found by the district court to be 

protected by the work product doctrine because they would be used 

in defending anticipated lawsuits. Ford persuasively contends 

that experts acting on behalf of Kelly and working backwards from 

the agendas could determine the methodology of the studies.14 

Ford’s attorneys and their agents called for the studies, and 

 

 

13The record makes it clear that the agendas were prepared 

by an agent of Ford’s attorneys. In addition, Kelly has not made 

the requisite showing of substantial need to overcome the work 

product doctrine protections. 

 

14Although Kelly does not dispute this contention, we 

suspect that it might have been difficult for Kelly to do so 

given that she has not seen the agendas. 
30

Ford credibly demonstrates that if Kelly learns the methodology 

of the studies, then she has effectively learned of the issues of 

most concern to Ford’s litigation defense team. Moreover, the 

agendas themselves were for meetings at which the experts would, 

inter alia, explain the technical aspects of Ford’s legal defense 

strategy by referring to those studies. We are satisfied, in 

view of the foregoing, that these agendas, core work product, 

were prepared in anticipation of litigation. 

 The handwritten notations that appear on the document 

pertaining to the 1989 meeting are similarly protected by the 

work product doctrine. Although not as extensive as the agendas 

themselves, the notations refer to the agendas. In some places, 

the notations employ the same language as that which appears on 

the agendas. In others, the notations, when read in connection 

with the typewritten portions of the document to which they 

refer, provide clear hints as to what is contained in the 

agendas. In all instances, the notations, like the agendas 

themselves, would allow Kelly to determine the methodology of the 

studies. 

 It is true, of course, that the agendas and the handwritten 

notations (and, for that matter, the studies themselves) were not 

prepared with this particular litigation in mind. However, that 

is of no import given the facts of this case. At the time the 

relevant material was prepared, Ford was a defendant in numerous 

lawsuits alleging defects in the Bronco II, and this material was 

prepared in anticipation of those lawsuits. The literal language 

of Rule 26(b)(3) requires that the material be prepared in 
31

anticipation of some litigation, not necessarily in anticipation 

of the particular litigation in which it is being sought. See In 

re Grand Jury Proceeding, 604 F.2d 798, 803 (3d Cir. 1979) 

(holding that the work product doctrine will protect material 

prepared in anticipation of civil proceedings from discovery in a 

grand jury proceeding); see also 8 Wright, Miller & Marcus, 

supra, § 2024, at 350-51 (collecting cases and concluding that 

most courts consider the work product doctrine to protect 

material prepared in anticipation of previous litigation).15

 The district court ruled that nothing in the record 

indicated “that the meetings [for which the agendas were 

prepared] involved discussion or agenda items about any 

particular litigation or that the meetings were in anticipation 

of litigation nor do the documents disclose any legal advice or 

opinions, or that legal advice was given.” Instead, the court 

ruled that the “meetings were in the nature of product safety 

meetings, not legal department meetings.” As our discussion 

makes clear, we disagree with the district court in one important 

respect: we are convinced that the agendas were prepared in 

anticipation of litigation. That the agendas do not necessarily 

include legal advice is irrelevant provided, as we note above, 

they were prepared in anticipation of litigation. Moreover, it 

 

 

15As in In re Grand Jury Proceedings, there is “an identity 

of subject matter” between the litigation for which the material 

was prepared and the present litigation. See In re Grand Jury 

Proceedings, 604 F.2d at 803. We therefore need not decide 

whether the work product doctrine protects material 

prepared for any previous litigation, or only previous litigation 

related to the present litigation. 
32

is of no import that the meetings for which the agendas were 

prepared were not legal department meetings. In this case, the 

context in which the agendas were discussed does not change the 

reasons for their preparation. 

 In sum, we conclude that the work product doctrine, as 

codified in Rule 26(b)(3), protects the agendas from discovery. 

IV. CONCLUSION 

 In view of the foregoing, the order of the district court 

dated December 18, 1996 will be reversed in part and the case 

remanded to the district court with directions to deny discovery 

of the documents stamped with Bates numbers 6680-82, 13882, 

14236, and 21831 in their entirety, and to deny discovery of the 

handwritten notations on the document stamped with Bates number 

14241. 

 ___________________________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 BY THE COURT: 

 ______________________ 

 Circuit Judge