*

Honorable Jerome Farris, Senior U.S. Circuit Judge for the

Ninth Circuit, sitting by designation 

United States Court of Appeals,

Eleventh Circuit.

No. 95-9059.

In re E.I. DuPONT DE NEMOURS & COMPANY-BENLATE LITIGATION.

The BUSH RANCH, INC., William R. Lawson, individually, Yellow

River Growers, C. Raker & Sons, Inc., a Michigan corporation,

Petitioners-Counter-Defendants-Appellees,

C. Neal Pope, a Georgia resident, Pope, McGlamry, Kilpatrick &

Morrison, a Georgia partnership, Counter-Defendants,

v.

E.I. DuPONT DE NEMOURS & COMPANY, a Delaware corporation,

Respondent-Counterclaimant, Appellant.

Oct. 17, 1996.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 4:95-CV-36(JRE), J. Robert Elliott,

Judge.

Before DUBINA, and CARNES, Circuit Judges, and FARRIS*

, Senior

Circuit Judge.

DUBINA, Circuit Judge:

This case involves an appeal from a contempt order entered by

the district court against the Defendant-Appellant E.I. Du Pont de

Nemours & Company ("DuPont"). For the reasons that follow, we

reverse the district court's order and remand the case for further

proceedings.

I. Background

This appeal has its origins in four consolidated cases, known

collectively as the Bush Ranch litigation, that were tried before

the district court in 1993. The primary issue at trial was whether

Benlate 50 DF—a fungicide manufactured by DuPont and sold to the
 1

The Appellees are the plaintiffs from three of the four

cases consolidated in the original Bush Ranch litigation. 

Specifically, the Appellees consist of The Bush Ranch, Inc.,

William R. Lawson, Yellow River Growers, Roy Phillip Barber,

Carol H. Barber, and C. Raker & Sons, Inc. 

plaintiffs for use at their nurseries—was contaminated with highly

toxic herbicides known as sulfonylureas ("SUs"). After the case

was submitted to the jury, the plaintiffs in the Bush Ranch

litigation offered to settle their claims, and DuPont agreed.

Accordingly, on August 16, 1993, the plaintiffs in the Bush Ranch

litigation voluntarily dismissed their claims with prejudice.

After the settlement, the plaintiffs in a Hawaii Benlate case

requested documents related to testing of Benlate 50 DF from the

Bush Ranch litigation. DuPont resisted, but it eventually produced

the documents pursuant to a court order. Among the test documents

produced in the Hawaii Benlate case were certain raw test data (the

"Alta data") that DuPont had not produced during the course of the

Bush Ranch litigation. The Alta data included analytical findings

which some experts would construe as evidence that Benlate 50 DF

was contaminated with SUs.

As a result of the production of the Alta data in the Hawaii

Benlate case, the Appellees1

 returned to the district court—more

than a year and a half after the settlement of the Bush Ranch

litigation—with a petition seeking sanctions against DuPont. The

Appellees charged that DuPont had intentionally withheld evidence

of SU contamination which was in its possession and which the

district court had ordered it to produce. Furthermore, the

petition charged that DuPont had falsely represented to the

district court and to the Appellees that the Alta data it withheld
contained no evidence of SU contamination. In response to the

petition, the district court set a hearing date and ordered DuPont

to appear and show cause why it should not be sanctioned.

DuPont filed a motion to recuse under 28 U.S.C. §§ 144 and

455, a motion to vacate the show cause order, and a motion to

dismiss the Appellees' petition. The district court denied each of

these motions and also dismissed DuPont's counterclaims against the

Appellees. Following the district court's denial of the motion to

recuse, DuPont filed a motion to stay the proceedings to enable it

to seek writs of prohibition and mandamus from this court. The

district court denied the motion to stay the proceedings, and this

court subsequently denied DuPont's emergency motion for a stay and

its petitions for writs of prohibition and mandamus.

The show cause hearing began on May 2, 1995, and continued

through May 12, 1995. On the basis of the evidence presented at

the hearing, the district court issued an order finding that

DuPont's failure to produce the Alta data had violated its

discovery orders in the Bush Ranch litigation. The district court

specifically found that "DuPont deprived [the Appellees], the

[district court], and the jury of data and documents highly

relevant to the issue which DuPont itself described as the most

critical issue in the case." In re E.I. du Pont de Nemours & Co.,

918 F.Supp. 1524, 1556 (M.D.Ga.1995). The district court also

found that DuPont's conduct was "willful, deliberate, conscious,

purposeful, deceitful, and in bad faith;" that this deceitful

conduct "affected the rulings and the orders of [the district

court] and interfered with the administration of justice;" and
that this discovery abuse rendered the trial, which had lasted

approximately six weeks, "a farce." Id.

Accordingly, the district court entered a sanctions order

against DuPont consisting of the following four components:

(1) The district court directed DuPont to send copies of the

sanctions order and the withheld documents to the Appellees

and the rest of the plaintiffs in the Bush Ranch litigation.

(2) The district court found that the plaintiffs in the Bush Ranch

litigation had together expended $6,843,837.53 in preparation

for the trial and assessed a sanction in that amount against

DuPont. The district court assessed another sanction for the

same amount against DuPont to pay for the "wasted time,

inconvenience, and waste of judicial resources inflicted upon

[the district court] and the jury for the pretrial and trial

of the consolidated cases." Id. at 1557. The district court

ordered that the total sum—$13,687,675.06—be paid into the

registry of the court.

(3) The district court partially vacated the order entered upon

settlement of the Bush Ranch litigation, thereby reinstating

several orders finding discovery abuses by DuPont during the

course of the trial. The district court specifically

reinstated a conditional $1 million sanction it had imposed

upon DuPont during the trial. The district court also

assessed a sanction of $100 million against DuPont for its

conduct during the previous litigation and during the show

cause hearing. The district court announced that it would

permit DuPont to purge itself of the $1 million and $100

million sanctions by complying with all other sanctions orders

and by publishing a full page advertisement in the Wall Street

Journal and in the most widely circulated newspapers in

Alabama, Georgia, and Michigan acknowledging its wrongdoing

and giving notice of the district court's orders and

sanctions. The form of the advertisement was to be submitted

to the district court for its approval.

(4) The district court ordered DuPont to file, within 25 days, a

certificate of compliance signed by DuPont's chief executive

officer confirming that DuPont was in full compliance with the

terms of the sanctions order. The district court warned

DuPont that it would impose additional sanctions of $30,000 a

day for each day after the termination of the 25-day grace

period during which DuPont had not both fully complied with

the sanctions order and filed the requisite certificate of

compliance.

DuPont requested a stay of the sanctions order to enable it to

appeal to this court. The district court granted the stay, and
 2

We do not address the remaining issues raised by the

parties, because our resolution of these first three issues is

dispositive of this appeal. 

 3The district court invoked several sources of authority for

imposing sanctions on DuPont. See In re E.I. du Pont de Nemours

& Co., 918 F.Supp. at 1540-41. However, we are persuaded that

none of these sources of authority could support the sanctions

order without the assistance of the district court's inherent

contempt power—a fact that the Appellees themselves recognize. 

See Appellees' Br. at 24 ("Having jurisdiction, and because no

single rule was up to the task, the [district court] properly

relied on its inherent powers to sanction DuPont.") (emphasis

added). Thus, we need examine only the constitutionality of the

district court's exercise of its inherent contempt power to

determine whether the sanctions order can stand. 

this appeal followed.

II. Issues Presented

In its effort to defeat the contempt order, DuPont presents

three issues which we must discuss in order to decide this appeal.2

First, DuPont argues that the district court lacked jurisdiction to

entertain the proceedings which culminated in the issuance of the

contempt order. Second, DuPont contends that the district court

erred in imposing criminal contempt sanctions in a civil

proceeding.3 Third, DuPont claims that its failure to produce the

Alta data violated no order of the district court.

III. Standards of Review

 We review the district court's assertion of jurisdiction de

novo. See Mutual Assurance, Inc. v. United States, 56 F.3d 1353,

1355 (11th Cir.1995). We also review de novo the district court's

characterization of these proceedings as civil, and not criminal,

in nature. See International Union, United Mine Workers of America

v. Bagwell, --- U.S. ----, ----, 114 S.Ct. 2552, 2561-63, 129

L.Ed.2d 642 (1994); Martin v. Guillot, 875 F.2d 839, 845 (11th
Cir.1989). As will be discussed infra, DuPont's challenge to the

existence of an order requiring production of the Alta data

presents a question of evidence sufficiency which we review de

novo. See United States v. Keller, 916 F.2d 628, 632 (11th

Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d

724 (1991).

IV. Discussion

A. Jurisdiction.

 DuPont argues that the district court "lacked jurisdiction to

entertain an independent civil action for sanctions based on

alleged misconduct in the long-dismissed Bush Ranch litigation."

DuPont's Br. at 17. We disagree. Every district court "has the

power to conduct an independent investigation in order to determine

whether it has been the victim of fraud." Chambers v. NASCO, Inc.,

501 U.S. 32, 44, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991)

(citing Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 66

S.Ct. 1176, 90 L.Ed. 1447 (1946)). In addition, the district court

was free to vacate its earlier judgment, in whole or in part, and

to resume proceedings on the same jurisdictional basis as it

possessed in the underlying case. See Chambers, 501 U.S. at 44,

111 S.Ct. at 2132 ("Of particular relevance here, the inherent

power also allows a federal court to vacate its own judgment upon

proof that a fraud has been perpetrated upon the court.") (citing

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64

S.Ct. 997, 88 L.Ed. 1250 (1994); Universal Oil, 328 U.S. at 580,

66 S.Ct. at 1179). For this reason, the Supreme Court has

specifically held that "[a] court may make an adjudication of
 4

The Supreme Court summarized these requirements in the

following passage:

[T]his Court has found that defendants in criminal

contempt proceedings must be presumed innocent, proved

guilty beyond a reasonable doubt, and accorded the

right to refuse to testify against themselves; must be

advised of charges, have a reasonable opportunity to

respond to them, and be permitted the assistance of

counsel and the right to call witnesses; must be given

a public trial before an unbiased judge; and must be

afforded a jury trial for serious contempts.

Young v. United States ex rel. Vuitton et Fils S.A., 481

U.S. 787, 798-99, 107 S.Ct. 2124, 2133, 95 L.Ed.2d 740

(1987) (citing Gompers v. Buck's Stove & Range Co., 221 U.S.

418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Cooke v. United

States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); In

re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); 

and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20

L.Ed.2d 522 (1968)). 

contempt and impose a contempt sanction even after the action in

which the contempt arose has been terminated." Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2456, 110

L.Ed.2d 359 (1990) (citations omitted). Thus, we conclude that the

district court possessed jurisdiction to conduct the challenged

proceedings.

B. Nature of the Sanctions.

DuPont contends that the district court committed reversible

error in imposing criminal sanctions in a civil proceeding. It is

indisputable that the district court did not afford DuPont the

procedural protections the Constitution requires for the imposition

of criminal contempt sanctions.4 Thus, the proceedings were civil

in nature, and DuPont's entitlement to relief on appeal turns on

our characterization of the contempt order as being either civil or

criminal in nature. See Blalock v. United States, 844 F.2d 1546,

1560 n. 20 (11th Cir.1988) (per curiam) (Tjoflat, J., specially
concurring) ("It requires no citation of authority to say that a

district court may not, even unwittingly, employ a civil contempt

proceeding to impose what, in law, amounts to a criminal contempt

sanction.... When a district court employs civil contempt

procedures to punish a contemner, it necessarily deprives the

contemner of his constitutional rights and renders his contempt

citation a nullity.").

 The Supreme Court has instructed that "conclusions about the

civil or criminal nature of a contempt sanction are properly drawn,

not from the subjective intent of [the court imposing the

sanction], but from an examination of the character of the relief

itself." International Union, United Mine Workers of America v.

Bagwell, --- U.S. ----, ----, 114 S.Ct. 2552, 2557, 129 L.Ed.2d 642

(1994) (citation and internal quotation marks omitted). If the

relief is designed to compensate a complainant for losses or to

coerce a party into complying with a court order, the contempt

sanction is civil in nature. See id., --- U.S. at ----, 114 S.Ct.

at 2558; Martin v. Guillot, 875 F.2d 839, 845 (11th Cir.1989). By

contrast, "if a court seeks to vindicate its authority by punishing

a contemnor, then [the] contempt is criminal in nature." Martin,

875 F.2d at 845 (citations omitted). Thus, we must determine

whether the specific sanctions ordered by the district court were

compensatory and coercive in nature, or instead were punitive in

nature.

 We have little trouble concluding that the sanctions the

district court imposed were overwhelmingly punitive—and thus

criminal—in nature. First, there was no compensatory aspect to the
 5

The final section of the contempt order was clearly

intended to coerce DuPont into complying with the order's three

other sections. Thus, when considered in isolation, this part of

the order could be characterized as a coercive civil sanction. 

However, because it was intended to coerce compliance with the

other sanctions, which were punitive in nature, it must fall with

the rest of the contempt order. See Hicks, 485 U.S. at 638 n.

10, 108 S.Ct. at 1433 n. 10 ("[I]f both civil and criminal relief

are imposed in the same proceeding, then the criminal feature of

the order is dominant and fixes its character for purposes of

review.") (citations and internal quotation marks omitted). 

contempt order. The only provision even arguably geared toward

compensation of the parties was the first command that DuPont pay

a sum of $6,843,837.53. Although the district court chose this

figure because it represented the cost to the plaintiffs in

preparing for and conducting the underlying trial, the district

court did not order that this sum be paid to the Appellees or to

any of the other plaintiffs in the original Bush Ranch litigation.

Instead, the district court ordered the sum to be paid into the

registry of the court. The Supreme Court has provided few

"straightforward rules" for distinguishing between civil and

criminal contempts, Hicks ex rel. Feiock v. Feiock, 485 U.S. 624,

631-32, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988), but it has

held that "[i]f the relief provided is a fine, it is remedial [and

thus civil in nature] when it is paid to the complainant, and

punitive when it is paid to the court...." Id., 485 U.S. at 632,

108 S.Ct. at 1429. Thus, under Hicks, this portion of the

sanctions order must be characterized as punitive in nature.

 Second, there was no coercive aspect to the district court's

contempt order.5

 At the time the district court entered the

contempt order, DuPont could no longer comply with the discovery

orders because the Bush Ranch litigation had terminated. Although
 6

There is an exception to the general rule that determinacy

of sanctions renders them criminal rather than civil in nature,

and the Appellees argue that the exception applies in this case. 

In Hicks, the Court stated that "[i]f the relief imposed ... is

in fact a determinate sentence with a purge clause, then it is

civil in nature." Hicks, 485 U.S. at 640, 108 S.Ct. at 1433

(citations omitted). The Appellees claim that the $1 million and

$100 million sanctions contained in the third part of the

contempt order are civil in nature because, even though

determinate, DuPont was free to purge them by taking out ads in

several newspapers confessing wrongdoing. But this publication

option was itself neither compensatory nor coercive, but instead

was punitive in nature. When a party must choose between two

sanctions that are both punitive in nature, the character of the

ultimate relief will necessarily be punitive. 

 7

In light of the serious nature of the allegations against

DuPont and its counsel, we assume that the appropriate United

States Attorney will shortly begin an investigation of this

matter (if he or she has not already done so). 

the district court did have the power to set aside the settlement

agreement and re-open the discovery portion of the earlier case,

see Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 2132,

115 L.Ed.2d 97 (1991), it chose not to do so. Where "the contemnor

[can] not avoid the sanction by agreeing to comply with the

original order to produce the documents," the sanctions order is

determinate and therefore criminal in nature.6 Hicks, 485 U.S. at

634 n. 6, 108 S.Ct. at 1431 n. 6.

 We are persuaded that the sanctions imposed by the district

court were neither compensatory nor coercive in nature, but instead

were designed to punish DuPont for flouting the authority of the

district court. Accordingly, even though DuPont and its counsel

may very well have engaged in criminal acts,7

 we must reverse the

contempt order because the district court did not afford DuPont the

procedural protections the Constitution requires for the imposition

of criminal contempt sanctions.
C. Violation of an Order.

DuPont claims that it "cannot be held in contempt for failing

to produce the Alta [data] for the simple reason that there was no

order requiring [their] production." DuPont's Br. at 17. If

DuPont is correct in its assertion that it was never ordered to

produce the Alta data, then it cannot be held in contempt for

failing to produce the Alta data during the Bush Ranch litigation.

Since a ruling on this issue will either confirm or remove

permanently a risk of the imposition of serious criminal contempt

sanctions against DuPont, we now turn to a discussion of whether

the evidence that DuPont was ever ordered to produce the Alta data

is sufficient to allow this case to proceed further.

 As previously explained, the sanctions imposed by the

district court were criminal in nature. In the context of criminal

contempt, the existence vel non of an order is a question for the

finder of fact. See United States v. Turner, 812 F.2d 1552, 1563

(11th Cir.1987) (listing, as one of the essential elements of

criminal contempt, a finding that the district court "entered a

lawful order of reasonable specificity"); see also In re McDonald,

819 F.2d 1020, 1024 (11th Cir.1987) (holding that whether an order

is reasonably specific is a question of fact which must be proven

beyond a reasonable doubt to sustain a conviction for criminal

contempt). Thus, in order to grant DuPont's request that we

declare at this stage of the proceedings that no order requiring

production of the Alta data existed, we would have to find that the

record contains insufficient evidence to enable a reasonable finder

of fact to conclude beyond a reasonable doubt that the district
court entered a lawful order of reasonable specificity requiring

DuPont to produce the Alta data. An order meets the "reasonable

specificity" requirement only if it is a "clear, definite, and

unambiguous" order requiring the action in question. See, United

States v. Koblitz, 803 F.2d 1523, 1527 (11th Cir.1986); Jordan v.

Wilson, 851 F.2d 1290, 1292 n. 2 (11th Cir.1988); see also Int'l

Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n, 389 U.S.

64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967) (union could not

be held in contempt for violating order which did not clearly apply

to union).

 Mindful of this standard, and having undertaken a thorough

review of the record, we cannot agree with DuPont that there is

insufficient evidence from which a reasonable finder of fact could

conclude that there was a reasonably specific order requiring

DuPont to produce the Alta data. In reaching this conclusion, we

have applied the familiar doctrine that the evidence is to be

viewed, and all credibility issues to be decided, in the light most

favorable to the charge, and all reasonable inferences drawn in

support of a guilty verdict. See, e.g., Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); United

States v. Starrett, 55 F.3d 1525, 1541 (11th Cir.1995); United

States v. Perez, 956 F.2d 1098, 1101 (11th Cir.1992). Of course,

we do not mean, by our ruling on this issue, to predetermine the

outcome of the criminal contempt proceeding. More specifically, we

do not mean to intimate that no reasonable finder of fact could

have a reasonable doubt about the existence of a sufficiently

specific order. Rather, we merely hold that the record contains
sufficient evidence from which a reasonable finder of fact could

find beyond a reasonable doubt that DuPont was ordered to produce

the Alta data. We turn now to a discussion of that evidence.

The plaintiffs' first request for document production was very

broad. In it, DuPont was asked to produce, inter alia:

All documents reflecting, referencing, and/or relating to any

analytical findings (including identification of peaks) from

mass spectrometry [and] high performance liquid chromatography

... in any way relating to the use and/or administration of

Benlate 50 DF;

 * * * * * *

all documents reflecting, referencing, and/or relating to any

assays ... conducted, in whole or in part, for the purpose of

determining the presence, if any, of any sulfonylurea compound

in Benlate 50 DF; [and]

 * * * * * *

all documents relating to and/or referencing any report or

finding from any person, or entity, whether or not employed by

the defendant, of other pesticidal compounds, including, but

not limited to, herbicides, in Benlate 50 DF.

Plaintiffs' First Request for Production of Documents to Defendant

E.I. du Pont de Nemours & Company WW 18, 55, and 65. The Alta data

consist of documentation of the results of liquid chromatography

testing which was done to detect the possible presence of Benlate

50 DF in soils taken from the plaintiffs' nurseries. Thus, the

request for production of documents would appear to cover the Alta

data. Nevertheless, DuPont argues that this request for production

of documents could not include the Alta data, both because the

district court treated materials generated by non-testifying

experts differently from materials generated by testifying experts

and non-experts, and because the Alta data were generated long

after the first request for production of documents was prepared.
 8

Although one might intuitively think that the request for

production contains an implicit limitation to documents produced

on or before the date the request for production was issued,

there is the following language in Rule 26:

A party who has ... responded to a request for

discovery with a disclosure or response is under a duty

to supplement or correct the disclosure or response to

include information thereafter acquired if ordered by

the court or in the following circumstances:

(1) ... if the party learns that in some material

respect the information disclosed is incomplete or

incorrect and if the additional or corrective

information has not otherwise been made known to

the other parties during the discovery process or

in writing.

Fed.R.Civ.P. 26(e) (emphasis added). Thus, when a party

generates responsive documents which render incomplete or

incorrect earlier disclosures, it has an obligation to

inform the opposing party of the new material. 

These arguments are not strong enough to establish DuPont's

position as a matter of law; a reasonable factfinder could reject

them.

There is no phrase in the request for document production

suggesting that the plaintiffs intended or desired for the request

to be limited to documents produced by testifying experts or by

non-experts. In addition, there is no phrase in the request

suggesting that the plaintiffs intended or desired the request to

be limited to documents in existence on or before the date DuPont

received the document request.8 Thus, a reasonable finder of fact

could conclude beyond a reasonable doubt that this request, on its

face, covered the Alta data.

DuPont raised a number of objections to this request for

production, each of which was subsequently overruled by the

district court. In particular, DuPont claimed that it was not
required to turn over the requested documents because the discovery

request sought "information or materials which have been gathered

or prepared in anticipation of or in the course of litigation, or

which otherwise is subject to [the] work-product doctrine."

Memorandum Opinion and Order on Plaintiffs' Motion to Compel

Discovery Dated June 24, 1992, at 3. The district court noted that

DuPont had failed to make timely and specific claims of privilege

and specifically overruled DuPont's "objections to producing

documents involving Benlate claims and lawsuits and tests that

Defendant has conducted since March, 1991." Id. at 17 (emphasis

added). Nevertheless, the district court reserved ruling on

DuPont's claims of work product protection to give DuPont yet

another opportunity to present adequately its claims of privilege

on or before June 30, 1992. In addition, the district court

specifically ordered DuPont to go back and review the plaintiffs'

first request for production of documents and to answer each

request fully within 15 days from the date of the district court's

order. See id. at 18.

On June 30, 1992, DuPont filed a 498-page privilege log with

the district court listing documents that it wanted to withhold on

grounds of attorney-client privilege and/or the work product

doctrine. See Supplemental Order Dated September 25, 1992, at 3.

DuPont also noted its intention to withhold four categories of

documents that were not individually logged. One of these

categories of non-individually logged documents was described as

"documents generated during ongoing testing conducted in 1992 by

defendant with outside experts retained to evaluate crop damage
claims and to determine the causes of damage." Id. The district

court then made the following statement:

This Court concludes that defendant's expressed intent to

raise additional claims of such privileges and protections,

long after its responses to plaintiffs' first interrogatories

and plaintiffs' first request for production were due and long

after the June 30, 1992, date upon which this Court directed

defendant to file a detailed log specifically setting forth

any and all claims of attorney-client privilege and

work-product protection, is contrary to applicable law as set

forth above and in violation of this Court's directives.

Id. at 21. The district court further stated:

[T]he Court has determined that management of these cases,

consolidated for the purpose of discovery, must not be further

delayed by the non-production of documents by this defendant,

nor by a continued delayed filing of claims of attorney-client

privilege and work-product protection. The consequences to

this defendant, if any, resulting from the rulings herein

made, will result solely from the failure of this defendant to

respond timely to the plaintiffs' discovery requests.

Id. at 26 (emphasis added).

As a result of DuPont's refusal to review its documents and

make adequate claims of work product protection, the district court

issued an order to apply throughout the Bush Ranch litigation that

no further claims of work product protection asserted by DuPont

would be entertained unless DuPont made a showing of extraordinary

need. Id. at 27-28 ("The matter here considered will be limited to

the question of the plaintiffs' first discovery requests directed

to the defendant and the question of whether the defendant, by its

acts and conduct, has waived the right to file any further claims

of attorney-client privilege or work-product protection as to

individual documents responsive to those discovery requests....

Only an assertion of privilege by defendant upon a showing of

extraordinary need will be hereafter considered.") (emphasis

added). Thus, a reasonable finder of fact could conclude beyond a
 9

The procedure adopted by the district court—viz., requiring

the non-producing party to identify documents withheld under a

claim of work product protection before forcing the party seeking

production to make a showing of substantial need for the

documents—is substantially in line with an amendment to Rule 26

adopted shortly after the termination of the Bush Ranch

litigation. See Fed.R.Civ.P. 26(b)(5) ("When a party withholds

information otherwise discoverable under these rules by claiming

that it is privileged or subject to protection as trial

preparation material, the party shall make the claim expressly

and shall describe the nature of the documents, communications,

or things not produced or disclosed in a manner that, without

revealing information itself privileged or protected, will enable

other parties to assess the applicability of the privilege or

protection."). Arguably, the content of subdivision (b)(5) was

already implicit in the scheme of Rule 26 at the time of the Bush

Ranch litigation. At any rate, the question before this court is

not what the Federal Rules of Civil Procedure required DuPont to

produce, but instead what a reasonable finder of fact could

conclude that the district court ordered DuPont to produce. If

the district court's order to produce the documents sought in the

first request for document production was clear, then DuPont was

not entitled to decide unilaterally to disregard the order simply

because it did not track precisely the procedure set up in Rule

26. 

reasonable doubt that the district court, by order, specifically

altered the general process contained in Rule 26 for addressing

claims of work product protection relating to documents prepared by

DuPont in anticipation of litigation.9

As a result of DuPont's abuse of the discovery process, the

district court set up a special procedure for reviewing future work

product claims by DuPont. A reasonable finder of fact could well

conclude that DuPont's attorneys were clever enough to figure out

the import of the district court's enunciated procedure for

reviewing all future claims of work product protection in the case.

Indeed, after the district court adopted this procedure, it

specifically ordered DuPont to go back and review its responses to

the plaintiffs' first request for document production and to fill

in immediately "all gaps in documents responsive to Plaintiffs'
original discovery requests." Order Imposing Sanctions Dated March

15, 1993, at 4 (emphasis added). Significantly, the Alta data were

generated only a couple months after the district court issued its

gap-filling order.

We do recognize that there is evidence in the record which

could cause a factfinder to have a reasonable doubt about the

existence of a clear, definite, and unambiguous order requiring

DuPont to produce the Alta data. For example, DuPont points to a

joint motion, signed by plaintiffs' lead counsel and submitted to

the district court upon settlement of the case which states that

"Plaintiffs have agreed that, during the course of the case, DuPont

did come in compliance with the Court's Orders and its discovery

obligations." Joint Motion and Supporting Memorandum of Plaintiffs

and Defendant for an Order Vacating Prior Discovery Orders and

Sanctions Dated August 16, 1993, at 3. As noted by DuPont, it is

undisputed that Neal Pope, the lead counsel for the plaintiffs,

signed that joint motion at a time when he knew that the Alta data

had not been turned over during the course of discovery. We agree

with DuPont that Mr. Pope's written representation, as an officer

of the court, that DuPont had complied with its discovery

obligations is evidence in its favor. But it is not conclusive

evidence.

A factfinder is entitled to make credibility determinations,

and we are not prepared to rule out the possibility that a

reasonable factfinder might find that, notwithstanding his

obligations as an officer of the court, Mr. Pope's representations

were less than literally true and were made as a matter of
expedience to ensure the success of the settlement. We hope that

expedience and deliberate misrepresentation is not the explanation;

if, however, that turns out to be the case, the district court

should take appropriate action. It may be that there is a

satisfactory, innocent explanation for the inconsistency between

Mr. Pope's representations to the district court on behalf of the

plaintiffs in the settlement agreement, and the position plaintiffs

have taken in this proceeding, but we leave that matter to further

development upon remand. The district court should insist upon an

explanation, and the factfinder can make the necessary credibility

determinations about any explanation that is offered.

For present purposes, it is enough to view all of the

evidence, make all of the credibility decisions, and draw all of

the reasonable inferences in favor of the contempt charge. Doing

that, we conclude that a reasonable finder of fact could conclude

beyond a reasonable doubt that the plaintiffs' first request for

production of documents covered the Alta data. In addition, a

reasonable finder of fact could conclude beyond a reasonable doubt

that the district court overruled DuPont's objections to that

request and ordered DuPont to produce the Alta data. In sum, we

hold that a reasonable finder of fact could conclude beyond a

reasonable doubt that the district court entered a lawful order of

sufficient specificity commanding DuPont to produce the Alta data

and that it willfully failed to obey that order.

V. Conclusion

For the foregoing reasons, we reverse the contempt order and

remand this case to the district court for further proceedings
consistent with this opinion.

REVERSED and REMANDED.