United States Court of Appeals

for the Fifth Circuit

No. 21-40190

In re: The Boeing Company, 

Petitioner.

Petition for a Writ of Mandamus

to the United States District Court

for the Eastern District of Texas

USDC No. 4:19-CV-507

Before Clement, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

The Boeing Company petitioned our court for a writ of mandamus 

after the district court ordered Boeing to produce fifty-three documents that 

Boeing contends are protected by attorney-client privilege. Boeing argues 

that the district court erred in holding that nineteen of those documents 

lacked attorney-client privilege and that the other thirty-four were subject to 

the crime-fraud exception. We DENY in part and GRANT in part.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 29, 2021

Lyle W. Cayce

Clerk

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I. Background

In the case underlying this petition, Plaintiffs allege that Boeing and 

Southwest Airlines conspired to defraud the flying public by concealing 

various alleged design defects with the Boeing 737 MAX 8 aircraft and 

encouraging the public to fly aboard these aircrafts. During discovery, 

Boeing turned over several privilege logs, and, after Boeing entered into a 

Deferred Prosecution Agreement (“DPA”) with the Department of Justice, 

Plaintiffs moved to compel over 200 of the privilege-asserted documents

under the crime-fraud exception. The district court determined that 

Plaintiffs established a prima facie case that the crime-fraud exception to 

attorney-client privilege applied to the requested documents and ordered 

Boeing to produce them for in camera review. Upon review, the court 

ordered Boeing to produce fifty-three documents, concluding that nineteen 

of them lacked attorney-client privilege and thirty-four of them were subject 

to the crime-fraud exception.

Boeing unsuccessfully moved to stay the district court’s order so that 

it could seek appellate review and certify its order for interlocutory appeal 

under 28 U.S.C. § 1292(b). Consequently, Boeing filed this mandamus 

petition.

II. Discussion

A writ of mandamus “is an extraordinary remedy for extraordinary 

causes.” In re United States ex rel. Drummond, 886 F.3d 448, 449 (5th Cir. 

2018) (per curiam) (quotation omitted). As such, we will issue a writ of 

mandamus only if (1) the petitioner shows that it has a “clear and 

indisputable” right to mandamus relief; (2) the petitioner has “no other 

adequate means” to attain the desired relief; and (3) we are satisfied that the 

writ is “appropriate under the circumstances.” Id. at 449–50 (quotation 

omitted). As explained below, we hold that a writ of mandamus is not 

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warranted for the nineteen alleged attorney-client-privileged documents 

because Boeing failed to show that it has a clear and indisputable right to 

mandamus relief on them, but we hold that mandamus relief is warranted for 

the thirty-four crime-fraud-excepted documents.

Nineteen Attorney-Client-Privileged Documents

For a communication to be protected as privileged, the proponent 

must prove: “(1) that he made a confidential communication; (2) to a lawyer 

or his subordinate; (3) for the primary purpose of securing either a legal 

opinion or legal services, or assistance in some legal proceeding.” EEOC. v. 

BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (quotation and

emphasis omitted). “Ambiguities as to whether the elements of a privilege 

claim have been met are construed against the proponent.” Id. We review a 

district court’s finding on attorney-client privilege for clear error. Id. 

Based on the record before us, the district court did not clearly err in 

finding that the nineteen contested documents were not attorney-client 

privileged because Boeing did not explain what kind of “legal advice” its inhouse counsel were providing regarding those documents. See id. at 696 

(acknowledging that courts have routinely stated that “simply describing a 

lawyer’s advice as ‘legal,’ without more, is conclusory and insufficient to 

carry out the proponent’s burden of establishing attorney-client privilege”). 

All Boeing said in asserting privilege to these documents—email 

communications discussing draft public communications regarding an 

accident on a 737 MAX 8 aircraft—was that its counsel “in fact provided 

legal advice on the content of th[o]se communications.” We do not 

determine as a matter of law that the documents Boeing identified were 

indeed unprivileged. We have determined that certain communications 

containing legal advice of attorneys, including in-house attorneys, fall under 

attorney-client privilege. See, e.g., Exxon Mobil Corp. v. Hill, 751 F.3d 379, 

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383 (5th Cir. 2014). We have indeed granted mandamus relief in a number 

of cases involving such privilege. See, e.g., In re Schlumberger Tech. Corp., 818 

F. App’x 304, 308 (5th Cir. 2020) (per curiam); In re City of Hous., 772 F. 

App’x 143, 144 (5th Cir. 2019) (per curiam); In re EEOC, 207 F. App’x 426, 

435 (5th Cir. 2006) (per curiam). But with such bare conclusory statements

offered by Boeing regarding these documents, we hold that the district court 

did not clearly err in finding that the nineteen documents were not privileged.

We thus DENY Boeing’s petition for a writ of mandamus on this set of 

documents.

Thirty-Four Crime-Fraud Excepted Documents

All three prongs for mandamus relief, however, are satisfied with

regard to the thirty-four crime-fraud excepted documents.

First, Boeing has shown a clear and indisputable right to mandamus 

relief on the thirty-four crime-fraud excepted documents. For the crimefraud exception to apply to attorney-client privileged communications, the 

party seeking to invoke the exception must establish a prima facie case that 

the privileged communication was intended to further continuing or future 

criminal or fraudulent activity. In re Grand Jury Subpoena, 419 F.3d 329, 335

(5th Cir. 2005). Establishing a prima facie case requires producing evidence 

that will suffice until contradicted and overcome by other evidence that 

(1) “the client intended to further an ongoing or future crime or fraud during 

the attorney-client representation” and (2) the communication was 

“reasonably relate[d] to the fraudulent activity.” Id. at 336, 346 (quotation 

omitted). As with attorney-client privilege, we review a district court’s 

finding that the crime-fraud exception applies for clear error. Id. at 335.

Here, as Boeing argues, the district court clearly erred in finding that 

Plaintiffs established a prima facie case that the contested documents were 

subject to the crime-fraud exception. The district court concluded that the 

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contested documents were reasonably connected to the fraud based on one 

finding only—that the documents sought “f[e]ll within the period Boeing 

admit[ted] to hav[ing] knowingly and intentionally committed fraud” in the 

DPA. However, a temporal nexus between the contested documents and the 

fraudulent activity alone is insufficient to satisfy the second element for a 

prima facie showing that the crime-fraud exception applies. In re 

BankAmerica Corp. Sec. Litig., 270 F.3d 639, 643 (8th Cir. 2001) (holding that 

the district court erred by assuming, “without any further showing by 

plaintiffs,” that once fraud was shown, “all contemporaneous attorney-client 

communications ‘could be construed’ as in furtherance of the alleged 

fraud”); In re Grand Jury Subpoena, 419 F.3d at 344–45 (referring to In re 

BankAmerica Corp. as persuasive authority). Accordingly, the district court 

clearly erred in concluding that Plaintiffs established a prima facie case that 

the contested documents were subject to the crime-fraud exception, and 

Boeing has satisfied the first prong for mandamus relief. 

Second, as is often the case where a petitioner claims that the district 

court erroneously ordered disclosure of attorney-client privileged 

documents, there is no other adequate means of relief. See In re Itron, Inc., 

883 F.3d 553, 567 (5th Cir. 2018). Boeing unsuccessfully moved to certify an 

interlocutory appeal under § 1292(b), and an appeal after final judgment will 

come too late because the privileged communications will already have been 

disclosed.1 Id. at 567–68. Accordingly, we hold that the second prong is met.

1 We acknowledge that the Supreme Court has held that attorney-client privilege 

rulings are not appealable under the collateral order doctrine because “postjudgment 

appeals generally suffice to protect the rights of litigants and ensure the vitality of the 

attorney-client privilege.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 109 (2009). 

However, as we have also acknowledged in In re Itron, 883 F.3d at 568–69, we agree with 

other circuits that the Supreme Court’s repeated and express reaffirmance that mandamus 

remains a “useful safety valve” to correct certain clearly erroneous attorney-client 

privilege rulings supports the general notion that appeal of a district court’s disclosure 

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Lastly, granting mandamus on the thirty-four privileged documents is 

appropriate here. Not only did the district court clearly err and leave Boeing 

with no other adequate means of relief, but the issue presented here—the 

showing necessary to make out a prima facie crime-fraud-exception case—

has “importance beyond the immediate case.” In re Volkswagen of Am., Inc., 

545 F.3d 304, 319 (5th Cir. 2008) (en banc). We have on only rare occasions 

addressed what is sufficient to establish that privileged communication was 

reasonably related to the fraud. Thus, if the district court’s views on what 

amounts to a sufficient showing for a prima facie case of the crime-fraud 

exception were to proliferate, more litigants would be encouraged to seek 

production of privileged communications whenever there is evidence a party 

committed a crime or fraud, and district courts could mistakenly find that a 

prima facie case existed on a mere temporal nexus. Accordingly, we conclude 

that mandamus relief is appropriate here. See In re Itron, 883 F.3d at 568–69 

(concluding that mandamus relief was appropriate in a similar case where the 

district court’s ruling on attorney-client privilege would have consequences 

outside of the immediate case); see also In re BankAmerica Corp., 270 F.3d at 

644 (granting mandamus relief to ensure that the district court correctly 

determine that a threshold prima facie case of the crime-fraud exception is 

made).

We thus GRANT Boeing’s petition for a writ of mandamus on this 

set of documents.2

order after final judgment is inadequate to vindicate a privilege the very purpose of which 

is to prevent the release of those confidential documents. See In re Kellogg Brown & Root, 

Inc., 756 F.3d 754, 760–62 (D.C. Cir. 2014) (quoting Mohawk, 558 U.S. at 111) (citing Ninth, 

Seventh, and Second Circuit cases).

2 Because we conclude that the district court clearly erred in finding that Plaintiffs 

established a prima facie case, we need not, and do not, address Boeing’s alternate 

argument that the district court erred by failing to limit the scope of the crime-fraud 

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III. Conclusion

For the reasons set forth above, IT IS ORDERED that the petition 

for a writ of mandamus is DENIED with respect to the nineteen documents 

claimed to be attorney-client privileged and GRANTED with respect to the 

thirty-four crime-fraud-excepted documents. We REMAND to the district 

court with instructions to VACATE the portion of its order compelling 

production of those thirty-four documents.

exception when it directed Boeing to produce the contested documents upon in camera

review. 

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