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No. 96-3652

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In re: Missouri Department of *

Natural Resources, * Petition for Writ of Mandamus.

*

Petitioner. *

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 Submitted: November 20, 1996

 Filed: January 29, 1997

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Before WOLLMAN, BEAM and MURPHY, Circuit Judges.

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BEAM, Circuit Judge.

The Missouri Department of Natural Resources (“MDNR”) seeks a writ

of mandamus directing the Honorable Joseph E. Stevens, United States

District Judge for the Western District of Missouri, to vacate his order

denying MDNR’s motion to quash subpoenas duces tecum served upon it by

litigants in a case in which MDNR is not a party. Because we believe that

the district court’s order adequately protects all privileged information,

we deny mandamus.

I. BACKGROUND

Underlying this discovery dispute is the detection of hazardous

substances in the water of Newton County, Missouri. MDNR investigated and

eventually identified FAG Bearings Corporation as potentially responsible

for the contamination. Residents of the contaminated area then sued FAG

in federal court. Thomas v. FAG Bearings Corp., 846 F. Supp. 1382 (W.D.

Mo. 1994). FAG tried to involuntarily join MDNR in that case based on

MDNR’s previous statements that it intended to sue FAG for the costs of

remediation. On appeal, we held that forcing MDNR to participate
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in the suit would violate the Eleventh Amendment. Thomas v. FAG Bearings

Corp., 50 F.3d 502 (8th Cir. 1995). 

FAG ultimately settled with the Thomas plaintiffs, paying out over

four million dollars. It then initiated litigation to recover the cost of

that settlement from others it claims were the real source of the Newton

County contamination. The MDNR investigation continues, as does MDNR’s

representation that it is preparing to sue FAG. FAG served a subpoena

duces tecum on MDNR seeking documents relating to the investigation. MDNR

refused to produce 137 of the requested documents, based on various

assertions of privilege, and moved to quash the subpoenas. 

The district court, after examining the privilege log and the

extensive record in this and related cases, ordered production of the

documents with the proviso that: (1) the identity of confidential

informants would be redacted; (2) certain draft documents would be exempt

from discovery; and (3) the mental impressions or legal conclusions of any

government attorney would be redacted. MDNR now petitions this court for

a writ of mandamus ordering the district court to quash the subpoenas. 

II. DISCUSSION

The management of discovery is committed to the sound discretion of

the trial court. Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir.

1996). The scope of our review of discovery orders is both narrow and

deferential. Baker v. General Motors Corp., 86 F.3d 811, 816 (8th Cir.),

petition for cert. filed, 65 U.S.L.W. 3342 (U.S. Oct. 22, 1996).

Discovery orders involving claims of privilege can be subject to

mandamus review. E.g., In re Remington Arms Co., 952 F.2d 1029, 1031 (8th

Cir. 1991) (reviewing order compelling production of alleged trade

secrets); Diversified Indus. v. Meredith, 572 F.2d
 We note that the district court specifically found that these 1

documents were created in the normal course of business rather than

in anticipation of litigation, thus not qualifying as protected

work product. We therefore do not reach the question of a

nonparty’s ability to invoke the protection of Federal Rule of

Civil Procedure 26(b)(3).

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596, 599 (8th Cir. 1977) (reviewing order compelling disclosure over claim

of attorney-client privilege). However, issuance of a writ of mandamus

“`is a drastic remedy to be invoked only in extraordinary situations.’”

In re SDDS, Inc., 97 F.3d 1030, 1034 (8th Cir. 1996) (quoting Melahn v.

Pennock Ins., 965 F.2d 1497, 1501 (8th Cir. 1992)). A party seeking

issuance of a writ of mandamus must “have no other adequate means to attain

the relief he desires and [must show that his] right to issuance of the

writ is clear and undisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449

U.S. 33, 35 (1980) (per curiam) (citations omitted). Careful review of

this case leads us to conclude that mandamus relief is not warranted.

MDNR asserts a variety of privileges including attorney work product,

deliberative process privilege, the government’s privilege against

identifying informants, and protection from pre-enforcement review. The

district court’s order specifically allows MDNR to redact all information

that identifies informants and legal opinions and strategies. This order

provides adequate protection of legitimately privileged information. We 1

assume that the district court will address any additional concerns

regarding specific documents by reviewing them in camera. Black v. United

States, 62 F.3d 1115, 1119 & n.6 (8th Cir. 1995) (citing In re Eisenberg,

654 F.2d 1107, 1112 n.7 (5th Cir. 1981)), cert. denied, 116 S. Ct. 1541

(1996). Thus MDNR has failed to establish that it is threatened with

irreparable harm or that it lacks adequate alternatives for relief. 
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MDNR also asserts that the district court’s order violates our

holding in Thomas v. FAG Bearings Corp., 50 F.3d 502 (8th Cir. 1995). In

Thomas, we held that compelling the state “to prosecute FAG at a time and

place dictated by the federal courts” would violate the Eleventh Amendment.

Id. at 505. We noted that forcing MDNR to litigate its claims prematurely

“undermines the two aims of the Eleventh Amendment: protection for a

state’s autonomy and protection for its pocketbook.” Id. at 506 (citing

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, ___, 115 S. Ct. 394,

400 (1994)). 

The issues implicated in this discovery dispute are far removed from

Thomas. MDNR has not shown how production of these documents infringes on

the State of Missouri’s autonomy or threatens its treasury. Governmental

units are subject to the same discovery rules as other persons and entities

having contact with the federal courts. United States v. Procter & Gamble,

356 U.S. 677, 681 (1958). There is simply no authority for the position

that the Eleventh Amendment shields government entities from discovery in

federal court.

III. CONCLUSION 

We have carefully considered the remainder of MDNR’s arguments and

find them to be without merit. The petition for a writ of mandamus is

denied. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.