Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Kalitowski, Judge. Petitioners seek writs of prohibition and mandamus. They object to the district court's employment of a categorical review of their claims of privilege and seek to compel a review of individual documents, as well as individual findings pertaining to each document.
Respondents oppose the petition and seek attorney fees and costs.
To obtain a writ of prohibition, a party asserting privilege must establish that the district court has ordered disclosure of information that is clearly not discoverable. But the focus of this petition is on the process employed to review claims of privilege and not on the specific documents ordered disclosed. We note that the documents ordered disclosed by the district court became available to the public by alternative means. In large part, petitioners appear to be seeking an advisory opinion on the process employed by the district court over the course of the past seven months, rather than review of the specific rulings made on December 16, 1997. To the extent they are challenging the procedures employed by the special master, they have not established that they suffered injury for which extraordinary relief is the only remedy, that the procedures they seek would have yielded any greater protection, or that the procedures now being employed are identical.