In re Lott

424 F.3d 446

In re: Gregory LOTT, Petitioner.

No. 05-3532.

United States Court of Appeals, Sixth Circuit.

Submitted: May 10, 2005.

Decided and Filed: September 9, 2005.

ON BRIEF:

Gregory W. Meyers, Robert K. Lowe, Melissa J. Callais, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Petitioner. David A. Singleton, Prison Reform Advocacy Center, Cincinnati, Ohio, Marc R. Kadish, Mayer, Brown, Rowe & Maw, Chicago, Illinois, Jeffrey M. Gamso, American Civil Liberties Union of Ohio Foundation, Cleveland, Ohio, Eugene P. Whetzel, Ohio State Bar Association, Columbus, Ohio, Jason A. Macke, Ohio Association of Criminal Defense Lawyers, Columbus, Ohio, for Amici Curiae.

Before: BOGGS, Chief Judge; MERRITT and COLE, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which COLE, J., joined. BOGGS, C.J. (pp. 456-64), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

Gregory Lott has petitioned this Court for mandamus relief from a discovery order in which the District Court "waived" his attorney-client privilege because he claims actual innocence. There is no case authority holding that a claim of actual innocence "waives" the attorney-client privilege or similar privileges such as the doctor-patient and priest-penitent privilege.

Lott was convicted and sentenced to death for the 1986 murder of John McGrath, an elderly resident of East Cleveland, Ohio. Lott is currently in the midst of litigating his second habeas corpus proceeding pursuant to this Court's authorization. See In re Lott, 366 F.3d 431, 434 (6th Cir.2004). In this petition, Lott contends that the prosecutor in his original trial withheld vital exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As set forth in our order authorizing Lott's second petition, Lott has made a prima facie showing that the prosecutor in his original trial both withheld important evidence from the court and made statements to the court that were directly contradicted by the evidence withheld from the defendant. Lott, 366 F.3d at 433.

In order for Lott to succeed in this second application for habeas relief, he must establish that but for the constitutional errors during his trial, no reasonable factfinder would have found him guilty of the murder. See 28 U.S.C. § 2244(b)(2)(B)(ii). Lott maintains that he is, in fact, innocent of the murder. To counter this claim of innocence, the warden seeks discovery of any evidence that might demonstrate Lott's guilt, including evidence of an alleged confession that was suppressed during the original criminal trial due to a Miranda violation.

The District Court ruled that through his assertion of actual innocence, Lott has "implicitly waived the attorney-client and work product privileges to the extent necessary for the Respondent to defend the actual innocence claim." Lott v. Bradshaw, No. 1:04-CV-822 (N.D.Ohio Mar. 29, 2005) (Order granting in part and denying in part Respondent's Motion for Discovery at 9-11). In accordance with this ruling, the District Court authorized the warden to depose and seek production of documents from Lott's trial counsel. Specifically, the Court ruled that Lott's trial counsel must provide any relevant information he has concerning whether Lott is guilty of the murder and whether Lott confessed the murder to the police.

On May 9, 2005, Lott filed a petition for mandamus with this Court and a motion to stay discovery pending the Court's consideration of his mandamus petition. This Court stayed the discovery proceedings on June 22, 2005. Having now received further briefings from the parties, a response by the District Court Judge, as well as numerous amicus briefs from interested parties, and a response to the briefs from the State, we now turn to the merits of Lott's mandamus petition. The District Court's order constitutes a departure from existing law for which we find no precedent. It undermines the historically strong protections of the attorney-client privilege.¹ As the order places the privileged relationship between a client and his attorney in jeopardy, this Court will issue the writ.

I. Jurisdiction

Discovery orders are generally not considered final for purposes of 28 U.S.C. § 1291. Typically, review of such orders becomes available only when there is a final judgment in the case. Assuming that this court does not have jurisdiction to review the District Court's order under § 1291, we must determine if there is some other jurisdictional basis for us to conduct immediate review of the order.² Pursuant to 28 U.S.C. § 1292(b), a district judge may certify an order not otherwise appealable for interlocutory appeal when that order "involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation." Such interlocutory appeal, however, is unavailable in this case because the District Court refused to certify the issue for appeal. Lott v. Bradshaw, No. 1:04-CV-822 (N.D.Ohio Apr. 28, 2005) (Denial of Petitioner Lott's motion to certify for appeal the order granting respondent discovery). When there is extraordinary need for review of an order before final judgment and the District Court has refused to certify the issue pursuant to § 1292(b), this Court has authority to issue a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651. The All Writs Act authorizes federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651.

Our Court has continually recognized that mandamus relief is an "extraordinary remedy" that should be utilized only infrequently. This extraordinary remedy is usually reserved for "questions of unusual importance necessary to the economical and efficient administration of justice," or "important issues of first impression." EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir.1982). We have "embraced a multi-factor test for determining the propriety of mandamus." In re Chimenti, 79 F.3d 534, 539 (6th Cir.1996) (citing In re Bendectin Products Liability Litigation, 749 F.2d 300, 304 (6th Cir.1984)). When making such a determination, this Court will consider whether the following factors are met:

(1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired.

(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal.

(3) The district court's order is clearly erroneous as a matter of law.

(4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules.

(5) The district court's order raises new and important problems, or issues of law of first impression.

Bendectin, 749 F.2d at 304. We have never required that every element be met in order for mandamus to issue: "`Rarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable.'" Id. (quoting Bauman v. United States District Court, 557 F.2d 650, 655 (9th Cir.1977)). As such, the mandamus analysis "cannot be wholly reduced to formula." Chimenti, 79 F.3d at 539.

In this case, the first, second, third, and fifth factors all weigh heavily in favor of issuing mandamus. With regard to the first factor, our initial jurisdictional considerations make clear that Lott has no other readily-available means of relief from the discovery order. Mandamus must issue or his counsel will be obliged to obey the binding court order and disclose the privileged communications. Review of that decision will only become available after there is a final judgment. As to the fifth factor, whether an assertion of actual innocence effects an implied waiver of the attorney-client and work product privileges is plainly an issue of first impression in this Circuit, and apparently an issue of first impression in the federal courts. The remaining two factors of the mandamus analysis deserve more extensive examination.

The oldest of the privileges, the attorney-client privilege has been recognized since the reign of Queen Elizabeth. See, e.g., Hartford v. Lee, 21 Eng. Rep. 34 (Ch. 1577). And, as Wigmore notes, the privilege was virtually "unquestioned" even then. 8 J. Wigmore, Evidence § 2290, at 547 (3d ed.1940). The attorney-client privilege encourages "`full and frank communication between attorneys and their clients and thereby promotes broader public interests in the observance of law and the administration of justice.'" Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). As we have previously noted, "the privilege encourages clients to make full disclosure to their lawyers, and `[a] fully informed lawyer can more effectively serve his client.'" Reed v. Baxter, 134 F.3d 351, 356 (6thCir.1998). It is not hyperbole to suggest that the attorney-client privilege is a necessary foundation for the adversarial system of justice.

If we intend to serve the interests of justice by encouraging consultation with counsel free from the apprehension of disclosure, then courts must work to delineate the scope of the privilege in ways that are predictable and certain. "An uncertain privilege-or one which purports to be certain, but rests in widely varying applications by the courts-is little better than no privilege." Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir.1994) (quoting In re von Bulow, 828 F.2d 94, 100 (2d Cir.1987)); Swidler & Berlin, 524 U.S. at 409, 118 S.Ct. 2081 (recognizing the need to avoid "substantial uncertainty into the privilege's application"). When defining the contours of the attorney-client privilege, we are...