On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Action No. 86-1521.
Gibbons, Chief Judge, Sloviter and Cowen, Circuit Judges.
United Coal Companies (United) appeals from a final judgment dismissing its diversity products liability complaint against Interstate Equipment Corp. (Interstate) and Bethlehem Steel Corp. (Bethlehem) with prejudice for failure to comply with court orders respecting discovery. United contends that the court erred in ordering discovery of materials to which the attorney client or work product privileges applied. United also contends that the court erred in an earlier ruling that requests for admissions served by Interstate and Bethlehem would be deemed admitted. We conclude that the case should not have been dismissed and that the ruling with respect to requests for admissions was error. Thus we will reverse.
Proceedings in the District Court
United owns a coal mine and processing plant at Big Rock, Virginia. At that site it operated an aerial tramway to move coal refuse from one of its processing facilities. On July 23, 1984 a haul rope supplied by Bethlehem and installed by Interstate broke, permitting sixty-two cars on the aerial tramway to fall to the ground. United was insured for casualty losses by Royal Insurance Company and St. Paul Fire & Marine Insurance Company. These casualty insurers paid a loss claim totalling $1.5 million, obtaining a subrogation of United's rights against third parties liable for the loss. The subrogation receipts authorized the insurers to sue in United's name. The insurers retained attorneys to do so, and on July 18, 1986 those attorneys filed a complaint seeking to hold Bethlehem and Interstate liable for the entire loss, including over $166,000 in damages for which United has not been reimbursed.
During the course of pretrial proceedings Bethlehem and Interstate filed a motion to dismiss or add Royal Insurance Company and St. Paul Fire & Marine Insurance Company as the real parties in interest. No order was ever entered on this motion, because in response to it the insurers executed and served on Bethlehem and Interstate agreements expressly ratifying United's suit and undertaking to be bound thereby. This action was taken pursuant to Fed. R. Civ. P. 17(a), which in relevant part states:
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Thus the effect of service of the Rule 17(a) ratification agreements was as if Royal Insurance Company and St. Paul Fire & Marine Insurance Company had been parties from the beginning of the action.
Extensive discovery had commenced before the real party in interest motion was filed, and continued after the filing of the Rule 17(a) ratification agreements. The district court imposed a discovery deadline of March 27, 1987, which was later extended to April 30, 1987. By then thirty-six depositions had been taken, and United had produced numerous documents, both from its own files and from the files of the insurers. Certain documents which were included in the Bethlehem or Interstate discovery requests were withheld, however, under claims of attorney client or work product privilege. These were listed in two letters from United's counsel to counsel for Bethlehem and Interstate.
On April 30, 1987 Bethlehem and Interstate filed a motion to compel production of the withheld documents. The motion states in relevant part:
14. Documents have been withheld from production pursuant to a claim of privilege asserted by counsel for plaintiffs.
15. Counsel for defendants are unable to test the validity of plaintiffs assertion of privilege since counsel for defendants have not viewed the documents which have been withheld.
16. Defendant would request that this court or this court's designee, e.g., a federal magistrate, review the documents withheld by plaintiffs to determine whether or not plaintiff's assertion of privilege is well founded.
17. Upon completion of the requested document review, counsel for defendants request that plaintiffs be compelled to produce all documents or portions of documents which are not subject to privilege for inspection by counsel for defendants.
WHEREFORE, defendants, Interstate Equipment Corporation and Bethlehem Steel Corporation respectfully request this Honorable Court to direct plaintiffs to turn over the withheld documents for review by the court and all properly discoverable documentation be turned over for review by defense counsel.
Thus Bethlehem and Interstate did not claim that the attorney client or work product privileges were generally inapplicable, but merely asked the court to examine the documents and rule on the applicability of those privileges to individual documents.
The district court scheduled a hearing on this motion on May 1, 1987. Local counsel for United thus had only one day notice, and did not have any opportunity to file a written response. Counsel for Interstate requested that the documents as to which a claim of privilege was made be produced for examination in camera. As he put it:
All we are asking, whatever has been withheld, if Your Honor could review it, or even give it to a federal magistrate to review it so we can be sure.
The court addressed both claims of privilege. With respect to the attorney client privilege this colloquy took place between United's local counsel and the court:
THE COURT: What's the basis of that; what have you maintained is the basis for their not reviewing them?
MR. HANKLE: Most of the basis was attorney-client privilege. They were letters from us to those individuals.
THE COURT: To your clients?
MR. HANKLE: To the insurance companies, to the clients.
THE COURT: Wait a minute. The only protection is communications between you and your client. Letters to insurance companies are not protected.
THE COURT: That is not privileged. Only communications between the lawyer and his client are privileged.
MR. HANKLE: Even where they are subject to subrogation action, where the insurance companies are subrogating this action?
THE COURT: Are they your clients?
MR. HANKLE: Well, I guess ultimately the United Coal would be the client. We have to protect them as --
THE COURT: Then those are not protected. You have to give them those, those communications.
With respect to the work product privilege this colloquy took place:
MR. CARNEY [Counsel for Bethlehem]: Additionally, Your Honor, there was a classification of documents where counsel said they were privileged because they contained mental impressions pertaining to the ...