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In re Ford Motor Co.

April 9, 1997





Appellant in No. 96-2133

Consolidated Petition For A Writ of Mandamus And Appeal From the United States District Court For The Eastern District of Pennsylvania (E.D. PA Civ. No. 94-cv-02579)

Before: BECKER, ROTH, Circuit Judges, and ORLOFSKY, District Judge. *fn1

BECKER, Circuit Judge.

Argued: January 28, 1997

Filed April 9, 1997


By this appeal and companion petition for a writ of mandamus in one of the Bronco II product liability cases, the defendant Ford Motor Company, invoking the attorney-client privilege and/or the work product doctrine, challenges a district court order denying it protection from disclosure in discovery of certain documents requested by the plaintiff, Susan Kelly. The question of the appropriate jurisdictional vehicle is precedentially important, for our ability to review such disputes is frequently called into question. Therefore, as a threshold matter, we address the question whether the challenged order is appealable, see 28 U.S.C. Section(s) 1291, or reviewable by mandamus, see 28 U.S.C. Section(s) 1651.

We conclude that, because the district court's order finally resolved an important issue separate from the merits that would be effectively unreviewable after final judgment, we have appellate jurisdiction under the collateral order doctrine. In reaching this conclusion, we consider in some detail the anatomy of the "importance" facet of that doctrine, and we necessarily resolve certain tensions that exist in our recent jurisprudence in the area. Because we have appellate jurisdiction, we do not review the challenged order by way of mandamus, even though our case law would require us to do so if we lacked appellate jurisdiction.

In contrast, the merits issues are quite straightforward. We have examined each of the documents in question in camera. They fall into two groups -- minutes of a meeting attended by top-level executives of Ford Motor Company regarding the Bronco II, and agendas for a discussion of the technical characteristics of the Bronco II. We conclude that the minutes of the meeting reflect that the recorded communications were for the purpose of obtaining legal advice and hence are protected by the attorney-client privilege. With respect to the agendas and the handwritten notes referring to them, we determine that they were produced by an agent of an attorney in preparation for litigation and hence are protected by the work product doctrine; the other requirements for work product doctrine are not at issue. We will, therefore, reverse the challenged portions of the district court's order and remand with directions to issue an appropriate order protecting the documents from discovery.


In the underlying lawsuit, Kelly claims that Ford defectively designed the Bronco II, a four-wheel drive utility vehicle with a relatively high center of gravity, by rendering it too susceptible to rollover. *fn2 That defective design, Kelly submits, caused the death of her husband, Gerald Kelly, who was killed when the Bronco II he was driving rolled over. Kelly sought to discover Ford documents related to the development, marketing, and safety of the Bronco II. Ford responded, in part, by asserting that the attorney-client privilege and the work product doctrine shielded certain documents from discovery. Ford sought from the district court a protective order that would have preserved the confidentiality of those documents. By letter ruling of October 4, 1996, the district court held that, for the vast majority of documents for which Ford sought protection, the attorney-client privilege and/or the work product doctrine applied. However, the court found that two sets of documents -- those at issue here -- were discoverable.

The first set of documents is the final draft of the minutes of a November 18, 1982 meeting of Ford's Policy and Strategy Committee. The Policy and Strategy Committee is made up of top executives at Ford, and acts as an advisory body to Ford's chief executive officer. At the meeting in question, Ford's general counsel, Henry R. Nolte, Jr., briefed the committee about a report he had drafted regarding the Bronco II. According to the minutes, the committee engaged in an extensive discussion of the report and ultimately adopted the recommendations contained therein.

The second set of documents is composed of a series of agendas, one with handwritten notations, for a meeting in 1988, and one document pertaining to a 1989 meeting on which handwritten notes refer to the 1988 agendas. By 1988, numerous lawsuits similar to that brought by Kelly were pending, alleging faulty design of the Bronco II. As part of its defense strategy, Ford retained an outside technical consultant, Failure Analysis Associates (FAA), to assist in the defense of those lawsuits. FAA, in turn, relied in part on the help of in-house technical assistants to Ford. Ernest Grush, one of these technical assistants, prepared the agendas for the 1988 meeting. The meeting was called to explain the technical aspects of the Bronco II litigation defense strategy, and Ford attorneys were present. Grush has declared that the handwritten notes on the document pertaining to the 1989 meeting are his, and that they refer to the 1988 meeting.

On October 4, 1996, the district court made a letter ruling denying protection for the documents here at issue. Ford requested that the court reconsider its decision. On November 13, 1996, the court denied Ford's request and, by a subsequent letter ruling of November 27, 1996, ordered the production of the documents by December 18, 1996. The mandamus petition followed. On December 18, the court again ordered the production of the documents. Ford sought and we granted a motion for a stay of the December 18 order. Ford also filed a notice of appeal from the December 18 ruling. We consolidated the appeal and the petition for a writ of mandamus and will, therefore, consider them together.


A. Introduction; The First Prong of Cohen

The question of our jurisdiction is somewhat complicated. A writ of mandamus is an extraordinary exercise of our jurisdiction; moreover, such a writ is not a substitute for appeal. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996). Because we will not issue a writ of mandamus if relief may be granted by way of an ordinary appeal, we must first determine whether Ford may appeal the district court's ruling. See Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996). A fortiori, only if an appeal is unavailable will we determine whether a writ of mandamus will issue. See PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993).

As a general rule, discovery orders are not final orders of the district court for purposes of obtaining appellate jurisdiction under 28 U.S.C. Section(s) 1291. See Hahnemann Univ., 74 F.2d at 461. Therefore, discovery orders normally may not be appealed until after final judgment. See id. However, the collateral order doctrine, first enunciated by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), provides a narrow exception to the general rule permitting appellate review only of final orders. An appeal of a nonfinal order will lie if (1) the order from which the appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate from the merits of the dispute; and (3) the order is effectively unreviewable on appeal from a final judgment. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 860 (3d Cir. 1994).

It is beyond cavil that the first element is satisfied here. The district court's December 18 order requiring the production of the disputed documents leaves no room for further consideration by the district court of the claim that the documents are protected.

B. The Second Prong of Cohen

1. Separability

The most familiar aspect of the second prong of Cohen is separability from the merits. Kelly submits that a determination of the issues of privilege and work product will in fact implicate the merits of the underlying dispute. We believe that it will not. As we understand the merits of the underlying case, Kelly seeks to show what Ford knew about the alleged rollover propensity of the Bronco II, when it knew about this alleged propensity, and what it did about the alleged propensity. The contents of the documents will certainly shed some light on these questions. However, our resolution of the privilege and work product issues has nothing to do with them. We are not concerned at this juncture about what Ford knew, when it gained this knowledge, or what it did about it. Our inquiry largely involves questions of context -- e.g., who prepared the relevant documents, when were they prepared, and what was their purpose. It involves content only insofar as we must ensure that the documents were prepared in certain ...

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