USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-8026

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

JOHN W. BILLMYER, ET AL.,

Defendants, Appellees.
__________

AMERICAN HONDA MOTOR COMPANY, INC.,

Appellant.
___________________

No. 95-1393

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

JOHN W. BILLMYER and

DENNIS JOSLEYN,

Defendants, Appellees.
________

LYON & LYON,

Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Stearns,* District Judge.

______________

____________________

Steven M. Gordon
________________

with whom

Shaheen, Cappiello, Stein & Gord

__________________________________

Richard A. Gargiulo, Gargiulo, Rudnick & Gargiulo, Peter G. Callagh

___________________ ____________________________ ________________
Richard J. Inglis
__________________

and Marielise Kelly were

________________

on brief

for appell

American Honda Motor Company, Inc.

Jeremiah T. O'Sullivan with whom
_______________________

Christopher H.M. Carter,

_______________________

Na
__

W. Geary and Choate, Hall & Stewart were on brief for appellant Lyo
________
______________________
Lyon.
Paul Twomey with
___________

whom Mark L. Sisti was on brief

______________

appellee Dennis Josleyn.

____________________

June 14, 1995

____________________

for defenda

___________________

*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge.

_____________

Honda Motor

Company,

Josleyn, have

been on

Two former employees of American

defendants John

trial in

with RICO, conspiracy and

Billmyer

the district

and

Dennis

court charged

mail fraud violations arising from

an alleged commercial bribery scheme involving Honda dealers.

The defendants were indicted by a federal grand jury on March

11,

1994, and

trial began

in February

1995.

About three

weeks into the trial, Josleyn

served a subpoena duces

tecum

on American Honda, pursuant to Fed. R. Crim. P. 17(c).

It is

this

demand that gave rise to the present proceeding in this

court.

The

Josleyn

subpoena

produce inter alia

__________

American

Honda

information

notes

a file maintained

vice

received

taken by

demanded

her

president, that

from

product

the

grounds.

American

Honda

by Sherry Cameron,

consists

the company's

during conversations

memoranda reflecting such information.

to quash the subpoena

that

largely

outside

an

of

counsel,

with counsel

American Honda

and

moved

on attorney-client privilege and work-

Its former

law firm, Lyon

& Lyon, joined

motion, asserting that certain of the documents were its

work product and protected under the work-product doctrine.

The

district

threshold

court found

showing required under

that

Josleyn

United States
_____________

had made

the

v. LaRouche
________

Campaign, 841 F.2d 1176 (1st Cir. 1988), to warrant in camera

________
_________

review

of the

documents in

the Cameron

-3-3-

file.

After some

wrangling, American Honda submitted

court,

the file to the district

but appealed the court's LaRouche ruling.

________

dismissed

that appeal on April

the district court's order

4, 1995, on

was not final.

This Court

the ground that

United States v.
______________

Billmyer, No. 95-1324, 95-1325, slip op. at 1 (1st Cir., Apr.

________

19,

1995).

difficulty

We

recognized that

appealing any

American Honda

subsequent

orders

rejecting

privilege claims

because it would no

of the files and

could not automatically provoke a

proceeding.

might have

its

longer have possession

contempt

Id.
___

The district judge then conducted an in camera review of

_________

the Cameron

file and issued

a 40-page order

appraising the

documents page by page.

to

be protected

Although he found much of

either by

the file

attorney-client privilege

or as

work product, the judge found that some of the documents were

unprotected,

either

because

because the privilege had been

moved

for the

could

test

return of

the rulings

neither

waived.

the sealed

in a

doctrine

applied

American Honda

or

then

documents, so

that it

contempt proceeding,

but the

district court denied the motion and made ready to reveal the

disputed materials to the defendants.

American

appeals,

Honda and

challenging

Lyon

the

& Lyon

then filed

proposed

disclosure

immediate

of

the

documents; in the alternative,

writs of mandamus were sought

if the appeal were dismissed.

American Honda objected to all

-4-4-

of

one

the disclosures while Lyon & Lyon restricted its claim to

document.

At

appellants' request, this

court on April

19, 1995, stayed the district court's order pending expedited

review.

trial,

The district

court

awaiting a ruling by

then

suspended the

this court.

criminal

Briefs were filed

here on April 28, 1995, and oral argument was heard on May 1,

1995.

On May 4, 1995, this court decided the case and released

brief

order

in advance

recessed criminal

order

stated

disclosure

that

of the

of

trial could

the

this

so that

be resumed immediately.

district

disputed

opinion,

court's

materials did

order

the

Our

directing

not qualify

for

review either under the

collateral order doctrine or through

mandamus.

entry of

mandate

We directed

forthwith, and

This opinion is to

judgment, issuance

dissolution

of the

April 19

explain the reasons for our

of the

stay.

dismissal of

the appeals and denial of mandamus.

The first

question is whether American Honda and Lyon &

Lyon may appeal from the discovery

order.

Surprisingly, the

law in this area is more tangled than one would expect, given

the

recurring nature of the problem.

the proceeding itself--a

decision"

Seguros
_______

until

From the standpoint of

criminal trial--there is no

the trial

ends.

F.2d

Corporacion Insular de
_______________________

v.

Garcia,
______

876

("Garcia").
______

But the

collateral order doctrine recognized in

-5-5-

254,

"final

256

(1st

Cir.

1989)

Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

_____
_____________________________

541, 545-47

(1949), provides one means for examining issues that arise in

the course of a continuing proceeding; failing that, mandamus

remains a

possibility.

Appellants invoke both

concepts in

this court.

At the threshold Josleyn

party normally

urges dismissal because a non-

cannot appeal

an order enforcing

a subpoena

but must provoke a contempt order as the basis for an appeal.

United States v. Ryan, 402 U.S.

_____________
____

longer

open

to

available to Lyon

American

& Lyon.

Honda

530 (1971).

and may

Given the

That path is no

never

have

judicial interest

been

in

allowing

camera,
______

we

trial court

to

decline

hold

forfeits appeal

to

inspect

that

disputed documents

holder

in
__

of documents

rights otherwise available by

allowing such

an inspection.

Conversely, we

do not

think that the

district court's

discovery order becomes a "final decision" under

28 U.S.C.

1291 simply

because contempt is

for review.

Perlman v. United States, 247 U.S. 7, 13 (1918),

_______
_____________

and Cobbledick v.
__________

once

was

order

not available as

United States, 309 U.S. 323

_____________

a vehicle

(1940), might

have lent some support to such a theory; but Cobbledick

__________

cited by

the Supreme Court

doctrine, Cohen,
_____

337 U.S.

in adopting

at 546,

the collateral

and the

Perlman________

Cobbledick line
__________

of authority

appears to have

been absorbed

-6-6-

into

n.3.1

the collateral order doctrine.

Garcia, 876 F.2d at 258

______

See also In re Oberkoetter, 612 F.2d

________ __________________

15, 17-18 (1st

Cir. 1980).

We turn

now to

primary basis

the

collateral order

for possible

doctrine as

the

this case.

In

jurisdiction in

this circuit, to qualify for immediate appeal as a collateral

order, an order must involve

(1) an issue essentially unrelated to the merits of

the

main

dispute,

disrupting

the

resolution

of

capable

main
the

of

trial;
issue,

`unfinished'

or

incapable

of

vindication

judgment;

and

(2)
not

`inconclusive';

(4)

an

on

the

proper

exercise

of

without
complete

one

that

(3)

right

from

final

appeal

important

question of controlling law, not

of

review

and

is

unsettled

merely a question
the

trial

court's

discretion.

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979).
_____________
______

In addition, the Supreme

Court has warned that interlocutory

appeals "are

especially inimical

to the effective

administration of the criminal law."

and fair

Abney v. United States,

_____
_____________

431 U.S. 651, 657 (1977).

The

instant

requirements.

appeal

meets

the

first

three

listed

The privilege and work product issues posed by

____________________

1The

Fifth Circuit

similar to our
F.3d
years

doctrine.
(3d

own case,

966, 969-70
before

Cir.),

has so

although the

cert. denied,
____________
added by a

Church of Scientology v.
_____________________

Third Circuit

Perlman-Cobbledick
__________________

United States v.
_____________

uncertainty is

circumstances very

In re grand Jury Proceedings,

_____________________________

(1981),

treated

held in

some

separate

Cuthbertson, 651 F.2d

___________

189, 194

454

U.S. 1056

as

43

(1981).

brief and ambiguous

reference in

United States, 113 S. Ct.

_____________

n.11 (1992), not cited to us by anyone.

-7-

Further

447, 452

-7-

the

discovery

innocence of

order is

order have

little to

Billmyer and Josleyn; and

a complete resolution of

do

with the

guilt or

the district court's

those issues.

As

to the

third prong, any disclosure that occurs now will be virtually

unreviewable

acquittal,

after

a final

no appeal

can

judgment.

ensue,

and

In

in

the case

the

case

of an

of

conviction,

any

appeal would

be

taken

by defendants

who

either sought or acquiesced in the disclosure.

The

this

remaining, and most

case presents

Although not

all

considerable

support.

daunting, question

distinct and

circuits employ

important legal

such

a test,

it

case law); see also

________

Cir.

1979) (Friendly,

will

meet the legal-importance

the

enjoys

3911, 3911.5 (2d

National Super Spuds,

_____________________

Inc. v. New York Mercantile Exchange, 591 F.2d 174,

____
_____________________________

claim

issue.

See, e.g., 15A C. Wright, A. Miller &

___ ____

G. Cooper, Federal Practice and Procedure

______________________________

ed. 1992) (citing

is whether

J.).

Ordinarily, a

test only

180 (2d

discovery order

if it

presents a

of clear-cut legal error and not merely a challenge to

district

judge's

factual

determinations

or

the

application of a settled legal rule to the particular facts.

The

requirement of

part on the increased

fruitful;

an important

legal issue
_____

rests in

likelihood that such an appeal

legal rulings

are

reviewed de novo, while

________

deferential standards of review

application of known legal

more

apply to factual findings or

rules to specific facts.

-8-8-

may be

See In
___ __

re Extradition of Howard, 996 F.2d

_________________________

1992).

It is

ongoing

proceeding,

affirmance is

the

not easy

1320, 1327-28 (1st

to justify the

especially

Cir.

interruption of

criminal

very likely because the issues

trial,

an

where

are ones where

district court is reviewed only for clear error or abuse

of discretion.

In addition,

trial,

mistrial

prolonged, raising

concerns.

1994).

Were

where the appeal occurs

may

both

result

if

speedy trial

during a criminal

the appeal

and

process

double

is

jeopardy

United States v. Horn, 29 F.3d 754, 768 (1st Cir.

_____________
____

every factual dispute or law

application issue

posed by

a privilege claim

mid-trial,

it

could

take

open to interlocutory

review in

weeks to

necessary

transcripts, learn background facts

absorbed

over many

months,

secure

the

that the trial judge has

and then

replicate and

review

district court rulings.

Admittedly,

this collateral

order

test does

create a

possibility that disclosure of documents may be ordered based

on a mistake of

fact or a misapplication of settled law, and

the error may escape review.

But litigation

instances:

restraining

irreparable

harm;

before

review

temporary

burdensome

can be

secured;

privilege is overruled may

discovery

is full of such

order

may

may

be

witness whose

cause

compelled

claim

of

answer rather than risk contempt.

The finality

rule

reflects

compromise

among

competing

-9-9-

interests.

order

Given the protection afforded

doctrine and mandamus,

we think that

by the collateral

there is little

chance of any grave miscarriage of justice.

No

one

can make

seamless web

out

of

all of

the

decisions

on

collateral

orders.

The

circuits

unanimous in every nuance, see 15A Wright, supra,

___
_____

even

within

available

circuits,

for some

wider

scope

of

are

3911, and

review

interlocutory orders, such

not

may

be

as an order

denying a claim of immunity or an order imposing sanctions on

a non-party for

F.3d 61,

64 (1st

forth the

applies

contempt.

Cir. 1995)

collateral order

to

E.g.,
____

discovery

Lowinger v. Broderick,
________
_________

(immunity).

doctrine in

orders,

and

must

But we

have set

this circuit

respect

50

our

as it

own

precedents.

Turning to the merits, we conclude that the

in these attempted appeals

law.

The district judge

claims made

do not reveal any clear

at the outset

error of

accurately laid out

the rules

applicable to

the

attorney-client privilege

work-product protection, including

and

waiver.

He reviewed

line, finding

disclosure

and

some pages

the

or portions

raised on appeal are patently

of legal

review each ruling would

exceptions

documents virtually

some unprotected.

on the application

the pertinent

to be

Most

and

line by

protected from

of the

arguments

attacks on factual findings or

standards to those

facts.

To

require a time-consuming effort and

-10-10-

entail

a delay all out of

proportion to any likelihood of a

reversal.

But American Honda does raise one issue that involves an

arguable claim

of legal

"legal

the

certain

file,"

district

portions of

client privilege,

error.

the

In

examining the

judge concluded

materials

American Honda

that,

protected by

had waived

Cameron

as

to

attorney-

the privilege.

American Honda says that the district judge misunderstood the

legal

standard

for

an

implied waiver

of

Specifically, the district court found that

the

privilege.

American Honda has

disclosed to the

United States

government considerable portions of the information

acquired

through

conduct

comprising

defendants

in

internal investigation

this

the

charges

case. .

into the

against

the

In light

of

American Honda's disclosure of information acquired

through
that

internal

investigation,

the court

finds

American Honda has waived the attorney-client

privilege

with

information

respect

to

acquired

documents

containing

through

internal

investigation.

The court then listed the

portions of the materials

to which American Honda

had waived the privilege.

Honda now contends that

waiver results only when

reveals privileged communications to

the client reveals "the

communications.

court clearly

disclosure

American

the client

a third party, not when

information" contained in privileged

American Honda

erred by finding

to the

as

government

argues

that

a waiver from

of facts,
_____

the district

the company's

not of

privileged

-11-11-

communications.
______________

E.g., Upjohn Co. v.

____ __________

United States, 449 U.S.

_____________

383, 395 (1980).

The

district

judge

may

have

meant

that

privileged

communications were disclosed to the government and therefore

______________

privilege as to

the judge

those topics was waived.

twice referred

"information,"

privileged

and

did

On the other hand,

to American Honda's

not

indicate

documents had been

disclosed.

that

So

disclosure of

any

specific

the judge may

have found waiver because the substance of the communications

had

already

Honda.

been revealed

to

the

government by

American

If the court's ruling embraced this latter theory, we

agree that

a legal issue

is raised, but

do not

agree that

such a theory constitutes legal error.2

To put the matter in context, we note that the documents

as to

which waiver was found appear

to be pages or portions

of pages setting forth information gathered by Lyon & Lyon at

the behest of American Honda

not

revealed.

The

from sources whose identity

information

consists

allegations or evidence as to payments

to

Honda employees.

Cameron

or

others,

importantly

is

of

made by Honda dealers

The documents, prepared by Lyon & Lyon,

reflect

the

communication

of

these

____________________

2In noting the ambiguity,

district

judge's

document-by-document

careful

we intend no criticism.

analysis,

detailed

review--undertaken in

complex trial--were altogether admirable.

-12-12-

order

the middle

The
and
of a

allegations

or evidence

to Cameron

or other

executives of

American Honda.

It

is

fair to

read the

district

court's order

as a

finding that the same allegations or evidence were thereafter

disclosed by American Honda to government investigators.

district

court

does

not

describe

means

of

The

disclosure;

appellants' briefs shed no light upon the matter, but also do

not

thus

contest the finding that such a disclosure occurred.

take the case as

one in which

We

American Honda received

factual information

to

from its counsel,

the government, and

now seeks to

that reflect the original

disclosed those facts

withhold the documents

communication of that

information

to American Honda.

One might

privilege

in

ask why

the first

there is

any basis

instance,

since

for a

claim of

the privilege

is

primarily designed to protect communications by the client to

_____________

the lawyer in

Wigmore,

1961).

law

order to procure

Evidence
________

2320,

at

legal advise.

628-29

because

(J. McNaughton,

J.

ed.

Possibly some of the information was provided to the

firm by American Honda employees.

may have

See VIII
___

Or the district court

deemed the material privileged

the

lawyer's

communications

(aside from waiver)

to

the

client

are

secondarily protected as needed to prevent inferring what the

client said to the lawyer.

Id.
___

-13-13-

In

American

all

events,

Honda's

the question

disclosure

of

here

this

is

the effect

information

to

of

the

government.

no

Wigmore tells us that "[j]udicial decision gives

clear answer

to th[e] question"

of what

constitutes "a

waiver by implication," and that only a few general instances

are

well

settled.

Wigmore,

supra
_____

2327, at

635.

For

example, a client's offer of his own testimony as to specific

_________

facts does not waive the

with

but

his attorney on

this

privilege as to his

the same subject, id.

___

rule protects

testimony

court, in order that the right

_____

given by

communications

2327, at 638;

the

client in
__

to testify should not come at

the price of one's ability to consult privately with counsel.

Id.
___

2327, at 637.

Admitting that

"authority is scanty,"

McCormick cites a number of cases in which disclosures by the

client, other than

been

those involving in-court testimony,

held to be a waiver.

I McCormick on Evidence
_____________________

have

93, at

377-48 (J. Strong ed., 4th ed. 1992).

Appellants

respond

that

the

privilege

protects

"communications, not facts," Upjohn, 449 U.S. at 395, so that

______

American Honda

cannot have

notes or memoranda merely by

allegations or

waived the privilege

as to

the

revealing to the government the

evidence recorded in the

notes or memoranda.

The distinction is useful in some circumstances--say, where a

party tries to refuse to testify about an automobile accident

on

the ground that he gave his counsel a private description

-14-

-14-

of

the

same accident.

But, once

again,

the distinction

appears to have little to do with the present problem.

the

Here, the

gist of the

client of

detailed evidence and

possible bribes

of its

matter is that

employees, and

counsel informed

allegations concerning

the client

chose to

make this same information available to the government.

What

is sought by the defense in the criminal trial is merely

recordations by or for the

The information

now having been

the government, it

client

privilege

client of this same

can occur

from

portions of the file available.

information.

disclosed by the

is unclear what

damage to the

making the

the

client to

attorney-

corresponding

the district court carefully

limited the disclosures to the factual allegations, excluding

any commentary on their legal implications.

Indeed, American Honda's disclosure to the government of

the

factual information received from

reveals that

information, and American

it, but makes an

inquiry into the

information hard to avoid.

where

its law firm not only

Honda's knowledge of

source and basis for

A risk of unfairness

information is provided to

one side in

the

is evident

a case (here,

the United States)

and then

an inquiry into

shielded by a claim of privilege.

the affirmative

to

privilege.

See
___

-15-15-

is

In a variety of contexts,

use of privileged information

be a waiver of

its origin

has been held

P. Rice, Attorney-Client
_______________

Privilege in the United States

______________________________

9.34, at 711,

938, 9.40

950, at 752-53 (1993) (collecting cases).

Given the disclosure to the government, the waiver label

is presumptively apt.

Waiver doctrine has only a

edged rules; as to many permutations,

precedent

reflecting a

insistence on

fairness.

variety

of

it is a fluid body

of

concerns, including

an

real confidentiality and limitations

See
___

"Developments

in

few hard-

the

based on

Law--Privileged

Communications," 98 Harv. L. Rev. 1450, 1629-32 (1985).

______________

In

this instance, confidentiality has largely been dissolved

by

American Honda's own actions.

One argument not made by appellants is that, as a matter

___

of policy, private revelations

criminal conduct

parties.

The

revelations.

waivers

ought not waive

concern,

The

as an

to the government of possible

of

the privilege as

course, is

general tendency

all-or-nothing

to

to third

encourage

of the law

is to

proposition, e.g.,
____

such

treat

ALI Model
_________

Code of Evidence, Rule 231, comment (a) (1942); but there is

_________________

trace

of

involving

support

for

confidential

limited

waivers

disclosures

to

in

the

Diversified Industries, Inc. v. Meredith, 572

_____________________________
________

Cir. 1977).

some

cases

government.

F.2d 606 (8th

See generally Rice, supra, 9.86-9.87 (collecting

_____________ ____ _____

and analyzing the cases).

On

the other hand, it

is a serious

matter to withhold

from a defendant in a criminal case details that have already

-16-16-

been made available

the

privilege.

waiver, it

to the government

If there

might well

been disclosed to the

were ever an

by a person

claiming

argument for limited

depend importantly

on just

what had

government and on what understandings.

Without intending

to preclude such

case, we think that it

an argument in

is enough in this one to

a future

say that no

such claim of limited waiver has been argued to us.

This discussion also disposes of the alternative request

for mandamus.

extraordinary

Garcia,
______

Mandamus is a discretionary writ available in

circumstances

876 F.2d

at 260.

to

redress

While

it is

grievous

error.

not restricted

to

errors of law, it does require that the error be manifest and

the burden of

showing manifest error

for the writ.

No such legal error has been

shown and, as to

the

court's

applications

district

fact-findings

settled rules to particular

is upon the

and

facts, it is enough to

we have found no manifest error.

applicant

of

say that

Judgment has

been previously

this opinion be filed

and the

entered.

and transmitted to the

parties to the appeal.

costs.

It is so ordered.
________________

-17-17-

We

direct that

district court

Each side shall bear its own