Drummond Co. v. Collingsworth
816 F.3d 1319
11th Cir.2016Background
- Collingsworth (attorney Terrance P. Collingsworth and his firm) represented Colombian plaintiffs in ATS litigation against Drummond; Drummond later sued Collingsworth for defamation in Alabama federal court.
- Drummond subpoenaed documents from Florida nonparty attorney Jack Scarola (and his firm) seeking communications and materials concerning payments to Colombian witnesses and security in Colombia; Scarola had co-counseled with Collingsworth in other litigation under common-interest/confidentiality agreements.
- Scarola moved to quash in the Southern District of Florida asserting work-product protection and undue burden; the district court denied the motion and closed the ancillary proceeding without addressing burdensomeness in detail.
- Scarola appealed and filed a mandamus petition; Collingsworth (a party in the underlying defamation case) also appealed asserting work-product privilege for the first time; the court consolidated the matters.
- The appeals raised threshold jurisdictional questions about interlocutory review of discovery orders directing nonparties to produce materials over which a party claims privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Collingsworth (a party to underlying suit) may bring interlocutory appeal of order compelling a nonparty to produce materials claimed as Collingsworth’s work product | Collingsworth: Mohawk does not bar interlocutory review when privileged materials held by a nonparty are ordered produced; waiting for final judgment would irreparably expose mental impressions | Court/Drummond: Mohawk requires parties to seek review after final judgment; appellate remedies suffice and interlocutory appeals would unduly burden the system | Dismissed for lack of jurisdiction; Mohawk governs and party must await final judgment (or other remedies) |
| Whether Scarola (nonparty) may obtain immediate collateral-order review of the denial of his motion to quash under the collateral order doctrine | Scarola: As a nonparty who cannot appeal final judgment, collateral-order review is necessary because the order is conclusive, important, and unreviewable later | Court/Drummond: Mohawk and precedent provide alternative review routes (defy order and appeal contempt or seek mandamus); collateral doctrine should remain narrow | Dismissed for lack of jurisdiction; collateral-order doctrine does not apply because other adequate avenues (contempt appeal or mandamus) exist |
| Whether mandamus relief is appropriate to review the discovery order | Scarola: Mandamus is necessary because interlocutory appeal is unavailable and contempt is risky | Drummond/District Court: Mandamus is extraordinary and Scarola has other remedies; district judge can resolve privilege issues on a document-by-document basis | Mandamus denied; court remanded for district court to require a privilege log and adjudicate work-product claims individually |
| Proper remedy/order for resolving asserted work-product claims going forward | Collingsworth/Scarola: Broad wholesale protection asserted; requested immediate appellate relief | Court/Drummond: District court should handle specificity and tailoring; blanket claims disfavored | Remanded: district court to require itemized privilege assertions (e.g., privilege log), consider on a document-by-document basis, and consider protective orders or other Rule 45 mechanisms |
Key Cases Cited
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (collateral-order doctrine does not extend to orders to disclose materials adverse to the attorney-client privilege; parties ordinarily must await final judgment)
- In re International Horizons, Inc., 689 F.2d 996 (11th Cir. 1982) (privilege-holder may sometimes seek immediate review when disclosure is ordered to a third party and the privilege-holder cannot otherwise obtain appellate review)
- Perlman v. United States, 247 U.S. 7 (1918) (early recognition that privilege-holders need protection from orders forcing disclosure without appellate review)
- Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (Supreme Court generally denies collateral-order review of pretrial discovery orders)
- In re Wellcare Health Plans, Inc., 754 F.3d 1234 (11th Cir. 2014) (mandamus is an extraordinary remedy and requires clear abuse of discretion and lack of alternative adequate means)