Chryslеr Motors Corp. (Chrysler) has filed a petition for writ of mandamus to direct the District Court 1 for the Eastern District of Missouri to vacate its order requiring co-liaison counsel for the class action plaintiffs to provide a computer tape to the United States Attorney for the Eastern District of Missouri. The government argued that the probation office needs the computer tape to complеte its presentence report. Chrysler argues that the computer tape is attorney work product and therefore protected from disclosure. For the reasons discussed below, we agree that the computer tape is protected by the attorney work product doctrine, but hold that Chrysler waived any claim of privilege by voluntarily disclosing the computer tape to its *845 adversaries. Accordingly, we deny the petition for writ of mandamus.
The order at issue was entered in In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, MDL No. 740, twelve consolidated class actions involving claims against Chrysler arising out of Chrysler’s formеr practice of permitting certain categories of Chrysler employees to drive new vehicles with disconnected odometers. Chrysler defended this practice as a quality-control measure. The class actions had been prompted by a 1986 federal indictment charging Chrysler with sixteen counts of mail fraud and odometer fraud. The government alleged that during 1985 and 1986 as many as 60,000 new vehicles had been driven with disconnected odometers as part of Chrysler’s Overnight Evaluation Program. In late 1987 the class actions were transferred to and consolidated in the Eastern District of Missouri, where the criminаl case was pending. In November 1987 Chrysler and the class action plaintiffs agreed to settle the civil litigation. In December 1987 Chrysler entered a nolo contendere plea to all sixteen cоunts of the indictment. The district court accepted the plea and ordered preparation of a presentence report by the probation office.
Section 20 of the settlеment agreement provided that co-liaison counsel for the class action plaintiffs could undertake a due diligence review of Chrysler’s documentation of the vehicles involved in the Overnight Evаluation Program. Chrysler could identify those vehicles by referring to the gate pass issued to each Chrysler-owned vehicle whenever the vehicle left the manufacturing facilities whether as part of thе Overnight Evaluation Program or for other company purposes. Each gate pass contained the date of issuance and information about the driver of the vehicle and the vehicle itself, including the last six digits of the vehicle identification number (VIN), as well as the general reason why the vehicle was being driven out of the facility, for example, as part of the Overnight Evaluation Program. Chrysler prоvided co-liaison counsel for the class action plaintiffs with access to all of the gate passes as part of the due diligence review. The government has also obtained copies of all of the gate passes.
In 1987 counsel for Chrysler began working with a computer services company to design a database using certain data from the gate passes selected by сounsel for Chrysler. The computer tape was prepared as part of Chrysler’s defense of the criminal case and the class actions. In March 1988 Chrysler agreed to provide co-liaison counsel for the class action plaintiffs with access to the computer tape for the limited purpose of expediting the due diligence review. Chrysler agreed to provide the computer tape on the condition that co-liaison counsel for the class action plaintiffs agreed that the computer tape was attorney work product and that Chrysler’s making the computer tape available to co-liaison counsel for the class action plaintiffs did not constitute a waiver of the work product privilege. In a letter dated March 9, 1988, co-liaison counsel for the class action plaintiffs acknowledged these conditions and further noted that “Chrysler understands that the [computer tape] and analyses therefrom may be used in the fairness hearing оn the settlement.”
In June 1988 the district court modified a protective order entered in the consolidated class actions to permit the government to have access to “any and all documents presently under seal in these consolidated actions” in order to prepare 'for the sentencing hearing. Co-liaison counsel for the class action plaintiffs then filed a motion for clarification in order to determine whether the computer tape should be provided to the government. Chrysler filed a response opposing production on the grounds that the computer tаpe was attorney work product and thus privileged. In August 1988, after a hearing, the district court vacated its modified protection order in the civil litigation and ordered Chrysler and the class action plaintiffs to establish a documentary depository for all discovery materials, except those in which Chrysler claimed a privilege. On September 3, 1988, the district court entered the order at issue in this case requiring co-liaison counsel for *846 the class action to provide the computer tape to the government. The district court held that the computer tape was not attorney work product and, even if the privilege applied, the government had shown sufficient hardship to overcome the claim of privilege and, in the alternative, Chrysler had waived any claim of privilege by voluntаrily disclosing the computer tape for the class action plaintiffs. In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, MDL No. 740, slip op. at 4-6 (E.D.Mo. Sept. 23, 1988) (order).
As a preliminary matter, we hold that mandamus is the proper means for Chrysler to challenge the production order on the grounds of attorney work product privilege.
Cf. Diversified Industries, Inc. v. Meredith,
Chrysler argues that the computer tape is protected from disclosure by the attorney work product doctrine.
See United States v. Nobles,
We agree with the district court that the computer tape is not opinion work product. Slip op. at 6 & n. 6. The computer tape does not itself contain counsel’s mental impressions, conclusions or legal theories. Unlike ordinary or fact work рroduct, “opinion work product enjoys a very nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.”
In re Murphy,
We need not, however, resolve this issue because we agree with the district court that Chrysler waived any work product protection by voluntarily disclosing the computer tape to its adversaries, the class action plaintiffs, during the due diligence phase of the settlement negotiations. “Disclosure to an adversary waives the work product protection as to items actuаlly disclosed, even where disclosure occurs in settlement.”
Grumman Aerospace Corp. v. Titanium Metals Corp. of America,
Judge Fagg agrees that the computer tape is ordinary work product but would hold that Chrysler did not waive the protection of thе work product privilege under these circumstances. Nor does Judge Fagg believe the government has made the necessary showing of substantial need and undue hardship to overcome the ordinary work product privilege. Judge Fagg would grant the petition for writ of mandamus.
Accordingly, the petition for writ of mandamus is denied.
Notes
. The Honorable John F. Nangle, Chief Judge, United States District Court for the Eastern District of Missouri.