In Re Claus Von Bulow, Martha Von Bulow, by Her Next Friends Alexander Auersperg, and Annie Laurie Auersperg-Kneissl v. Claus Von Bulow

Petitioner Claus von Bulow seeks a writ of mandamus directing the United States District Court for the Southern District of New York (Walker, J.) to vacate its discovery order of February 12, 1987, 114 F.R.D. 71, granting plaintiff the right to discover certain conversations between petitioner and his attorneys. Because the discovery order raises significant issues of first impression, mandamus is an appropriate remedy. Hence, the petition is granted.

FACTS

On July 6, 1981 petitioner was indicted by a Newport County, Rhode Island, grand jury on two counts of assault with intent to murder for allegedly injecting his wife Martha von Bulow with insulin causing her to lapse into an irreversible coma. After a widely publicized jury trial, von Bulow was convicted on both counts on March 16, 1982. In April 1982 petitioner retained Harvard law professor Alan M. Dershowitz to represent him on appeal. In May 1982 von Bulow was sentenced to 30-years imprisonment, but granted bail pending appeal. On April 27, 1984 the Rhode Island Supreme Court reversed both convictions, State v. von Bulow, 475 A.2d 995 (R.I.), cert. denied, 469 U.S. 875, 105 S.Ct. 233, 83 L.Ed.2d 162 (1984), and upon retrial, he was acquitted on June 10, 1985.

Shortly after the acquittal, petitioner’s wife, by her next friends, Alexander Auersperg and Annie Laurie Auersperg-Kneissal, Martha von Bulow’s children from a prior marriage (plaintiff), commenced this civil action in federal court against petitioner alleging common law assault, negligence, fraud, and RICO violations. These claims arose out of the same facts and circumstances as the Rhode Island criminal prosecution.

In May 1986 Random House published a book entitled Reversal of Fortune — Inside the von Bulow Case, authored by attorney Dershowitz, which chronicles the events surrounding the first criminal trial, the successful appeal, and von Bulow’s ultimate acquittal. After obtaining an advance copy of the book, plaintiff’s counsel notified petitioner on April 23, 1986 that it would view publication as a waiver of the attorney-client privilege. Von Bulow’s counsel responded that no waiver had occurred and that, accordingly, he would not act to stop the book’s publication. After the book was released, von Bulow and attorney Dershowitz appeared on several television and radio shows to promote it.

Plaintiff then moved to compel discovery of certain discussions between petitioner and his attorneys based on the alleged waiver of the attorney-client privilege with respect to those communications related in the book. In order to avoid piecemeal rulings on each communication, counsel stipulated in July 1986 as to those controversial subjects appearing in Reversal of Fortune. On February 12, 1987 the United States District Court for the Southern District of New York (Walker, J.) found a waiver of the attorney-client privilege and ordered von Bulow and his attorneys to comply with discovery requested by plaintiff. Von Bulow By Auersperg v. von Bulow, 114 F.R.D. 71 (S.D.N.Y.1987).

Von Bulow now petitions this Court for a writ of mandamus directing the district court to vacate its discovery order. Because the relief sought is an extraordinary writ, we consider whether mandamus is an appropriate remedy and, if so, whether it should issue in this case.

DISCUSSION

I The Availability of The Writ

Under the All Writs Statute, a Court of Appeals is empowered to “issue all writs necessary or appropriate in aid of [its] ... jurisdiction ] and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (1982). This power “is meant to be used only in the exceptional case,” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953), and not as “a substitute for an appeal.” Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964). *97 See also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam) (mandamus is “to be invoked only in extraordinary situations”). As we have noted, “the touchstones ... of review by mandamus are usurpation of power, clear abuse of discretion and the presence of an issue of first impression.” American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 283 (2d Cir.1967).

Generally, of course, discovery orders are not reviewable by mandamus, see, e.g., American Express Warehousing, 380 F.2d at 284, only occasionally does there arise a discovery order presenting an important question of law. See, e.g., Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39. In such case, mandamus provides a logical method by which to supervise the administration of justice within the Circuit. See Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 280, 19 L.Ed.2d 305 (1967) (noting the vital corrective and didactic function of mandamus); La Buy v. Howes Leather Co., 352 U.S. 249, 259-60, 77 S.Ct. 309, 315, 1 L.Ed.2d 290 (1957) (acknowledging important function of mandamus to monitor district courts); see generally 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice 11110.28, at 312 (2d ed. 1987); Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595, 618 n. 96 (1973) (“In precisely such areas as discovery, advisory mandamus would be expected to have its greatest value.”).

Recognizing this, we stated in American Express Warehousing that “[w]hen a discovery question is of extraordinary significance or there is extreme need for reversal of the district court’s mandate before the case goes to judgment,” the writ of mandamus provides an escape hatch from the finality rule. 380 F.2d at 282; see also Investment Properties Int’l, Ltd. v. IOS, Ltd., 459 F.2d 705, 707 (2d Cir.1972) (discovery issue found to be “the heart of the controversy”). Several reasons persuade us that the extraordinary writ should issue in this case.

A. Novel Question of Law Raised

First and foremost the petition raises significant novel questions of law justifying the issuance of a writ of mandamus. The district court held that the publication by an attorney of a book chronicling his client’s case waives the attorney-client privilege — not just as to information actually disclosed in the book — but with respect to all communications underlying the subjects raised in it. It held that all such communications between petitioner and attorney Dershowitz, the author of Reversal of Fortune, were unprivileged. As the discussion below demonstrates, the district court’s holding in extending the “fairness doctrine” to extrajudicial disclosures raises an issue which, so far as discernible, has not been previously litigated in this Circuit. In what the district court itself regarded as a novel and unprecedented ruling, it went on further to hold that communications between von Bulow and all of his trial and appellate counsel were similarly unprivileged.

In our view, mandamus properly lies to review these issues of first impression. See Schlagenhauf 379 U.S. at 110-12, 85 S.Ct. at 238-39 (“That this issue was substantial is underscored by the fact that the challenged order ... appears to be the first of its kind in any reported decision in the federal courts____”); Sporck v. Peil, 759 F.2d 312, 315 (3d Cir.) (“petitioner raises an issue new to this court and discussed in only a few reported district court decisions ____”), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591-92 (3d Cir.1984) (“the legal issue presented by this petition is new to this court ... there is only sparse discussion of it in the reported cases.”); Sanderson v. Winner, 507 F.2d 477, 479 (10th Cir.1974) (per curiam) (issuing mandamus directing district court to vacate its discovery order due to “unwarranted extension” of the law), cert. denied, 421 U.S. 914, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975). See also In re Cement Antitrust Litig., 688 F.2d 1297, 1304 (9th Cir.1982) (“[W]e are faced with the need to resolve a *98 significant question of first impression where the failure to do so may adversely affect the efficient operation of the district courts.”), aff'd by absence of quorum pursuant to 28 U.S.C. § 2109, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983).

Relying on Xerox Corp. v. SCM Corp., 534 F.2d 1031 (2d Cir.1976) (per curiam), plaintiff urges that despite the novelty of the issues mandamus is nevertheless inappropriate in this case. In Xerox, appellate review was sought of pretrial discovery orders of documents assertedly protected by the attorney-client privilege. We stated that absent a 28 U.S.C. § 1292(b) certification, a persistent disregard of the Rules of Civil Procedure, or a manifest abuse of discretion, interlocutory review of pretrial discovery orders is not generally permitted. Id. at 1031-32. But, we also noted that the case presented no legal question of first impression or of extraordinary significance. Id. at 1032; see also In re United States, 565 F.2d 19, 22 (2d Cir.1977) (discussing Xerox), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). Since the district court’s discovery order here raises such questions, granting mandamus in this case is not inconsistent with Xerox.

B. The Importance of Granting Mandamus

In addition to raising novel issues, this petition also presents two important reasons justifying the issuance of the writ in this case. Without mandamus, petitioner has no other remedy adequate to preserve his confidence. And because the district court’s holding raises a legal issue of general applicability, its resolution will aid in this Circuit’s effective administration of justice.

1. No Other Adequate Remedy Available

The Supreme Court has stated that in reviewing mandamus a court must consider whether the party seeking the writ has any “other adequate means to attain the relief he desires.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam). No such adequate means are present here. Because the trial court’s discovery order is interlocutory it is not appealable under 28 U.S.C. § 1291 (1982) until a final order is rendered in the litigation. See, e.g., Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.1969). Even were petitioner to be adjudicated in civil contempt for refusal to comply with the discovery order, as a party, he would have no immediate right to appeal. See DeMasi v. Weiss, 669 F.2d 114, 122-23 (3rd Cir.1982); International Business Machs. Corp. v. United States, 493 F.2d 112, 117-19 (2d Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974). And, immediate appellate review by certification is appropriate only when the challenged order “involves a controlling question of law” and where “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (1982). Since discovery orders are generally collateral in nature, they will rarely satisfy these requirements. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 n. 14 (3rd Cir.1986); Sporck, 759 F.2d at 315 n. 4; Beal v. Schul, 383 F.2d 401, 402 (3d Cir.1967) (Seitz, J., dissenting); American Express Warehousing, 380 F.2d at 285 n. 2 (Lumbard, Ch. J., dissenting); Atlantic City Elec. Co. v. General Elec. Co., 337 F.2d 844, 845 (2d Cir.1964) (per curiam).

Thus, mandamus is particularly appropriate in the present circumstances where an important question of law is likely to evade review due to the collateral nature of the issue, see Colonial Times Inc. v. Gasch, 509 F.2d 517, 526 (D.C.Cir.1975) (mandamus may issue to correct an error in a discovery order if the issue “while important to the general course of a litigation,” is collateral and thus “lost to appellate review in fact if not in theory.”).

Further, an order that information be produced that brushes aside a litigant’s claim of a privilege not to disclose, leaves only an appeal after judgment as a remedy. Such a remedy is inadequate at best. Compliance with the order destroys the right sought to be protected. See, e.g., Sporck, 759 F.2d at 314; Bogosian, 738 F.2d at 591; *99 Jenkins v. Weinshienk, 670 F.2d 915, 917 (10th Cir.1982). Often, to deny review is to deny the privilege. Although petitioner may ultimately succeed on appeal, his confidential communications will already have been exposed during the trial. Because in those circumstances taking an appeal after-wards is often an exercise in futility, courts have often entertained petitions for a writ of mandamus challenging discovery orders on the grounds of attorney-client privilege. See, e.g., United States Dep’t of Energy v. Crocker, 629 F.2d 1341, 1344-45 (Temp.Emer.Ct.App.1980) (per curiam); Diversified Indus. Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir.), aff'd en banc, 572 F.2d at 606 (1977); Sanderson v. Winner, 507 F.2d 477, 479 (10th Cir.1974) (per curiam), cert. denied, 421 U.S. 914, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975); Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir.1972) (per curiam); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970) (per curiam), aff'd mem. by an equally divided court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971); Continental Oil Co. v. United States, 330 F.2d 347, 349 (9th Cir.1964).

In fact, the concern that a remedy after final judgment cannot unsay the confidential information that has been revealed may account for the liberal use of mandamus in situations involving the production of documents or testimony claimed to be privileged or covered by other more general interests in secrecy. See, e.g., Schlagenhauf, 379 U.S. at 110-12, 85 S.Ct. at 238-39 (order compelling physical examination); Cipollone, 785 F.2d at 1118 (order amending protective order); Sporck, 759 F.2d at 314 (attorney work-product privilege); Bogosian, 738 F.2d at 591 (same); Jenkins, 670 F.2d at 917 (order requiring disclosure of attorney’s files); Usery v. Ritter, 547 F.2d 528, 532 (10th Cir.1977) (order compelling disclosure of informer’s identity); Rowley v. McMillan, 502 F.2d 1326, 1335 (4th Cir.1974) (executive privilege); Investment Properties, 459 F.2d at 708 (order vacating notice of deposition); United States v. United States District Court, 444 F.2d 651, 653 (6th Cir.1971) (order compelling disclosure of monitored conversations), aff'd, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); United States v. Hemphill, 369 F.2d 539, 543 (4th Cir.1966) (order compelling disclosure of informer’s identity); Madison-Lewis, Inc. v. MacMahon, 299 F.2d 256, 257 (2d Cir.1962) (per curiam) (order opening private files); Hartley Pen Co. v. United States District Court, 287 F.2d 324, 330 (9th Cir.1961) (order requiring disclosure of trade secrets).

This need for timely protection is particularly urgent where the discovery sought is, as here, allegedly blanketed by the absolute attorney-client privilege. See Kerr v. United States District Court, 426 U.S. 394, 404, 96 S.Ct. 2119, 2124-25, 48 L.Ed.2d 725 (suggesting that mandamus is more appropriate where privilege claimed is absolute). We recognize that discovery orders are normally committed to the district court’s discretion, see, e.g., DeMasi, 669 F.2d at 122. But petitioner argues that his communications are protected from discovery by the attorney-client privilege. If petitioner is correct, he will now be compelled — if we deny mandamus — to reveal communications that strong public policy protects from disclosure. See Bogosian, 738 F.2d at 592. Consequently, the inadequacy of petitioner’s other remedies requires present review of the novel issues raised in the petition.

2. Aiding the Administration of Justice

In addition, issuing the writ will aid the administration of justice within the Circuit. Mandamus is appropriate “when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice.” Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C.Cir.1975). The Seventh Circuit held that “because maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.” *100 Harper & Row, 423 F.2d at 492; see also Barclaysamerican Corp. v. Kane, 746 F.2d 653, 654-55 (10th Cir.1984) (mandamus appropriate to review discovery orders involving a claim of privilege when disclosure would render meaningful appellate review impossible and when disclosure involves questions of substantial importance to the administration of justice); General Motors Corp. v. Lord, 488 F.2d 1096, 1099 (8th Cir.1973) (“Extraordinary circumstances may be presented where the order under attack exemplifies a novel and important question in need of guidelines for the future resolution of similar cases.”); Pfizer, 456 F.2d at 548 (adopting Seventh Circuit’s analysis and issuing writ of mandamus to prevent discovery of documents protected by attorney-client privilege).

The attorney-client privilege is among the oldest common law privileges dating back to the 16th Century. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. ed. 1961) (Wigmore). It exists for the purpose of encouraging full and truthful communication between an attorney and his client and “recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). But, if the purpose for which the privilege exists is to be effectuated, those discussions that are privileged must be predictable with some degree of certainty. An uncertain privilege — or one which purports to be certain, but results in widely varying applications by the courts — is little better than no privilege. Because the district court’s holdings establish a new attorney-client privilege rule of general applicability that threatens to upset this predictability, it merits prompt attention and resolution.

In sum, the issues raised in the instant petition justify the issuance of the extraordinary writ. Having determined that mandamus is available, we turn to the merits.

II The Propriety of the Discovery Order

The district court made several relevant rulings, holding initially that the petitioner waived his attorney-client privilege by acquiescing in . and encouraging the publication of Reversal of Fortune. It then examined the scope of that waiver. In so doing, the district judge found that the waiver extended to (1) the contents of the published conversations, (2) all communications between petitioner and attorney Dershowitz relating to the published conversations, and (3) all communications between petitioner and any defense counsel relating to the published conversations. We examine each of these rulings.

A. The Waiver of the Attorney-Client Privilege

By allowing publication of confidential communications in his attorney’s book Reversal of Fortune, petitioner was held to have waived his attorney-client privilege. In reaching that conclusion, the district court considered the following facts. First, petitioner knew of, consented to, and actually encouraged attorney Dershowitz’s plans to write a book providing an “insider look” into his case. Second, petitioner was warned before publication that such an act might trigger a waiver and, yet, took no active measures to preserve his confidences. Third, after publication, petitioner joined his attorney in enthusiastically promoting the book on television and radio shows. Based on these key facts, the district court determined that von Bulow had waived his attorney-client privilege.

Petitioner argues that this holding is erroneous because only the client— and not his attorney — may waive the privilege. Of course, the privilege belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his client’s consent. Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir.1967). Hence, absent a client's consent or waiver, the publication of confidential communications by an attorney does not constitute a relinquishment of the privilege by the client. See, e.g., Schnell v. Schnall, 550 F.Supp. 650, 653 (S.D.N.Y.1982) (no waiver of attorney-client privilege where attorney testified at SEC *101 hearing without presence or authorization of client). See also Wigmore, supra, § 2325, at 633 (attorney’s voluntary disclosures remain privileged unless impliedly authorized by client).

A client may nonetheless by his actions impliedly waive the privilege or consent to disclosure. See United States ex rel Edney v. Smith, 425 F.Supp. 1038,1052 (E.D.N.Y.1976) (implied waiver), aff'd, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 97 S.Ct. 2683, 53 L.Ed.2d 276 (1977); Drimmer v. Appleton, 628 F.Supp. 1249, 1252 (S.D.N.Y.1986) (implied consent); Wigmore, supra, § 2327. And an attorney may, in appropriate circumstances, possess “an implied authority to waive the privilege on behalf of his client.” Drimmer, 628 F.Supp. at 1251; Wigmore, supra, § 2325. Moreover, it is the client’s responsibility to insure continued confidentiality of his communications. In In re Horowitz, 482 F.2d 72 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973), Judge Friendly, speaking for the Court, warned: “[i]t is not asking too much to insist that if a client wishes to preserve the privilege under such circumstances, he must take some affirmative action to preserve confidentiality.” Id. at 82.

Applying these principles, it is quite clear that in finding that von Bulow waived his privilege the district court did not abuse its discretion. In light of petitioner’s acquiescence in and encouragement of Reversal of Fortune’s publication, Judge Walker properly concluded that von Bulow consented to his attorney’s disclosure of his confidences and effectively waived his attorney-client privilege. Our discussion now turns to examine the breadth of that waiver.

B. The Scope of the Waiver

1. The Contents of the Published Conversations

The district court held that plaintiffs were entitled to discover “the entire contents of all conversations from which Dershowitz published extracts in Reversal of Fortune.” 114 F.R.D. at 79. The four relevant conversations between von Bulow and his attorneys were their initial one, and the ones regarding the bail hearing, appellate strategy, and von Bulow’s decision to testify on his own behalf. Id. at 79 n. 2. Under that ruling, plaintiff is permitted to discover those parts of the four identified conversations not made public in the book. Petitioner argues that the district court’s holding improperly broadened the fairness doctrine to include extrajudicial disclosures and that, accordingly, the discovery order cannot stand. We agree.

Relying on United States v. Tellier, 255 F.2d 441 (2d Cir.), cert. denied, 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62 (1958) and Teachers Insurance & Annuity Association of America v. Shamrock Broadcasting Co., 521 F.Supp. 638 (S.D.N.Y.1981), the district judge based his decision on an extension of “[t]he principle that disclosure of a portion of a privileged conversation entitles an adversary to discovery of the matters discussed in the remainder of the conversation____” 114 F.R.D. at 79. The court reasoned that where reputation is at stake in a major case, it is tried today before the bar of public opinion, as well as in a courtroom. Id. at 78-79. Judge Walker believed it unfair to permit a party to make use of privileged information as a sword with the public, and then as a shield in the courtroom. Id. at 79. Thus, the trial judge found what is generally called a “waiver by implication”, see Wigmore, supra, § 2327, at 635, based on fairness considerations.

The