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In re Weisman

decided: October 28, 1987.


Petition for writ of mandamus directing the United States District Court for the Southern District of New York, Robert W. Sweet, J., to vacate in part a discovery order compelling petitioner to produce certain documents that petitioner claims are protected by the attorney-client privilege. Petition denied.

Feinberg, Chief Judge, Newman and Winter, Circuit Judges.

Author: Feinberg

FEINBERG, Chief Judge:

Petitioner Frederick R. Weisman seeks a writ of mandamus directing the United States District Court for the Southern District of New York, Robert W. Sweet, J., to vacate in part a discovery order that compelled Weisman to produce certain documents that Weisman claims are protected by the attorney-client privilege. The judge's ruling was based upon a finding that Weisman had waived his right to assert the privilege as to the papers in question. Petitioner claims that under this court's recent opinion in In re von Bulow, 828 F.2d 94 (2d Cir. September 10, 1987), mandamus is appropriate to review Judge Sweet's order and that the order is erroneous and should be reversed. The matter was submitted to this panel the week of October 26, 1987, along with petitioner's motion for a stay of the order pending determination of the mandamus petition. On October 28, we denied both the petition and the stay in a brief order that stated that an opinion would follow. The following constitutes that opinion, which holds that mandamus is not an appropriate vehicle for review here.

I. Facts

The relevant facts in this hotly-contested diversity case are as follows. Petitioner Weisman is a wealthy businessman who for about 15 years had a close personal and business relationship with Sachiko Bower. The relationship ended in the summer of 1985. In November 1985, Bower sued Weisman and two corporations he controls in New York State Supreme Court. The complaint alleged that Weisman had breached his agreement to provide Bower with an interest in his business affairs and with financial security, even after their relationship ended, as long as Bower, a Japanese citizen, did not remarry or leave the United States. Defendants removed the action to the federal courts. As might be expected given the nature of the allegations, the litigation has been bitter. It has already produced extensive motion practice and discovery and three opinions in the district court (two of them reported at 639 F. Supp. 532 and 650 F. Supp. 1415), bulky papers on the mandamus petition and motion in this court on the eve of trial, and a related action in state court in California, in which defendants here are the plaintiffs and Bower is the defendant.

In the proceedings before Judge Sweet, Bower produced a letter, dated July 15, 1983, that allegedly contained the understanding of the parties regarding various transactions to be effected. According to this document, Bower would receive an ownership interest in a home, financial security even after Weisman's death, including the benefit of a substantial irrevocable trust, and an interest in a business venture. The letter appears to be signed by both Weisman and Bower. Weisman claimed that the letter was merely a draft for discussion and that his signature on this and other documents was forged. To support this defense, Weisman voluntarily produced over 20 pages of handwritten notes of his attorney, Richard Gilbert, arguably showing that negotiations over the substance of the matters referred to in the July 15, 1983 document took place in late 1983 and throughout 1984, well after the date of the alleged "agreement." The notes reflect, among other things, attorney-client communications about Weisman's will and various trust agreements then allegedly in contemplation. Weisman also voluntarily produced a series of documents that relate to understandings and draft property settlement agreements discussed in August 1984. The papers included letters from Weisman's attorney to Weisman's financial consultant, stating the purpose of the agreements and the reasons for various changes, e.g., that the documents represent "an attempt to take the first step toward protecting [Weisman's] interest from any claim by [Bower] after his death."

Bower moved thereafter to compel discovery of, among other things, various testamentary trust instruments and a codicil to Weisman's will and various communications in the files of Weisman's attorneys relating to proposed property agreements drafted in 1982-84. Bower argued before Judge Sweet that these documents "would tend to establish the pattern of conduct between Bower and Weisman" and "may be relevant in describing the nature" of the relationship. Weisman refused to produce them on the ground of attorney-client privilege. Bower argued that the privilege had been waived by Weisman's voluntary production of attorney Gilbert's extensive handwritten notes and letters to Weisman's financial consultant.

Judge Sweet agreed with Bower in part. In an 11-page opinion, the judge held that Weisman, by producing copies of Gilbert's notes, had waived his privilege with respect to the subject matter of the trust agreements and codicil and ordered production of those documents. The judge also held that, by producing documents relating to the draft property settlement agreements, Weisman had waived his privilege with respect to papers in Gilbert's files bearing on "the issue of protecting Weisman's interest from claims by Bower after his death." However, the judge denied discovery of all the other communications from Weisman in Gilbert's files and discovery of communications between Weisman and another attorney. Almost five weeks later, on October 14, petitioner filed in this court his petition for a writ of mandamus and, two weeks later, shortly before the scheduled trial date of November 2, his motion for a stay pending determination of the petition for mandamus. As indicated above, we denied both applications shortly thereafter.

II. Appropriateness of Mandamus

In his petition for mandamus, petitioner argues that under this court's recent decision in In re von Bulow, mandamus is an appropriate procedure for obtaining review of Judge Sweet's order and that, upon such review, this court should find that the judge erred by construing Weisman's waiver of the attorney-client privilege much too broadly. As will be seen, we do not find it necessary to consider the merits of Judge Sweet's order because we conclude that the requirements for mandamus relief are not met.

Mandamus is an extraordinary writ, and, when applied to an interlocutory discovery order, runs directly contrary to the philosophy of the federal final judgment rule. That rule is not only statutory, see 28 U.S.C. ยง 1291, but is a fundamental characteristic of federal practice and one of the chief distinctions between the operation of federal and some state courts, e.g., New York,*fn1 the state whose substantive law Judge Sweet applied.*fn2 The policies behind the final judgment rule and the general refusal of federal courts to allow interlocutory review of discovery orders have been stated many times. Thus, in American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 280 (2d Cir. 1967), we stated that among "the sound reasons" for the final judgment rule in the context now before us are the following:

an appellant's ultimate right of review upon an appeal from a final judgment in the action; the elimination of unnecessary appeals, since the complaining party may win the case or settle it; the absence of irreparable harm from the vast majority of orders requiring production of documents; the potential for harassment of litigants by nuisance appeals, and the fact that any appeal tends to delay or deter trial or settlement of a lawsuit; the burden on the reviewing court's docket from appeals of housekeeping matters in the district courts; and the slim chance for reversal of all but the most unusual discovery orders.

A long line of precedent in this court has echoed these observations. See, e.g., In re Attorney General of the United States, 596 F.2d 58, 61 (2d Cir.), cert. denied, 444 U.S. 903, 100 S. Ct. 217, 62 L. Ed. 2d 141 (1979); UAW v. National Caucus of Labor Committees, 525 F.2d 323, 324-25 (2d Cir. 1975); ...

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