Case: 23-20350 Document: 40 Page: 1 Date Filed: 08/25/2023
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`No. 23-20350
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`IN THE UNITED STATES COURT OF
`APPEALS FOR THE FIFTH CIRCUIT
`
`IN RE ANADARKO PETROLEUM
`CORPORATION, R.A. WALKER, ROBERT
`G. GWIN, ROBERT P. DANIELS AND
`ERNEST A. LEYENDECKER,
`Petitioners.
`
`On Petition for a Writ of Mandamus to
` the United States District Court
`for the Southern District of Texas,
`Docket No. 4:20-CV-576.
`Honorable Charles R. Eskridge, III
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`REPLY IN SUPPORT OF PETITION FOR
`WRIT OF MANDAMUS
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`Cravath, Swaine & Moore LLP
`Kevin J. Orsini
`Lauren M. Rosenberg
`825 Eighth Avenue
`New York, NY 10019
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`Shipley Snell Montgomery LLP
`George T. Shipley
`712 Main Street, Suite 1400
`Houston, TX 77002
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`Counsel for Petitioners
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`No. 23-20350
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`IN THE UNITED STATES COURT OF
`APPEALS FOR THE FIFTH CIRCUIT
`
`IN RE ANADARKO PETROLEUM
`CORPORATION, R.A. WALKER, ROBERT
`G. GWIN, ROBERT P. DANIELS AND
`ERNEST A. LEYENDECKER,
`Petitioners.
`
`On Petition for a Writ of Mandamus to
` the United States District Court
`for the Southern District of Texas,
`Docket No. 4:20-CV-576.
`Honorable Charles R. Eskridge, III
`
`REPLY IN SUPPORT OF PETITION FOR
`WRIT OF MANDAMUS
`
`Cravath, Swaine & Moore LLP
`Kevin J. Orsini
`Lauren M. Rosenberg
`825 Eighth Avenue
`New York, NY 10019
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`Shipley Snell Montgomery LLP
`George T. Shipley
`712 Main Street, Suite 1400
`Houston, TX 77002
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`Counsel for Petitioners
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`Case: 23-20350 Document: 40 Page: 2 Date Filed: 08/25/2023
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`CERTIFICATE OF INTERESTED PERSONS
`In re Anadarko Petroleum Corporation Securities Litigation, No. 23-20350.
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`The undersigned counsel of record certifies that the following listed persons
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`and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
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`the outcome of this case. These representations are made in order that the judges
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`of this Court may evaluate possible disqualification or recusal.
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`1.
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`Plaintiffs-Respondents and Class: All persons or entities that
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`purchased or otherwise acquired Anadarko Petroleum Corporation’s publicly
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`traded common stock between February 20, 2015 and May 2, 2017, inclusive, and
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`were damaged thereby; Norfolk County Council as Administering Authority of the
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`Norfolk Pension Fund; Iron Workers Local #580 Joint Funds; Building Trades
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`United Pension Trust Fund.
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`2.
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`Counsel for Plaintiffs-Respondents: Robbins Geller Rudman & Dowd
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`LLP, 655 West Broadway, Suite 1900, San Diego, California 92101 (Mark
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`Solomon, Daniel Drosman, Rachel Jensen, Luke Brooks, Hillary Stakem, Joseph
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`David Daley); Kendall Law Group, PLLC, 3811 Turtle Creek Blvd., Suite 1450,
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`Dallas, Texas 75219 (Joe Kendall).
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`3.
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`Defendants-Petitioners: Anadarko Petroleum Corporation, an indirect
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`wholly owned subsidiary of Occidental Petroleum Corporation; R.A. Walker;
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`Robert G. Gwin; Robert P. Daniels; Ernest A. Leyendecker, III.
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`Case: 23-20350 Document: 40 Page: 3 Date Filed: 08/25/2023
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`4.
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`Counsel for Defendants-Petitioners: Cravath, Swaine & Moore LLP,
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`825 Eighth Avenue, New York, New York 10019 (Kevin Orsini, Lauren
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`Rosenberg); Shipley Snell Montgomery LLP, 712 Main Street, Suite 1400,
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`Houston, Texas 77002 (George Shipley).
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`5.
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`Other Entities: Insurers of Defendants-Petitioners (National Union
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`Fire Insurance Company of Pittsburgh, Pa., XL Specialty Insurance Company,
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`Zurich American Insurance Company, U.S. Specialty Insurance Company, ACE
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`American Insurance Company, American International Reinsurance Company,
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`LTD., Freedom Specialty Insurance Company, RSUI Indemnity Company,
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`Navigators Insurance Company, AXIS Insurance Company, QBE Insurance
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`Corporation, Continental Casualty Company, Berkley Insurance Company,
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`Beazley Insurance Company, Westchester Fire Insurance Company, Illinois
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`National Insurance Company); Occidental Petroleum Corporation, a publicly held
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`corporation that has no parent corporation. Berkshire Hathaway Inc. indirectly
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`owns 10% or more of the issued and outstanding shares of common stock of
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`Occidental Petroleum Corporation. No other publicly traded company owns more
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`than 10% of the common stock of Occidental Petroleum Corporation.
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`6.
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`District Court Judge: Hon. Charles R. Eskridge, III, U.S. District
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`Judge, Southern District of Texas.
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`Case: 23-20350 Document: 40 Page: 4 Date Filed: 08/25/2023
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`Dated: August 24, 2023
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`/s/ Kevin J. Orsini
`Kevin J. Orsini
`Counsel for Defendants-Petitioners
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`Case: 23-20350 Document: 40 Page: 5 Date Filed: 08/25/2023
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`TABLE OF CONTENTS
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`Page
`TABLE OF AUTHORITIES ...................................................................................... (cid:89)
`PRELIMINARY STATEMENT ............................................................................... 1
`ARGUMENT ............................................................................................................. 3
`I.
`Defendants Have Shown a Clear and Indisputable Right to a Writ ................ 3
`A.
`In Arguing that the District Court’s Waiver Finding Is a
`“Garden Variety” and “Intensely Factual” Ruling, Plaintiffs
`Misrepresent the Record Below and Ignore the Law ............................ 3
`1.
`Plaintiffs Cannot Defend the Basis for the District
`Court’s Finding of Waiver .......................................................... 4
`Defendants Did Not Waive Privilege By Communicating
`with Limited Third Parties .......................................................... 6
`Plaintiffs Fail to Show that the District Court’s Broad Subject-
`Matter Waiver Is Warranted .................................................................. 9
`1.
`There Is No Basis for Waiver Based on Alleged Lack of
`Access to Material Facts ............................................................. 9
`Plaintiffs’ Opinion Work Product Arguments Fail ................... 10
`2.
`II. Mandamus Review Is Appropriate Here ....................................................... 11
`CONCLUSION ........................................................................................................ 14
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`B.
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`2.
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`iv
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`Case: 23-20350 Document: 40 Page: 6 Date Filed: 08/25/2023
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`Doe 1 v. Baylor Univ.,
`335 F.R.D. 476 (W.D. Tex. 2020) ...................................................................... 10
`In re Arizona,
`No. 21-71312, 2022 WL 1117113 (9th Cir. Apr. 14, 2022) ............................. 4, 5
`In re Boeing Co.,
`No. 21-40190, 2021 WL 3233504 (5th Cir. July 29, 2021)
`(per curiam) ............................................................................................... 3, 12, 14
`In re Burlington Northern, Inc.,
`822 F.2d 518 (5th Cir. 1987) .............................................................................. 12
`In re Int’l Sys. & Controls Corp. Sec. Litig.,
`693 F.2d 1235 (5th Cir. 1982) ...................................................................... 11, 12
`In re Itron, Inc.,
`883 F.3d 553 (5th Cir. 2018) .......................................................................... 3, 13
`In re Kellogg Brown & Root, Inc.,
`756 F.3d 754 (D.C. Cir. 2014) ............................................................................ 13
`In re Occidental Petroleum Corp.,
`217 F.3d 293 (5th Cir. 2000) .............................................................................. 12
`In re Schlumberger Tech. Corp.,
`818 F. App’x 304 (5th Cir. 2020) ......................................................................... 8
`United States v. El Pao Co.,
`682 F.2d 530 (5th Cir. 1982) ............................................................................ 7, 8
`Upjohn Co. v. United States,
`449 U.S. 383 (1981) ...................................................................................... 12, 13
`Statutes & Rules
`Federal Rule of Evidence 502(a) ............................................................................. 13
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`(cid:89)
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`Case: 23-20350 Document: 40 Page: 7 Date Filed: 08/25/2023
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`PRELIMINARY STATEMENT
`Plaintiffs’ opposition to Defendants’ Petition for Writ of Mandamus
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`(ECF 2-3 (“Petition” or “Pet.”)) points to no case law that supports the finding of
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`waiver, much less the broad and unprecedented scope of such waiver reflected in
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`the District Court’s March 31, 2023 Order (the “Order”). Instead, Plaintiffs rely on
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`mischaracterizations of the Order and the underlying record in an effort to cloud
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`Defendants’ clear and indisputable right to mandamus relief.
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`In their Petition, Defendants explained why the District Court’s
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`sweeping Order on “sword and shield” waiver based on Defendants’ limited use of
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`the SEC’s Termination Letter in deposing two of Plaintiffs’ witnesses lacks any
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`support in the case law. This Court then granted Plaintiffs the opportunity to point
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`to authority that would support that Order. Plaintiffs’ failure to do so is telling.
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`The lack of waiver is particularly apparent given the undisputed facts that
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`Defendants: (1) have placed neither the deposition testimony nor the Termination
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`Letter before the factfinder; and (2) stipulated before the District Court that they
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`will not do so at trial.
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`Because they have no authority to support the Order’s finding of
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`waiver in the first instance, Plaintiffs speculate about what Defendants might have
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`done had the deposition testimony elicited responses different from the ones on
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`1
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`Case: 23-20350 Document: 40 Page: 8 Date Filed: 08/25/2023
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`record. But the question here is not what might have happened; it is what did
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`happen. There has been no waiver.
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`Plaintiffs also attempt to manufacture alternative bases for waiver—
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`despite the fact that the District Court limited its analysis of waiver to the
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`deposition questioning. Nothing in Plaintiffs’ response provides a reasoned basis
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`for concluding that the District Court correctly found that the doctrine of sword-
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`and-shield or “at issue” waiver operates when a party’s only “use” of privileged
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`materials is to ask deposition questions about the non-privileged outcome of an
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`SEC investigation. This is dispositive—without a basis for finding waiver, the
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`District Court’s other findings are moot.
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`But even if the District Court’s finding of waiver were proper (and it
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`is not), Plaintiffs have failed to present any rational support for the Order’s broad
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`scope. Plaintiffs imply that Defendants prevented them from deposing witnesses
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`when, in fact, Plaintiffs themselves agreed to limit the number of depositions and
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`never sought leave to depose additional witnesses when they had the opportunity to
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`do so. And Plaintiffs cite to no authority supporting their bald assertion that any
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`waiver in this case should in fairness apply to the mental impressions and legal
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`advice of the Anadarko Audit Committee’s counsel. Indeed, the authority they cite
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`stands for precisely the opposite proposition—opinion work product is afforded
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`broad protection and rarely, if ever, ordered to be produced.
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`2
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`Case: 23-20350 Document: 40 Page: 9 Date Filed: 08/25/2023
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`Finally, Plaintiffs offer no cogent argument that mandamus relief is
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`inappropriate. This Court has found it appropriate to issue a writ where, as here, a
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`district court improperly orders—in an unprecedented and unsupported decision—
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`disclosure of privileged communications and protected work product. See In re
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`Itron, Inc., 883 F.3d 553, 568–69 (5th Cir. 2018); In re Boeing Co., No. 21-40190,
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`2021 WL 3233504, *2–3 (5th Cir. July 29, 2021) (per curiam).
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`I.
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`ARGUMENT
`Defendants Have Shown a Clear and Indisputable Right to a Writ.
`A.
`In Arguing that the District Court’s Waiver Finding Is a “Garden
`Variety” and “Intensely Factual” Ruling, Plaintiffs Misrepresent
`the Record Below and Ignore the Law.
`Plaintiffs cannot provide any authority to support the District Court’s
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`determination that the limited deposition questioning about the SEC Termination
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`Letter constituted a broad waiver of privilege, and are therefore relegated to
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`mischaracterizing the Order, the record and the law. (ECF 30 (“Opp.”) at 17–23.)
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`None of this succeeds. (See infra Section I.A.1.) Equally unavailing is the
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`argument that the Audit Committee’s alleged disclosures to the SEC and
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`Anadarko’s external auditor, KPMG, and underwriter, J.P. Morgan, justify the
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`District Court’s finding of waiver. (Opp. at 17–18.) While the District Court
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`referred to those alleged disclosures in the background section of the Order and
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`cited to them in explaining the basis for its decision as to the scope of waiver, the
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`District Court made no explicit finding that the disclosures themselves waived
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`privilege. (See infra Section I.A.2.)
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`1.
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`Plaintiffs Cannot Defend the Basis for the District Court’s
`Finding of Waiver.
`Plaintiffs offer no reasoned defense of the District Court’s finding of
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`waiver, nor do they cite a single case supporting this holding. Instead, Plaintiffs’
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`two arguments addressing the deposition questioning involve counterfactuals and
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`are unsupported by the law.
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`First, Plaintiffs speculate that, “had their deposition gambit
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`succeeded, Defendants most certainly would have placed the resulting testimony
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`before the district court.” (Opp. at 21.) But to waive privilege, a party must
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`actually rely on privileged material in attempting to influence the decisionmaker
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`and then deprive the opposing side of the tools to properly respond. (Pet. at 16–
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`23.) It is undisputed that did not occur. Were the Court to adopt Plaintiffs’ view,
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`there would be no limiting principle to waiver—if waiver occurred any time a
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`party could have chosen to rely on privileged material, there would be waiver in
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`every case. This is obviously not the law.
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` Second, Plaintiffs argue that Defendants’ stipulation that they will not
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`rely on the Termination Letter is “too little, too late”. (Opp. at 23 n.21.) This
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`argument is undermined by the very authority that Plaintiffs cite. In In re Arizona,
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`the Ninth Circuit concluded that although a “concession at oral argument [on
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`appeal] that [the petitioners] would disclaim reliance on an advice of counsel
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`defense was significant”, the petitioners “did not make this concession in front of
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`the district court” so “it could not have factored into the district court’s decision.”
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`No. 21-71312, 2022 WL 1117113, at *2 (9th Cir. Apr. 14, 2022) (emphasis added).
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`And the Ninth Circuit added that, “should the [petitioners] ask the district court to
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`reconsider its decision in light of this concession, we are confident that the district
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`court will give that request full consideration,” id., acknowledging that even a
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`stipulation provided for the first time on appeal would be appropriate for declining
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`to compel production of privileged materials.1 Here, Defendants stipulated “in
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`front of the district court” that they will not rely on the SEC’s decision not to bring
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`an enforcement action. (MR3302.) There is no basis to discredit that stipulation.
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`1 Plaintiffs make much of Defendants’ statement during the hearing on the
`motion to compel. (See Opp. at 21–23.) But Defendants told the District Court
`that they believed there would need to be a later discussion on whether the parties
`could admit evidence of the outcome of the investigation in order to complete the
`story for the jury should Plaintiffs seek to rely on the whistleblower letter. And
`once it became apparent that the District Court would find such use of the
`Termination Letter as waiving privilege and work product protection, Defendants
`stipulated that they would not rely on the letter. (See Pet. at 22 n.5.)
`2 Throughout this brief, citations in the form of “MR__” refer to pages in the
`mandamus record appendix, including the Supplemental Record in Support of
`Petition for Writ of Mandamus being filed concurrently with Defendants’ motion
`for leave to file this reply.
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`2.
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`Defendants Did Not Waive Privilege By Communicating with
`Limited Third Parties.
`Because there is no basis to defend the District Court’s Order that the
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`limited deposition questioning constituted waiver, Plaintiffs point to other parts of
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`the Order to claim that the waiver finding was justified. According to Plaintiffs,
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`the District Court also found that Anadarko waived privilege and work product
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`protection based on the disclosure of privileged information to third parties long
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`before this litigation commenced. That is simply not true. But even if it were,
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`mandamus relief would still be warranted.
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`While the District Court discussed the allegations about disclosure to
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`third parties during the events in question, it did so in the background section of its
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`Order; it made no finding that those disclosures amounted to waiver. (Compare
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`MR309 (discussing in background section Plaintiffs’ “allegations” regarding the
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`third party disclosures) with MR314–15 (explaining basis for finding waiver).)
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`Rather, it was Defendants’ limited deposition questioning about the SEC’s
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`Termination Letter that led the District Court to conclude Defendants had put the
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`Audit Committee’s investigation “at issue” in the litigation. (See MR314
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`(“Anadarko seeks to rely on the SEC’s termination letter to indicate that the
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`whistleblower’s allegations were unfounded or false because the information
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`uncovered upon investigation, when presented to the SEC, resulted in it choosing
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`not to pursue an enforcement action.”); MR315 (“Such sword-and-shield use is
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`apparent here. Defense counsel in depositions placed the SEC’s termination letter
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`in front of a class representative and asked if it changed the view of the class
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`member as to any allegations in the complaint . . . . This was the voluntary choice
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`to put in issue the privileged matters underlying the internal investigation
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`conducted by Norton Rose on behalf of the AAC.”).) In short, there is no mention
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`of any third-party disclosures anywhere in the District Court’s analysis of waiver
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`(see MR311–15), and these allegations do not support denial of the relief requested
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`here.
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`Even if these alleged disclosures had been at issue as a potential basis
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`for waiver, and even crediting Plaintiffs’ claims that Anadarko’s Audit Committee
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`and Norton Rose communicated with KPMG and J.P. Morgan about the Audit
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`Committee’s investigation, there is nothing to suggest those communications
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`would constitute a privilege waiver. As Defendants demonstrated in opposing
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`Plaintiffs’ motion to compel below, Norton Rose did not provide the SEC, KPMG
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`or J.P. Morgan with any privileged documents. (MR246–50.) And the fact that
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`the Audit Committee and Norton Rose communicated with the SEC, KPMG and
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`J.P. Morgan about facts learned in the Audit Committee’s investigation—without
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`disclosing privileged communications or protected documents—cannot constitute
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`waiver. See United States v. El Pao Co., 682 F.2d 530, 538 n.10 (5th Cir. 1982)
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`(“the public disclosure of . . . facts . . . does not destroy the privilege with respect
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`to attorney-client communications about those facts”).
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`Plaintiffs’ related argument that Defendants have put at issue the
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`Audit Committee’s investigation by relying on the investigation in their affirmative
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`defenses and expert testimony also fails. This too appeared nowhere in the District
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`Court’s analysis of waiver, and in fact nowhere in the Order at all. Indeed, it was
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`an argument that Plaintiffs first made when Defendants moved for reconsideration
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`below. Here, Plaintiffs contend that the District Court properly found waiver
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`because Defendants “plan to use as defenses in this matter both KPMG’s clean
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`audit as well as favorable expert accounting testimony—both of which rely, in
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`significant part, on the AAC’s investigation.” (Opp. at 23.) But that finding is not
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`contained anywhere in the Order and, in any event, Defendants have not relied on
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`any privileged material—nor do Plaintiffs suggest otherwise. Defendants intend to
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`rely upon the non-privileged “work, opinions, information, representations and/or
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`advice” of KPMG. (See MR579; MR439–40.) Such reliance cannot constitute
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`waiver. See In re Schlumberger Tech. Corp., 818 F. App’x 304, 307–08 (5th Cir.
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`2020). Plaintiffs’ contention that Defendants’ accounting expert, Dr. Richard
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`Dietrich, relies on privileged materials similarly misstates the record. Dr. Dietrich
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`relied only on non-privileged, redacted materials (see MR566), and Plaintiffs fail
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`to explain how an expert could wield privileged information as a sword when he
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`had no access to privileged information.
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`B.
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`Plaintiffs Fail to Show that the District Court’s Broad Subject-
`Matter Waiver Is Warranted.
`Even assuming that Defendants waived privilege or work product
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`protection (which they did not), Plaintiffs fail to rebut Defendants’ argument that
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`the broad subject-matter waiver by the District Court is inappropriate.
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`1.
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`There Is No Basis for Waiver Based on Alleged Lack of Access
`to Material Facts.
`Plaintiffs argue that a broad subject-matter waiver is fair because
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`Defendants “refused Plaintiff’s access to any more than the select individuals that
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`were deposed”. (Opp. at 26.) Not so. Indeed, this was the result of Plaintiffs’ own
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`doing. The parties mutually agreed to a discovery schedule according to which
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`they could each take 20 depositions and petition the District Court “at the
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`appropriate time” should they wish to take additional depositions. (MR597.)
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`Plaintiffs chose not to ask the District Court for additional depositions and
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`instead—apparently finding their existing efforts to have been sufficient—
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`stipulated that, in advance of trial, Plaintiffs could depose any of Defendants’ trial
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`witnesses that they had not previously deposed. (See MR608.) While Plaintiffs
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`argue that the production of all materials submitted to the SEC is irrelevant
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`because it is the “undisclosed communications that matter in th[is] scenario” (Opp.
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`at 27), they have failed to provide any support for that proposition. Nor could
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`Plaintiffs plausibly do so because Defendants have not relied upon, and will not
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`rely upon, the SEC’s decision not to bring an enforcement action—the only
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`decision to which Plaintiffs have argued the withheld materials are relevant.
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`2.
`Plaintiffs’ Opinion Work Product Arguments Fail.
`None of Plaintiffs’ arguments in defense of the District Court’s Order
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`compelling production of opinion work product explains why that Order is
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`appropriate under the circumstances here. Indeed, Plaintiffs’ reliance on Baylor
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`only proves Defendants’ point—even in Baylor, where the defendant ignored the
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`district court’s warning that its reliance on privileged materials would result in
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`waiver, the court declined to waive protection over opinion work product. Doe 1 v.
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`Baylor Univ., 335 F.R.D. 476, 499, 501 (W.D. Tex. 2020).
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`Plaintiffs contend—without any supporting authority—that
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`Defendants must tell them which documents contain opinion work product before
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`Defendants can challenge the District Court’s Order directing them to disclose that
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`opinion work product. (See Opp. at 28–29.) But Plaintiffs offer no reason why
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`that is the case, and Plaintiffs ignore that they have already taken the position that
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`opinion work product was included in the scope of the Court’s Order. (See
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`MR610-11.) Moreover, Plaintiffs’ reliance on the District Court’s “safety valve”
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`(allowing for appointment of a Special Master to oversee any disputes regarding
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`the production compelled by the Order) misses the point. (See Opp. at 31.) The
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`Order in no way carves out from its compelled disclosure opinion work product,
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`and the possibility that a Special Master might be available to resolve any disputes
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`between the parties does not render appropriate the District Court’s unfounded and
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`unprecedentedly broad subject-matter waiver Order.
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`II. Mandamus Review Is Appropriate Here.
`Plaintiffs are wrong, for several reasons, that the discovery order at
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`issue here is “garden variety” and therefore inappropriate for a writ. (Opp. at 33.)
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`First, the situation presented here is hardly “garden-variety” or
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`“unremarkable”. (Opp. at 32–33.) The Order found a broad subject-matter waiver
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`over all privileged communications and work product related to the Audit
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`Committee’s investigation—including opinion work product—based on a handful
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`of deposition questions about the non-privileged results of an SEC investigation
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`and the “apparent” disclosure of “confidential communications” without any
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`finding that those disclosures constituted waiver. (MR315–16.) The District
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`Court’s application of the sword-and-shield doctrine and subject-matter waiver—
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`predicated on such minimal factual findings—is far from typical, and constitutes
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`legal error, particularly in light of Defendants’ stipulation not to rely on the
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`outcome of the SEC’s investigation and with respect to the ordered disclosure of
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`opinion work product, which has long received heightened protection. See In re
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`Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982); cf. In
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`re Occidental Petroleum Corp., 217 F.3d 293, 296 (5th Cir. 2000) (finding
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`mandamus relief inappropriate where petitioner conceded it was not challenging a
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`conclusion of law).
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`Second, by Plaintiffs’ logic, mandamus review of any discovery order
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`would be inappropriate, as discovery orders by their very nature are fact intensive
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`and based on the record of the particular case. And yet this Court has issued writs
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`in discovery disputes involving orders lacking sufficient support, like the one at
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`issue here. See, e.g., In re Boeing Co., 2021 WL 3233504, at *2 (mandamus relief
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`appropriate where district court ordered disclosure of privileged documents based
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`on insufficient findings related to crime-fraud exception to privilege); In re
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`Burlington Northern, Inc., 822 F.2d 518, 534 (5th Cir. 1987) (mandamus relief
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`appropriate where district court failed to undertake “a proper factual
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`determination”).
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`Third, Plaintiffs are wrong that the Order will have no impact beyond
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`this litigation. (See Opp. at 33–34.) “An uncertain privilege, or one which
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`purports to be certain but results in widely varying applications by the courts, is
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`little better than no privilege at all.” Upjohn Co. v. United States, 449 U.S. 383,
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`393 (1981). Therefore, mandamus review is appropriate where a district court’s
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`decision “generate[s] substantial uncertainty about the scope of the attorney-client
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`12
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`Case: 23-20350 Document: 40 Page: 19 Date Filed: 08/25/2023
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`privilege in the business setting.” In re Kellogg Brown & Root, Inc., 756 F.3d 754,
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`756 (D.C. Cir. 2014). That is precisely the case here. The District Court’s
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`decision threatens to upend companies’ ability to conduct full and frank internal
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`investigations, protected by attorney-client privilege and work product protection.
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`If courts are allowed to compel disclosure of privileged internal investigation
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`materials in litigation, even where a company has stipulated that it will not rely on
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`that investigation and has not sought to use investigation materials to influence the
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`factfinder, companies will be reluctant to have “full and frank” communications
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`with their counsel, inhibiting counsel’s ability to conduct thorough and effective
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`investigations. (See Pet. at 30–32 (quoting Upjohn, 449 U.S. at 389).)
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`Moreover, this Court has recognized that it has had little opportunity
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`to assess at issue waiver, which has led to “less than perfect ‘consistency of
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`outcomes’”. In re Itron, 883 F.3d at 568. While Plaintiffs attempt to distinguish
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`this case by asserting that sword-and-shield waiver is settled (Opp. at 33), they fail
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`to cite to any case applying sword-and-shield, or “at issue”, waiver, in the type of
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`circumstances presented here. Mandamus review is appropriate so that the Court
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`may provide guidance to lower courts and litigants regarding whether deposition
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`questions about the non-privileged results of a governmental investigation can lead
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`to waiver, and, if so, the appropriate application of Rule 502(a) in determining the
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`scope of such a waiver. This will prevent further erroneous decisions—including
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`13
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`Case: 23-20350 Document: 40 Page: 20 Date Filed: 08/25/2023
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`decisions relaxing the protections afforded to opinion work product—if the District
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`Court’s uncorrected views “were to proliferate”. In re Boeing Co., 2021 WL
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`3233504, at *3.
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`CONCLUSION
`For the foregoing reasons and those set forth in their Petition,
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`Defendants request a writ of mandamus vacating the Order below.
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`14
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`Case: 23-20350 Document: 40 Page: 21 Date Filed: 08/25/2023
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`Dated: August 24, 2023
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`Respectfully submitted,
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`/s/ Kevin J. Orsini
`CRAVATH, SWAINE & MOORE LLP
`Kevin J. Orsini
`Lauren Rosenberg
`Worldwide Plaza
`825 Eighth Avenue
`New York, NY 10019
`Telephone: (212) 474-1000
`Facsimile: (212) 474-3700
`korsini@cravath.com
`lrosenberg@cravath.com
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`SHIPLEY SNELL MONTGOMERY LLP
`George T. Shipley
`State Bar No. 18267100
`Federal ID No. 02118
`712 Main Street, Suite 1400
`Houston, TX 77002
`Telephone: (713) 652-5920
`Facsimile: (713) 652-3057
`gshipley@shipleysnell.com
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`Counsel for Defendants-Petitioners
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`Case: 23-20350 Document: 40 Page: 22 Date Filed: 08/25/2023
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`CERTIFICATION OF COMPLIANCE
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`I hereby certify that this document complies with Federal Rule of
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`Appellate Procedure 32(a)(7)(B) because this document contains 3,081 words.
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`This document complies with the typeface requirements of Federal Rule of
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`Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of
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`Appellate Procedure 32(a)(6) because this document has been prepared in a
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`proportionally spaced typeface using Microsoft Office Version 2208 in Times New
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`Roman size 14.
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`Dated: August 24, 2023
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`/s/ Kevin J. Orsini
`Kevin J. Orsini
`Counsel for Defendants-Petitioners
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`Case: 23-20350 Document: 40 Page: 23 Date Filed: 08/25/2023
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`CERTIFICATE OF SERVICE
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`I hereby certify that I electronically filed the foregoing with the Clerk
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`of the Court for the United States Court of Appeals for the Fifth Circuit by using
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`the Court’s CM/ECF on August 24, 2023. I further certify that a copy of the
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`foregoing was served on August 24, 2023 via email on the following counsel for
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`Plaintiffs, who consented to such service in writing. A copy of the foregoing is
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`being sent to the chambers of the Hon. Charles R. Eskridge, III, via email and
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`FedEx at the address below.
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`Mark Solomon
`Daniel Drosman
`Rachel Jensen
`Luke Brooks
`Hillary Stakem
`ROBBINS GELLER RUDMAN & DOWD LLP
`655 West Broadway, Suite 1900
`San Diego, California 92101
`(619) 231-1058
`marks@rgrdlaw.com
`dand@rgrdlaw.com
`rjensen@rgrdlaw.com
`lukeb@rgrdlaw.com
`hstakem@rgrdlaw.com
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`Joe Kendall
`KENDALL LAW GROUP, PLLC
`3811 Turtle Creek Blvd., Suite 1450
`Dallas, Texas 75219
`(214) 744-3000
`jkendall@kendalllawgroup.com
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`Counsel for Plaintiffs-Respondents
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`Case: 23-20350 Document: 40 Page: 24 Date Filed: 08/25/2023
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`Jennelle Gonzalez
`Case Manager to Hon. Charles Eskridge
`515 Rusk Street, Room 9015
`Houston, Texas 77002
`(713) 250-5257
`Jennelle_Gonzalez@txs.uscourts.gov
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`Chambers of the Hon. Charles Eskridge, III
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`Dated: August 24, 2023
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`/s/ Kevin J. Orsini
`Kevin J. Orsini
`Counsel for Defendants-Petitioners
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`18
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