Drummond Company, Inc. v. Terrance P. Collingsworth, et al.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15722
________________________
D.C. Docket No. 9:14-mc-81189-DMM
DRUMMOND COMPANY, INC.,
Plaintiff-Appellee,
versus
TERRANCE P. COLLINGSWORTH,
CONRAD & SCHERER, LLP,
Defendants-Appellants,
JACK SCAROLA,
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A.,
Interested Parties-Appellants.
________________________
No. 14-15749
________________________
D.C. Docket No. 9:14-mc-81189-DMM
Case: 14-15722 Date Filed: 03/15/2016 Page: 1 of 19

-- 1 of 19 --

2
In re: JOHN SCAROLA,
Petitioner.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and WALTER,∗
District Judge.
ED CARNES, Chief Judge:
Subpoenas seeking documents were issued to an attorney and his law firm
who are not parties to this lawsuit. They filed a third-party motion to quash on
work product grounds. After the district court denied their motion, instead of
producing the subpoenaed documents, they appealed and also filed a petition for a
writ of mandamus. The defendants in the underlying lawsuit filed their own appeal
from the denial of the motion to quash even though the subpoenas were not
addressed to them and they did not object in the district court. As you might
imagine, this appeal presents a number of issues of appellate jurisdiction.
I.
Over a number of years, attorney Terrence P. Collingsworth and his law
firm, Conrad & Sherer, LLP (collectively, Collingsworth) have filed a series of
lawsuits on behalf of Colombian plaintiffs against Alabama-based oil company
∗ Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
Case: 14-15722 Date Filed: 03/15/2016 Page: 2 of 19

-- 2 of 19 --

3
Drummond Company, Inc. under the Alien Tort Statute, 28 U.S.C. § 1350. Those
lawsuits claim that Drummond has attempted to maintain control of its coal mining
operations in Colombia by conspiring with paramilitary groups there, making
Drummond complicit in scores of human rights violations including a number of
murders. So far none of those lawsuits has been successful.
In 2011 Drummond filed a defamation lawsuit against Collingsworth in
federal district court in the Northern District of Alabama based on a series of
letters that Collingsworth sent to Drummond’s customers and business partners
describing Drummond’s alleged role in those human rights violations.
Collingsworth contended that the statements in those letters were based on the
testimony of former Colombian paramilitary fighters. According to Drummond,
however, Collingsworth had paid those witnesses a total of well over $100,000.
Drummond argues that those payments call into question the veracity of the
witnesses’ testimony and, in turn, the legitimacy of Collingsworth’s defense to the
defamation suit.
To prove that Collingsworth paid the witnesses, Drummond served Florida
attorney Jack Scarola and his law firm, Searcy, Denney, Scarola, Barnhart, &
Shipley, P.A. (collectively, Scarola), with two subpoenas to produce documents.
The connection to Scarola arises from the fact that he serves along with
Collingsworth as counsel for plaintiffs in another lawsuit, which is a multi-district
Case: 14-15722 Date Filed: 03/15/2016 Page: 3 of 19

-- 3 of 19 --

4
litigation against Chitquita Brands International, Inc., premised on Chiquita’s
alleged involvement in similar human rights violations. As co-counsel in that other
case, Collingsworth and Scarola have shared information related to it under
confidentiality and common interest agreements. The subpoenas sought from
Scarola documents and communications related to Collingsworth’s “provision of
security in Colombia” and to “payments made to witnesses or any Colombian
paramilitary.”
Scarola filed a motion to quash Drummond’s subpoenas in the Southern
District of Florida. See Fed. R. Civ. P. 45(d)(3)(A) (providing that a motion to
quash should be directed to the district court “where compliance is required”). His
motion contended that the subpoenas sought materials protected by the work
product privilege and that they imposed an undue burden on him as a nonparty to
the defamation case. He did not submit a privilege log.
The district court denied Scarola’s motion to quash, concluding that the
work product privilege did not apply because the documents Drummond sought
“were prepared for different parties in a different case in which Drummond was
not involved.” The court declined to rule on the undue burden issue because the
parties had said that they would “continue efforts to limit the burden that the
present production request would impose.” The court directed the clerk of court to
close the motion to quash case (the only matter pending before it).
Case: 14-15722 Date Filed: 03/15/2016 Page: 4 of 19

-- 4 of 19 --

5
Scarola appealed the district court’s decision. Collingsworth also appealed,
asserting his own work product privilege in the subpoenaed documents for the first
time.1 Scarola also filed a petition for a writ of mandamus, which we consolidated
with both appeals. We provided the district court judge with the opportunity to
respond to the mandamus petition, which he did. The underlying defamation case
in the Northern District of Alabama, from which this related litigation sprang, is
ongoing; there is no final judgment in it.
II.
The threshold issue is whether we have jurisdiction to decide the appeals
from the denial of Scarola’s motion to quash the subpoenas. See Adams v.
Monumental Gen. Cas. Co., 541 F.3d 1276, 1277 (11th Cir. 2008) (noting that a
court has an obligation to raise any questions about its jurisdiction). The courts of
appeals “have jurisdiction of appeals from all final decisions of the district courts
of the United States . . . .” 28 U.S.C. § 1291. “A final decision is one by which a
district court disassociates itself from the case.” Doe No. 1 v. United States, 749
F.3d 999, 1004 (11th Cir. 2014) (quotation marks omitted). It “ends the litigation
on the merits and leaves nothing more for the court to do but execute the
1 Collingsworth never filed a motion to intervene in this Southern District of Florida
proceeding. Nor did he otherwise participate in it before he filed his notice of appeal from the
order denying Scarola’s motion to quash. After Collingsworth filed his notice of appeal, he also
filed in the district court his own motion to quash the subpoenas issued to Scarola.
Collingsworth did that almost a month after the district judge denied Scarola’s motion. That
motion to quash was assigned to a different district judge, and it has been stayed pending the
outcome of this appeal.
Case: 14-15722 Date Filed: 03/15/2016 Page: 5 of 19

-- 5 of 19 --

6
judgment.” Id. (quotation marks omitted). “Discovery orders are ordinarily not
final orders that are immediately appealable.” Id.
There are, of course, exceptions to the final judgment rule. A district court
can certify for appeal, and the court of appeals can accept, an order that “involves a
controlling question of law as to which there is a substantial ground for difference
of opinion” where “immediate appeal . . . may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b). But the district court in this
case did not do that. Or an aggrieved person can defy a district court’s order and
then appeal directly from court-imposed contempt sanctions. See Rouse Constr.
Int’l, Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir. 1982). But no one
did that in this case.
And a privilege holder can appeal from an order that directs a disinterested
third party to produce materials over which the privilege holder claims a privilege
of nondisclosure, if he would have no other means of appellate review. See Int’l
Horizons, Inc. v. Comm. of Unsecured Creditors (In re Int’l Horizons), 689 F.2d
996, 1001 (11th Cir. 1982). Collingsworth contends that exception applies to his
appeal. And under the collateral order doctrine a litigant can appeal immediately
from an order that conclusively decides an important question separate from the
merits of a case when the order would otherwise be unreviewable. See Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 105, 130 S. Ct. 599, 604 (2009). Scarola
Case: 14-15722 Date Filed: 03/15/2016 Page: 6 of 19

-- 6 of 19 --

7
contends that exception applies to his appeal. We don’t think either exception
applies to either appeal.
A.
We turn first to Collingsworth, who contends that we have jurisdiction over
his appeal because the district court’s disclosure order demands that Scarola turn
over Collingsworth’s own privileged work product. “Ordinarily, a litigant seeking
to overturn a discovery order has two choices. Either he can comply with the order
and challenge it at the conclusion of the case or he can refuse to comply with the
order and contest its validity if subsequently cited for contempt for his refusal to
obey.” Rouse, 680 F.2d at 745. But when a disclosure order is “directed to a
person who has custody of materials as to which another person may claim
privilege of non-disclosure . . . [,] the person who holds the privilege may seek
immediate review of the disclosure order.” In re Int’l Horizons, 689 F.2d at 1001
(quotation marks omitted). “The justification for permitting immediate appeal
under such circumstances is that the privilege-holder has no power to compel the
custodian of the material to risk a contempt citation for his refusal to comply with
the Court’s order.” Id. (quotation marks omitted). Without the ability to bring an
interlocutory appeal, the privilege holder would be left “powerless to avert the
mischief of the order.” Perlman v. United States, 247 U.S. 7, 12–13, 38 S. Ct. 417,
419 (1918).
Case: 14-15722 Date Filed: 03/15/2016 Page: 7 of 19

-- 7 of 19 --

8
But that concern arises only when the privilege holder is not a party to the
underlying litigation from which the subpoena came. The Supreme Court made
that clear in Mohawk Industries, Inc. v. Carpenter, 558 U.S. at 103, 130 S. Ct. at
603, where it held that a disclosure order adverse to the attorney-client privilege
did not warrant interlocutory appeal when the privilege holder was a party to the
litigation who could appeal after final judgment. The Court reasoned that
“postjudgment appeals generally suffice to protect the rights of litigants and ensure
the vitality of the attorney-client privilege[,]” because “[a]ppellate courts can
remedy the improper disclosure of privileged material in the same way they
remedy a host of other erroneous evidentiary rulings: by vacating an adverse
judgment and remanding for a new trial in which the protected material and its
fruits are excluded from evidence.” Id. at 109, 130 S. Ct. at 606. When the rights
asserted can be vindicated after final judgment, permitting interlocutory appeal of
“privilege-related disclosure orders simply cannot justify the likely institutional
costs,” including “unduly delay[ing] the resolution of district court litigation and
needlessly burden[ing] the Courts of Appeals.” Id.
Collingsworth attempts to distinguish Mohawk in two ways, neither of
which is convincing. He first argues that the Mohawk-mandated patience rule
should not extend to cases like this one, where the privilege holder appeals a
disclosure order directed at a disinterested third party instead of at the privilege
Case: 14-15722 Date Filed: 03/15/2016 Page: 8 of 19

-- 8 of 19 --

9
holder himself. Collingsworth points out that we have said Mohawk does not
prevent “claimants of privilege who are limited intervenors in a proceeding
ancillary to a criminal investigation” from “seek[ing] to prevent the disclosure of
information held by a disinterested party” through an interlocutory appeal. Doe
No. 1, 749 F.3d at 1007. That’s true, but it’s also irrelevant. The critical question
in Doe No. 1 and in this case is not to whom the disclosure order is directed; it is
whether the privilege holder has some other adequate means of obtaining appellate
review. In Doe No. 1 we exercised jurisdiction over the interlocutory appeal of a
privilege-based disclosure order only after determining that “[a]bsent an
interlocutory appeal, [the nonparty privilege holders] would be left with no
recourse to appeal the disclosure order.” Id. at 1006.
We also explained in Doe No. 1 that Mohawk “foreclosed an interlocutory
appeal of an order requiring the disclosure of [privileged] materials” when “the
claimant [of the privilege] [is] a party who could appeal a final judgment.” Id. at
1007. A number of our sister circuits have reached the same conclusion. See
United States v. Copar Pumice Co., 714 F.3d 1197, 1207–09 (10th Cir. 2013)
(declining to exercise jurisdiction over interlocutory appeal of a disclosure order
directed to a third party where the appealing privilege holder was a party to the
litigation who could appeal from final judgment); Holt-Orstead v. City of Dickson,
641 F.3d 230, 237–38 (6th Cir. 2011) (same); Wilson v. O’Brien, 621 F.3d 641,
Case: 14-15722 Date Filed: 03/15/2016 Page: 9 of 19

-- 9 of 19 --

10
643 (7th Cir. 2010) (noting that after Mohawk “whether the [disclosure] order is
directed against a litigant or a third party, an appeal from final judgment will allow
review of the district court’s ruling”); see also United States v. Gorski, 807 F.3d
451, 459 (1st Cir. 2015) (exercising jurisdiction over a nonparty privilege holder’s
interlocutory appeal of a disclosure order directed at a third party after finding that
appeal would be the only opportunity for appellate review); United States v. Krane,
625 F.3d 568, 573 (9th Cir. 2010) (same). Collingsworth is a party to the litigation
and will have an opportunity to challenge the disclosure order after final judgment.
Collingsworth’s second attempt to distinguish Mohawk points out that his
challenge to the district court’s disclosure order is based on the work product
privilege instead of the attorney-client privilege, which was involved in Mohawk.
He insists that requiring him to wait until after final judgment to appeal the
disclosure order will force him to expose his mental impressions and legal
strategies to Drummond, irreparably destroying the adversarial process in the
underlying case. We are sympathetic with that concern, but courts “routinely
require litigants to wait until after final judgment to vindicate valuable rights,
including rights central to our adversarial system.” Mohawk, 558 U.S. at 108–09,
130 S. Ct. at 606. What matters “is not whether an interest is important in the
abstract; it is whether deferring review until final judgment so imperils the interest
Case: 14-15722 Date Filed: 03/15/2016 Page: 10 of 19

-- 10 of 19 --

11
as to justify the cost of allowing immediate appeal of the entire class of relevant
orders.” Id. at 108, 130 S. Ct. at 606.
The Mohawk Court acknowledged that “an order to disclose privileged
material may, in some situations, have implications beyond the case at hand.” Id.
at 112, 130 S. Ct. at 608. But the fact “[t]hat a fraction of orders adverse to the
attorney-client privilege may nevertheless harm individual litigants in ways that
are only imperfectly reparable does not justify making all such orders immediately
appealable as of right under § 1291.” Id. (quotation marks omitted). There is
some difference between exposing attorney work product and exposing attorney
client privilege, but we are not convinced that the difference favors more
interlocutory protection for work product. At least one of our sister circuits has
concluded that the same rule should apply to both. See Hernandez v. Tanninen,
604 F.3d 1095, 1098–99 (9th Cir. 2010) (“The reasoning of Mohawk, which
eliminated collateral order jurisdiction on appeals of disclosure orders adverse to
the attorney-client privilege, applies likewise to appeals of disclosure orders
adverse to the attorney work product privilege.”).
Finding insufficient basis for distinguishing Mohawk, we will dismiss
Collingsworth’s interlocutory appeal for lack of jurisdiction.
Case: 14-15722 Date Filed: 03/15/2016 Page: 11 of 19

-- 11 of 19 --

12
B.
Scarola, for his part, argues that we have jurisdiction over his appeal under
the collateral order doctrine, which recognizes that appellate jurisdiction under
§ 1291 “encompasses not only judgments that terminate an action, but also a small
class of collateral rulings that, although they do not end the litigation, are
appropriately deemed final.” Mohawk, 558 U.S. at 106, 130 S. Ct. at 605
(quotation marks omitted). That small class “includes only decisions that are
conclusive, that resolve important questions separate from the merits, and that are
effectively unreviewable on appeal from the final judgment in the underlying
action.” Id. (quotation marks omitted). According to Scarola, the district court’s
disclosure order satisfies all of those requirements.
Discovery orders generally do not present “important questions” warranting
collateral order review. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
377, 101 S. Ct. 669, 675 (1981) (noting that the Court has “generally denied
review of pretrial discovery orders” under the collateral order doctrine); United
States v. Ryan, 402 U.S. 530, 530–34, 91 S. Ct. 1580, 1581–82 (1971); Cobbledick
v. United States, 309 U.S. 323, 324–27, 60 S. Ct. 540, 540–42 (1940). Once again,
most discovery issues can be reviewed effectively on appeal from final judgment.
See Firestone, 449 U.S. at 377, 101 S. Ct. at 675. And “in the rare case when
appeal after final judgment will not cure an erroneous discovery order, a party may
Case: 14-15722 Date Filed: 03/15/2016 Page: 12 of 19

-- 12 of 19 --

13
defy the order, permit a contempt citation to be entered against him, and challenge
the order on direct appeal of the contempt ruling.” Id.; see also Ryan, 402 U.S. at
532, 91 S. Ct. at 1581–82 (“[O]ne to whom a subpoena is directed may not appeal
the denial of a motion to quash that subpoena but must either obey its commands
or refuse to do so and contest the validity of the subpoena if he is subsequently
cited for contempt on account of his failure to obey.”). The Supreme Court
reiterated that rule in Mohawk, holding that “the collateral order doctrine does not
extend to disclosure orders adverse to the attorney-client privilege.” 558 U.S. at
114, 130 S. Ct. at 609.
Scarola argues that this longstanding rule doesn’t apply to him because he is
a nonparty who cannot appeal from final judgment. We disagree. Although the
Mohawk Court explained that “postjudgment appeals generally suffice to protect
the rights of litigants and ensure the vitality of the attorney-client privilege[,]” it
also emphasized that aggrieved privilege holders have a number of “established
mechanisms for appellate review” other than interlocutory appeal under the
collateral order doctrine. Id. at 109–12, 130 S. Ct. at 606–08.
At least two of those other appellate options were available to Scarola in this
case. Scarola could have refused to comply with the district court’s disclosure
order and then appealed after being cited for contempt. Id. at 111, 130 S. Ct. at
608. Or he could have filed a petition for a writ of mandamus with us, which he
Case: 14-15722 Date Filed: 03/15/2016 Page: 13 of 19

-- 13 of 19 --

14
did. Id. at 111, 130 S. Ct. at 607. When those other appellate options are available
to a nonparty, collateral order review isn’t available. See Ott v. City of
Milwaukee, 682 F.3d 552, 554–55 (7th Cir. 2012) (concluding that after Mohawk
nonparty privilege holders must “resist their subpoena orders more definitively
before [an appellate court] may exercise jurisdiction” over their interlocutory
appeal; for example, by “risk[ing] a contempt order, if they feel strongly that a
prejudgment appeal is necessary”).
In support of his position, Scarola cites a few of our pre-Mohawk decisions.
Some dicta in those decisions does suggest that we might review discovery orders
directed at nonparties before final judgment under the collateral order doctrine.
But none of those decisions actually hold as much because the issue was not
presented; they did not actually apply the collateral order doctrine. See In re
Novak, 932 F.2d 1397, 1400–03 (11th Cir. 1991) (affirming an order holding a
nonparty in criminal contempt after he failed to appear at a settlement conference);
Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417, 422 (5th Cir. 1968)
(exercising jurisdiction over a party’s appeal after final judgment of an order
quashing a subpoena issued to a nonparty); Overby v. U.S. Fid. & Guar. Co., 224
F.2d 158, 159–63 (5th Cir. 1955) (exercising jurisdiction under the Perlman
doctrine, not the collateral order doctrine, over the Acting Secretary of the
Treasury’s appeal of an order requiring the defendant bank to produce documents
Case: 14-15722 Date Filed: 03/15/2016 Page: 14 of 19

-- 14 of 19 --

15
over which the Secretary claimed governmental privilege). A decision cannot hold
anything beyond the facts of the case that gave rise to it. Edwards v. Prime, Inc.,
602 F.3d 1276, 1298 (11th Cir. 2010). “Of course, dicta can be considered for
whatever persuasive value it may have.” Castillo v. Sec’y, Fla. Dep’t of Corr., 722
F.3d 1281, 1291 (11th Cir. 2013). But we are not persuaded by it here,
particularly in light of the Supreme Court’s more recent statements to the contrary
in Mohawk.
Scarola also points us to Ariel v. Jones, 693 F.2d 1058 (11th Cir. 1982). In
that case, the defendant had subpoenaed records from a nonparty located in another
district. Id. at 1059. The nonparty moved to quash the subpoena in that district
court, and the court granted the motion. Id. The defendant appealed, and we
reviewed the order before final judgment, reasoning that it was “a final disposition
of all issues pending before [the district court].” Id.
We have never applied that reasoning to a case like Scarola’s, where the
district court has denied –– instead of granted –– a nonparty’s motion to
quash. That’s because, in those cases, the nonparty has another means of obtaining
appellate review: he can defy the order and risk a contempt citation. See Mohawk,
558 U.S. at 111, 130 S. Ct. at 608; see also Shattuck v. Hoegl, 523 F.2d 509, 512–
13, 516 (2d Cir. 1975) (concluding that a party could not immediately appeal an
ancillary order compelling discovery after distinguishing cases where production is
Case: 14-15722 Date Filed: 03/15/2016 Page: 15 of 19

-- 15 of 19 --

16
denied and “no other court may ever be in a position to order production”);
Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 554 (2d Cir. 1967)
(“[W]here disclosure is ordered and the order is not complied with, appellate
review in subsequent contempt proceedings, however risky, is available to one
ordered to disclose who refuses to do so.”) (citations omitted); Ochsner v. Millis,
382 F.2d 618, 622 (6th Cir. 1967) (explaining that appellate jurisdiction does not
depend on whether the discovery order arises out of an ancillary proceeding or
whether it is directed at a party or a nonparty, but on “whether the party bringing
the appeal has any other means of obtaining review of the claimed erroneous action
of the district court”).
As the Supreme Court reminded us in Mohawk, “the class of collaterally
appealable orders must remain narrow and selective in its membership.” 558 U.S.
at 113, 130 S. Ct. at 609 (quotation marks omitted). And for good reason: if that
doctrine is not carefully constrained, it “will overpower the substantial finality
interests § 1291 is meant to further.” Will v. Hallock, 546 U.S. 345, 349–50, 126
S. Ct. 952, 957 (2006). Except in cases involving the assertion of governmental
privilege,2 we have “never exercised jurisdiction under the collateral order
doctrine to review any discovery order involving any privilege.” Carpenter v.
2 “It is the law of this circuit that one who unsuccessfully asserts a governmental
privilege may immediately appeal a discovery order where he is not a party to the lawsuit.” In re
Hubbard, 803 F.3d 1298, 1305 (11th Cir. 2015) (citing Branch v. Phillips Petroleum Co., 638
F.2d 873, 879 (5th Cir. Unit A March 5, 1981)). That exception doesn’t apply in this case.
Case: 14-15722 Date Filed: 03/15/2016 Page: 16 of 19

-- 16 of 19 --

17
Mohawk Indus., Inc., 541 F.3d 1048, 1053 (11th Cir. 2008), aff’d 558 U.S. 100,
130 S. Ct. 599 (2009). We will dismiss Scarola’s interlocutory appeal for lack of
jurisdiction.
III.
Scarola also filed a petition for a writ of mandamus challenging the district
court’s disclosure order. Mandamus can be an “appropriate avenue to seek review
of discovery orders involving claims of privilege,” because it “strikes an
appropriate balance between the concerns of [the policies] to be furthered by the
privilege and the concerns of judicial efficiency.” Carpenter, 541 F.3d at 1054.
The balance it strikes does not favor relief. Or as we have said, mandamus is “a
drastic and extraordinary remedy reserved for really extraordinary causes
amounting to a judicial usurpation of power or a clear abuse of discretion.” In re
Wellcare Health Plans, Inc., 754 F.3d 1234, 1238 (11th Cir. 2014) (quotation
marks omitted). To obtain mandamus relief, Scarola must be able to show that he
has “no other adequate means to attain the relief he desires” and “that his right to
issuance of the writ is clear and indisputable.” Id. (quotation marks omitted). And
“the issuing court, in the exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances.” Id. (quotation marks omitted). We are not
satisfied here.
Case: 14-15722 Date Filed: 03/15/2016 Page: 17 of 19

-- 17 of 19 --

18
In his response to the mandamus petition, the district court judge
acknowledged that his disclosure order was “incomplete for not explaining that the
common-law protections for attorney work-product extend beyond the Federal
Rules of Civil Procedure.” That may be so, but the central premise of his ruling
was correct: the generalized, blanket assertion of work product privilege does not
entitle Scarola to the wholesale protection from Drummond’s subpoenas that he
sought. See In re Grand Jury Subpoena, 831 F.2d 225, 226 (11th Cir. 1987)
(“Blanket assertions of privilege before a district court are usually unacceptable.”)
(quotation marks omitted). The district judge’s mandamus response also explained
that, once production of the documents commences, he intends to consider
Scarola’s work product objections on a case-by-case basis. See id. (explaining that
a district court faced with privilege objections should consider the material “on a
document-by-document basis” to determine whether each is privileged). That
hardly amounts to a “judicial usurpation of power or a clear abuse of discretion”
warranting the extraordinary remedy of mandamus relief. Wellcare Health, 754
F.3d at 1238 (quotation marks omitted).
Given the district court judge’s explanation and his stated intent, we remand
the case to the court so that Scarola can assert any work product privilege he may
have on a specific, item-by-item basis, through a privilege log or other procedure
the district court specifies, and the district court may rule on those assertions of
Case: 14-15722 Date Filed: 03/15/2016 Page: 18 of 19

-- 18 of 19 --

19
privilege and enter any protective order it determines is appropriate.3 See Fed. R.
Civ. P. 45.
The appeals are DISMISSED, the mandamus petition is DENIED, and this
case is REMANDED for further proceedings consistent with this opinion.
3 The district court may also address on remand any number of other issues that it has not
considered yet, including whether the subpoenas pose an undue burden; whether the parties have
waived their right to assert the work product privilege; or whether future discovery motions
should be transferred under Fed. R. Civ. P. 45(f). We express no view on those issues.
Case: 14-15722 Date Filed: 03/15/2016 Page: 19 of 19

-- 19 of 19 --