                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RYAN UEHLING,                                    No. 13-72621

              Petitioner,                        D.C. No. 1:13-mc-00022-LJO-
                                                 BAM
  v.

UNITED STATES DISTRICT COURT                     MEMORANDUM*
FOR THE EASTERN DISTRICT OF
CALIFORNIA, FRESNO,

              Respondent,

MILLENNIUM LABORATORIES, INC.,

              Real Party in Interest.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                     Argued and Submitted February 11, 2014
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge.**

      Petitioner Ryan Uehling petitions for a writ of mandamus protecting him

from responding to five deposition questions, which, he asserts, seek privileged

responses.

      The district court did not clearly err, as required for mandamus to issue, see

Burlington N. & Santa Fe Ry. v. U.S. Dist. Ct., 408 F.3d 1142, 1146 (9th Cir.

2005), in ordering Uehling to respond to the questions. It was not clear error to

apply California privilege law in the absence of controlling precedent requiring the

application of federal privilege law. See In re Van Dusen, 654 F.3d 838, 845 (9th

Cir. 2011). Nor was it clear error to find Millennium had made the “prima facie

showing” required under California law to invoke the crime-fraud exception. See

BP Alaska Exploration, Inc. v. Super. Ct., 199 Cal. App. 3d 1240, 1268 (Cal. Ct.

App. 1988).

      Mandamus would be inappropriate even if the district court clearly erred

because Uehling has adequate alternative means to obtain relief. See Van Dusen,

654 F.3d at 841 (citing Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir.

1977)). Because Uehling seeks to protect his own interests, he may appeal a

       **
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.

                                          2
contempt citation for violation of the district court’s order. See In re Nat’l Mortg.

Equity Corp. Mortg. Pool Certif. Litig., 821 F.2d 1422, 1424 (9th Cir. 1987)

(“[A]n immediate appeal is proper if it is unlikely that the third party will risk a

contempt citation simply to create a final order for the person asserting the

privilege”); Belfer v. Pence, 435 F.2d 121, 123 (9th Cir. 1970) (per curiam).

      Moreover, again assuming clear error, mandamus is inappropriate because

the district court’s order does not raise particularly new, injurious, or oft-repeated

legal issues. See Van Dusen, 654 F.3d at 841; see also Mohawk Indus. v.

Carpenter, 558 U.S. 100, 110 (2009); cf. Hernandez v. Tanninen, 604 F.3d 1095,

1101 (9th Cir. 2010).

      PETITION DENIED.




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