     Case: 19-20377      Document: 00515001273         Page: 1    Date Filed: 06/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit


                                      No. 19-20377                            FILED
                                                                          June 18, 2019
                                                                         Lyle W. Cayce
In re: CITY OF HOUSTON,                                                       Clerk

              Petitioner




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:16-CV-3577


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

       Before the court is a petition for writ of mandamus filed by the City of
Houston, Texas (“the City”) following the district court’s denial of the City’s
claim of privilege in a lawsuit pending against the City in the United States
District Court for the Southern District of Texas with respect to certain
documents in the City’s possession.               The City has also submitted a
corresponding unopposed motion to seal the documents at issue and attached
such documents to its motion as “Exhibit A.”
       Preliminarily, we address the City’s motion to seal documents. IT IS
ORDERED that such motion is GRANTED and that the documents submitted



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 19-20377
by the City as Exhibit A to its motion shall be filed under seal and viewable
only by this court.
        Having ruled on the City’s motion, we proceed to its petition. A response
in opposition to the petition was submitted by Respondents Eric Aguirre, Juan
Hernandez, Dequan Kirkwood, Manuel Trevino, and Kent Wheatfall, on behalf
of themselves and all others similarly situated (collectively, “Respondents”).
For the reasons set forth below, the petition is granted in part and denied in
part.
        The lawsuit that forms the basis of this dispute is a purported class
action 1 that was filed in December 2016 against the City by individuals
alleging that the City had violated their Fourth Amendment rights and Texas
law by holding them in custody for longer than 48 hours after their warrantless
arrests without conducting a probable cause hearing.                    In the course of
litigation, a discovery dispute arose as to the production of certain documents
containing electronic communications that the City designated as protected by
the attorney-client privilege and/or attorney work product doctrine.
        At Respondents’ request, the district court reviewed the documents at
issue in camera. On April 24, 2019, after its review, the district court issued
an order noting its finding “that the documents are not privileged because
there is no showing that the documents are privileged either as confidential
communication or under the doctrine of attorney work product” and overruling
the City’s claim of privilege. On May 24, 2019, the court denied the City’s
motion for reconsideration of its April 24 order and ordered the City to produce
all of the documents that it “deemed are not subject to a claim of privilege” by




        1 Though the original complaint and amended complaints filed in the district court are
styled as “class action” complaints, a class of plaintiffs has not yet been certified by the
district court.
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                                  No. 19-20377
the following day. The court subsequently granted the City’s request to stay
its May 24 order pending this court’s resolution of the instant petition.
      In its petition, the City asks us to vacate the district court’s April 24 and
May 24 orders as to certain specified electronic communications and to remand
this matter to the district court for further proceedings. Having reviewed the
submissions of the parties, the documents in dispute, which are contained in
Exhibit A to the City’s motion to seal documents, and pertinent jurisprudence,
we conclude that the electronic communications identified by the City in Tabs
3, 4, 5, 8 and 9 of Exhibit A fall within the attorney-client privilege and that
mandamus relief is warranted with respect to such items. See In re: Itron, Inc.,
883 F.3d 553, 567–69 (5th Cir. 2018); EEOC v. BDO USA, L.L.P., 876 F.3d 690,
695-97 (5th Cir. 2017); Exxon Mobil Corp. v. Hill, 751 F.3d 379, 382–83 (5th
Cir. 2014); In Re: Avantel, S.A., 343 F.3d 311, 316–17 (5th Cir. 2003). The
communications identified by the City in Tabs 6 and 7 of Exhibit A, on the
other hand, do not fall within the attorney-client privilege and are not
documents prepared in anticipation of litigation. See id; see also FED. R. CIV.
P. 26(b)(3). Thus, the City is not entitled to mandamus relief with respect to
such items.
      Accordingly, we GRANT the City’s petition and VACATE the district
court’s April 24, 2019 and May 24, 2019 orders as they pertain to the
documents contained in Tab 3 of Exhibit A (Bates labeled COH0002145 and
COH0002148); Tab 4 of Exhibit A (Bates labeled COH0002151–53,
COH0002155–57, and COH0002159–62); Tab 5 of Exhibit A (Bates labeled
COH0002164–65,       COH0002168–69,         COH0002171–72,      COH0002174–75,
COH0002177–78,       COH0002180–82,         COH0002184–86,      COH0002188–91,
COH0002193–96, and COH0002198–COH0002292); Tab 8 of Exhibit A (Bates
labeled COH0002217–20); and Tab 9 of Exhibit A (Bates labeled
COH0002384–92). The City’s Petition is DENlED in all other respects. We
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                                No. 19-20377
further REMAND this matter to the district court for further proceedings
consistent with this opinion.




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