                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       January 15, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-40001




In Re: KLEBERG COUNTY, TEXAS; ROBERT ANDREW BARBOUR, In His
Individual and Official Capacity,

                                    Petitioners.

                           --------------------
                      Petition for Writ of Mandamus
                  to the United States District Court
                   for the Southern District of Texas
                            USDC No. 03-CV-143
                           --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:*

      Petitioners seek a writ of mandamus to bar the district court

from proceeding with a plan to allow Respondent, a civil rights

plaintiff, to interview a number of the County’s confidential

informants.    We conclude that the district court’s plan runs afoul

of the confidential informant privilege and cannot go forward as

planned. However, we decline to issue the writ of mandamus at this

time, as we are confident that the district court will reconsider

its ruling in light of this opinion.

                                      I.




      *
       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should not be published and is not precedent except under the limited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.
                                  No. 04-40001
                                       -2-

      This   dispute     arises      from   a    civil   rights   suit   filed       by

Plaintiff-Respondent Sarah Jean Hernandez. In 2001, federal border

patrol agents stopped Hernandez at a checkpoint and detained her

for possession of marijuana.           The border patrol agents transferred

Hernandez’s       case   to    the     Kleberg     County    Sheriff’s      Office.

Defendant-Petitioner          Robert    Barbour,     then    a    Kleberg      County

Sheriff’s Deputy, took custody of Hernandez to transport her to the

county jail.      Hernandez alleges that, while en route to the jail,

Barbour stopped the car, forced her to submit to nude photographs,

and touched her inappropriately.                Hernandez further alleges that

Barbour retained her personal belongings while she was in jail and,

after she had been released from custody, induced her to perform

sexual acts before he would return them.                    Barbour claims that

Hernandez consented to be photographed and to the sexual contact,

and   that   he   was    trying   to    recruit     Hernandez     to   serve    as    a

confidential informant1 for Kleberg County.2

      Hernandez sued Mr. Barbour and the County for violations of

her constitutional and civil rights and for various torts.                       She

premises her claims against the County on an allegation that

Barbour’s behavior in recruiting confidential informants was part




      1
            Case law refers to “informants” and “informers” interchangeably. We
will refer to such individuals as informants.
      2
            Mr. Barbour was later convicted of destruction of evidence for
destroying the photographs he took of Plaintiff. Mr. Barbour was acquitted of
sexual assault and one count of official oppression, and the jury hung on a
second count of official oppression.
                                        No. 04-40001
                                             -3-

of a pattern or practice so pervasive that it constituted de facto

county policy.

       In seeking support for her claim of a pattern or practice,

Hernandez sought to discover how other confidential informants had

been recruited.            In her discovery requests, Hernandez asked the

County to “[i]dentify each and every person who was actively

serving as an informant for the Kleberg County Sheriff’s Department

or the Kleberg County District or County Attorney’s Office for the

last   seven       (7)   years.”         Hernandez         also    asked    the   County    to

“[i]dentify         each        and     every     person          solicited,      recruited,

conscripted,        or     employed       as    an        informant,      confidential      or

otherwise, by Robert Andrew Barbour during his employment with

Kleberg County, Texas.”                 Finally, Hernandez asked the County to

produce      a    copy     of    “the    book,”       a    list    of    its    confidential

informants.

       The       County,    seeking       to    protect        the      identity    of     its

confidential informants, objected to these requests.                               Hernandez

responded with a motion to compel.                    The district court granted the

motion to compel and ordered the County to release the informants’

names subject to a protective order to be agreed upon by the

parties.         However, the parties could not agree on a protective

order.

       To    resolve       the   impasse,       the       district      court   conducted    a

telephone conference.                 Following a discussion during which the

district court emphasized that it had already ordered release of
                                 No. 04-40001
                                      -4-

the names, the district court modified its previous order. Instead

of releasing the names of all female informants to Hernandez’s

attorneys, the County would turn over the names to the district

court    and   instruct   each   informant     to   appear   at   the   federal

courthouse at an appointed time. The district court would question

the     informant   to    confirm    her    identity.        Following     this

confirmation, Plaintiff’s counsel would be allowed to question the

informant.     In light of the alternative—release of the names—the

County acquiesced.3

      Following the conference, the Sheriff’s Department began to

contact confidential informants to apprise them of the district

court’s orders.      According to the County, none of the informants

were willing to appear for fear that their identities would be

revealed.      The County asked the district court to reconsider its

order; the district court refused. The County then sought mandamus

in this court on the grounds that the district court’s order would

violate the County’s privilege not to reveal the identities of its

confidential informants.

                                      II.




      3
            The district court regards this acquiescence as an indication that
the County waived its objections to the district court’s plan. We decline to
read counsel’s statements as estopping further invocation of the confidential
informant privilege for two reasons. First, during the discussion, the district
court stated repeatedly that it had already ordered release of the names;
therefore, we understand the County to have accepted the most protective plan on
the table given the district court’s stance on release of the names. Second,
although the confidential informant privilege belongs to the government rather
than the informant, Roviaro v. United States, 353 U.S. 53, 59 (1957), we are wary
of abrogating the privilege based on less-than-clear waiver when that waiver has
grave implications for the safety of informants.
                                No. 04-40001
                                     -5-

     Mandamus is an extraordinary remedy available only when a

district court clearly and indisputably errs and that error is

irremediable on ordinary appeal.           In re Avantel, S.A., 343 F.3d

311, 317 (5th Cir. 2003).   Notwithstanding this exacting standard,

when a district court clearly errs in ordering the disclosure of

privileged information, mandamus is an appropriate means of relief.

Id.; In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir.

2000).    Therefore, we must determine whether the district court

clearly    and   indisputably     erred    in   devising    its   plan   for

interviewing the informants.

                                    III.

     The confidential informant privilege invoked by the County

actually refers to the government’s privilege “to withhold from

disclosure the identity of persons who furnish information of

violations of law to officers charged with enforcement of that

law.”     Roviaro v. United States, 353 U.S. 53, 59 (1957).              The

government may invoke this privilege “as a right” and “need not

make a threshold showing of likely reprisal or retaliation against

the informant in order to assert the privilege.”           United States v.

Valles, 41 F.3d 355, 358 (7th Cir. 1994).

     The privilege most often arises in criminal cases, but it also

applies to civil cases such as this one.        Brock v. On Shore Quality

Control Specialists, Inc., 811 F.2d 282, 283 (5th Cir. 1987);

Suarez v. United States, 582 F.2d 1007, 1011 n.4 (5th Cir. 1978).

In civil cases, the privilege is stronger because many of the
                                 No. 04-40001
                                      -6-

constitutional rights guaranteed to criminal defendants, which in

criminal trials militate in favor of disclosure, do not apply.

Matter of Search of 1638 E. 2nd Street, 993 F.2d 773, 774-75 (10th

Cir. 1993); Dole v. Local 1942, Int’l Bhd. of Elec. Workers, 870

F.2d 368, 372 (7th Cir. 1989).

       The privilege does not apply in two instances, neither of

which is present in this case. First, the informant privilege does

not apply when the disclosure sought will not tend to reveal the

identity of the informant.            Roviaro, 353 U.S. at 60.           In its

response to the petition for mandamus, the district court argues

that the interview process it envisions will adequately protect the

identities of the informants.4

       We disagree. Requiring an informant to appear at a particular

time   at   a   particular    place   is   tantamount    to   revealing    that

informant’s identity.         A confidential informant often has had

direct personal contact with the person she reported (or is still

reporting) to the authorities and is thus recognizable by sight to

that person. Any person interested in discerning the identities of

confidential informants could easily discern those identities, or

at least gain significant clues as to those identities, simply by

observing individuals who enter the courthouse during the time


      4
            As we understand the record, only the district court will view the
“book” listing the names all confidential informants used by Kleberg County. So
long as only the district court views this information, we see no problem with
that portion of the district court’s order because such a disclosure would not
tend to identify any informant. See Roviaro, 353 U.S. at 60. We emphasize,
however, that the informant privilege applies if the district court discloses any
excerpt, redacted or not, that would tend to identify any informant in any way.
Id.
                                No. 04-40001
                                     -7-

period during which interviews are conducted.          Even were the dates

of the interviews not a part of the public record, the district

court’s plan would still be too risky. Because Plaintiff Hernandez

was caught with illegal drugs, it is conceivable that she or her

associates might be interested in identifying those people who aid

law enforcement in ferreting out drug-related activity.              She need

only instruct those associates to monitor the courthouse on the

days her attorneys attend.

     Second, the informant privilege does not apply when the

informant’s identity has already been disclosed.             Id.    Hernandez

argues that by releasing records listing all persons arrested by

Deputy    Barbour,     the   County    has   already   disclosed     all   its

confidential informants.        This argument is patently illogical;

Barbour    did   not    single-handedly      recruit   all   the     County’s

informants, not all the individuals arrested by Barbour became

confidential informants, and not all the informants recruited by

Barbour were necessarily arrested by him.

     Because we conclude that the privilege applies, we must

determine whether the County must nevertheless comply with the

district court’s order.        The informant privilege must “give way”

when disclosure is “essential to a fair determination of a cause.”

Roviaro, 353 U.S. at 60-61.           To determine whether disclosure is

required, we balance the government’s interest in nondisclosure

against the private litigant’s interest in disclosure.             Id. at 62.5


     5
           The factors considered in this balancing test vary according to
                                  No. 04-40001
                                       -8-

The   private    litigant    bears      the    burden    of   demonstrating    that

disclosure is essential.          Valles, 41 F.3d at 358.

      The County’s interest in maintaining the confidentiality of

its informants is substantial.                Informants are a “vital part of

society’s defense arsenal.”             United States v. Sanchez, 988 F.2d

1384, 1391 (5th Cir. 1993) (quoting McCray v. Illinois, 386 U.S.

300, 307 (1967)).      As such, the government’s interest “relates to

both the     safety   of    the   informant      and    the   informant’s     future

usefulness to the authorities as a continuing confidential source.”

United States v. Orozco, 982 F.2d 152, 156 (5th Cir. 1993).

Compromising the confidentiality of the County’s informants, as the

district court’s plan would almost certainly do, thus raises two

serious threats: first, the threat of retaliation faced by the

informants      themselves;       and   second,        the    threat   that   those

informants, realizing that the County can no longer ensure secrecy,

will refuse to assist the County with further investigations.

      Hernandez’s interest in disclosure is flatly inadequate to

counterbalance these strong governmental interests.                    A plaintiff

must demonstrate that the disclosure she seeks is “essential.”

Roviaro, 353 U.S. at 61. Plaintiff submits that these confidential

informants may have information relevant to her claims.                   However,

“[m]ere conjecture or supposition about the possible relevancy of



context. Compare United States v. Wilson, 77 F.3d 105, 111-12 (5th Cir. 1996)
(articulating factors for consideration in criminal cases) with Brock, 811 F.2d
at 283 (articulating factors for consideration in labor dispute). The common
denominator of these cases is a balancing of governmental and private interests.
                               No. 04-40001
                                    -9-

the informant’s testimony is insufficient to warrant disclosure.”

Orozco, 982 F.2d at 155 (quoting          United States v. Gonzales, 606

F.2d 70, 75 (5th Cir. 1979); see also Valles, 41 F.3d at 338; Local

1942, 870 F.2d at 373.        Hernandez can only speculate that other

confidential informants have information favorable to her cause.

As such, she cannot carry her burden, and the informant privilege

therefore prevails.

                                    IV.

     We thus conclude that the district court’s plan impermissibly

violated the County’s privilege not to reveal its confidential

informants.    As   this     opinion     will   issue   before   the   planned

interviews,   we   trust    that   the    district   court   will   stay   the

interviews and reconsider its discovery plan in light of the

standards we have articulated.           See Avantel, 343 F.3d at 324-25.

Because of the extraordinary nature of mandamus, restraint is

appropriate when, as in this case, the district court has in good

faith handled a delicate and novel legal issue but nevertheless run

afoul of controlling law.       See id.; Matter of Green, 39 F.3d 582,

584 (5th Cir. 1994).       We therefore DENY the County’s petition for

mandamus without prejudice.
