                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 05a0022n.06
                                 Filed: January 6, 2005

                                        No. 04-3158/3179/3284

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

JACQUELINE CHESHER, et al.                       )
                                                 )
                Plaintiffs-Appellees,            )
                                                 )
        v.                                       )       ON APPEAL FROM THE UNITED
                                                 )       STATES DISTRICT COURT FOR THE
MICHAEL ALLEN, BRIAN HURLEY,                     )       SOUTHERN DISTRICT OF OHIO at
and THOMAS LONGANO,                              )       CINCINNATI
                                                 )
                Objectors-Appellants,            )
                                                 )
TOM NEYER, et al.,                               )
                                                 )
                Defendants-Appellants,           )
                                                 )
CARL L. PARROTT, JR., et al.                            )
                                                 )
                Defendants-Appellants.           )__________________________________________



        BEFORE: BOGGS and DAUGHTREY, Circuit Judges, and WISEMAN1, District Judge.

        PER CURIAM. Plaintiffs-Appellants bring this writ of Mandamus seeking relief from an order

of the district court reversing Magistrate Judge’s decision to quash subpoenas issued to nonparty

attorneys and compelling depositions. For the reasons that follow, we REVERSE the decision of

the district court and REMAND for further consideration.

                            FACTUAL AND PROCEDURAL BACKGROUND

        The only issue before this court is whether the United States District Court for the Southern

District of Ohio at Cincinnati properly reversed the Magistrate Judge’s decision to quash the

subpoenas served upon Michael Allen, Brian Hurley, and Thomas Longano. While appalling, the

well publicized facts of this case are irrelevant to that determination. As such, this court will not



        1
          The Hon. Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.

                                                     1
delve into a summary of those facts. Instead, this court will focus on the discovery dispute that is

before it.

        The Plaintiffs in this case sought discovery through the issuance of subpoenas for

depositions from four attorneys: Michael Allen, the Hamilton County Prosecutor; Brian Hurley, First

Assistant to the Prosecutor in the Civil Division; Thomas Longano, First Assistant to the Prosecutor

in the Criminal Division; and David Stevenson, Assistant Prosecutor, (“Attorneys”). The Plaintiffs

based these subpoenas on evidence obtained in prior discovery that Plaintiffs claimed

demonstrated the possibility of a coverup to protect the County from liability.2 Plaintiffs sought to

take depositions from the above named attorneys to further explore any such coverup.

        Attorneys moved to quash the subpoenas, or in the alternative, for a protective order limiting

the Plaintiffs’ inquiry. Attorneys claimed that the subpoenas sought information protected by

attorney-client privilege and work product privilege. Attorneys also argued that they were opposing

counsel and, as such, a heightened standard must be met in the issuance of any subpoenas upon

them.

        The Magistrate Judge issued an order granting the motion to quash in part and compelled

discovery in part. The Magistrate Judge began his analysis by stating, “it is beyond doubt that the

non-party attorneys who have been subpoenaed in this case are opposing counsel.” Joint App. vol.

1, page 57. Given this, the Magistrate Judge applied the Shelton test to determine if it was proper to

compel discovery depositions of Attorneys. See Shelton v. American Motors Corp., 805 F.2d 1323,

1327 (8th Cir. 1986); Nationwide Mutual Ins. Co. v. Home Ins. Co., 276 F.3d 621, 628 (6th Cir. 2002)

(Sixth Circuit adopted the Eighth Circuit test in Shelton). The three-part test requires that: 1) other

than deposing opposing counsel, no other means exists to obtain the information; 2) the information


        2
         The evidence of a coverup that Plaintiffs referred to included: 1) a letter from a Hamilton
County Commissioner to the sentencing judge that asserted that members of the Coroner’s Office
were aware of Thomas Condon’s activity; 2) an opinion letter (referred to as the “Stevenson Letter”)
written by Assistant Prosecutor Stevenson and signed by Prosecutor Allen referring to the use of
photography for a training film; 3) an audiotape of a conversation between Dr. Utz and morgue
employees implying that people at the Coroner’s Office were aware of Condon’s activity; 4) finally,
the Plaintiff’s allege that there was some circumstantial evidence pointing to the possibility that, at a
Sunday morning meeting, the County agreed to defend Dr. Tobias in the action brought against him
in exchange for favorable testimony in the instant action.

                                                    2
sought is nonprivileged and relevant; 3) the information is crucial to the preparation of the case.

Nationwide, 276 F.3d at 628.

        Applying this test, the Magistrate Judge ruled that Plaintiffs could not carry their burden and

quashed the subpoenas as to all claims except the Stevenson Letter, ruling that any privilege as to

that letter had been waived. Joint App. vol. 1, page 57. Specifically, the Magistrate Judge held that

Plaintiffs could not satisfy the second prong of the Shelton test as to all claims other than the

“Stevenson Letter,” and the Plaintiffs could not satisfy the first prong as to some of the claims. It is

also important to note that the Magistrate Judge explicitly rejected the idea that Attorneys should be

subject to depositions because of the possibility of a coverup. Id. at 59. The Magistrate Judge did

allow that there may have been a coverup, but stated that Attorneys were not the proper parties to

depose as to any alleged coverup. Id. at 59-60. While the Magistrate Judge never mentions the

crime-fraud exception to the attorney-client privilege, this statement seems to implicitly reject any

arguments related thereto.

        Plaintiffs objected to and appealed the Magistrate Judge’s ruling to the United States District

Court for the Southern District of Ohio at Cincinnati, Judge Arthur Spiegel presiding. Judge Spiegel

reversed the Magistrate Judge’s ruling, and ordered Attorneys to submit to depositions. Judge

Spiegel primarily based his decision on the crime-fraud exception to the attorney-client privilege. Id.

at 76-81. Judge Spiegel goes to some lengths to explain the origins of and operation of the crime-

fraud exception and finds that, “[t]aken together, the Court finds that a reasonable person could find

that the evidence supports Plaintiffs’ theory of a cover-up. THE COURT DOES NOT FIND THAT

THERE WAS INDEED A COVER-UP, but merely that there is enough evidence to support Plaintiffs’

theory, and thus to permit the depositions to go forward.” Id. at 79 (emphasis in original).

                                               ANALYSIS

                                            JURISDICTION

        There is some question whether this court has jurisdiction to consider a direct appeal of

Judge Spiegel’s ruling. Because there seems to be some conflicting precedent within the circuit as

to that question, and it is not necessary to the resolution of this case, this court declines to answer



                                                    3
that question at this time. Instead, this court finds that it does have jurisdiction to consider the

Petition for Writ of Mandamus and/or Prohibition filed by Attorneys.

        Petitions for relief in mandamus are generally only considered after evaluating them under

five guidelines:

                   (1) The party seeking the writ has no other adequate means, such as
                   direct appeal, to attain the relief desired.
                   (2) The petitioner will be damaged or prejudiced in a way not
                   correctable on appeal.
                   (3) The district court’s order is clearly erroneous as a matter of law.
                   (4) The district court’s order is an oft-repeated error, or manifests a
                   persistent disregard of the federal rules.
                   (5) The district court’s order raises new and important problems, or
                   issues of law of first impression.

In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997).

It is also important to note that this court has a more flexible approach to mandamus than other

circuits. Id. at 437. Finally, we have said that mandamus is particularly appropriate to review

discovery decisions that would not be appealable until final judgment, especially decisions related to

privileges. See In re Perrigo Co., 128 F.3d 430 (6th Cir. 1997); In re Bankers Trust Company, 61 F.3d

465 (6th Cir. 1995); Federal Deposit Insurance Corp. v. Ernst & Whinney, 921 F.2d 83 (6th Cir. 1990);

EEOC v. K-Mart Corp., 694 F.2d 1055 (6th Cir. 1982).

        Here, after balancing the guidelines, this court finds that mandamus is appropriate.

                           THE STANDARD THE DISTRICT COURT APPLIED

        Rule 72(a) of the Federal Rules of Civil Procedure requires that a district court judge find a

magistrate judge’s decisions concerning nondispositive matters “clearly erroneous” before reversing

any such decisions. The discovery matter that was before the district court in the instant case is

clearly a nondispositive matter. While the quashing of a subpoena may affect a case, it clearly does

not dispose of one. As such, the district court would have had to find the magistrate’s decision

clearly erroneous in the instant case before reversing the decision to quash the subpoenas.

        Since it does not appear that Judge Spiegel applied the clearly erroneous standard, the

case is remanded for consideration under that standard. It seems that Judge Spiegel weighed the

evidence de novo and decided that a reasonable person could conclude that there was a coverup.



                                                     4
Joint App., vol. 1, page 79. Whether a reasonable person could find evidence of a coverup that may

support a finding of the crime-fraud exception to the attorney-client privilege is irrelevant for the

purposes of Judge Spiegel’s decision. What is relevant for Judge Spiegel to consider is whether the

Magistrate Judge was clearly erroneous when he found that no crime-fraud exception could be

found.3 Therefore, we remand this case to the district court for determination of whether the

Magistrate Judge clearly erred in his rejection of the crime-fraud exception.

                               APPLICATION OF THE SHELTON TEST

        Finally, this court finds that even had the district court correctly concluded that the

Magistrate Judge clearly erred in not finding a crime-fraud exception, the district court also erred by

not then applying the Shelton test. The finding of the crime-fraud exception only satisfied the

second prong of the Shelton test. See Shelton, 805 F.2d at 1327. The first and third prongs must

also be proven to compel discovery from Attorneys. On remand, in addition to applying the correct,

“clearly erroneous” standard, the district court should also complete the Shelton analysis required to

compel discovery in the instant case.

                                             CONCLUSION

        This case is REMANDED to the United States District Court for the Southern District of Ohio

at Cincinnati for consideration in accordance with this opinion.




        3
          Again, while the Magistrate Judge never names the crime-fraud exception in his order, he
implicitly rejected any such claim when he wrote that Attorneys were not the proper parties to
depose as to any alleged coverup. Furthermore, Plaintiffs did not explicitly raise the crime-fraud
exception before the Magistrate Judge.

                                                    5
