                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-1997

In Re: Ford Mtr Co v.
Precedential or Non-Precedential:

Docket 96-2092,96-2133




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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                      NOS. 96-2092 and 96-2133

                     IN RE: FORD MOTOR COMPANY,

                          Petitioner in No. 96-2092
                       ______________________

              SUSAN I. KELLY, Administratrix and Personal
           Representative of the Estate of GERALD A. KELLY,
                 deceased, on Behalf of Said Decedent’s
         Heirs-At-Law and Next-Of-Kin and on Her Own Behalf,

                              Respondent/Appellee

                                 v.

                         FORD MOTOR COMPANY,

                      Appellant in No. 96-2133

               _______________________________________

          Consolidated Petition For A Writ of Mandamus And
          Appeal From the United States District Court For
                The Eastern District of Pennsylvania
                   (E.D. PA Civ. No. 94-cv-02579)
             _________________________________________

                      Argued: January 28, 1997

              Before: BECKER, ROTH, Circuit Judges, and
                      ORLOFSKY, District Judge.*
                           _______________

                        (Filed April 9, 1997)



JOSEPH V. PINTO, ESQUIRE (ARGUED)
EVAN S. EISNER, ESQUIRE
ROBERT TOLAND, II, ESQUIRE
White and Williams
1800 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7395


     *
       Honorable Stephen M. Orlofsky, United States District
Judge for the District of New Jersey, sitting by designation.



                                  1
JOHN M. THOMAS, ESQUIRE
Ford Motor Company
Office of General Counsel
1500 Parklane Towers West
Suite 1500
Dearborn, MI 48126

Attorneys for Petitioner in No. 96-2092
Appellant in No. 96-2133, Ford Motor Company


ROBERT C. DANIELS, ESQUIRE (ARGUED)
LARRY BENDESKY, ESQUIRE
Daniels, Saltz, Mongeluzzi & Barrett, LTD.
One Liberty Place, 34th Floor
1650 Market Street
Philadelphia, PA 19103-7395

Attorneys for Respondent in No. 96-2092
Appellee in No. 96-2133, Susan I. Kelly


                   __________________________

                      OPINION OF THE COURT
                   ___________________________


BECKER, Circuit Judge.

     By this appeal and companion petition for a writ of mandamus

in one of the Bronco II product liability cases, the defendant

Ford Motor Company, invoking the attorney-client privilege and/or

the work product doctrine, challenges a district court order

denying it protection from disclosure in discovery of certain

documents requested by the plaintiff, Susan Kelly.    The question

of the appropriate jurisdictional vehicle is precedentially

important, for our ability to review such disputes is frequently

called into question.    Therefore, as a threshold matter, we

address the question whether the challenged order is appealable,

see 28 U.S.C. § 1291, or reviewable by mandamus, see 28 U.S.C. §
1651.



                                 2
     We conclude that, because the district court’s order finally

resolved an important issue separate from the merits that would

be effectively unreviewable after final judgment, we have

appellate jurisdiction under the collateral order doctrine.      In

reaching this conclusion, we consider in some detail the anatomy

of the “importance” facet of that doctrine, and we necessarily

resolve certain tensions that exist in our recent jurisprudence

in the area.    Because we have appellate jurisdiction, we do not

review the challenged order by way of mandamus, even though our

case law would require us to do so if we lacked appellate

jurisdiction.

     In contrast, the merits issues are quite straightforward.

We have examined each of the documents in question in camera.

They fall into two groups -- minutes of a meeting attended by

top-level executives of Ford Motor Company regarding the Bronco

II, and agendas for a discussion of the technical characteristics

of the Bronco II.   We conclude that the minutes of the meeting

reflect that the recorded communications were for the purpose of

obtaining legal advice and hence are protected by the attorney-

client privilege.   With respect to the agendas and the

handwritten notes referring to them, we determine that they were

produced by an agent of an attorney in preparation for litigation

and hence are protected by the work product doctrine; the other

requirements for work product doctrine are not at issue.    We

will, therefore, reverse the challenged portions of the district

court’s order and remand with directions to issue an appropriate

order protecting the documents from discovery.


                                 3
                 I. FACTS AND PROCEDURAL HISTORY

     In the underlying lawsuit, Kelly claims that Ford

defectively designed the Bronco II, a four-wheel drive utility

vehicle with a relatively high center of gravity, by rendering it

too susceptible to rollover.1   That defective design, Kelly

submits, caused the death of her husband, Gerald Kelly, who was

killed when the Bronco II he was driving rolled over.    Kelly

sought to discover Ford documents related to the development,

marketing, and safety of the Bronco II.     Ford responded, in part,

by asserting that the attorney-client privilege and the work

product doctrine shielded certain documents from discovery.      Ford

sought from the district court a protective order that would have

preserved the confidentiality of those documents.    By letter

ruling of October 4, 1996, the district court held that, for the

vast majority of documents for which Ford sought protection, the

attorney-client privilege and/or the work product doctrine

applied.   However, the court found that two sets of documents --

those at issue here -- were discoverable.

     The first set of documents is the final draft of the minutes

of a November 18, 1982 meeting of Ford’s Policy and Strategy

Committee.   The Policy and Strategy Committee is made up of top

executives at Ford, and acts as an advisory body to Ford’s chief

executive officer.   At the meeting in question, Ford’s general

counsel, Henry R. Nolte, Jr., briefed the committee about a

report he had drafted regarding the Bronco II.     According to the
     1
      Jurisdiction is based on diversity of citizenship.    See 28
U.S.C. § 1332.




                                 4
minutes, the committee engaged in an extensive discussion of the

report and ultimately adopted the recommendations contained

therein.

     The second set of documents is composed of a series of

agendas, one with handwritten notations, for a meeting in 1988,

and one document pertaining to a 1989 meeting on which

handwritten notes refer to the 1988 agendas.       By 1988, numerous

lawsuits similar to that brought by Kelly were pending, alleging

faulty design of the Bronco II.       As part of its defense strategy,

Ford retained an outside technical consultant, Failure Analysis

Associates (FAA), to assist in the defense of those lawsuits.

FAA, in turn, relied in part on the help of in-house technical

assistants to Ford.   Ernest Grush, one of these technical

assistants, prepared the agendas for the 1988 meeting.       The

meeting was called to explain the technical aspects of the Bronco

II litigation defense strategy, and Ford attorneys were present.

 Grush has declared that the handwritten notes on the document

pertaining to the 1989 meeting are his, and that they refer to

the 1988 meeting.

     On October 4, 1996, the district court made a letter ruling

denying protection for the documents here at issue.       Ford

requested that the court reconsider its decision.       On November

13, 1996, the court denied Ford’s request and, by a subsequent

letter ruling of November 27, 1996, ordered the production of the

documents by December 18, 1996.       The mandamus petition followed.

 On December 18, the court again ordered the production of the

documents.   Ford sought and we granted a motion for a stay of the


                                  5
December 18 order.       Ford also filed a notice of appeal from the

December 18 ruling.       We consolidated the appeal and the petition

for a writ of mandamus and will, therefore, consider them

together.

               II.    APPELLATE AND MANDAMUS JURISDICTION

              A.     Introduction; The First Prong of Cohen

     The question of our jurisdiction is somewhat complicated.         A

writ of mandamus is an extraordinary exercise of our

jurisdiction; moreover, such a writ is not a substitute for

appeal.     See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996).

Because we will not issue a writ of mandamus if relief may be

granted by way of an ordinary appeal, we must first determine

whether Ford may appeal the district court’s ruling.          See

Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996).

A fortiori, only if an appeal is unavailable will we determine

whether a writ of mandamus will issue.       See PAS v. Travelers Ins.

Co., 7 F.3d 349, 352 (3d Cir. 1993).

     As a general rule, discovery orders are not final orders of

the district court for purposes of obtaining appellate

jurisdiction under 28 U.S.C. § 1291.       See Hahnemann Univ., 74
F.2d at 461.       Therefore, discovery orders normally may not be

appealed until after final judgment.       See id.   However, the

collateral order doctrine, first enunciated by the Supreme Court

in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),

provides a narrow exception to the general rule permitting

appellate review only of final orders.       An appeal of a nonfinal

order will lie if (1) the order from which the appellant appeals


                                     6
conclusively determines the disputed question; (2) the order

resolves an important issue that is completely separate from the

merits of the dispute; and (3) the order is effectively

unreviewable on appeal from a final judgment.         See Rhone-Poulenc

Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 860 (3d Cir. 1994).

     It is beyond cavil that the first element is satisfied here.

 The district court’s December 18 order requiring the production

of the disputed documents leaves no room for further

consideration by the district court of the claim that the

documents are protected.

                     B.   The Second Prong of Cohen

                            1.   Separability

     The most familiar aspect of the second prong of Cohen is

separability from the merits.      Kelly submits that a determination

of the issues of privilege and work product will in fact

implicate the merits of the underlying dispute.         We believe that

it will not.    As we understand the merits of the underlying case,

Kelly seeks to show what Ford knew about the alleged rollover

propensity of the Bronco II, when it knew about this alleged

propensity, and what it did about the alleged propensity.         The

contents of the documents will certainly shed some light on these

questions.     However, our resolution of the privilege and work

product issues has nothing to do with them.      We are not concerned

at this juncture about what Ford knew, when it gained this

knowledge, or what it did about it.      Our inquiry largely involves

questions of context -- e.g., who prepared the relevant

documents, when were they prepared, and what was their purpose.


                                    7
It involves content only insofar as we must ensure that the

documents were prepared in certain contexts -- e.g., do the

documents contain legal advice or do they disclose legal

strategies?   We are not required, nor will we undertake, to

resolve disputed questions of Ford’s knowledge of and Ford’s

actions with respect to the alleged rollover propensity.

     Kelly’s assertions to the contrary notwithstanding, neither

Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986),

nor State of New York v. United States Metals Refining Co., 771

F.2d 796 (3d Cir. 1985) [hereinafter USMR], undermine this

conclusion.   In both Cipollone and USMR, the defendants sought to

protect materials gathered for or discovered during litigation

from public dissemination.   Each defendant claimed that the

sought-after material somehow distorted the actual facts and

would, therefore, mislead the public about those facts.2    That

claim, we held in both cases, would require us to examine the

merits of the underlying dispute because we would need to make

some determination of the actual facts presented by the case so

as to compare them to the allegedly distorting or misleading

material.   See Cipollone, 785 F.2d at 1117; USMR, 771 F.2d at
799-800.    No such determination need be made here.   We can

resolve the privilege and work product issues without delving

into the disputed facts about Ford’s knowledge and actions.
     2
      In Cipollone, the defendants claimed that the material at
issue, though not trade secrets, would nonetheless cause
embarrassment if released. See Cipollone, 785 F.2d at 1121. In
USMR, the defendant sought to keep confidential a report that the
plaintiffs had prepared detailing the pollution at the
defendant’s plant. See USMR, 771 F.2d at 798.



                                 8
                          2.   Importance

     The parties have not suggested that the “importance”

criterion is not satisfied.    However, because of our independent

responsibility to examine our own jurisdiction sua sponte, and

because the jurisprudence surrounding the importance criterion is

somewhat murky, we will undertake a close analysis of this aspect

of the collateral order doctrine.     Although “[m]ost courts have

paid little attention to the ‘importance’ requirement,” John C.

Nagel, Replacing the Crazy Quilt of Interlocutory Appeals

Jurisprudence With Discretionary Review, 44 Duke L.J. 200, 207

(1994), the Supreme Court has recently made patent that confusion

over the criterion cannot lead to the conclusion that

“‘importance’ is itself unimportant.”     Digital Equip. Corp. v.

Desktop Direct, Inc.,      U.S.       , 114 S. Ct. 1992, 2001

(1994).3   Rather, application of the Cohen collateral order
     3
      In some formulations of the collateral order doctrine, the
importance criterion is contained in the second prong of the
test; in others, it is considered a factor in the third prong.
See Digital Equip., 114 S. Ct. at 2001. Although the language in
Cohen itself implies that it is a separate element of the
collateral order test, see Cohen, 337 U.S. at 546 (“This decision
appears to fall in that small class which finally determine
claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.”)
(emphasis added), the most frequently cited Supreme Court
statement of the test incorporates the importance criterion in
the second prong, see Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978) (“To come within the ‘small class’ of decisions
excepted from the final-judgment rule by Cohen, the order must
conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the
action, and be effectively unreviewable on appeal from a final
judgment.”) (emphasis added). However, the Supreme Court
recently suggested that the importance criterion is a necessary
part of the third prong of the test. See Digital Equip., 114 S.
Ct. at 2001 (“[T]he third Cohen question . . . simply cannot be



                                  9
doctrine is incomplete without an analysis of the importance of

the issue sought to be reviewed.

     Importance has a particular meaning in this context.    It

does not only refer to general jurisprudential importance.

Rather, the overarching principle governing “importance” is that,

for the purposes of the Cohen test, an issue is important if the

interests that would potentially go unprotected without immediate

appellate review of that issue are significant relative to the

efficiency interests sought to be advanced by adherence to the

final judgment rule.4   In Johnson v. Jones,    U.S.    , 115 S.

Ct. 2151 (1995), for example, the Supreme Court noted that any

analysis of the Cohen test required an examination of the

competing considerations that underlie finality, i.e., the costs


answered without a judgment about the value of the interests that
would be lost through rigorous application of the final judgment
requirement.”). Indeed, the ratio decidendi of this portion of
the opinion, see infra, has third prong overtones. Yet, in its
most recent pronouncement on the collateral order doctrine, the
Court included “importance” as a separate prong. See Quackenbush
v. Allstate Ins. Co.,     U.S.     , 116 S. Ct. 1712, 1718-19
(1996). As noted in the text, this court generally incorporates
the importance criterion within the second prong. No matter
where it is placed, however, it is clear that it must be examined
in order to satisfy the collateral order doctrine.
     4
      The Supreme Court has recently described the interests
protected by the final judgment rule as follows:

An interlocutory appeal can make it more difficult for trial
     judges to do their basic job -- supervising trial
     proceedings. It can threaten those proceedings with delay,
     adding costs and diminishing coherence. It also risks
     additional, and unnecessary, appellate court work either
     when it presents appellate courts with less developed
     records or when it brings them appeals that, had the trial
     simply proceeded, would have turned out to be unnecessary.

Johnson v. Jones,       U.S.   , 115 S. Ct. 2151, 2154 (1995).




                                10
of piecemeal review on the one hand against the costs of delay on

the other.   See id. at 2157.   The Court in Digital Equipment

stated this in a slightly different manner, noting that the Cohen

test requires a “judgment about the value of the interests that

would be lost through rigorous application of a final judgment

requirement,” Digital Equip., 114 S. Ct. at 2001, and that

“‘important’ in Cohen’s sense [means] being weightier than the

societal interests advanced by the ordinary operation of final

judgment principles,” id. at 2002.     As a final example, Justice

Scalia, in a concurrence, stated that a right is important for

Cohen purposes only if it “overcome[s] the policies militating

against interlocutory appeals.”    See Lauro Lines S.R.L. v.

Chasser, 490 U.S. 495, 503 (1989) (Scalia, J., concurring).

     Although one might assume that collateral finality would be

determined by a bright-line rule, the importance determination

under the Supreme Court’s jurisprudence is rather a function of a

balancing process.   See, e.g., Behrens v. Pelletier,      U.S.

 116 S. Ct. 834, 844 (1996) (Breyer, J., dissenting) (canvassing

recent collateral order jurisprudence and noting that the

importance analysis is a balancing of interests); Johnson, 115 S.
Ct. at 2157 (stating that in determining appealability a court

must look to the competing considerations that underlie questions

of finality, namely “the inconvenience and costs of piecemeal

review on the one hand and the danger of denying justice by delay

on the other” (citations omitted)).    When engaging in this

balancing, the Court has relied on a number of factors.     We

mention here only a few contained in recent cases.


                                  11
     In Quackenbush v. Allstate Ins. Co.,           U.S.     , 116 S.

Ct. 1712 (1996), the Court allowed the immediate appeal of an

abstention-based remand in part because the interests implicated

by the appeal -- namely, the scope of federal jurisdiction and

the desire for comity between the federal and the individual

state judicial systems -- were sufficiently important.         See id.

at 1719-20.   In Digital Equipment, the Court reasoned that a

right contained in a private settlement agreement was not

sufficiently important in part because that right did not

“originat[e] in the Constitution or statutes.”         Digital Equip.,

114 S. Ct. at 2001.     In Puerto Rico Aqueduct and Sewer Auth. v.

Metcalf & Eddy, Inc.,        U.S.        , 113 S. Ct. 684 (1993), the

Court allowed the immediate appeal of a denial of Eleventh

Amendment immunity in part because the right at issue “involves a

claim to a fundamental constitutional protection.”         Id. at 688.

And, in Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court

allowed the immediate appeal of a claim to qualified immunity in

part because such immunity was intended to reduce “‘the general

costs of subjecting officials to the risks of trial --

distraction of officials from their governmental duties,

inhibition of discretionary action, and deterrence of able people

from public service.’”     Id. at 526 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 816 (1982)).

     In all of these cases, the Court has compared the apple of

the desire to avoid piecemeal litigation to the orange of, for

example, federalism.5    In terms of analytic purity, the results
     5
     In addition to the collateral order doctrine cases cited



                                    12
of such comparisons are, of course, debatable.   What is important

for present purposes is that, in a number of the just-cited

cases, the Court felt that, because of the imperative of

preventing impairment of some institutionally significant status

or relationship, the danger of denying justice by reason of delay

in appellate adjudication outweighed the inefficiencies flowing

from interlocutory appeal.   By the same calipers, we are

convinced that in the present case the orange of the interests

protected by the attorney-client privilege (which would be

eviscerated by forced disclosure of privileged material) is

sufficiently significant relative to the apple of the interests

protected by the final judgment rule to satisfy the importance

criterion of the second Cohen prong.

     In the few cases in which our court has addressed the

importance criterion, we have been less than pellucid in our


elsewhere in this opinion, we list in this footnote a number of
Supreme Court collateral order doctrine cases and the issues that
were appealed therein as illustrative of the type of balancing
that might be implicated. The list is not exhaustive, nor does
the Court explicitly engage in balancing in each of the cases.
Those cases are: Swint v. Chambers County Comm’n,       U.S.    ,
115 S. Ct. 1203 (1995) (municipal liability); Midland Asphalt
Corp. v. United States, 489 U.S. 794 (1989) (public disclosure of
grand jury matters); Van Cauwenberghe v. Biard, 486 U.S. 517
(1988) (service of process and forum non conveniens); Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988)
(abstention-related stay); J.B. Stringfellow, Jr. v. Concerned
Neighbors in Action, 480 U.S. 370 (1987) (intervention);
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985)
(disqualification of counsel); Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1 (1983) (abstention-related
stay); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368
(1981) (disqualification of counsel); Helstoski v. Meanor, 442
U.S. 500 (1979) (Speech and Debate Clause); United States v.
MacDonald, 435 U.S. 850 (1978) (speedy trial); Abney v. United
States, 431 U.S. 651 (1977) (double jeopardy).




                                13
discussion.   For example, we stated in Nemours Found. v.

Manganaro Corp., New England, 878 F.2d 98 (3d Cir. 1989), that

the issue on appeal must be important “in a jurisprudential

sense,” see id. at 100, without explaining what is meant by

“jurisprudential.”   And, in examining whether the relevant issue

was important, we have from time to time (though not

consistently) raised the question whether the issue presents “a

serious and unsettled question.”     See, e.g., Federal Ins. Co. v.

Richard I. Rubin & Co., 12 F.3d 1270, 1282 (3d Cir. 1993); Praxis

Properties v. Colonial Sav. Bank, 947 F.2d 49, 56 (3d Cir. 1991).

 “A serious and unsettled question” is a factor mentioned in

Cohen, see Cohen, 337 U.S. at 547, but, for the most part, it has

been ignored by the courts, see Robert J. Martineau, Defining

Finality and Appealability by Court Rule: Right Problem, Wrong

Solution, 54 U. Pitt. L. Rev. 717, 740 (1993).

     We believe that presenting a serious and unsettled question

is merely one means by which an issue may be important under

Cohen.   It is clear that if a question presents a serious and

unsettled question of law, resolution of that issue in an

interlocutory appeal protects an interest that is significant

relative to the interests protected by deferring review until

final judgment.   Resolution of a serious and unsettled question

has an impact beyond the parties before the court; it not only

ensures the proper adjudication of the case before the court, but

also may prevent erroneous adjudications in other cases and head

off unnecessary appeals in those other cases.    These incidental

effects promote some of the same goals the final judgment rule


                                14
promotes.    Therefore, though it is not a sine qua non, the

presence of a serious and unsettled question is sufficient to

satisfy the importance criterion of the Cohen test.6

     Given our analysis of importance for Cohen purposes, we

believe that the attorney-client privilege question before us

also satisfies the importance criterion because the interests

protected by the privilege are significant relative to the

interests advanced by adherence to the final judgment rule.     It

is often stated that the attorney-client privilege is at the

heart of the adversary system; its purpose is to support that

system by promoting loyalty and trust between an attorney and a

client.     See Recent Case, 108 Harv. L. Rev. 775, 779 n.39 (1995).

 The privilege is thereby intended to advance the “broad[] public

interests in the observance of law and administration of

     6
      Nixon v. Fitzgerald, 457 U.S. 731 (1982), is a case in
which the Supreme Court stated that an appeal must present a
serious and unsettled question to fall within Cohen’s scope. See
id. at 742. However, in so doing, the Court seemed to imply that
a serious and unsettled question is merely one part of Cohen’s
importance requirement. In determining that the appeal before it
did present a serious and unsettled question, the Court relied on
the fact that it had never ruled on the question; that the Court
of Appeals had done so did not settle the question for Cohen
purposes. See id. at 743. This is curious reasoning; following
it to its logical extreme, it would categorize as serious and
unsettled any issue the Supreme Court has not decided. At all
events, later in Nixon the Court seems to limit this reasoning.
It noted that the case before it pertained to sensitive issues
related to the separation of powers between the executive and
judicial branches of government. See id. The mention of these
sensitive issues “might hint that the calculus of appeal includes
the importance of the interests involved as well as the general
importance of the question to other litigants.” 15A Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice
and Procedure § 3911.5, at 431 (2d ed. 1994). As is evident in
the text, our rendering of the importance prong is consistent
with this discussion.



                                  15
justice,” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981),

by encouraging the full and frank communication between attorney

and client necessary for vigorous and effective advocacy.

Rightly or wrongly, our system assumes that the competition

between vigorous and effective advocates, when pitted against

each other in an adversary setting, will help to produce the best

legal result in any given litigation.    In short, the attorney-

client privilege is one of the pillars that supports the edifice

that is our adversary system.    As such, it is “deeply rooted in

public policy.”   Digital Equip., 114 S. Ct. at 2004.

     Privilege doctrine assumes that protecting that loyalty and

trust and thereby advancing these broader interests can only be

accomplished if privileged material is never disclosed, for only

then will clients be encouraged to make full disclosure to their

attorneys.   By fostering confidentiality, the attorney-client

privilege, when vindicated, undermines some of the goals the

final judgment rule seeks to realize.    Without the benefit of the

material protected by the attorney-client privilege, trial courts

face a more difficult fact-finding task.    Ferreting out the facts

of a case becomes more costly, even if only marginally.     Often,

the privilege will keep trial courts, juries, and appellate

courts from considering certain facts, thereby forcing them to

decide cases based on less than complete records.

     In all, the privilege introduces certain inefficiencies into

the judicial system, the same inefficiencies with which the final

judgment rule is concerned.     See supra note 4.   Yet, every

jurisdiction in this nation recognizes the attorney-client



                                  16
privilege.   For the reasons set forth supra, the attorney-client

privilege is thus important in the Cohen sense; the status or

relationship, deeply embedded in our legal culture, is of

sufficient importance that the danger of denying justice by delay

in appellate adjudication (which would result in irremediable

disclosure of privileged material) outweighs the inefficiencies

introduced by immediate appeal.     Accordingly, prong two of Cohen

is satisfied as to the attorney-client privilege question.

     For similar reasons, the work product doctrine, at least at

its “core,” satisfies the importance criterion.7     Like the

attorney-client privilege, the work product doctrine seeks to

promote the adversary system.   It does so “by protecting the

confidentiality of papers prepared by or on behalf of attorneys

in anticipation of litigation.”     Westinghouse Elec. Corp. v.

Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991).

 Absent such protection, attorneys would “fear that their work

product will be used against their clients,” id., and may become

overly circumspect in preparing for litigation thereby reducing

their effectiveness as advocates.      Such circumspection frustrates

the assumptions on which the adversary system is based.      “Core”

     7
      By the “core,” we mean the “mental impressions,
conclusions, opinion, or legal theories of an attorney or other
representative of a party concerning the litigation.” Fed. R.
Civ. P. 26(b)(3).
Such core work product is generally afforded near absolute
protection from discovery. See 8 Charles Alan Wright, Arthur R.
Miller & Richard L. Marcus, Federal Practice and Procedure § 2026
(2d ed. 1994). Because, as we discuss infra, the work product at
issue here is at the core of the doctrine, we have no occasion to
discuss whether work product generally is important for Cohen
purposes.




                                  17
work product thus reflects an institutionally important status or

relationship in the law.

     As with the attorney-client privilege, the work product

doctrine rests on the non-disclosure of information.    Some of

this information is potentially relevant to the disposition of

the litigation; keeping it confidential might therefore impede

the efficient functioning of the judicial system.     Yet, the work

product doctrine, or a form of it, is widely recognized.     Thus,

for the same reasons put forth in our treatment of the attorney-

client privilege, core work product, such as at issue here, meets

the importance criterion and satisfies the second Cohen prong.

         C.   Effective Review:   The Third Prong of Cohen

     The only remaining issue is the third element of the Cohen

test, whether Ford can seek effective review of the privilege and

work product issues on appeal after final judgment.    The Supreme

Court has stated that review after final judgment is ineffective

if the right sought to be protected would be, for all practical

and legal purposes, destroyed if it were not vindicated prior to

final judgment.   See, e.g., Lauro Lines, 109 S. Ct. at 1978.     In

the context of mandamus jurisdiction, we have repeatedly held

that appealing privilege and work product issues after final

judgment is ineffective.   See Rhone-Poulenc, 32 F.3d at 861
(discussing “privilege or other interests of confidentiality”);

Haines v. Liggett Group, Inc., 975 F.2d 81, 89 (3d Cir. 1992)

(discussing both attorney-client privilege and work product

doctrine protections); Westinghouse, 951 F.2d at 1422 (same);
Sporck v. Peil, 759 F.2d 312, 314-15 (3d Cir. 1985) (discussing



                                  18
work product doctrine protections); Bogosian v. Gulf Oil Corp.,

738 F.2d 587, 591 (3d Cir. 1984) (same); see also Hahnemann

Univ., 74 F.3d at 461 (discussing possible mandamus jurisdiction

to review claim that documents were protected by, inter alia, a

state law psychotherapist-patient privilege); Glenmede Trust Co.

v. Thompson, 56 F.3d 476, 483-84 (3d Cir. 1995) (discussing

mandamus jurisdiction over review of the terms of a protective

order); Smith v. BIC Corp, 869 F.2d 194, 198-99 (3d Cir. 1989)

(discussing the collateral order doctrine in the context of

reviewing a claim that disputed documents contained trade secrets

requiring protection); Cipollone v. Liggett Group, Inc., 822 F.2d

335, 340 (3d Cir. 1987) (discussing mandamus jurisdiction over

review of a protective order).

     Undergirding those previous holdings is the notion that,

once putatively protected material is disclosed, the very “right

sought to be protected” has been destroyed.     Bogosian, 738 F.2d

at 591.    That is so because, as we noted previously, underlying

the attorney-client privilege is the policy of encouraging full

and frank communications between an attorney and client, without

the fear of disclosure, so as to aid in the administration of

justice.    See, e.g., Westinghouse, 951 F.2d at 1423.
Concomitantly, the work product doctrine is designed to promote

the adversarial process by maintaining the confidentiality of

documents prepared by or for attorneys in anticipation of

litigation.    See, e.g., id. at 1428.   Appeal after final judgment

cannot remedy the breach in confidentiality occasioned by

erroneous disclosure of protected materials.     At best, on appeal


                                 19
after final judgment, an appellate court could send the case back

for re-trial without use of the protected materials.      At that

point, however, the cat is already out of the bag.

     As the Second Circuit aptly stated with respect to the

attorney-client privilege, the limited assurance that the

protected material will not be disclosed at trial “will not

suffice to ensure free and full communication by clients who do

not rate highly a privilege that is operative only at the time of

trial.”   Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964

F.2d 159, 165 (2d Cir. 1992).   With respect to material otherwise

protected by the work product doctrine, the party will be

similarly irremediably disadvantaged by erroneous disclosure.

“[A]ttorneys cannot unlearn what has been disclosed to them in

discovery”; they are likely to use such material for evidentiary

leads, strategy decisions, or the like.   Id.   More colorfully,

there is no way to unscramble the egg scrambled by the

disclosure; the baby has been thrown out with the bath water.

     Our conclusions with respect to privilege and work product

issues are buttressed by Supreme Court decisions allowing

immediate appeal of official, qualified, and Eleventh Amendment

immunities; of double jeopardy challenges; and of speech or

debate challenges.   In each of those cases, the Court held that

the rights asserted protected the claimant against trial, not

just liability.8   Therefore, delaying review of orders
     8
      See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy,
Inc.,     U.S.    , 113 S. Ct. 684, 687-89 (1993) (examining
Eleventh Amendment immunity); Mitchell v. Forsyth, 472 U.S. 511,
525-27 (1985) (examining qualified immunity); Nixon v.
Fitzgerald, 457 U.S. 731, 741-43 (1982) (examining absolute



                                20
implicating these asserted rights would preclude vindication of

those very rights because delay would allow trial to proceed.

The same is true as to privilege and work product issues.     Delay

in such cases would allow the very disclosure against which those

rules protect.

     In most of our previous cases in which a party sought

appellate review of an order requiring the disclosure of

putatively protected documents, we did not allow review under the

collateral order doctrine either because it was not raised at all

by the parties or because the parties did not satisfy either

element (1) or element (2) of the Cohen test.      In only two cases

did we examine element (3) of the Cohen test in this context.      In

Smith, we held that a party does not have an effective means of

appealing after a final judgment an order requiring the

disclosure of trade secrets.   As we stated there, “once trade

secrets are made public, they can obviously never be ‘secrets’

again.”    Smith, 869 F.2d at 199.    Therefore, the court allowed an

interlocutory appeal under the Cohen test and did not reach the

question whether a writ of mandamus was appropriate.     See id. at

199 n.3.

     In the later Rhone-Poulenc case, the other case to examine
element (3) of the Cohen test, the panel distinguished Smith by

reasoning that any harm caused by the erroneous disclosure of

material protected by the attorney-client privilege or the work


immunity); Helstoski v. Meanor, 442 U.S. 500, 506-08 (1979)
(examining the Speech and Debate Clause); Abney v. United States,
431 U.S. 651, 660-662 (1977) (examining double jeopardy).




                                 21
product doctrine can be remedied.     According to that panel, an

appellate court can, after final judgment, vacate the ruling of a

trial court, remand the case for a new trial, and prohibit the

use of the protected material or any material derived from the

protected material at the new trial.     See Rhone-Poulenc, 32 F.3d

at 860.   We believe, however, that this part of the holding in

Rhone-Poulenc is inconsistent with both Smith and the mandamus

line of cases that hold that there can be no effective review

after final judgment of an order requiring the disclosure of

putatively protected material.    See supra.   In fact, Rhone-

Poulenc seems to say as much when it held that mandamus

jurisdiction existed because there is “no other adequate means to

attain relief from the district court’s order that compels the

disclosure of privileged information and work product,” citing

the mandamus line of cases for support.     Id. at 861.

     Because they precede Rhone-Poulenc, we are bound by the

holdings in Smith and the mandamus line of cases.    See O. Hommel

Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel

of this court cannot overrule a prior panel precedent.”).

Therefore, we hold that there is no effective means of reviewing

after a final judgment an order requiring the production of

putatively protected material.    Accordingly, the strictures of

the collateral order doctrine have been met in this case, and we

have jurisdiction over the appeal.     Our review of the district

court order will be plenary.

                           D.    Mandamus
     Because we have appellate jurisdiction, there is no need to



                                 22
examine whether we have original, mandamus jurisdiction.

However, we also believe that if we did not have appellate

jurisdiction, we would have mandamus jurisdiction to review the

district court’s order.   See, e.g., Rhone-Poulenc, 32 F.3d at 861

(exercising mandamus jurisdiction over review of privilege and

work product issues); Haines, 975 F.2d at 88-91 (exercising

mandamus jurisdiction over review of work product issues);

Westinghouse, 951 F.2d at 1422 (exercising mandamus jurisdiction

over privilege and work product issues); Sporck, 759 F.2d at 314-

15 (exercising mandamus jurisdiction over work product issues);

Bogosian, 738 F.2d at 591 (same).

     The practical difference between appellate jurisdiction and

mandamus jurisdiction is the standard of review.    Our standard of

review under appellate jurisdiction is plenary; our standard of

review under mandamus jurisdiction is for a clear error of law.

See, e.g., Westinghouse, 951 F.2d at 1423.   Accordingly, mandamus

jurisdiction affords an appellate court less opportunity to

correct district court error in the case before it and less

opportunity to provide guidance for future cases.   Moreover,

comity between the district and appellate courts is best served

by resort to mandamus only in limited circumstances.   Review

under appellate jurisdiction is therefore preferable to review

under mandamus jurisdiction.   In light of this preference, the

wisdom of our holding that an appeal will lie in this case is

confirmed.

  III.   MINUTES OF THE 1982 MEETING; ATTORNEY-CLIENT PRIVILEGE

     After an in camera review of the relevant documents, we


                                23
conclude that the final minutes of the 1982 meeting are protected

by the attorney-client privilege.     Primarily at issue is whether

the communications memorialized by the minutes were made for the

purpose of obtaining legal advice.     Federal Rule of Evidence 501

states:
[I]n civil actions and proceedings, with respect to an element of
     a claim or defense as to which State law supplies the rule
     of decision, the privilege of a witness, person, government,
     State, or political subdivision thereof shall be determined
     in accordance with State law.


Fed. R. Evid. 501.    In this civil, diversity case in which state

law governs, Rule 501 provides that state law will govern the

issue of privilege.   See Rhone-Poulenc, 32 F.3d at 861-62.

     It is not clear whether the law of Pennsylvania, the forum

state, or the law of Michigan, the state in which the

communications occurred, will supply the rule as to privilege.

We need not reach this potentially thorny issue, however, because

the law as to attorney-client privilege in Pennsylvania does not

differ in any significant way from that in Michigan.     The

elements of the attorney-client privilege are well-known and are

not, in any material respect, disputed here.     We need not,

therefore, dwell on them, except to note their basic contours in

Pennsylvania and Michigan.

     In Pennsylvania, the attorney-client privilege in civil

matters has been codified.   The relevant statutory provision

reads:
In a civil matter counsel shall not be competent or permitted to
     testify to confidential communications made to him by his
     client, nor shall the client be compelled to disclose the
     same, unless in either case this privilege is waived upon
     the trial of the client.



                                 24
42 Pa. Cons. Stat. Ann. § 5928 (West 1982).    The communications

must be for the purpose of obtaining legal advice.   See Leonard

Packel & Anne Bowen Poulin, Pennsylvania Evidence § 501.1(c), at

306 & n.22 (1987 & Supp. 1995).    A corporation may claim the

privilege for communications between its counsel and its

employees who have authority to act on its behalf.   See Maleski

v. Corporate Life Ins. Co., 641 A.2d 1, 3 (Pa. Commw. Ct. 1994);

Packel & Poulin, supra, § 501.1(b).

     In Michigan, the standard is stated in similar terms.    The

attorney-client privilege “attaches to the confidential

communications made by a client to his attorney acting as a legal

adviser and made for the purpose of obtaining legal advice on

some right or obligation.”   Kubiak v. Hurr, 372 N.W. 2d 341, 345

(Mich. Ct. App. 1985).   Case law in Michigan also recognizes the

right of a corporation to claim the privilege to protect

communications between certain of its employees and its counsel.

See Hubka v. Pennfield Township, 494 N.W. 2d 800, 802 (Mich. Ct.

App. 1992) (citing Mead Data Central, Inc. v. U.S. Dep’t of the

Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977) (interpreting

the federal Freedom of Information Act)), rev’d on other grounds,
504 N.W. 2d 183 (Mich. 1993).

     Our brief review of Pennsylvania and Michigan law as to the

attorney-client privilege reveals that the two states agree in

the respect most relevant to our case: for a communication to be

privileged, it must have been made for the purpose of securing

legal advice.   See, e.g., Rhone-Poulenc, 32 F.3d at 862 (setting
out the traditional elements of the attorney-client privilege and



                                  25
including the requirement that the communication be made for the

purpose of securing legal advice); Restatement of the Law

Governing Lawyers §§ 118, 122 (Proposed Final Draft No. 1 1996)

(same).9   We now turn to determining whether the communications

contained in the relevant document satisfy this standard.10

     Our review of the final minutes, the draft minutes, the

report Nolte summarized at the meeting, and relevant affidavits,

leads us to conclude that the communications in the meeting were

made for the purpose of securing legal advice.   Ford clearly had

concerns about the Bronco II; this is not surprising given that

the product was in the early stages of its development.    Nolte

examined the legal implications of some of those concerns and

proposed a particular course of action, contained in his report

to the Policy and Strategy Committee, to address them.    The

Policy and Strategy Committee meeting itself was called in part

to discuss Nolte’s proposal.   The discussion at the meeting,

then, was intended to secure Nolte’s legal advice.

     The district court initially ruled that the minutes
     9
      It should be noted that the law makes no distinction
between communications made by a client and those made by an
attorney, provided the communications are for the purpose of
securing legal advice. See Restatement of the Law Governing
Lawyers §§ 118, 120 (Proposed Final Draft No. 1 1996). In other
words, the entire discussion between a client and an attorney
undertaken to secure legal advice is privileged, no matter
whether the client or the attorney is speaking.
     10
      The parties do not dispute that Nolte was Ford’s attorney
at all relevant times and that the members of the Policy and
Strategy Committee had the authority to act on behalf of Ford.
Although Kelly does argue that Ford did not intend for the
communications to be kept confidential, we find that argument to
be without merit. Ford’s actions with respect to these documents
clearly evinced such an intent.



                                26
“disclose only factual material, contain no legal discussion,

were not created in anticipation of litigation . . ., and contain

no communication to counsel which was intended to be kept

confidential.”   The court later stated that the minutes were

“business records” that memorialized “essentially business and

safety decisions.”    We disagree with the district court’s

conclusions as to the nature of the documents.    The documents do

not contain merely factual material nor do they detail mere

business decisions.    Certainly, the ultimate decision reached by

the Policy and Strategy Committee could be characterized as a

business decision, but the Committee reached that decision only

after examining the legal implications of doing so.    Even if the

decision was driven, as the district court seemed to assume,

principally by profit and loss, economics, marketing, public

relations, or the like, it was also infused with legal concerns,

and was reached only after securing legal advice.    At all events,

disclosure of the documents would reveal that legal advice.

     We thus hold that the minutes of the 1982 meeting are

protected from discovery by the attorney-client privilege.11
     11
      Discussion in a published opinion of our conclusions based
upon an in camera review is necessarily limited. We cannot
reveal too much about the contents of the documents for fear of
undermining the very purposes of such review. Our methodology is
to reveal only as much of the content as is necessary to produce
a reasoned opinion that can itself be reviewed. If further
review is necessary, the en banc court or the Supreme Court can
examine for itself the relevant documents in conjunction with our
opinion. We recognize that the advocacy of the attorneys
representing the party seeking allegedly protected documents is
hampered by their inability to review those same documents. That
disadvantage is one we must accept; otherwise, the very purpose
of the privilege will be destroyed.
     The observations made in this footnote apply equally to our
discussion of the documents allegedly protected by the work


                                 27
           IV.   THE AGENDAS; THE WORK PRODUCT DOCTRINE

     Similarly, our in camera review leads us to conclude that

the agendas for the 1988 meeting and the handwritten notes on the

document pertaining to the 1989 meeting are protected from

discovery by the work product doctrine.12   Codified in the

Federal Rules of Civil Procedure, the work product doctrine

allows a party to discover material prepared in anticipation of

litigation or for trial only upon a showing that the requesting

party has a substantial need for the material and cannot obtain

the material or its equivalent elsewhere without incurring a

substantial hardship.   See Fed. R. Civ. P. 26(b)(3).   The rule as

codified provides that “[i]n ordering discovery of such materials

when the required showing has been made, the court shall protect

against disclosure of the mental impressions, conclusions,

opinions, or legal theories of an attorney or other

representative of a party concerning the litigation.”     Id.

product doctrine.
     12
      Ford claims that the agendas are also protected by the
attorney-client privilege. We disagree. There is no indication
in the record that the relevant 1988 meeting at which the agendas
were discussed involved the kind of communications the privilege
protects. Ford’s assertions to the contrary and the affidavits
supporting them are nothing more than conclusory.
     Ford also claims that the handwritten notes on a document
pertaining to the 1989 meeting are protected by the attorney-
client privilege because they refer to legal advice provided at
the 1988 meeting. (Ford does not claim that the meeting itself
or the typewritten portions of the document are protected.)
Because we do not see the 1988 meeting as involving confidential
communications made to secure legal advice, we do not believe
these handwritten notes are privileged. However, these notes do
refer to the agendas from the 1988 meetings and to the studies on
which the agendas were based. We will, therefore, consider these
notes as being equivalent to the 1988 agendas. As we discuss in
the text, the 1988 agendas are protected by the work product
doctrine. These notes, then, are similarly protected.


                                28
     It is also clear that the work product doctrine protects

materials prepared by an agent of the attorney, provided that

material was prepared in anticipation of litigation.   See 8

Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,

Federal Practice and Procedure § 2024, at 359 (2d ed. 1994).

These elements, like those of the attorney-client privilege, are

well-known and are not, in any relevant respect, disputed here.

We need not, therefore, elaborate on them.   Rather, the dispute

over the agendas turns on whether they were prepared in

anticipation of litigation, since the other elements necessary

for work product protection are met.13

     It is clear from our review of the record that the agendas

disclose material prepared as part of Ford’s legal strategy for

defending the type of case Kelly brought here.   The agendas

outline the results of studies conducted as to the safety of the

Bronco II and, in so doing, highlight important aspects of those

studies.   Those studies were found by the district court to be

protected by the work product doctrine because they would be used

in defending anticipated lawsuits.   Ford persuasively contends

that experts acting on behalf of Kelly and working backwards from

the agendas could determine the methodology of the studies.14

Ford’s attorneys and their agents called for the studies, and
     13
      The record makes it clear that the agendas were prepared
by an agent of Ford’s attorneys. In addition, Kelly has not made
the requisite showing of substantial need to overcome the work
product doctrine protections.
     14
      Although Kelly does not dispute this contention, we
suspect that it might have been difficult for Kelly to do so
given that she has not seen the agendas.



                                29
Ford credibly demonstrates that if Kelly learns the methodology

of the studies, then she has effectively learned of the issues of

most concern to Ford’s litigation defense team.     Moreover, the

agendas themselves were for meetings at which the experts would,

inter alia, explain the technical aspects of Ford’s legal defense

strategy by referring to those studies.   We are satisfied, in

view of the foregoing, that these agendas, core work product,

were prepared in anticipation of litigation.

     The handwritten notations that appear on the document

pertaining to the 1989 meeting are similarly protected by the

work product doctrine.   Although not as extensive as the agendas

themselves, the notations refer to the agendas.     In some places,

the notations employ the same language as that which appears on

the agendas.   In others, the notations, when read in connection

with the typewritten portions of the document to which they

refer, provide clear hints as to what is contained in the

agendas.   In all instances, the notations, like the agendas

themselves, would allow Kelly to determine the methodology of the

studies.

     It is true, of course, that the agendas and the handwritten

notations (and, for that matter, the studies themselves) were not

prepared with this particular litigation in mind.    However, that

is of no import given the facts of this case.    At the time the

relevant material was prepared, Ford was a defendant in numerous

lawsuits alleging defects in the Bronco II, and this material was

prepared in anticipation of those lawsuits.     The literal language

of Rule 26(b)(3) requires that the material be prepared in


                                30
anticipation of some litigation, not necessarily in anticipation

of the particular litigation in which it is being sought.     See In

re Grand Jury Proceeding, 604 F.2d 798, 803 (3d Cir. 1979)

(holding that the work product doctrine will protect material

prepared in anticipation of civil proceedings from discovery in a

grand jury proceeding); see also 8 Wright, Miller & Marcus,

supra, § 2024, at 350-51 (collecting cases and concluding that

most courts consider the work product doctrine to protect

material prepared in anticipation of previous litigation).15

     The district court ruled that nothing in the record

indicated “that the meetings [for which the agendas were

prepared] involved discussion or agenda items about any

particular litigation or that the meetings were in anticipation

of litigation nor do the documents disclose any legal advice or

opinions, or that legal advice was given.”    Instead, the court

ruled that the “meetings were in the nature of product safety

meetings, not legal department meetings.”    As our discussion

makes clear, we disagree with the district court in one important
respect:   we are convinced that the agendas were prepared in

anticipation of litigation.   That the agendas do not necessarily

include legal advice is irrelevant provided, as we note above,

they were prepared in anticipation of litigation.    Moreover, it

     15
      As in In re Grand Jury Proceedings, there is “an identity
of subject matter” between the litigation for which the material
was prepared and the present litigation. See In re Grand Jury
Proceedings, 604 F.2d at 803. We therefore need not decide
whether the work product doctrine protects material
prepared for any previous litigation, or only previous litigation
related to the present litigation.




                                31
is of no import that the meetings for which the agendas were

prepared were not legal department meetings.   In this case, the

context in which the agendas were discussed does not change the

reasons for their preparation.

     In sum, we conclude that the work product doctrine, as

codified in Rule 26(b)(3), protects the agendas from discovery.

                          IV.   CONCLUSION

     In view of the foregoing, the order of the district court

dated December 18, 1996 will be reversed in part and the case

remanded to the district court with directions to deny discovery

of the documents stamped with Bates numbers 6680-82, 13882,

14236, and 21831 in their entirety, and to deny discovery of the

handwritten notations on the document stamped with Bates number

14241.

                ___________________________________



TO THE CLERK:

     Please file the foregoing opinion.



                          BY THE COURT:


                          ______________________
                               Circuit Judge




                                 32
