Harper & Row Publishers, Inc. v. Honorable Bernard M. Decker, United States Dist. Judge, 423 F.2d 487 (7th Cir. 1970). · Go Syfert
Search
Harper & Row Publishers, Inc. v. Honorable Bernard M. Decker, United States Dist. Judge, 423 F.2d 487 (7th Cir. 1970). Cases Citing This Book View Copy Cite
G Cite
cited 3× by 2 distinct cases, last quoted 1998 · 2 courts · …an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation's attorney is privileged where the employee makes the communication at the direction of his superiors in the corpo… at p. 491 ✓
cited 3× by 3 distinct cases, last quoted 1996 · 3 courts · …because maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appro… at p. 492 ✓
190 citation events (28 in the last 25 years) across 49 distinct courts.
Strongest positive: Sandra T.E. v. South Berwyn School District 100 (ca7, 2010-03-30) · Strongest negative: Mead Data Central, Inc. v. United States Department of the Air Force (cadc, 1977-11-28)
Treatment trajectory · 1970 → 2026 · click a year to view as-of
1970 1998 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Mead Data Central, Inc. v. United States Department of the Air Force (2×)
D.C. Cir. · 1977 · signal: but see · confidence high
But see Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir. 1970), aff'd per curiam by equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) (privilege applies so long as subject of employee’s communication was performance of duties of his employment).
discussed Cited "but see" Bird v. Penn Central Co.
E.D. Pa. · 1973 · signal: but see · confidence high
But see Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (C.A.7, 1970), aff’d. by equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971), since we find that a sufficient showing to compel production of the attorney work product has been demonstrated. .
discussed Cited "but see" Gorzegno v. Maguire
S.D.N.Y. · 1973 · signal: but see · confidence high
Pa.1962), mandamus and prohibition denied, sub nom., General Electric Co. v. Kirkpatrick, 312 F.2d 742 (3d Cir. 1963), cert. denied, 372 U.S. 943 , 83 S. Ct. 937 , 9 L.Ed.2d 969 (1963); Natta v. Hogan, 392 F.2d 686, 692 (10th Cir. 1968); but see Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.
cited Cited "but see" Federal Savings and Loan Insurance Corp. v. Fielding
D. Nev. · 1972 · signal: but see · confidence high
But see, Harper & Row Publishers v. Decker, 423 F.2d 487 , affirmed per curiam by an equally divided court, 400 U.S. 348 .
examined Cited as authority (verbatim quote) Sandra T.E. v. South Berwyn School District 100
7th Cir. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
where an attorney personally prepares a memorandum of an interview of a witness with an eye toward litigation, such memorandum qualifies as work product even though the lawyer functioned primarily as an investigator.
discussed Cited as authority (rule) Pagán Cartagena v. First Hospital Panamericano
prsupreme · 2013 · confidence medium
Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (7mo Cir. 1970); Weinstein’s Federal Evidence, supra, Sec. 503.22[2] [c]; Selan Epstein y Martin, op. cit., pág. 26 (“The other test focused on the ‘subject matter’ of the communication, asking whether the communication was for purpose of seeking and rendering legal advice to the corporation, whether the communication was made at the instance of the employee’s superior, and whether the subject matter of the communication was within the scope of the employee’s duties.
cited Cited as authority (rule) James Keefe And Kathy Keefe Vs. Renald Bernard And Mcfarland Clinic, P.c.
Iowa · 2009 · confidence medium
The court noted it was “not dealing in this case with the communications of employees about matters as to which they are virtually indistinguishable from bystander witnesses.” Id. at 491.
cited Cited as authority (rule) Muro v. Target Corp.
N.D. Ill. · 2007 · confidence medium
(See November 28, 2006 Order at 5 (citing Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (7th Cir.1970), aff'd, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971))).
discussed Cited as authority (rule) In Re: USA
5th Cir. · 2005 · confidence medium
Cir. 2000); In re General Motors Corp., 153 F.3d 714, 715 (8th Cir. 1998); Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir. 1992); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff’d, 400 U.S. 348 , 91 S. Ct. 479 , 27 L.Ed.2d 433 (1971) (“[B]ecause maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.”).
discussed Cited as authority (rule) In Re: United States of America
5th Cir. · 2005 · confidence medium
See In re Avantel, 343 F.3d 311, 317 (5th Cir.2003); accord In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir.2000); In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 804 (Fed.Cir.2000); In re General Motors Corp., 153 F.3d 714, 715 (8th Cir.1998); Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir.1992); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) (“[B]ecause maintenance of the attorney-client privilege up to its proper limits has substantial importance to the a…
discussed Cited as authority (rule) In re Grand Jury Subpoena
D. Mass. · 2004 · confidence medium
Co., 976 F.2d 573, 577 (9th Cir.1992) (holding that opinion work product “may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling”); In re Grand Jury Investigation, 599 F.2d 1224, 1231 (3d Cir.1979) (holding that interview memoranda “will be discoverable only in a ‘rare situation’”); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd by an equally divided Supreme Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) (“Of course, the less the lawyer’s ‘mental processes’ are i…
discussed Cited as authority (rule) In Re: Avantel, S.A. (2×)
5th Cir. · 2003 · confidence medium
Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 198 (Tex.1993) (quoting Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir.1970)). 2 .
discussed Cited as authority (rule) In Re Occidental Petroleum Corp.
5th Cir. · 2000 · confidence medium
See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 804 (Fed.Cir.2000) (observing that .“mandamus is appropriate 'because maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy.' ") (quoting In re Regents of Univ. of Cal., 101 F.3d 1386, 1387 (Fed.Cir.1996)); In re General Motors Corp., 153 F.3d 714, 715 (8th Cir.1998) (“The extraordinary remedy of mandamus is appropriate because the district court’s order would oth…
discussed Cited as authority (rule) In Re Monsanto Co.
Tex. App. · 1999 · confidence medium
National Tank, 851 S.W.2d at 198 (quoting Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir.1970), aff'd per curiam by an equally divided court, *923 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971)).
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Altaf AMLANI, Defendant-Appellant (2×)
9th Cir. · 1999 · confidence medium
Admiral held that “ ‘[bjecause maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.’” Id at 1491 (quoting Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970) (per curiam), aff'd by an equally divided Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) (per curiam)); see also von Bulow v. von Bulow (In re von Bulow), 828 F.2d 94, 99 (2d…
discussed Cited as authority (rule) E.I. Du Pont De Nemours & Co. v. Forma-Pack, Inc. (2×)
Md. · 1998 · confidence medium
The subject-matter test is set forth in Harper & Row Publishers, Inc. v. Decker as follows: “[A]n employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation’s attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment.” 423 F.2d 487, 4…
discussed Cited as authority (rule) Baisley v. Missisquoi Cemetery Ass'n (2×)
Vt. · 1998 · confidence medium
Under the subject-matter test, an employee's communication is privileged if the employee makes a statement to a lawyer at the direction of his or her superiors and the subject matter of the statement concerns "the performance by the employee of the duties of his employment." Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 , reh'g denied, 401 U.S. 950 , 91 S.Ct. 917 , 28 L.Ed.2d 234 (1971).
discussed Cited as authority (rule) In Re the Regents of the University of California
Fed. Cir. · 1996 · confidence medium
As stated in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd per curiam, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971), “because maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.” See also, e.g., Rhone-Poulenc Rorer Inc. v. Home Indem.
discussed Cited as authority (rule) In Re Bieter Company (2×) also: Cited "see"
8th Cir. · 1994 · confidence medium
Pfizer, Inc. v. Lord, 456 F.2d 545, 548 (8th Cir.1972) (“ ‘[Bjecause maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.’ ” (quoting Harper & Row Publishing Co. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971))); see also United States v. Victoria-21, 3 F.3d 571, 575 (2d Cir.1993) …
discussed Cited as authority (rule) CIGANA CORP. v. Spears (2×)
Tex. App. · 1992 · confidence medium
The subject matter test first appeared in Harper & Row Publishers v. Decker, 423 F.2d 487, 491-92 (7th Cir.1970), aff'd, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971).
discussed Cited as authority (rule) Avianca, Inc. v. Corriea
D.D.C. · 1989 · confidence medium
While the courts have differed in the corporate “persona” they recognize as able to claim the privilege, employing either the overly restrictive *676 “control group” test ultimately rejected by the Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981), or some variant of the “subject matter” test first articulated in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir.1970) (“an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communicati…
discussed Cited as authority (rule) In Re Frederick R. Weisman, Sachiko T. Bower v. Frederick R. Weisman, Frederick Weisman Co., and Rare Properties, Inc.
2d Cir. · 1987 · confidence medium
See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir.1977), modified in banc, 572 F.2d 606 (8th Cir.1978); Sand-erson v. Winner, 507 F.2d 477, 479 (10th Cir.1974) (per curiam), cert. denied, 421 U.S. 914 , 95 S.Ct. 1573 , 43 L.Ed.2d 780 (1975); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970) (per curiam), aff'd mem. by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971).
discussed Cited as authority (rule) In Re Claus Von Bulow, Martha Von Bulow, by Her Next Friends Alexander Auersperg, and Annie Laurie Auersperg-Kneissl v. Claus Von Bulow
2d Cir. · 1987 · confidence medium
Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir.), aff'd en banc, 572 F.2d at 606 (1977); Sanderson v. Winner, 507 F.2d 477, 479 (10th Cir.1974) (per curiam), cert. denied, 421 U.S. 914 , 95 S.Ct. 1573 , 43 L.Ed.2d 780 (1975); Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir.1972) (per curiam); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970) (per curiam), aff'd mem. by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971); Continental Oil Co. v. United States, 330 F.2d 347, 349 (9th Cir.1964).
discussed Cited as authority (rule) In Re Burlington Northern, Inc., Burlington Northern Railroad Co., Union Pacific Corp., Union Pacific Railroad Co., Missouri Pacific Railroad Co., Kansas City Southern Industries, Inc., Kansas City Southern Railway Co. & Chicago & North Western Transportation Co.
5th Cir. · 1987 · confidence medium
See United States Department of Energy v. Brimmer, 776 F.2d 1554, 1559 (Temp.Emer.Ct.App.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1261 , 89 L.Ed.2d 571 (1986); Sporck v. Peil, 759 F.2d 312, 314-15 (3d Cir.), cert. denied, 474 U.S. 903 , 106 S.Ct. 232 , 88 L.Ed.2d 230 (1985); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591-92 (3d Cir.1984); Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir.1977); Heathman v. United States District Court, 503 F.2d 1032, 1033 (9th Cir.1974); Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir.1972); Harper & Row Publishers v. Decker, 423 F.2d…
discussed Cited as authority (rule) In re Burlington Northern, Inc.
5th Cir. · 1987 · confidence medium
Emer.Ct.App.1985), cert. denied, — U.S. -, 106 S.Ct. 1261 , 89 L.Ed.2d 571 (1986); Sporck v. Peil, 759 F.2d 312, 314-15 (3d Cir.), cert. denied, 474 U.S. 903 , 106 S.Ct. 232 , 88 L.Ed.2d 230 (1985); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591-92 (3d Cir.1984); Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir.1977); Heathman v. United States District Court, 503 F.2d 1032, 1033 (9th Cir.1974); Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir.1972); Harper & Row Publishers v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd by an equally divided court, 400 U.S. 348 , 91 S…
discussed Cited as authority (rule) Paul Bogosian v. Gulf Oil Corporation
3rd Cir. · 1984 · confidence medium
See, e.g., Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 953-54 (8th Cir.), cert. denied, 441 U.S. 907 , 99 S.Ct. 1997 , 60 L.Ed.2d 376 (1979) (disclosure of documents constituting trade secrets); Diversified Industries v. Meredith, 572 F.2d 596, 599 (8th Cir.1977) (attorney-client privilege); Usery v. Ritter, 547 F.2d 528, 532 (10th Cir.1977) (disclosure of identity of informer); United States v. United States District Court, 444 F.2d 651, 655-56 (6th Cir.1971) (disclosure to conspiracy defendant of monitored conversations), aff'd, 407 U.S. 297 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); H…
discussed Cited as authority (rule) Bogosian v. Gulf Oil Corp.
3rd Cir. · 1984 · confidence medium
See, e.g., Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 953-54 (8th Cir.), cert. denied, 441 U.S. 907 , 99 S.Ct. 1997 , 60 L.Ed.2d 376 (1979) (disclosure of documents constituting trade secrets); Diversified Industries v. Meredith, 572 F.2d 596, 599 (8th Cir.1977) (attorney-client privilege); Usery v. Ritter, 547 F.2d 528, 532 (10th Cir.1977) (disclosure of identity of informer); United States v. United States District Court, 444 F.2d 651, 655-56 (6th Cir.1971) (disclosure to conspiracy defendant of monitored conversations), aff'd, 407 U.S. 297 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); H…
discussed Cited as authority (rule) Joseph P. Jenkins v. Honorable Zita L. Weinshienk, Judge of the United States District Court for the District of Colorado
10th Cir. · 1982 · confidence medium
See Rowley v. McMillan, 502 F.2d 1326, 1335 (4th Cir. 1974); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 490 (7th Cir. 1970), aff’d per curiam, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971).
discussed Cited as authority (rule) Condon v. Petacque
N.D. Ill. · 1981 · confidence medium
Although the work product doctrine embodied in Rule 26(b)(3) is of wider breadth than the attorney-client privilege, Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), affirmed by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971), we believe that the material sought by defendants, if indeed it constitutes “work product” at all, is properly discoverable upon defendants’ showing that they have substantial need for the material in conjunction with the preparation of their defense and that they would be unduly burdened or unable to obtain …
discussed Cited as authority (rule) Upjohn Co. v. United States (2×)
SCOTUS · 1981 · confidence medium
See, e. g., Diversified Industries, Inc. v. Meredith, 572 F. 2d 596, 609 (CA8 1978) (en banc); Harper & Row Publishers, Inc. v. Decker, 423 F. 2d 487, 491-492 (CA7 1970), aff’d by an equally divided Court, 400 U. S. 348 (1971); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1163-1165 (SC 1974).
discussed Cited as authority (rule) Insurance Co. of North America v. Superior Court
Cal. Ct. App. · 1980 · confidence medium
What we have said in the hypothetical instance of a subsidiary’s attorney-client consultation attended by the president of the holding company applies equally to other representatives of the holding company and its affiliates who are present for good business reasons to further the interest of the client (Cf. Harper & Row Publishers, Inc. v. Decker (7th Cir. 1970) 423 F.2d 487, 491 [9 A.L.R.Fed. 674], affd. (1971) 400 U.S. 348 [ 22 L.Ed.2d 478 , 89 S.Ct. 1273 ]).
discussed Cited as authority (rule) First Wisconsin Mortgage Trust v. First Wisconsin Corp.
E.D. Wis. · 1980 · confidence medium
(B) Plaintiff’s Burden of Proof “ * * * Where an attorney personally prepares a memorandum of an interview of a witness with an eye toward litigation such memorandum qualifies as work product even though the lawyer functioned primarily as an investigator. * * * ” Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff’d per curiam by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971), cert. denied 401 U.S. 950 , 91 S.Ct. 917 , 28 L.Ed.2d 234 (1971).
discussed Cited as authority (rule) Sterling Drug Inc. v. Harris
S.D.N.Y. · 1980 · confidence medium
Whether we apply the control group test or the more liberal “scope of employment” standard employed in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir. 1970), aff’d per curiam by equally divided Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971), these communications fall within the scope of the attorney-client privilege.
examined Cited as authority (rule) In Re Grand Jury Investigation. Appeal of United States of America (5×) also: Cited "see, e.g."
3rd Cir. · 1979 · confidence medium
In Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir. 1970), Aff'd by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971), that court held that 50 an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation's attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney's advice is sought by the corporation and dealt with in the communi…
cited Cited as authority (rule) Team Central, Inc. v. Teamco, Inc.
Iowa · 1978 · signal: contra · confidence medium
Contra see Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491 (7th Cir. 1970), aff’d. without opinion by equally divided court 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 479 (1971).
discussed Cited as authority (rule) Duplan Corporation v. Deering Milliken, Inc.
D.S.C. · 1974 · confidence medium
The rejection of the “control group” test as the sole test for determining the existence of the attorney-client privilege and the establishment of the “subject matter” test as a necessary corollary to the “control group” test occurred in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (7th Cir. 1970), affirmed per curiam by an equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) : We conclude that the control group test is not wholly adequate, that the corporation’s attorney-client privilege protects communications of some corporate agents who…
discussed Cited as authority (rule) Tom J. Gialde v. Time, Inc., Time, Inc. v. Honorable John W. Oliver, Judge of the United States District Court for the Western District of Missouri (2×)
8th Cir. · 1973 · confidence medium
We held that immediate review was available under mandamus, stating: “ * * * We are persuaded, rather, that the claim of privilege asserted by petitioners involves a ‘really extraordinary’ question, and we agree with the following observation from the opinion of the Seventh Circuit Court of Appeals in Harper & Row Publishing Co. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970): “ ‘ . . . [Bjeeause maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged commun…
discussed Cited as authority (rule) International Business MacHines Corporation v. United States of America, International Business MacHines Corporation v. Hon. David N. Edelstein, Chief Judge of the United States District Court for the Southern District of New York, and United States of America
2d Cir. · 1973 · confidence medium
Further analogy to Cohen is found in the facts presented because once the appellant (IBM) has been forced to disclose the privileged documents, "it will be too late effectively to review the * * * order and the rights conferred * * * will have been lost, probably irreparably." 337 U.S. at 546 , 69 S.Ct. at 1225 . 47 The courts have consistently recognized as a matter of law that "appeal after disclosure of the privileged communication is an inadequate remedy * * *." Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff'd mem. by equally divided Court, 400 U.S. 348 , 9…
discussed Cited as authority (rule) International Business Machines Corp. v. United States
2d Cir. · 1973 · confidence medium
The courts have consistently recognized as a matter of law that “appeal after disclosure of the privileged communication is an inadequate remedy * * Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff’d mem. by equally divided Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 , reh. denied, 401 U.S. 950 , 91 S.Ct. 917 , 28 L.Ed.2d 234 (1971).
examined Cited as authority (rule) SECURITIES AND EXCHANGE COMMISSION, Petitioner, v. Charles E. STEWART, Jr., United States District Judge, Respondent (4×)
2d Cir. · 1973 · signal: cf. · confidence medium
Cf. Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7 Cir. 1970), aff'd mem. by an equally divided court, 400 U.S. 348 (1971); United States v. Hemphill, 369 F.2d 539, 543 (4 Cir. 1966). 41 I agree with the majority's view regarding the wisdom of the final judgment rule.
discussed Cited as authority (rule) International Business MacHines Corporation v. United States of America, International Business MacHines Corporation v. Hon. David N. Edelstein, Chief Judge of the United States District Court for the Southern District of New York, and United States of America
2d Cir. · 1973 · confidence medium
As was stated in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff'd mem. by equally divided Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 , reh. denied, 401 U.S. 950 , 91 S.Ct. 917 , 28 L.Ed.2d 234 (1971): "[A]ppeal after disclosure of the privileged communication is an inadequate remedy * * *." This principle has for generations supported countless motions to suppress evidence (alleged to have been illegally obtained) because the law recognizes that an appeal from a judgment based upon its use cannot restore the prejudiced party to the position he would ha…
discussed Cited as authority (rule) Hasso v. Retail Credit Co.
E.D. Pa. · 1973 · confidence medium
Insofar as Mariano’s status in the corporation may be deemed to affect the privilege, we feel that the proper rule is that announced in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (7th Cir. 1970): We conclude that an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation’s attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney’s advice is sought by …
discussed Cited as authority (rule) International Business Machines Corp. v. United States
2d Cir. · 1972 · confidence medium
As was stated in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff’d mem. by equally divided Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 , reh. denied, 401 U.S. 950 , 91 S.Ct. 917 , 28 L.Ed.2d 234 (1971): “[Appeal after disclosure of the privileged communication is an inadequate remedy * * This principle has for generations supported countless motions to suppress evidence (alleged to have been illegally obtained) because the law recognizes that an appeal from a judgment based upon its use cannot restore the prejudiced party to the position he would hav…
discussed Cited as authority (rule) Rockwell Manufacturing Co. v. Chicago Pneumatic Tool Co.
N.D. Ill. · 1972 · confidence medium
Harper and Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (1970), aff’d 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed. 2d 433 (1971); Panduit Corporation v. Burndy Corporation et al., 172 U.S.P.Q. 46 (D.C.Ill., E.Div.
discussed Cited as authority (rule) Pfizer Inc. v. Lord
8th Cir. · 1972 · confidence medium
The office of mandamus, the Court stated, "is not to 'control the decision of the trial court,' but rather merely to confine the lower court to the sphere of its discretionary power." 389 U.S. at 104 , 88 S.Ct. at 278 . 2 23 We do not believe that the Will opinion requires a denial of mandamus review in this case. 3 We are persuaded, rather, that the claim of privilege asserted by petitioners involves a "really extraordinary" question, and we agree with the following observation from the opinion of the Seventh Circuit Court of Appeals in Harper & Row Publishing Co. v. Decker, 423 F.2d 487, 492…
discussed Cited as authority (rule) Pfizer Inc. v. Lord
8th Cir. · 1972 · confidence medium
The office of mandamus, the Court stated, “is not to ‘control the decision of the trial court,’ but rather merely to confine the lower court to the sphere of its discretionary power.” 389 U.S. at 104 , 88 S.Ct. at 278 . 2 We do not believe that the Will opinion requires a denial of mandamus review in this case. 3 We are persuaded, rather, that the claim of privilege asserted by petitioners involves a “really extraordinary” question, and we agree with the following observation from the opinion of the Seventh Circuit Court of Appeals in Harper & Row Publishing Co. v. Decker, 423 F.2d…
discussed Cited "see" Charvat v. Valente
N.D. Ill. · 2015 · signal: see · confidence high
Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1052-53 (7th Cir.1998) (“Rule 26 therefore assumes that the taking of a witness statement is entirely proper, even where the statement is recorded and transcribed by a court reporter, and the rule proceeds to address the circumstances under which the statement may be discoverable.”); see Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), affirmed, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) (Statements of witnesses taken by an attorney are work-product.).
discussed Cited "see" Langley v. Providence College
Sup. Ct. R.I. · 2009 · signal: see · confidence bake:cell
See Harper Row Publishers, Inc. , 423 F.2d at 491 (declining to express an opinion with respect to "communications about matters to which they are virtually indistinguishable from bystander witnesses; employees who, almost fortuitously, observe events, which may generate liability on the part of the corporation"). 22 Indeed, pursuant to Super.
discussed Cited "see" Newport Pacific Inc. v. County of San Diego
S.D. Cal. · 2001 · signal: see · confidence high
See Epstein, supra, at 79, citing Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491 (7th Cir.1970), aff'd. by equally divided court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971) (“An employee of a corporation though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation’s attorney is privileged where the employee makes the communication at the direction of his superi- or in the corporation and where the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the…
discussed Cited "see" In Re: General Motors Corporation (2×)
8th Cir. · 1998 · signal: see · confidence high
See Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir.1970), aff'd by equally divided Court, 400 U.S. 348 , 91 S.Ct. 479 , 27 L.Ed.2d 433 (1971).
Retrieving the full opinion text from the archive…
HARPER & ROW PUBLISHERS, INC., Et Al., Petitioners,
v.
Honorable Bernard M. DECKER, United States District Judge, Respondent
18008.
Court of Appeals for the Seventh Circuit.
May 4, 1970.
423 F.2d 487
Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Schiff, Hardin, Waite, Dorschel & Britton, Sonnenschein, Levinson, Carlin, Nath & Rosenthal, Lee N. Abrams, H. Templeton Brown, Robert L. Stern, Chicago, Ill., Weil, Gotshal & Manges, New York City, for William Morrow & Co., Inc., W. Donald McSweeney, William A. Montgomery, Chicago, 111., for The Bobbs-Merrill Co., Inc., G. P. Putnam’s Sons., Earl E. Pollock, Alan Silberman, Chicago, 111., for Baker & Taylor Co., Ira M. Millstein, Peter Gruenberger, New York City, for Charles Scribner’s Sons, E. P. Dutton & Co., Inc., Grossett & Dunlap, Inc., Harper & Row Publishers, Inc., Henry Z. Walck, Inc., Satterlee, Warfield & Stephens, White & Case, Greenbaum, Wolff & Ernst, Linden & Deutseh, Shea, Gallop, Climenko & Gould, New York City, Leibman, Williams, Bennett, Baird & Minow, Chadwell, Keck, Kayser, Ruggles & Mc-Laren, Brown, Fox & Blumberg, Winston, Strawn, Smith & Patterson, Bergstrom & Olson, Bell, Boyd, Lloyd, Had-dad & Burns, McDermott, Will & Emery, Chicago, 111., Choate, Hall & Stewart, Conrad W. Oberdorfer, Brinton P. Roberts, Boston, Mass., for Houghton Mifflin Co., William E. Stockhausen, John Horton, New York City, for Holt, Rinehart and Winston, Inc., Earl A. Jinkinson, John W. Stack, Chicago, 111., for Franklin Watts, Inc., Edgar E. Barton, Kevin L. Carroll, New York City, for McGraw-Hill Book Co., John J. McHugh, Chicago, 111., for Charles M. Gardner Co., Imperial Book Co., Associated Libraries, Inc., Melton Book Co., Inc., Sather Gate Book Shop., Leo Rosen, Roger Hunting, New York City, for Thomas Y. Crowell Co., David McKay Co., Inc., Samuel Weisbard, David Porter, Chicago, 111., for Golden Press, Inc., Bella L. Linden, David Blasband, New York City, for The MacMillan Co., John T. Loughlin, John C. Christie, Charles A. Tausche, Chicago, 111., for E. M. Hale and Co., Bruce Hecker, New York City, David P. List, Kenneth A. Manaster, Chicago, 111., for Campbell & Hall, Inc., Nathan Blumberg, Robert W. Bergstrom, Chicago, III., for Follett Library Book Co., Lee A. Freeman, Lee A. Freeman, Jr., Chicago, 111., William J. Scott, Atty. Gen., John P. Meyer, Sp. Asst. Atty. Gen., State of 111., Chauncey H. Browning, Jr. Atty. Gen., Gene Hal Williams, Deputy Atty. Gen., State of W. Va., Theodore L. Sendak, Atty. Gen., Wendell C. Hamacher, Asst. Atty. Gen., State of Ind., Crawford C. Martin, Atty. Gen., Richard W. Chote, Asst. Atty. Gen., State of Tex., Paul W. Brown, Atty. Gen., Donald Weckstein, Ted B. Clevenger, Asst. Attys. Gen., State of Ohio, Douglas M. Head, Atty. Gen., Roger E. Montgomery, Asst. Atty. Gen., State of Minn., Robert W. Warren, Atty. Gen., George F. Sieker, Theodore L. Priebe, Asst. Attys. Gen., State of Wis., Kent Frizzel, Atty. Gen., J. Eugene Balloun, Special Asst. Atty. Gen., State of Kan., Raymond F. Simon, Corp. Counsel, City of Chicago, John A. Murray, St. Paul, Minn., for City of St. Paul, and others, David J. Young, Columbus, Ohio, for Archbishop and Bishops of the Six Catholic Dioceses in Ohio, Robert E. Kendrick, Deputy Metropolitan Atty., Metropolitan Government of Nashville and Davidson County, Tenn., for respondents Honorable Bernard M. Decker and the Treble Damage Plaintiffs.
Kiley, Fairchild, Cummings.
Cited by 136 opinions  |  Published
PER CURIAM.

In more than forty separate antitrust actions brought in eight judicial districts, plaintiffs, state and local governments, public schools, and public libraries, sought damages from twenty-three defendants (petitioners here), publishers and wholesalers, for alleged conspiracies to inflate the prices for children’s editions of library books. Pursuant to 28 U.S.C. § 1407 these actions were transferred for consolidated discovery and pretrial proceedings to the United[*490] States District Court for the Northern District of Illinois, Eastern Division, the Honorable Bernard M. Decker, presiding. Petitioners seek mandamus to compel the district judge to vacate an order dated October 17, 1969 insofar as it permitted plaintiffs to inspect and copy certain memoranda, all but one of'which were prepared by attorneys while “debriefing” a number of persons (each an employee or former employee of one of petitioners) shortly after each had testified before a federal grand jury investigating various aspects of the publishing industry.

Plaintiffs sought production of these memoranda under Rule 34, F.R.Civ.P. Petitioners countered with the claim that the debriefing memoranda were protected by the attorney-client privilege or as attorneys’ work product. The judge ordered petitioners to submit the memoranda under seal, and to file a precise factual statement setting forth the circumstances of the preparation of each.

The judge did not examine the memoranda. In every instance but two, he decided that neither an attorney-client privilege nor any status as work product excused discovery.

The judge refused to make a certification under 28 U.S.C. § 1292(b), for the purpose of appeal. Petitioners sought mandamus, and because an appeal, ultimately, from the final decision would be an inadequate remedy, we ordered an answer and briefs.

The claims made by petitioners fall under the following topics: (1) Whether the relationship between the person interviewed and the attorney was such as to make the communication privileged. (2) Whether the relationship between the person interviewed and the attorney’s corporate client was such as to make the communication privileged. (3) Whether the memoranda were protected work product of the attorney. (4) Whether good cause was shown for discovery of work product.

(1) Whether the relationship between the person interviewed and the attorney was such as to make the communication privileged.

The judge had before him assertions on this point in affidavits and depositions. In at least three instances (Davidson, Rose and Rowe), there was a difference between the statement of the attorney and of the person interviewed which raised a degree of ambiguity. There was at least one assertion of the existence of p a personal attorney-client relationship with respect to Moorman, Hood, Thompson, Sciosia, Patella, Guerney, Heidelberger, Stokes, Street, Davidson, Rose, Rowe, Callaway, and witnesses “A” and “B” of Golden Press.

The judge decided that there was no personal attorney-client relationship in these instances because it failed to appear that the attorney did (1) render personal legal advice to the witnesses, (2) advise them on personal matters, or (3) bill them for services. He concluded that the witnesses talked to the attorneys as a favor to the respective corporations. [1]

Petitioners can not assert the privilege of the individuals, if such privilege existed. The attorneys could presumably assert their obligation to the individuals, although the attorneys are before this court only as counsel for petitioners.

In any event we do not find the existence of personal attorney-client relationships so clearly established that mandamus is appropriate to compel the district court to recognize the privilege which would arise therefrom.

(2) Whether the relationship between the person interviewed and the attorney’s corporate client was such as to make the communication privileged.

Some of the persons interviewed were no longer employees at the time of the interview; others were employed by one of petitioners at the time of interview, but were interviewed by counsel for an-[*491] another petitioner. Neither group need be considered under this topic.

Messrs. Moorman, Hood, Thompson, Sciosia, Patella, Guerney, Heidelberger, Rowe (as to Thomas Y. Crowell Company), Stokes, Davidson, Callaway, Witness A of Golden Press, Walker, Dyckman, Mitchell, Andrus, and Hoocker were employees of the corporate client at the time of the interview. It is sufficiently clear that each, employee made his disclosure to the attorney at the direction of his corporate employer and on its behalf; and that the subject matter of his grand jury testimony and of the debriefing interview was germane to the duties of his employment. On the other hand, although some of these employees had supervisory or even policy making responsibilities with respect to the branch of the corporate business with which they worked, it was not demonstrated that any of these employees was in a position to control or take a substantial part in a decision about action which the corporation may take upon the advice of the attorney, nor that he was a member of a group having that authority. [2]

The district judge substantially followed the “control group” test of the relationship between corporate client and persons making the communication to the attorney which must exist if the communication is to be protected by the corporation’s attorney-client privilege. This test was formulated by Judge Kirkpatrick in City of Philadelphia v. Westinghouse Electric Corp. (E.D.Pa., 1962), 210 F.Supp. 483. A similar test appears in Rule 5-03(a) (3), Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, March, 1969.

If the control group test be wholly adequate, it has not been shown that the district judge erred in his application of it.

Judge Kirkpatrick’s control group test has been applied by other courts. E. g., Natta v. Hogan (10th Cir., 1969), 392 F.2d 686, 692; Garrison v. General Motors Corp. (S.D.Cal., 1963), 213 F.Supp. 515. It has been criticized. Burnham, Confidentiality and the Corporate Lawyer: The Attorney-Client Privilege and “Work Product” in Illinois, 56 Ill.B.J. 542, 545-48 (1968); Heininger, The Attorney-Client Privilege as it Relates to Corporations, 53 Ill.B.J. 376, 384 (1965). Broader tests have been suggested. See Pye, Fundamentals of the Attorney-Client Privilege, 15 Prac.Law. 15, 19 (Nov. 1969); Maurer, Privileged Communication and the Corporate Counsel, 28 Ala.Law. 352, 375 (1967); D. I. Chadbourne, Inc. v. Superior Court (1964), 60 Cal.2d 723, 36 Cal.Rptr. 468, 388 P.2d 700, 709.

We conclude that the control group testj' is not wholly adequate, that the corpora-! tion’s attorney-client privilege protects! communications of some corporate agents' who are not within the control group, and that in those instances where the order here under attack must rest entirely upon the control group test, the order is unlawful.

It is clear that we are not dealing in this case with the communications of employees about matters as to which they are virtually indistinguishable from bystander witnesses; employees who, almost fortuitously, observe events which may generate liability on the part of the corporation. We express no opinion with respect to communications by employees who fall in that class.

We conclude that an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation’s attorney is privileged where the employee makes the communication at the direction of his superiors, in the corporation and where the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the communi[*492] cation is the performance by the employee of the duties of his employment.

And because maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.

(3) Whether the memoranda, were protected work product of the attorney.

We think that the district judge incorrectly suggested that some of the memoranda did not qualify as work product because “the lawyers functioned primarily as investigators.” Where an attorney personally prepares a memorandum of an interview of a witness with an eye toward litigation such memorandum qualifies as work product even though the lawyer functioned primarily as an investigator. See Hauger v. Chicago, Rock Island, and Pacific R. Co. (7th Cir., 1954), 216 F.2d 501; United States v. American Optical Co., 37 F.R.D. 233, 238 (E.D.Wis., 1965); United States v. Aluminum Co. of America, 34 F.R.D. 241, 242-243 (E.D.Mo., 1963). Indeed, the qualified privilege might even attach to a document prepared under the supervision of the attorney even though not drafted by the attorney himself. Alltmont v. United States (3rd Cir., 1950), 177 F.2d 971, cert. den. 339 U.S. 967, 70 S.Ct. 999, 94 L.Ed. 1375 (1950). Of course, the less the lawyer’s “mental processes” are involved, the less will be the burden to show good cause. United States v. Swift & Co. (N.D.Ill., 1959), 24 F.R.D. 280, 284.

(4) Whether good cause was shown for discovery of work product.

The judge made specific findings of good cause for permitting plaintiffs to examine the grand jury testimony of nine of the persons who were later interviewed by the attorneys. Three of them are not involved in the present proceeding. The debriefing memoranda of five of them, Callaway, Dyckman, Hood, Sciosia and Thompson, we have held protected by the attorney-client privilege of their employers. Rust is the one remaining. The judge found, from comparison of his deposition with his grand jury testimony, that there were material discrepancies and failures to recall significant facts. It seems clear that, insofar as the character of this memorandum as work product remains relevant, good cause was properly found.

We are unable to determine whether the district judge inspected any depositions other than those taken from the above mentioned nine. As to the remaining memoranda, the determination of good cause seems to rest generally on a finding that a six year lapse of time would inevitably cause memories to dull coupled with findings apparently based on conclusions regarding the deficiencies of the nine depositions examined. In these instances more specific findings as to each individual would have been better. See Hauger v. Chicago, Rock Island & Pacific Railroad Co. (7th Cir., 1954), 216 F.2d 501, 505. We conclude, however, that lack of good cause has not been made to appear sufficiently for issuance of a writ of mandamus. Thus the order under attack will stand as to all debriefing memoranda except in those instances where we have determined in part (2) above that the corporation’s attorney-client privilege protects from discovery.

A writ of mandamus will issue compelling respondent district judge to exempt from his order of October 17, 1969, the debriefing statements of the following: Moorman, Hood, Thompson, Sciosia, Patella, Guemey, Heidelberger, Rowe (as to Thomas Y. Crowell Company), Stokes, Davidson, Callaway, Witness A of Golden Press, Walker, Dyckman, Mitchell, Andrus, and Hoocker, and to order the return of each of those debriefing statements to the defendant which produced it. In all other respects the petition for mandamus is denied. Petitioners are to submit a proposed writ following the procedure prescribed by Rule 19, F.R.A.P. for settlement of judgments enforcing orders of agencies.

[*493] ORDER

On February 4, 1970 an opinion was filed deciding that a writ of mandamus will issue and directing settlement of the form of the writ (see Rule 36, F.R.A.P.) upon submission of a proposed writ by petitioners, following the procedure prescribed by Rule 19, F.R.A.P. for settlement of judgments enforcing orders of agencies.

On February 12, 1970, petitioners filed a proposed writ of mandamus. Respondents did not file a counter proposal pursuant to Rule 19, F.R.A.P. Except for one matter, herein referred to as the Andresen memorandum, the writ proposed by petitioners is deemed to conform with our opinion.

The Andresen memorandum.

On February 12, petitioners filed a motion asking that we include the debriefing memorandum of Bruce Andre-sen ámong those listed in our opinion and our writ, to be exempted from respondent’s order of October 17, 1969 and to be returned to the defendant which produced it. Petitioners assert that Bruce Andresen was an employee of petitioner Baker & Taylor Co. and that his debriefing memorandum is protected by the attorney-client privilege of Baker & Taylor Co., the same as that of Hood, Moorman, and Thompson. Respondents assert that Andresen was formerly employed by Golden Press, and we note that petitioners include in the proposed writ the statement taken from grand jury witness Golden Press “B-l”, but petitioners claim that their motion relates only to the debriefing memorandum of Andresen given to counsel for Baker & Taylor Co.

We prefer to leave the resolution of any factual dispute to the district court. The writ of mandamus in final form will not include Andresen (nor Golden Press “B”) in the list of grand jury witnesses the debriefing statements of whom will be ordered returned, but will include a direction that: “With respect to witness Bruce Andresen, the Honorable Bernard M. Decker shall determine whether, consistently with part (2) of our opinion, Andresen’s debriefing memorandum produced by Baker & Taylor Co. or Golden Press ‘B-l’ is protected by the attorney-client privilege of Baker & Taylor Co., and shall deal with its accordingly.”

The Rust and Mathiesen memoranda.

Two petitioners ask for clarification and modification of our opinion so as to compel respondent to order the return of the debriefing memoranda of Paul Rust and John Mathiesen. These men were not employed by any of petitioners, but by another corporation, E. M. Hale & Co. It is claimed that Hale was an agent of two petitioners, and therefore that the attorney-client privilege of these two petitioners protects the communication between Rust and Mathiesen and petitioners’ attorneys. Petitioners note that our opinion dealt with certain communications by an employee of the corporation asserting the privilege and did not refer to such communications by an agent who was not an employee. But whether or not a corporation’s privilege will extend to a communication by its own agent who is not its employee, we are satisfied that the particular relationship of Rust and'Mathiesen to the corporate petitioners does not entitle petitioners to protection against disclosure of the Rust and Mathiesen communications with petitioners’ attorneys.

Costs.

Petitioners and respondents each seek allowance of costs in this proceeding in this court, virtually as if it were an appeal, subject to Rule 39, F.R.A.P. Petitioners seek $2,586.96 and respondents $1,141.13. Rule 39 is not literally applicable. We did not include, any direction as to costs in our opinion, the petition was granted in part, denied in part, and we conclude in our discretion that no party is to recover costs in this proceeding in this court.

Accordingly, it is ordered,

(1) The form of the writ of mandamus will be as proposed by petitioners[*494] February 12, 1970, except (a) the name “Golden Press ‘B-l’ ” will be omitted from the 6th and 7th lines from the bottom of page 2 and the name “Andresen” will be omitted from the third line from the bottom of page 2 and (b) there shall be added an additional paragraph, as follows:

“With respect to witness Bruce Andresen, the Honorable Bernard M. Decker shall determine whether, consistently with part (2) of our opinion, Andresen’s debriefing memorandum produced by Baker & Taylor Co. or Golden Press ‘B-l’ is protected by the attorney-client privilege of Baker & Taylor Co., and shall deal with it accordingly.”
(2) Said writ shall not, however, be issued before expiration of the stay ordered February 11, or any extension thereof.
(3) The application of petitioners to add the Rust and Mathiesen memoranda to the list of these protected from discovery by our writ of mandamus is denied.
(4) The applications of the parties for recovery of costs are each denied.
1

. The Bonsai memorandum is not involved in this proceeding. The judge found a personal attorney-client relationship and held the memorandum privileged.

2

. The Bonsai and Milne memorandum are not involved in the present proceeding. The judge found than Bonsai and Milne were members of the control group of their employer, and held their communications privileged.