In Re: Trustees v. ( 1993 )

May 6, 1993 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1316
IN RE TRUSTEES OF BOSTON UNIVERSITY,
Petitioners.
ON PETITION FOR WRIT OF PROHIBITION TO
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Feinberg,* Senior Circuit Judge,
and Stahl, Circuit Judge.
Alan D. Rose, with whom Charles R. Parrott, Matthew D.
Poppel, Nutter, McClennen & Fish, Michael B. Rosen, and Dennis C.
Hart were on brief, for petitioners.
Dahlia Rudavsky, with whom Ellen J. Messing and Shilepsky,
Messing & Rudavsky, P.C. were on brief, for respondents.
*Of the Second Circuit, sitting by designation.
Per Curiam. The trustees of Boston University petition
Per Curiam.
for issuance of a writ of prohibition which, if granted, would
vitiate two district court orders concerning the production of a
document. We temporarily stayed the orders, expedited appellate
proceedings, ordered the district court to inspect the document
in camera, received both the district court's findings and the
disputed document, and entertained oral argument. We now decline
to issue the requested writ and dismiss the petition.
We need not wax longiloquent. It suffices to say that
writs of mandamus and prohibition we use the terms
interchangeably "are drastic remedies" that "must be used
sparingly and only in extraordinary situations." In re Pearson,
No. 92-2158, slip op. at 4 (1st Cir. Mar. 16, 1993). Among other
things, the writ-seeker must establish a "clear and indisputable"
right to the relief requested. Bankers Life & Cas. Co. v.
Holland, 346 U.S. 379, 384 (1953) (quoting United States v.
Duell, 112 U.S. 576, 582 (1899)). In effect, a petitioner must
show "that the challenged order is palpably erroneous." Pearson,
slip op. at 6. We apply this high standard with particular
vigilance to orders such as the one at issue here because, as we
have repeatedly cautioned, "[i]nterlocutory procedural orders . .
. rarely will satisfy this precondition for mandamus relief." In
re Recticel Foam Corp., 859 F.2d 1000, 1006 (1st Cir. 1988).
After all, "[d]ecisions regarding the scope of discovery . . .
and the protections to be afforded parties in the discovery
process, are ordinarily left to the informed judgment of the
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district judge . . . ." Id.In this case, we have examined the petitioners' claim
of attorney-client privilege in light of the record, the parties'
arguments, the disputed document itself, the district court's
specific findings, and the applicable law. We are firmly
convinced that the district court's turnover order is not
palpably erroneous. Thus, the petition falls squarely within the
generality of the aforestated rule, not within the long-odds
exception to it.
The petition for issuance of a writ of prohibition is
denied and dismissed, the stay previously issued is dissolved,
and the case is remitted to the district court for further
proceedings. Mandate shall issue forthwith. Costs in favor of
respondents.
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