Motion for Consolidation of the Petition for Prerogative Writs with the Appeal Previously Taken and For Consideration of the Application For Prerogative Writs on the Record to Be Filed in the Appeal.
Clark, Associate Justice,*fn* Gibbons and Hunter, Circuit Judges.
Petition for a Writ of Mandamus and/or a Writ of Prohibition.
Petitioners Jimmie Rodgers and John Turner are named plaintiffs in a certified class action in the Western District of Pennsylvania, in which they allege racial discrimination by the United States Steel Corporation, Local 1397, United Steelworkers of America and the United Steelworkers of America, AFL-CIO, at the Homestead Works of United States Steel.*fn1 On March 8, 1976, the district court approved a tender of back pay by the defendant company and unions to members of petitioners' class pursuant to two nationwide consent decrees for the steel industry entered in United States v. Allegheny-Ludlum Industries, Inc., 63 F.R.D. 1 (N.D. Ala. 1974), aff'd, 517 F.2d 826 (5th Cir. 1975), cert denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187, 44 U.S.L.W. 3593 (1976). On March 12, the district court issued a protective order, inter alia, prohibiting petitioners' counsel from disclosing any information or matters contained in a deposition of Robert T. Moore, the chief government negotiator of the consent decress, or in a Justice Department memorandum marked as Exhibit 3. Because petitioners consider the information subject to the protective order to be the utmost importance to members of the class in determining whether to accept the back pay tender, they seek a writ of mandamus or prohibition to set aside the district court's protective order. In addition, petitioners move to consolidate the instant petition for prerogative writs with their earlier appeal in No. 76-1297 from the May 8 order approving the back pay tender.*fn2
On April 12, 1974, the United States filed a complaint in the Northern District of Alabama against nine major steel companies, including United States Steel, and the United Steelworkers of America. The complaint alleged a pattern or practice of discrimination in employment against women, blacks and Spanish-surnamed Americans in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and contractual obligations under Executive Order 11246, 3 C.F.R. § 169 et seq. Simultaneous with the filing of the complaint, the parties filed with the court for its approval a nationwide settlement in the form of two consent decrees. The filing of the complaint and consent decrees followed more than six months of negotiations between the government and the companies and the union. As is pertinent to the instant litigation, the defendant companies and union agreed in the decrees immediately to implement hiring and seniority reforms and to establish a $30,940,000 back pay fund to be paid to minority and female employees injured by the unlawful practices alleged in the complaint.*fn3 Various groups intervened to challenge the terms of the consent decrees but the district court and the Fifth Circuit rejected these challenges in United States v. Allegheny-Ludlum Industries, Inc., 63 F.R.D. 1 (N.D. Ala. 1974), aff'd, 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187, 44 U.S.L.W. 3593 (1976).
No employee is a party to the consent decrees and the decrees do not seek by their terms to bind the employees by way of res judicata or estoppel. As a condition to their acceptance of back pay under the decrees, however, employees are required to execute releases waiving their rights to seek further injunctive or monetary relief for any alleged discriminatory practices which were in existence prior to the date on which the decrees were entered. The decrees provide that permission must be obtained from those district courts where private class actions are pending before the tender of back pay and release can be sent to such class members.*fn4
Pursuant to the consent decrees, United States Steel and the United Steelworkers, on January 22, 1976, presented a joint motion to the Western District of Pennsylvania for permission to make the tender of back pay to and seek releases from certain employees of the Homestead Works who are members of the Rodgers class. Petitioners opposed the joint motion on the ground, inter alia, that it constituted a "compromise or settlement" of the claims of the class members and therefore could not be permitted unless the district court, pursuant to rule 23(e) of the Federal Rules of Civil Procedure, concluded that the settlement was fair and adequate. A hearing on the motion was scheduled for February 17 and 18.
In preparation for this hearing, petitioners sought to depose Robert T. Moore, an attorney with the Civil Rights Division of the United States Department of Justice. Moore had been chief negotiator for the Equal Employment Opportunity Commission and the Secretary of Labor in the negotiations leading up to the consent decrees. As is relevant here, petitioners wished to obtain from Moore information regarding the method by which the $30.9 million back pay fund had been calculated. They contended that such information was necessary to assist class members in deciding whether to accept the back pay tender and execute a release.
On February 9, the United States moved for a protective order preventing the deposition of Moore on matters concerning his "formulation and development of the government's back pay proposal" or what "transpired and occurred during the course of [consent decree] negotiations."*fn5 The motion asserted four privileges: (1) the common law negotiation privilege; (2) the attorney-client privilege; (3) the attorney's work product privilege; and (4) a statutory privilege contained in section 706(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (b).*fn6
On February 10, the parties met with the district court judge after Moore had declined to answer questions concerning the methodology employed by the government to derive the $30.9 million figure. Despite the assertion of the above enumerated privileges by Moore, the judge ordered him to disclose the general methodology used in calculating the government's back pay proposal. The court stated:
So that there can be no possible mistake I am not going to approve a tender offer if an iron curtain is dropped down around this, making it impossible for me to pass on whether it is fair or not. Now, if you do that it is on your head, the whole thing won't work in Western Pennsylvania. I don't want there to be any mistake about that. This is not a lawyer's work product, it is not negotiations and either you are going to have to fish or cut bait. App. at 64a.
Moore then testified at length as to the complex formula that he used in calculating how much back pay to seek under the consent decrees. At the conclusion of the deposition, the court issued a protective order prohibiting disclosure of the ...