In a class action by California state prisoners on behalf of
themselves and all present or future adult male felons in
California state prisons or on parole, plaintiffs alleged
constitutional violations in the manner in which the members of the
California Adult Authority and other petitioners determine the
length of detention and conditions of punishment for convicted
offenders, and sought declaratory and injunctive relief. In the
course of discovery pursuant to Fed.Rule Civ.Proc. 34 plaintiffs
sought (1) Adult Authority files consisting, inter alia,
of personnel files of all members and employees of the Adult
Authority; and (2) prisoners' files, consisting of the files of
every twentieth inmate in each state correctional institution.
Petitioners, claiming that the Adult Authority files were
irrelevant, confidential, and privileged, suggested that they
should not be compelled to turn over the files without prior
District Court in camera
inspection. That court ordered
the production of the documents without such review, but limited
the number of people associated with the plaintiffs who might
examine the documents. Petitioners then filed a petition for
mandamus to vacate the discovery order, which the Court of Appeals
denied. Though recognizing a qualified governmental "official or
state secrecy privilege," the court indicated that, contrary to the
situation here, assertion of such a privilege had to be made with
specificity by high-level Adult Authority officials. A somewhat
similar course ensued with regard to the prisoners' files, ending
with the Court of Appeals' denial of mandamus without opinion.
In the circumstances of this case -- and
particularly since less extreme alternatives for modification of
the challenged discovery orders were available -- issuance of the
writ of mandamus is inappropriate. Pp. 426 U. S.
(a) As a means of implementing the rule that mandamus will issue
only in extraordinary circumstances, the party seeking this largely
discretionary writ must show that there are no other adequate means
to secure the desired relief. Pp. 426 U. S.
Page 426 U. S. 395
(b) Here, adequate alternatives to mandamus existed. The Court
of Appeals' opinion did not foreclose in camera
but apparently left open the opportunity for petitioners through
responsible officials to assert the privilege more specifically,
and have their request for in camera
They thus have an avenue far short of mandamus to achieve the
relief they seek, and this approach affords an appropriate and
useful method for achieving a balance between petitioners' claims
of irrelevance and privilege and plaintiffs' asserted need for the
documents. Pp. 426 U. S.
(c) There is no reason to believe that, by its order relating to
the discovery of the prisoners' files, the Court of Appeals meant
to foreclose petitioners from availing themselves of the same
opportunity of securing in camera
review as is available
in the case of the Adult Authority files . P. 426 U. S.
511 F.2d 192, and order of Dec. 18, 1974 (unreported),
MARSHALL, J., delivered the opinion of the Court, in which all
Members joined except STEVENS, J., who took no part in the
consideration or decision of the case.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Petitioners, defendants in a class action, sought issuance of
writs of mandamus from the United States Court of Appeals for the
Ninth Circuit to compel the District Court to vacate two discovery
orders. The Court of Appeals refused to issue the writs. We hold
that, in the circumstances of this case -- and particularly in
Page 426 U. S. 396
the availability of an alternative, less extreme, path to
modification of the challenged discovery orders -- issuance of the
writ is inappropriate. We therefore affirm.
Seven prisoners in the custody of the Department of Corrections
of the State of California filed a class action in the United
States District Court for the Northern District of California on
behalf of themselves and
"on behalf of all adult male felons who now are, as well as all
adult male felons who in the future will be, in the custody of the
California Department of Corrections, whether confined in an
institution operated by the Department or on parole."
App. 370. [Footnote 1
the defendants in the action are petitioners in this case: the
individual members of the California Adult Authority, the
Administrative Officer of the California Adult Authority, and the
Director of Corrections of the State of California. Plaintiffs'
complaint alleges substantial constitutional violations in the
manner in which the California Adult Authority carries out its
function of determining the length and conditions of punishment for
convicted criminal offenders.
In the course of discovery, plaintiffs submitted requests for
the production of a number of documents pursuant to Fed.Rule
Civ.Proc. 34. Petitioners' subsequent two petitions for writs of
mandamus were concerned with two classes of documents that were
part of these requests. The first class, part of a series of
requests first made in June, 1973, and which will be referred to
here as the "Adult Authority files," is generally composed of the
personnel files of all members and employees of the Adult
Authority, all Adult Authority
Page 426 U. S. 397
documents relating to its past, present, or future operation,
and all memoranda written by the Chairman of the Adult Authority
within the preceding five years. [Footnote 2
] The second class of documents with which we
are concerned was first requested by plaintiffs in November,
Page 426 U. S. 398
and will be referred to here as the "prisoners' files."
Plaintiffs requested the opportunity to examine the files of every
twentieth inmate at each California Department of Corrections
institution, App. 234; the class of documents, therefore, is
composed of the correctional files of a sample of the prisoners in
the custody of the California Department of Corrections.
When presented with the request for the Adult Authority files,
petitioners objected, claiming that the files were irrelevant,
confidential, and privileged, and suggesting that they should not
be required to turn over the file to plaintiffs without prior
review by the District Court to evaluate the
claims of privilege. Plaintiffs moved, pursuant to Fed.Rule
Civ.Proc. 37, for an order compelling discovery. App. 76. The
District Court referred the matter to a Magistrate for findings and
recommendations, and the Magistrate recommended that the District
Court order production of the Adult Authority files without
undertaking an in camera
inspection of the files. The
District Court accepted the Magistrate's recommendations and
ordered the production of the documents. Seeking to limit
distribution of the personnel files of the Adult Authority members
and their employees, however, the District Court issued a
protective order limiting the number of people associated with the
plaintiffs who could examine those documents:
"[N]o personnel file of any member of the Adult Authority,
hearing representative or executive officer, nor any copy of any of
its contents, shall be shown to any person except counsel of record
for the plaintiffs and no more than a total of two investigators
designated by such counsel, and then only to the extent necessary
to the conduct of this action."
Pet. for Cert. xvi.
Page 426 U. S. 399
Dissatisfied with the District Court's ruling, petitioners filed
a petition for a writ of mandamus under 28 U.S.C. § 1651(a),
] requesting the
Court of Appeals for the Ninth Circuit to vacate the District
Court's order granting plaintiffs' motion to compel discovery. The
Court of Appeals denied the petition in an opinion filed on January
17, 1975. 511 F.2d 192. It concluded first that, since
"the question of relevancy 'is to be more loosely construed at
the discovery stage than at the trial,' 8 Wright & Miller,
Federal Practice and Procedure, § 2008 at 41 (1970),"
issuance of the writ on the grounds of the asserted irrelevance
of the documents in question was inappropriate. Id.
196. According to the Court of Appeals, discovery of the documents
was part of "a proper line of attack" in the underlying lawsuit.
The court went on to observe that petitioners had no
absolute privilege that would allow them to avoid production of the
documents at issue. The court did recognize, however, the existence
of a qualified common law governmental privilege "encompassing and
referred to sometimes as the official or state secret privilege,"
at 198, that could conceivably cover the requested
documents. But relying on this Court's decision in United
States v. Reynolds, 345 U. S. 1
the Court of Appeals indicated that, because the assertions of
privilege were not personally made by high-level officials of the
California Adult Authority, and because the assertions of privilege
were lacking in what it saw to be the requisite specificity,
issuance of the writ on grounds of privilege was inappropriate:
"Neither the Chairman of the [Adult] Authority
Page 426 U. S. 400
nor the Director of Corrections nor any official of these
agencies asserted, in person or writing, any privilege in the
"The claiming official must "have seen and considered the
contents of the documents and himself have formed the view that on
grounds of public interest they ought not to be produced'"
United States v. Reynolds, 345 U.S. at 345 U. S. 8
quoting from Duncan v. Cammell, Laird & Co.,
A.C. 624, 638,] and state with specificity the rationale of the
claimed privilege. . . ."
"In [this] suit, petitioners' counsel merely raised a blanket
objection covering any and all documents in request numbers 7, 14,
15, 18, 20, 21 and 22. Formally claiming a privilege should involve
specifying which documents or class of documents are privileged and
for what reasons, especially where the nature of the requested
documents does not reveal an obviously privileged matter. . .
"In sum, the petition fails to show such an [sic
usurpation by the district court that warrants the extraordinary
remedy of writ of mandamus."
511 F.2d at 198-199.
A similar course was followed with regard to the requests for
the prisoners' files. When petitioners, asserting grounds of
privilege, objected to the requests, plaintiffs filed a motion to
compel production which the District Court referred for findings
and recommendations to a Magistrate. The Magistrate recommended
that petitioners be required to produce up to 200 prisoner files
subject to a protective order "that would restrict examination and
inspection of inmate files to attorneys for plaintiffs and for
their use only in connection with this lawsuit." Pet. for Cert. xl.
The District Court accepted the Magistrate's recommendation, but
added to the recommended
Page 426 U. S. 401
protective order a requirement that no prisoner's file be turned
over for examination without the inmate's consent. Id.
xxxi, xxxiii. Petitioners then filed a petition for mandamus which
the Court of Appeals denied by order and without opinion on
December 18, 1974. Id.
Petitioners sought review in this Court of the denial of both
petitions. [Footnote 4
granted certiorari. [Footnote
] 421 U.S. 987 (1975).
Page 426 U. S. 402
The remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations. Will v. United States,
389 U. S. 90
389 U. S. 95
(1967); Bankers Life & Cas. Co. v. Holland,
346 U. S. 379
346 U. S.
-385 (1953); Ex parte Fahey, 332 U.
, 332 U. S. 259
(1947). As we have observed, the writ
"has traditionally been used in the federal courts only 'to
confine an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is
its duty to do so.'"
Will v. United States, supra
at 389 U. S. 95
quoting Roche v. Evaporated Milk Assn., 319 U. S.
, 319 U. S. 26
(1943). And, while we have not limited the use of mandamus by an
unduly narrow and technical understanding of what constitutes a
matter of "jurisdiction," Will v. United States, supra,
389 U. S. 95
the fact still remains that "only exceptional circumstances
amounting to a judicial usurpation of power' will justify the
invocation of this extraordinary remedy." Ibid.
Our treatment of mandamus within the federal court system as an
extraordinary remedy is not without good reason. As we have
recognized before, mandamus actions such as the one involved in the
"have the unfortunate consequence of making the [district court]
judge a litigant, obliged to obtain personal counsel or to leave
his defense to one of the litigant [appearing] before him"
in the underlying case. Bankers Life & Cas. Co. v.
at 346 U. S.
Page 426 U. S. 403
quoting Ex parte Fahey, supra
at 332 U. S. 260
More importantly, particularly in an era of excessively crowded
lower court dockets, it is in the interest of the fair and prompt
administration of justice to discourage piecemeal litigation. It
has been Congress' determination since the Judiciary Act of 1789
that, as a general rule, "appellate review should be postponed . .
. until after final judgment has been rendered by the trial court."
Will v. United States, supra
at 389 U. S. 96
Parr v. United States, 351 U. S. 513
351 U. S.
-521 (1956). [Footnote 6
] A judicial readiness to issue the writ of
mandamus in anything less than an extraordinary situation would run
the real risk of defeating the very policies sought to be furthered
by that judgment of Congress.
As a means of implementing the rule that the writ will issue
only in extraordinary circumstances, we have set forth various
conditions for its issuance. Among these are that the party seeking
issuance of the writ have no other adequate means to attain the
relief he desires, Roche v. Evaporated Milk Assn., supra
at 319 U. S. 26
and that he satisfy "the burden of showing that [his] right to
issuance of the writ is clear and indisputable.'" Bankers
Life & Cas. Co. v. Holland, supra at 346 U. S. 384,
quoting United States v. Duell, 172 U.
S. 576, 172 U. S. 582
(1899); Will v. United States, supra at 389 U. S. 96.
Moreover, it is important to remember that issuance of the writ is,
in large part, a matter of discretion with the court to which the
petition is addressed. Schlagenhauf v. Holder,
379 U. S. 104,
379 U. S. 112
n. 8 (1964); Parr v. United States, supra at 351 U. S. 520.
See also Technitrol, Inc. v. McManus, 405 F.2d 84 (CA8
1968), cert. denied, 394 U.S. 997 (1969); Pacific Car
& Foundry Co. v. Pence, 403 F.2d 949 (CA9 1968).
Page 426 U. S. 404
When looked at in the framework of these factors, it would
appear that the actions of the Court of Appeals in this case should
be affirmed. What petitioners are seeking here is not a declaration
that the documents in question are absolutely privileged and that
plaintiffs can never have access to any of them. On the contrary,
petitioners request only that
"production of the confidential documents not be compelled
without a prior informed determination by the district court that
plaintiffs' need for them in the action below outweighs their
Brief for Petitioners 77-78. Petitioners ask in essence only
that the District Court review the challenged documents in
before passing on whether each one individually should
or should not be disclosed. But the Court of Appeals' opinion
dealing with the Adult Authority files did not foreclose the
possible necessity of such in camera
review. Its denial of
the writ was based largely on the grounds that the governmental
privilege had not been asserted personally by anyone eligible to
assert it, and that it had not been asserted with the requisite
specificity. The court apparently left open the opportunity for
petitioners to return to the District Court, assert the privilege
more specifically and through responsible officials, and then have
their request for an in camera
review of the materials by
the District Court reconsidered in a different light:
"Since there may be information in the requested documents which
should be protected, the petitioners may assert a privilege to a
particular document or class of documents, and perhaps seek in
inspection, at the time the documents are discovered in
the district court."
511 F.2d at 198-199.
Petitioners contend that, by denying the petition for mandamus
the Court of Appeals has afforded them no remedy at all. To the
contrary, we read the above-quoted
Page 426 U. S. 405
language of the opinion as providing petitioners an avenue far
short of mandamus to achieve precisely the relief they seek.
To the extent that the opinion below might be regarded as
ambiguous, we are fortified in our reading of it by a recognition
of the serious consequences which could flow from an unwarranted
failure to grant petitioners the opportunity to have the documents
reviewed by the trial judge in camera
compelled to turn them over. Petitioners' claims of privilege rest
in large part on the notion that turning over the requested
documents would result in substantial injury to the State's
prison-parole system by unnecessarily chilling the free and
uninhibited exchange of ideas between staff members within the
system, by causing the unwarranted disclosure and consequent drying
up of confidential sources, [Footnote 7
] and in general by unjustifiably compromising
the confidentiality of the system's records and personnel files.
] In light of the
potential seriousness of these considerations, and in light of the
fact that the weight to be accorded them will inevitably vary with
the nature of the specific documents in question, it would seem
that an in camera
review of the documents is a relatively
costless and eminently worthwhile method to insure that the balance
between petitioners' claims of irrelevance and privilege and
plaintiffs' asserted need for the documents is correctly struck.
] Indeed, this Court
Page 426 U. S. 406
long held the view that in camera
review is a highly
appropriate and useful means of dealing with claims of governmental
privilege. E.g., United States v. Nixon, 418 U.
, 418 U. S. 706
(1974); United States v. Reynolds, 345 U. S.
Insofar as discovery of the prisoners' files is concerned, it is
true that the Court of Appeals' order denying the petition for a
writ of mandamus with regard to those files was issued without any
statement of reasons for the denial. However, there is no reason to
think that, by its order, the Court of Appeals meant to foreclose
petitioners from following precisely the same avenue with regard to
the prisoners' files as it gave them the opportunity to follow with
regard to the Adult Authority files.
We are thus confident that the Court of Appeals did, in fact,
intend to afford the petitioners the opportunity to apply for and,
upon proper application, receive in camera
Accordingly the orders of the Court of Appeals are affirmed.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
The seven prisoners and the class they represent will be
referred to here as "plaintiffs."
The documents were specifically described in plaintiffs'
requests numbered 7, 14, 15, 18, 20, 21, and 22:
"7. All files, including all personnel files, which are
maintained by the Adult Authority or by the Department of
Corrections, or by any officer or employee thereof, with respect to
each member, each hearing representative, and the Executive Officer
of the Adult Authority."
"14. Each report submitted by any member, hearing
representative, Executive Officer, or any other employee or
official of the Adult Authority. . . ."
"15. All written statements written or delivered by any member
or hearing representative or the Executive Officer of the Adult
Authority during the past 5 years favoring, opposing, or in any way
commenting upon bills or other legislation or legislative proposal
pending in the U.S. House of Representatives, the Senate of the
United States, or the California Legislature."
"18. All written proposals for any change whatsoever in the
organization or operation of, qualifications for, or substantive
criteria and procedures to be employed by the Adult Authority. . .
"20. All memoranda written by the Chairman of the Adult
Authority during the past 5 years, no matter to whom sent,
including without limitation memoranda sent to other government
organizations, agencies or officials, or to other members, hearing
representatives, officials or employees of the Adult
"21. All documents in effect on November 15, 1972, which pertain
to any Policy Statement or Resolution issued by the Adult
Authority, including without limitation any file maintained on any
Resolution or Policy Statement and all such documents executed or
issued subsequent to that date."
"22. All documents, however formal or informal, issued during
the past calendar year, which concern the Adult Authority's
adoption of new policies, procedures, criteria, and the like, to be
followed by members, hearing representatives, officials and
employees. . . ."
Title 28 U.S.C. § 1651(a) provides:
"The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles
While it has not yet come to trial, there have been additional
developments in the underlying case during the pendency of the
instant action before this Court. Since none of these developments
is relevant to the resolution of the issue before us, we simply
Subsequent to the filing of the petition for certiorari in the
instant case, plaintiffs filed a second amended complaint in the
underlying action in which they added allegations which led
petitioners, in turn, to request the appointment of a three-judge
District Court to hear the case. See
28 U.S.C. § 2281. The
single judge then hearing the case certified it to the Chief Judge
of the Court of Appeals for the Ninth Circuit as one appearing to
require the convening of a three-judge court. The Chief Judge
appointed the three members of the court on October 28, 1975,
several days before oral argument was held in the instant case.
But, soon thereafter, plaintiffs amended their complaint once
again. This subsequent amendment made the convening of a
three-judge court appear unnecessary, and the three-judge court
dissolved itself, remanding the entire case to the single judge
originally assigned to the case. Thus, as the matter now stands,
the underlying action is being heard by a single-judge District
Subsequent to our grant of certiorari, but before oral argument,
plaintiffs represented to this Court that they
"no longer seek any of the documents which are the subject of
this appeal, because the trial of [the underlying] case in District
Court will be completed before this Court is able to decide [the]
issues before it."
Memorandum of Respondents Concerning Mootness of Pending Matter
1-2. They therefore suggested that we hold this case moot.
Plaintiffs never advised the District Court that they did not want
We deferred decision on the suggestion of mootness until after
oral argument. However, at oral argument, counsel for plaintiffs
stated that, because the trial date for the underlying action had
been substantially delayed, they had changed their minds, and did
indeed want the documents. Tr. of Oral Arg. 38, 441. While no
papers were filed here formally withdrawing the suggestion of
mootness, plaintiffs' representations at oral argument, combined
with the fact that the trial of the underlying action has not yet
taken place, leave us with no indication that this case is
The use of extraordinary writs aside, it is only in narrowly
defined circumstances, see
28 U.S.C. § 1292, that the
appellate jurisdiction of the courts of appeals extends to
See Metros v. United States District Court for Dist. of
441 F.2d 313 (CA10 1971).
See United States Board of Parole v. Merhige,
25 (CA4 1973), cert. denied,
417 U.S. 918 (1974).
Petitioners also assert, citing Ford Co. v. Department of
Treasury of Indiana, 323 U. S. 459
(1945), and Edelman v. Jordan, 415 U.
(1974), that discovery of material which is
actually the property of the State or its agencies is limited by
the Eleventh Amendment. In view of our resolution of this case and
the fact that petitioners did not raise this issue either in the
discovery proceedings in the District Court or in their petition
for mandamus to the Court of Appeals, we need not reach this