Supreme Court Watch: Oral Argument Today On Interlocutory Appeal Of Adverse Privilege Ruling

The circuits are split on whether a party may use the Cohen collateral order doctrine for an interlocutory appeal of a non-final order requiring production of attorney-client privilege information, in Mohawk Industries, Inc. v. Carpenter (No. 08-678)

Today, the new Term of the Supreme Court begins by law on the first Monday in October. See 28 U.S.C. § 2 (“The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.”). On the first day of oral argument in the new Term, the Court will hear an important issue concerning interlocutory appellate review of an order compelling production of materials which may be covered by the attorney-client privilege. The specific issue presented is:

“Whether a party has an immediate appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), of a district court's order finding waiver of the attorney-client privilege and compelling production of privileged materials.”

The facts were previously summarized in an earlier post. In summary, the plaintiff, who was a shift supervisor reported that the company had hired illegal aliens as temporary employees. During an internal investigation, the plaintiff met with outside company counsel. After he did not recant his initial report, the plaintiff was terminated. The plaintiff filed an action claiming his termination violated his civil rights and state law. A related class action was subsequently filed by other present and former employees based on the allegations raised in the initial complaint. During discovery, the plaintiff sought information concerning his discussions with outside counsel and the decision to terminate him. The district court held that the communications were covered by the attorney-client privilege but the company had waived the privilege based on other representations made in the case which placed the actions of outside counsel in issue. The company obtained a stay of the district court ruling and filed an interlocutory appeal. The Eleventh Circuit held that it lacked jurisdiction to consider the interlocutory matter and the collateral order doctrine did not permit interlocutory review. See Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052-53 (11th Cir. 2008) (per curiam).

The final judgment rule, codified at 28 U.S.C. § 1291, typically precludes interlocutory appeals until a final judgment has been entered. A narrow exception has been recognized under the Cohen Collateral Order Doctrine, based on Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). In order to obtain interlocutory review of a ruling before final judgment has been entered, a party has the burden to show: a non-final order that (1) conclusively determines the disputed question of privilege; (2) resolves an important issue, completely separate from the merits of the case, if appellate review allowed; and (3) is effectively unreviewable on appeal from a final judgment. The scope of the Cohen Collateral Order Doctrine has been held to be narrow. The case may present an opportunity for the Court to underscore its narrow application or broaden it.

The petitioner contends the three elements are met and interlocutory review should have been afforded. The issue is a significant one and may reach beyond claims of attorney-client privilege. For example, would the Court’s holding extend to other privileges? The Solicitor General’s brief noted that “resolution of the question presented has potential implications for the immediate appealability of orders pertaining to unique governmental privileges,” such as involving Presidential communications or state secrets. Brief For The United States As Amicus Curiae Supporting Respondent, at 1, 28. Arguably, the case may extend to the court-ordered disclosure of others sensitive matters, such as trade secrets.

As previously posted, there is a circuit split on this issue. A majority of six circuits disallow an interlocutory appeal under the collateral order doctrine to challenge a discovery order involving disclosure of a privilege. A minority of three circuits have held that interlocutory review may be available under the collateral order doctrine.

The Solicitor General filed an amicus brief arguing that an immediate appeal on a discovery order finding waiver of the attorney-client privilege should not be permitted under the collateral order doctrine. The United States contends the Collateral Order (Cohen ) Doctrine should not apply “to typical discovery orders because of the potential for undue delay arising from countless automatic appeals.” Instead, “as a filtering mechanism” a party should first “disobey the disclosure order and appeal the resulting contempt order or pursue mandamus or an appeal under 28 U.S.C. 1292(b).” Brief For The United States As Amicus Curiae Supporting Respondent, at 5, 11-12. An amicus brief filed by former Article III judges and law professors contends that permitting interlocutory review of discovery orders involving privileges would upset the balance imposed by the final judgment rule (which avoids piecemeal litigation) and narrow recognized exceptions for interlocutory appeal.

In contrast, the remaining amicus briefs filed (linked below) support an interlocutory appeal of an adverse attorney-client privilege ruling under the Cohen Collateral Order Doctrine. This support is largely grounded on the importance of the attorney-client privilege since the privilege may be unprotected after waiting for appellate review following a final judgment.

One issue raised in the briefs is whether other remedies are sufficient for review of an interlocutory ruling compelling disclosure of material deemed waived. Some avenues parties have considered in light of an adverse disclosure order involving a privilege include (1) an appropriate protective order to limit disclosure of protected communications; (2) disobedience of the ruling and a contempt order which may be appealed; (3) a writ of mandamus; and (4) certification of a “controlling question of law,” under 28 U.S.C. 12292(b),

Another question posed is whether application of the Cohen Collateral Order Doctrine to adverse privilege rulings may result in a “flood” of interlocutory appeals.

While the case raises a jurisdictional issue, it is a weighty one. Today’s argument presents an opportunity to consider the appropriate roles of district courts in addressing the issues in a case and appellate review as well as protection against disclosure of communications under the attorney-client privilege.

For the briefs filed before the Supreme Court, see:

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