After concluding there was no jurisdiction to consider an interlocutory appeal under the recent Mohawk Industries decision, the circuit also rejected a request to “relax” the standard for a petition for a writ of mandamus, in In Re: Whirlpirl Corp., 597 F.3d 858 (7th Cir. March 3, 2010) (per curiam) (Nos. 09-3777, 09-3795)
The Supreme Court recently considered whether interlocutory appellate relief may be available after a party receives an adverse attorney-client privilege ruling. In Mohawk Industries, Inc. v. Carpenter, 558 U. S. __, 130 S.Ct. 599 (2009) (No. 08-678), the Supreme Court resolved a circuit split and unanimously held that interlocutory appellate review of an attorney-client privilege ruling was unavailable under the Cohen collateral order doctrine, particularly since “[e]ffective appellate review can be had by other means.” See Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings. The Seventh Circuit considered one of the first cases applying this new precedent, including a request to “relax” the standard for review of a petition for a writ of mandamus.
In a trademark infringement action involving a dryer, plaintiff LG Electronics, U.S.A. requested production from defendant Whirlpool Corporation of communications it claimed were covered by the attorney-client privilege. The communications were between the company’s attorneys and outside advertising agencies, which the company claimed were “de facto employees” and not third parties or were protected communications by a shared “legal interest in producing lawful advertisements.” Whirlpirl Corp., 597 F.3d at 859. The district court compelled the disclosure of the communications. The defendant appealed and also filed a petition for a writ of mandamus. The appeal was stayed pending the Supreme Court’s ruling in Mohawk Industries.
The Seventh Circuit affirmed the district court. In applying the Mohawk Industries decision, the circuit noted there was no jurisdiction over the interlocutory appeal. That left the petition for a writ of mandamus. The circuit rejected the defendant’s request to “relax” the standards for a writ of mandamus given “the unavailability of collateral appeal.” Whirlpirl Corp., 597 F.3d at 859. The defendant failed to show that extraordinary relief was warranted since the lower court ruling would “be effectively unreviewable if the petitioner is forced to wait until the end of the case and also that the order is patently erroneous or usurpative in character.” Whirlpirl Corp., 597 F.3d at 860 (citing United States v. Vinyard, 539 F.3d 589, 591 (7th Cir. 2008) (granting petition for writ of mandamus)). In particular, the circuit noted that the Supreme Court in Mohawk Industries noted that a writ of mandamus was limited to “extraordinary circumstances — i.e., when a disclosure order ‘amounts to a judicial usurpation of power or a clear abuse of discretion,’ or otherwise works a manifest injustice. . . .” Whirlpirl Corp., 597 F.3d at 860 (quoting Mohawk Industries, 558 U. S. __, 130 S.Ct. at 607 (quoting Cheney v. U.S. District Court, 542 U.S. 367, 390 (2004))). In denying relief, the district court had “carefully considered” the arguments of defendant Whirlpirl. No serious error was presented in the case; consequently, mandamus was not warranted. Finally, the circuit noted: “Whirlpool has any other opportunities for appellate review, such as refusing to turn over the documents and then using the ensuing sanctions under Fed. R. Civ. P. 37(b)(2) as the basis of an appeal.” Whirlpirl Corp., 597 F.3d at 860.
The Whirlpirl Corp. case presents a recent application of the Mohawk Industries, in which the Supreme Court underscored the policies under the final judgment rule. While the defendant sought to loosen the standards for appellate review under the alternative writ of mandamus avenue, the circuit found the showing for this extraordinary relief was lacking.
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