Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings

Court unanimously bars interlocutory appellate review of the attorney-client privilege ruling under the Cohen collateral order doctrine, particularly since “[e]ffective appellate review can be had by other means”; any basis for interlocutory review should be determined under the rulemaking process, in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599 (2009) (No. 08-678)

Last week, the Court announced the first four opinions of the Term, including the first authored by Justice Sonia Sotomayor. The opinion in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599 (2009), raised the issue “whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine.” Mohawk Industries, 558 U.S. at __, 130 S.Ct. at 603. The circuits had split on this issue, with five circuits rejecting interlocutory appellate review and three allowing collateral order review of rulings involving the attorney-client privilege. See Mohawk Industries, 558 U.S. at __ n.1, 130 S.Ct. at 604 n.1 (collecting cases).

In sum, in the wrongful termination action, the district court granted the employee’s motion to compel disclosure of attorney-client privilege communications with outside counsel and of the decision to terminate the plaintiff. The court concluded that the communications were protected by the attorney-client privilege, but the privilege had been implicitly waived. The court stayed its ruling to permit the employer an opportunity to consider avenues to appeal. The employer sought interlocutory appellate relief under the Cohen collateral order doctrine and also petitioned for a writ of mandamus.

On appeal, the Eleventh Circuit dismissed the interlocutory appeal based on lack of jurisdiction under the final judgment rule. See Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052-53 (11th Cir. 2008) (per curiam). For more extensive discussion of the facts, see Supreme Court Watch: Supreme Court To Decide On Interlocutory Appeal Of Privilege Disclosure Order; see also Supreme Court Watch: Oral Argument Today On Interlocutory Appeal Of Adverse Privilege Ruling.

The Supreme Court unanimously held that interlocutory appellate review of the attorney-client privilege ruling was not available under the Cohen collateral order doctrine, under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949), particularly since “[e]ffective appellate review can be had by other means.” The Court’s holding reinforces the role of the final judgment rule, and the narrowness of the exceptions to the rule promoting one appeal upon the conclusion of district court proceedings. See Mohawk Industries, 558 U.S. at __, 130 S.Ct. at 605 (“Our admonition reflects a healthy respect for the virtues of the final-judgment rule.”). In underscoring the narrowness of exceptions to the final judgment rule, the Court reiterated that exceptions should not “swallow” the primary rule promoting one appeal following the entry of a final judgment. See Mohawk Industries, 558 U.S. at __, 130 S.Ct. at 605 (noting that the Cohen collateral order doctrine must “never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered”) (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (citation omitted)).

The Court noted certain “institutional costs” that would result from “successive, piecemeal appeals of all adverse attorney-client rulings” including “unduly delay the resolution of district court litigation and needlessly burden the Courts of Appeals.” Mohawk Industries, 558 U.S. at __, 130 S.Ct. at 608. As a policy matter, any exceptions should be determined through the rulemaking process under the Rules Enabling Act, which authorized the Court to “prescribe rules” concerning interlocutory appeals. See 28 U.S.C. § 2072(c).

While the Court “acknowledge[d] the importance of the attorney-client privilege,” the Court concluded that final judgment review did not “imperil[] the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Mohawk Industries, 558 U.S. at __, 130 S.Ct. at __. As a general matter, review of attorney-client privilege ruling is sufficient after final judgment. As the Court noted, “Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.” Mohawk Industries, 558 U.S. at __, 130 S.Ct. at 606-07. In limited circumstances, other remedies may be available for interlocutory review such as:

  • Certification of “a controlling question of law” under 28 U.S.C. §1292(b);
  • In “extraordinary circumstances,” a petition for a writ of mandamus may be filed;
  • An appeal based on contempt ruling (which includes criminal punishment)
  • Court-imposed sanctions based on a party’s defiance of a court’s disclosure order (which also prevents disclosure of the attorney-client privilege communications at the price of sanctions);
  • Short of an appeal, a protective order may be fashioned “to limit the spillover effects of disclosing sensitive information”

The Court declined to consider one issue raised by the government in an amicus brief and at oral argument. Specifically, the Solicitor General had argued that an interlocutory appeal should lie from some governmental privileges, including the Presidential communications privilege and State secrets privilege, which implicate constitutional matters. Oral Argument Transcript, at 42. The Court summarily stated: “We express no view on that issue.” Mohawk Industries, 558 U.S. at __ n.4, 130 S.Ct. at 609 n.4.

Justice Clarence Thomas concurred in the judgment but declined to “join the remainder of the Court’s analysis” because he found it unnecessary since the mechanism for making policy evaluations concerning the final judgment rule was through the rulemaking process. As he explained:

“Accordingly, I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit — effectively, predictably, and in a way we should have done long ago — the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.”
Mohawk Industries, 558 U.S. at __ , 130 S.Ct. at 612.

Whether the Judicial Conference, the initial rulemaking body, takes up the invitation to revisit the balance when interlocutory appeals should lie, remains to be seen. In the meantime, the Supreme Court has resolved an important issue that previously divided the circuits.

For prior posts on the Mohawk Industries case, see:


Federal Rules of Evidence