Legal Commentary

It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far.  Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term.

The issue in Mohawk Industries v. Carpenter is whether a district court decision finding waiver of the attorney-client privilege is immediately appealable under the so-called collateral order doctrine that the Supreme Court has read into 28 U.S.C. 1291 in a series of cases dating back to Cohen v. Beneficial Industrial Loan Corp.  Both the district court and the Eleventh Circuit said no, but the Court granted cert. anyway, ostensibly to resolve a circuit split that has arisen over the issue.

What's fascinating to me about this case is that I doubt it would even be an interesting question if it were any other evidentiary privilege.  It's well-established that the run of discovery orders are largely within the discretion of district courts, and are not subject to immediate appellate review except in extraordinary cases (e.g., where the discovery order raises serious separation of powers questions--and even then, only through writs of mandamus). This general rule makes sense, since litigation would be far more costly and take far more time if parties could run to the court of appeals over every little discovery ruling.

So is there a legal argument for why the attorney-client privilege is different? The American Bar Association thinks so, as it argues in its amicus brief in support of the Petitioner.  So too, the U.S. Chamber of Commerce. But I'm not so sure. Our brief, which is signed by a group of 25 former federal judges and/or senior experts on the federal courts, argues that the attorney-client privilege is not distinguishable from other comparable evidentiary protections, and that extending the collateral order doctrine to this case could therefore have disastrous consequences for the workload of the courts of appeals and for civil litigation more generally.

Leaving aside the specific doctrinal issues vis-a-vis the collateral order doctrine, I'm curious what folks think about the underlying issue, i.e., whether there's something fundamentally different about the attorney-client privilege, as compared to the work-product rule, the priest-penitent privilege, the spousal privilege, etc. Are lawyers special, in this regard?