Litigation

Supreme Court limits review of attorney-client privilege orders

By Lori Bauman

The U.S. Supreme Court today held that a court's order compelling production of confidential information based on a waiver of the attorney-client privilege is not immediately appealable.  As a result, a party seeking to protect privileged material in federal court may have to wait until after entry of judgment to obtain appellate review.

In Mohawk Industries, Inc. v. Carpenter, a former employee of Mohawk sued for wrongful termination and sought production of documents relating to a meeting he had with the company's lawyers.  The District Court ordered production based on what it concluded was Mohawk's waiver of the privilege.  When the court declined to certify the order for interlocutory appeal, the company filed an appeal under 28 USC sec. 1291, which gives the Courts of Appeal jurisdiction of final judgments and a limited class of prejudgment orders.  The Supreme Court, citing the federal courts' preference for a "single appeal" in each case, agreed that the order compelling production of confidential material is not among those entitled to immediate appellate review, and affirmed dismissal.

Justice Sonia Sotomayor, writing for a unanimous Court, stated that a party disputing an order to produce materials based on a waiver of a privilege has several options short of producing the materials and waiting to raise the issue after entry of judgment.  The party can, for example, ask the trial court to certify an interlocutory appeal (which the District Court refused to do in this case), or refuse to produce the disputed materials and incur court-imposed sanctions which would be subject to appeal after entry of judgment.

Justice Sotomayor noted that Congress, in the 1990 Rules Enabling Act, expressed an intention that the universe of appealable prejudgment orders be expanded, if at all, by rulemaking and not by court decision.

Full post as published by Northwest Business Litigation Blog on December 08, 2009 (boomark / email).