Although appellate courts understandably do not like piecemeal reviews
before a final judgment, privilege issues seem particularly well-suited for
interlocutory appeals. Once a court orders production of protected
documents or testimony, making the loser wait until the case ends before
allowing an appeal does not give much relief. Unfortunately, federal courts
have essentially eliminated interlocutory appeals of adverse privilege
rulings, except in very unusual circumstances. Litigants can always try the
mandamus route, although that normally is a long shot.
But some states continue to allow interlocutory appeals. In In re Alexander, the court granted a litigant's petition for writ
of mandamus, explaining that "[a]ppeal is not an adequate remedy when the
trial court has erroneously ordered the production of privileged
documents." No. 14-18-00466-CV, 2019 Tex. App. LEXIS 6474, at *11 (Tex.
App. July 30, 2019). Exactly one week later, the court in Crosmun v. Trustees of Fayetteville Technical Community College, 832 S.E.2d 223 (N.C. Ct. App. 2019), vacated the lower
court's protocol that would have given plaintiff's forensic expert access
to defendant's privileged computer files. The court acknowledged that
interlocutory orders "are ordinarily not subject to immediate appeal," but
noted that orders "affect[ing] a substantial right" should be immediately
appealable. Id. at 231. The court emphasized that "[t]his rule
applies to attorney work-product immunity and common law attorney-client
Corporations and their lawyers should familiarize themselves with states'
attitude toward interlocutory appeals of privilege rulings.