Can a Litigant Seek Immediate Appellate Relief on a Privilege Issue?

January 23, 2008

Appellate courts rarely review anything but final orders, and hardly ever become involved in pretrial discovery disputes. However, three doctrines occasionally allow interlocutory appeals of orders requiring the disclosure of privileged communications. This makes sense, given the “toothpaste out of the tube” nature of such orders.

In United States v. Wright, No. 06-10553, 2007 U.S. App. LEXIS 29059 (9th Cir. Dec. 10, 2007) (unpublished opinion), the Ninth Circuit mentioned all three of these doctrines. First, under the “collateral order” doctrine, an appellate court can review orders that “‘conclusively determine the disputed question,'” resolve “‘an important issue completely separate from the merits of the action,'” and are “‘effectively unreviewable on appeal from a final judgment.'” Id. at *3 (citation omitted). Second, under what is called the Perlman doctrine, appellate courts can review discovery orders directed at a “‘disinterested third-party custodian of privileged documents'” who might not have an interest in resisting the order. Id. at *10 (citation omitted). Third, appellate courts can issue a writ of mandamus in extraordinary circumstances, directing a lower court to take some action. The Ninth Circuit ultimately found that none of these rare interlocutory appellate doctrines applied, and dismissed Wright’s appeal.

Litigants should never hold out much hope for interlocutory appellate relief, but must sometimes seek protection from erroneous orders that would strip them of privilege protection.