As indicated in previous “Privilege Points,” some federal courts do not understand the attorney-client privilege, or engage in what could only be seen as goofy processes for resolving privilege issues (such as incomplete “sampling” of withheld documents, etc.). Several circuits historically offered the protection of an interlocutory appeal of erroneous district court orders requiring the production of protected communications or documents.
However, the United States Supreme Court has now limited the availability of interlocutory appeals. In Mohawk Industries Inc. v. Carpenter, No. 08-678 , 2009 U.S. LEXIS 8942 (U.S. Dec. 8, 2009), the Court held that litigants cannot rely on what is called the Cohen doctrine in seeking immediate appellate relief from an order requiring disclosure of protected communications or documents. In her first opinion, Justice Sotomayor wrote “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” Id. at *17. She noted that litigants can still seek the lower court’s certification of an appeal, seek a writ of mandamus, or refuse to comply with a lower court’s production order (and then immediately appeal the resulting contempt citation). Although Justice Sotomayor tries to make the best of these other options, her ruling takes away the most promising type of interlocutory appeal that several circuits had made available.
Unfortunately for companies, the Supreme Court’s limitation on interlocutory appeals raises the stakes at the district court level — requiring more diligence in protecting the privilege in often‑hostile lower courts.