Litigants seeking an interlocutory appeal of an order requiring production of protected documents have always faced an uphill climb – because courts disfavor such interruptions in the litigation process. In 2009, the United States Supreme Court eliminated the possibility of using the “collateral order” doctrine in seeking such an interlocutory appeal of discovery orders. Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009).
However, litigants can still rely on other doctrines. In Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010), the Ninth Circuit granted a petition for a writ of mandamus, and reversed a lower court order which found a broad subject matter waiver doctrine when a plaintiff relied on a former lawyer’s testimony. One day later, a California appellate court granted a similar writ under the California rules, and reversed a lower court’s ruling that a law firm sued for malpractice could discover communications between its former client and successor counsel. Nemer v. Superior Court, Nos. B214762 & B215029, 2010 Cal. App. Unpub. LEXIS 3516 (Cal. Ct. App. May 13, 2010).
Although the United States Supreme Court has made it more difficult for litigants to obtain interlocutory relief from a discovery order requiring production of protected communications or documents, there are still some remedies available.