Because a court’s order requiring disclosure of privileged communications can have a “toothpaste out of the tube” effect, courts traditionally allowed interlocutory appeals of such rulings under several doctrines. However, in 2009, the United States Supreme Court held that litigants could no longer rely on the “collateral order” doctrine to seek interlocutory appeals of such adverse privilege rulings. Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009).
The Sixth Circuit has now found inapplicable another traditional doctrine permitting such interlocutory appeals. In Holt-Orsted v. City of Dickson, No. 09-6327, 2011 U.S. App. LEXIS 10379 (6th Cir. May 24, 2011), the court analyzed what is called the Perlman doctrine, under which the privilege’s owner can seek interlocutory review of an order requiring a third party to produce privileged communications. The Perlman doctrine rests on the justifiable assumption that such a third party would not likely risk contempt or bother filing its own interlocutory appeal, so the privilege’s owner can step in to protect its privilege. The Sixth Circuit explained that “the Mohawk decision has altered the legal landscape related to collateral appeals of discovery orders adverse to the attorney-client privilege.” Id. at *21. The court found the Perlman doctrine inapplicable in the case, because the privilege’s owners were parties to the litigation and therefore “ultimately can avail themselves of post-judgment appeal.” Id. at *26. The court predicted that, after Mohawk, the Perlman doctrine will probably be limited to situations in which neither the privilege’s owner nor the third party from whom the discovery is sought are parties to the litigation.
Federal courts’ growing restrictions on interlocutory appeals raise the stakes in privilege disputes in lower courts. Litigants hoping to avoid the “toothpaste out of the tube” effect of a lower court order must increasingly rely on the mandamus remedy, which can be very difficult to obtain.