Can You Immediately Appeal An Adverse Privilege Ruling?

October 16, 2019

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 privilege.” Id.

Corporations and their lawyers should familiarize themselves with states’ attitude toward interlocutory appeals of privilege rulings.