Can the Loser Immediately Appeal an Order Requiring Production of Privileged Communications?

September 7, 2022

One might think that a litigant should be able to file an interlocutory appeal of an order to produce arguably privileged documents. In such an obvious “cat out of the bag” situation, waiting until a final order does not do much to remedy an erroneous compulsion order.

In Justice Sotomayor’s first opinion, the U.S. Supreme Court severely curtailed a loser’s ability to file an interlocutory appeal of such an order. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). Apart from interlocutory appeals with the court’s permission and one other narrow exception, losers generally must rely on the difficult mandamus route. But some state court rules provide a better shot. In Blue Technologies Smart Solutions, LLC v. Ohio Collaborative Learning Solutions, Inc., the court acknowledged that “[a]n order that requires the disclosure of privileged information, such as that protected by the attorney-client privilege, is immediately appealable” – but that “privilege based on the work-product doctrine has been treated differently.” No. 110501, 2022 Ohio App. LEXIS 1818, at *12 (Ohio Ct. App. June 9, 2022). The court ultimately dismissed the appeal, noting that the losing party had not adequately explained that the trial court’s order covered protected work product.

Litigants ordered to produce privileged communications or work product may not have much of a chance to immediately appeal a loss, but should assess all their options.