Courts Deal With a Review of Privilege Rulings

June 19, 2024

In federal courts, it is nearly impossible to successfully file an interlocutory appeal of a trial court’s order requiring production of privileged documents — despite the obvious “cat out of the bag” nature of such rulings. Mandamus seems to be about the only remedy — which is extraordinarily difficult to successfully obtain.

This appellate relief issue is far more complicated in state courts. In Schafer v. Levey, Appeal No. C-230410, 2024 Ohio App. LEXIS 1518, at *7 (Ohio Ct. App. Apr. 26, 2024), an Ohio state court relied on the Supreme Court of Ohio’s recognition that an order compelling the production of privileged communications is a “final, appealable order.” The court remanded the matter to the trial court with an order to “conduct an evidentiary hearing and/or in camera inspection of the documents.” Id. at *9-10. On the same day, an Alabama state court similarly granted appellate relief from an order requiring a law firm’s production of its documents, although relying on a writ of mandamus. Ex parte Warhurst, No. CL-2023-0811, 2024 Ala. Civ. App. LEXIS 44 (Ala. Ct. App. Apr. 26, 2024). The court pointedly criticized the trial court, which it said had “refused to perform” its “imperative duty to either quash or modify the nonparty subpoena.” Id. at *14-15.

Lawyers and their clients litigating in state court may have to explore that state’s possible appellate remedies.