Attorneys ordered by a federal court to produce documents they believe are privileged should strongly consider petitioning an appellate court for mandamus relief, McGuireWoods Richmond partner Brian Schmalzbach and counsel Anne Doherty wrote in a May 28, 2025, article in Westlaw Today.
The authors noted that the other options available to attorneys — producing the documents and appealing after judgment, moving for an interlocutory appeal, or refusing to produce the documents and being held in contempt — are generally not desirable options. A mandamus appeal avoids the drawbacks of those options, but the U.S. Supreme Court’s 2009 decision in Mohawk Industries v. Carpenter sent mixed messages about the use of mandamus review of disclosure orders.
Schmalzbach and Doherty noted that since Mohawk was decided, appellate courts across the country have generally concluded the ruling reaffirmed that mandamus is available for disclosure orders. Appellate courts have granted mandamus review of many kinds of disclosure orders, the authors wrote.
“Mandamus review of disclosure orders offers benefits to litigants and appellate courts alike,” the attorneys wrote. “For litigants, they offer a last-ditch means to avoid the irreparable invasion of their protected information. For appellate courts, they offer flexibility to provide occasional review. A court may correct errors invading important privacy interests while avoiding a deluge of less important ones. Wise litigants should consider mandamus when they receive a disclosure order they believe is incorrect.”