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Monday, July 13, 2009

The Attorney-Client Privilege and the Collateral Order Doctrine

It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far.  Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term.

The issue in Mohawk Industries v. Carpenter is whether a district court decision finding waiver of the attorney-client privilege is immediately appealable under the so-called collateral order doctrine that the Supreme Court has read into 28 U.S.C. 1291 in a series of cases dating back to Cohen v. Beneficial Industrial Loan Corp.  Both the district court and the Eleventh Circuit said no, but the Court granted cert. anyway, ostensibly to resolve a circuit split that has arisen over the issue.

What's fascinating to me about this case is that I doubt it would even be an interesting question if it were any other evidentiary privilege.  It's well-established that the run of discovery orders are largely within the discretion of district courts, and are not subject to immediate appellate review except in extraordinary cases (e.g., where the discovery order raises serious separation of powers questions--and even then, only through writs of mandamus). This general rule makes sense, since litigation would be far more costly and take far more time if parties could run to the court of appeals over every little discovery ruling.

So is there a legal argument for why the attorney-client privilege is different? The American Bar Association thinks so, as it argues in its amicus brief in support of the Petitioner.  So too, the U.S. Chamber of Commerce. But I'm not so sure. Our brief, which is signed by a group of 25 former federal judges and/or senior experts on the federal courts, argues that the attorney-client privilege is not distinguishable from other comparable evidentiary protections, and that extending the collateral order doctrine to this case could therefore have disastrous consequences for the workload of the courts of appeals and for civil litigation more generally.

Leaving aside the specific doctrinal issues vis-a-vis the collateral order doctrine, I'm curious what folks think about the underlying issue, i.e., whether there's something fundamentally different about the attorney-client privilege, as compared to the work-product rule, the priest-penitent privilege, the spousal privilege, etc. Are lawyers special, in this regard?

Posted by Steve Vladeck on July 13, 2009 at 07:11 PM in Blogging, Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink


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This affects lawyers differently because it makes lawyers break their confidentiality *in their field of practice*, where they are expected to have power/hold to their confidences their most. The same way you expect thornier issues when a lawyer's divulging his confidence could give a doctor information to save his client's life (an attorney in a hospital, not his field of practice) or how a doctor should testify in court to save a life by helping someone be found not guilty (a doctor in court, not his field of practice). But someone who works in Field X should be able to be most confidential in Field X.

As I write this, I'm not sure I buy it, but I think it distinguishes the cases.

Posted by: Dan Bentley | Jul 13, 2009 9:24:24 PM

In Colorado, it isn't terribly uncommon in state law practice to appeal denials of privilege of all kinds, and even refusals to grant protective orders that don't involve claims of privilege, in what amounts to a mandamus petition (the Latin terminology is gone, but the remedy is not) to the state supreme court. The procedure is in practice similar to a certiori process where the court first decides whether to take the issue, and then resolves it on the merits after a proper briefing.

The basic justification in all of these cases is that these issues would otherwise be rendered moot, yet they protect important rights. In the same way, a denial of a qualified immunity defense ruling is appealable because the right is a right not to face extended litigation rather than mere immunity from liability. Likewise, preliminary injunctions are eligible for appeal because their impact pending litigation is a final merits determination.

Posted by: ohwilleke | Jul 15, 2009 10:07:04 PM

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