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Wednesday, January 6, 2010

Mohawk Industries-U.S. Supreme Court prohibits interlocutory appeals of discovery orders piercing attorney-client privilege

By Gary Beaver

On December 8, 2009, in Mohawk Industries, Inc. v. Carpenter, the U.S. Supreme Court (in Justice Sotomayor's first opinion) restricted the methods by which an appellant could have the federal appellate courts immediately review a discovery order through which a federal district court overrules the appellant's claim of attorney-client privilege as a basis for withholding discovery information and orders the production of such information. The appeal in Mohawk was taken under the collateral order doctrine of 28 U.S.C. Section 1291 -- an avenue that is now unavailable for interlocutory appeal of such prejudgment discovery orders. In essence, the Mohawk Court held that discovery orders piercing the attorney-client privilege would not imperil "a substantial public interest" or "some particular value of a high order" -- the usual tests for allowing interlocutory appeal of a collateral order. The Court noted that there are other methods of making an interlocutory appeal of a discovery order including: (1) obtaining the district court's certification and appellate court's acceptance of a "controlling question of law" the prompt resolution of which "may materially advance the ultimate termination of the litigation;" (2)petitioning for a writ of mandamus; (3) defying the order and being held in contempt as contempt orders are immediately appealable if the level of a criminal punishment; and (4) defying the order and having your pleadings or defenses stricken. Big dice to roll in using those last two methods.

It is not clear what, if any, impact the ruling will have on state courts as the Mohawk appeal was taken under a federal statute. However, the logic of the Court likely could be applied by state appellate courts. The question of "would be applied" is more difficult to answer. In North Carolina, the Court of Appeals has not shown any reluctance to dismiss appeals of decisions on discovery issues because they are interlocutory and do not deprive an appellant of a substantial right that would be lost unless immediately reviewed. However, there is a line of precedents holding that interlocutory discovery orders like that in Mohawk requiring a party to produce to the opposing party material purportedly protected by attorney-client privilege and/or attorney work product immunity are immediately appealable. The N.C. Court of Appeals rarely dismisses such an appeal. It dismissed such an appeal in Stevenson v. Long, 558 S.E.2d 215 (2002) but only because it concerned refusing to answer deposition questions and the appellant failed to provide the questions to the lower court for review and a decision on the application of the claimed privilege, i.e., the appellant did not carry its burden of showing the privilege applied. I would not expect the NC appellate courts to reject that line of cases and follow the Mohawk Court's lead any time soon.

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