Fourth Circuit extends Mohawk Industries v. Carpenter to appeals from civil contempt citations.

by Kirsten E. Small

Last week, the Fourth Circuit made a moderate and logical extension to the recent ruling of the United States Supreme Court that orders to produce attorney-client privileged material are not immediately appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Ass'n, 337 U.S. 541 (1949). United States v. Myers, No. 09-1212 (4th Cir. Jan. 28, 2010).

This procedurally complex case involves allegations that former West Virginia attorney Heidi Myers engaged in fraudulent billing for services to the state public defender. The grand jury investigating the case issued a subpoena duces tecum directing Myers to produce all closed case files not already seized pursuant to a search warrant. Myers produced some items but retained others, then moved to quach the subpoena as to the retained items on the basis that they were protected by her Fifth Amendment right against self-incrimination. Simultaneously, the government moved for a contempt citation against Myers as to the retained documents.

Myers was eventually cited for civil contempt for failing to obey production orders issued pursuant to the subpoenas. Myers attempted to appeal, acknowledging that she had refused to obey the orders (and thus, that the contempt citation was proper) but maintaining that the orders themselves were improper.

The Fourth Circuit held that it lacked jurisdiction. First, because the contempt order was civil, Myers could not avail herself of the rule that criminal contempt orders are immediately appealable. Second, the Court held that a civil contempt citation for refusal to produce allegedly privileged documents is not immediately appealable under Cohen. Noting that in Mohawk Industries the appellant sought review of the production order, not of a contempt citation, the Court nevertheless concluded that Mohawk Industries "clearly control[led]" and rendered the Court without jurisdiction.

Commentary: This ruling is not so much an extension of Mohawk Industries as it is a "dotting of the i" of that decision. A contempt citation is the procedural vehicle by which a production order may be challenged on appeal before resolution of the case on the merits. It is only logical, then, that if the underlying order is not immediately appealable, then neither should a contempt citation resting on that order.