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.

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.