No Interlocutory Appeal To Protect Attorney-Client Privileged Documents

The United States Supreme Court yesterday held, in Mohawk Industries, Inc. v. Carpenter, No. 08-678, that a party may not immediately appeal court discovery orders that require the disclosure of documents and information covered by the attorney-client privilege.  This holding resolves a split in the circuits and will change the law in at least the DC and Ninth Circuits. The unanimous Court rejected the argument that attorney-client privilege disclosure rulings are different from other kinds of orders because once the privilege is lost, it cannot ever be restored. The Court (in Justice Sotomayor’s first opinion) noted that the ultimate remedy lies in reversal and a new trial at which the materials at issue would not be disclosed. Justice Sotomayor stated:

"The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege."

This is not a particularly revolutionary decision. After all, the Court has, for several terms, been narrowing interlocutory appellate rights as, at the same time, also requiring specific pleading (see, e.g.,Ashcroft v. Iqbal) in an effort to reduce expensive litigation proceedings. Moreover, at oral argument in the case, the primary issue came down to whether the attorney-client privilege was sufficiently important to warrant interlocutory appeal when balanced against the policy interests of the finality rule. Why, the justices asked, should the attorney-client privilege be given greater deference than trade secrets, for example?  My D.C. partner Stuart M. Gerson notes that for practitioners, both litigators and others who may be involved in investigations later subject to litigation, the significance of this holding is that heightened attention should be given to how privileged information is recorded to minimize the impact if that information is later disclosed. As a safeguard against disclosure, Stuart adds, experienced litigators and investigators tend to write cryptically and briefly, if at all, when they take notes. If one is inclined to take the formal statement of a witness to lock him or her into a particular rendition of fact, it should be done with the expectation that the statement very well may ultimately be disclosed, even if the statement is made in the context of an Upjohn investigation. Of course none of this changes the prevailing rule that attorney-client privilege can only be overcome upon a showing of critical necessity. However, courts dislike privilege and frequently misapply the law.  So, be careful out there.