The Supreme Court ruled yesterday, in Mohawk Industries, Inc. v. Carpenter, that court orders finding a waiver of the attorney-client privilege are not immediately reviewable under the collateral final order doctrine. In so ruling, the Court continued its focus on the "importance" of the interest at stake, noting that, to qualify as an immediately appealable collateral order, the interest must arise to a "substantial public interest" or constitute a "particular value of high order."
Incidentally, Mohawk is the first opinion authored by Justice Sonia Sotomayor. In the opinion, Justice Sotomayor continues the trend of limiting appealability under the Court-made collateral final order doctrine.
The Mohawk Court first acknowledged the importance of the right at issue — waiver of the attorney-client privilege – but concluded that even that interest would not justify appealability as a collateral final order. Lower court orders finding a waiver of the attorney-client privilege (and thus ordering disclosure of attorney-client protected material) differ in kind from typical discovery orders, the Court stated, because the attorney-client privilege serves important institutional interests. The attorney-client privilege ensures the candid discussion between attorney and client that is necessary to effective representation. It also furthers the public interests of observance of law and administration of justice.
The Court stated, however, that the important interests served by the attorney-client privilege must be weighed against the costs of allowing immediate appeal of all such orders:
The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.
The Court underscored that the collateral final order doctrine "must remain 'narrow and selective in its membership.'" Mohawk, 558 U. S. ___, ___ (2009) (citing Will v. Hallock, 546 U.S. 345, 350 (2006)).
To qualify as a collateral order, a ruling must meet the following requirements: (1) it must be conclusive; (2) it must resolve important questions separate from the merits; and (3) it must be effectively unreviewable on appeal from the final judgment in the underlying action. The Court continued its restriction of the third condition — whether an interest is "effectively reviewable" upon final judgment – again emphasizing that it may be satisfied even when the interest is only "imperfectly reparable" by appellate reversal. Further, the interests at issue must arise to "a substantial public interest" or "some particular value of high order." A court must, moreover, focus on the entire category of claims at issue, not on the particular claim in the case. Thus, as long as the class of claims, viewed as a whole, may be effectively reviewable on appeal, the collateral order doctrine will not apply.
Applying these standards, the Court concluded that postjudgment appeals will generally be sufficient to protect the attorney-client privilege. First, the Court concluded that the remote possibility of an erroneous court decision ordering production of attorney-client privileged information will not chill full and frank communication between attorney and client. Second, an appellate court can effectively reverse after final judgment and order that the protected material and its fruits be excluded from evidence. Third, there are other methods of obtaining immediate appellate review in particular instances in which the injury may be extreme or the privilege ruling novel, including an interlocutory appeal under 28 U.S.C. Sec. 1292(b) and a petition for writ of mandamus.
