Tuesday, December 8, 2009

No Right To Appeal Under Collateral Order Doctrine Of Order Requiring Production Of Privileged Information - Eleventh Circuit Affirmed

In Justice Sotomayor's first opinion on the United State Supreme Court, the Court affirmed a decision from the Eleventh Circuit Court of Appeals.  In Mohawk Industries, Inc. v. Carpenter, the Court concluded a party does not have the right to an interlocutory appeal under the collateral order doctrine of an order requiring the production of privileged information. The opinion began:
Section 1291 of the Judicial Code confers on federal courts of appeals jurisdiction to review “final decisions of the district courts.” 28 U. S. C. §1291. Although “final decisions” typically are ones that trigger the entry of judgment, they also include a small set of prejudgment orders that are “collateral to” the merits of an action and “too important” to be denied immediate review. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). In this case, petitioner Mohawk Industries, Inc., attempted to bring a collateral order appeal after the District Court ordered it to disclose certain confidential materials on the ground that Mohawk had waived the attorney-client privilege. The Court of Appeals dismissed the appeal for want of jurisdiction.
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 mecha-nisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.


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