WILSON v. O'BRIEN (September 3, 2010)

Robert Wilson was convicted of attempted murder in state court. After that conviction was set aside, Wilson brought suit against the City of Chicago and others pursuant to § 1983. During discovery, the defendants attempted to depose Tyler Nims. While a law student, Nims had assisted Wilson with his defense. Nims asserted the attorney work-product privilege and refused to answer questions. After the district court ordered Nims to answer, he complied. Wilson (the party) and Nims (the nonparty) both appeal.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Hamilton dismissed for lack of jurisdiction. The appeal raised interesting issues under the Cohen collateral-order doctrine in light of Mohawk Industries. After a short discussion of those issues, the Court tabled them. A necessary premise in considering an interlocutory appeal from an order concerning the disclosure of privileged information is that the person ordered to disclose has refused to so. Here, Nims complied with the district court's order -- his matter is moot. Likewise, with respect to Wilson, there is nothing the Court can do to protect the confidentiality of the already disclosed information. Wilson's opportunity to challenge the district court's decision will come after a final decision in the district court.