In Mohawk Industries, Inc. v. Carpenter, 175 L. Ed. 2d 458, decided December 8, 2009, the United States Supreme Court held that a district court order to produce material purportedly subject to the attorney-client privilege is not immediately appealable.
The Court held that the order was not appealable under 28 U.S.C. § 1291, which permits appeals "from all final decisions of the district courts." First, as an order entered at the pretrial stage, it did not fall under the usual definition of "final decision," which encompasses an order which "terminates an action" and "by which a district court disassociates itself from a case."
Second, the Court held that the order was not appealable under the rule of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), which deems an order a "final decision" under Section 1291 and thus appealable when -- although not terminating the action -- the order 1) conclusively determines the disputed question; 2) resolves an important issue completely separate from the merits of the action; and 3) is effectively unreviewable on appeal from a final judgment. The Court recognized that Cohen was to be applied very narrowly, as "[p]ermitting piecemeal, prejudgment appeals * * * undermines 'efficient judicial administration' and encroaches upon the prerogatives of district court judges, who play a 'special role' in managing ongoing litigation."
The Court first considered the third Cohen criterion and found it was not satisfied, holding that the order to disclose material arguably protected by the attorney-client privilege is not "effectively unreviewable on appeal from a final judgment." As held by the Court, "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege. Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence." The Court also held that finding such orders nonappealable would not chill the privilege, believing that "in deciding how freely to speak, clients and counsel are unlikely to focus on the remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal. * * * (Finding the third Cohen criterion not satisfied, the Court had no cause to review the first two.)
The Court additionally held that litigants and counsel firmly believing that disclosure of arguably privileged material could not be remedied later, i.e., those "confronted with a particularly injurious or novel privilege ruling," have certain potential avenues of for immediate review of a disclosure order. First, the district court could certify, and the court of appeals could accept, an interlocutory appeal from a disclosure order under 28 U. S. C. § 1292(b), which provides for a district judge entering an order not otherwise appealable who believes the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation" to so state in the order, thus permitting the Court of Appeals to accept an appeal of the order at its discretion. The Court instructed district courts "to not hesitate" to use this procedure when a privilege ruling "involves a new legal question or is of special consequence." Second, a party believing a disclosure order constitutes "a judicial usurpation of power or a clear abuse of discretion," or "otherwise works a manifest injustice," could petition the Court of Appeals for a writ of mandamus. Third, the party could withhold the subject materials and then appeal a sanction order which might ensue, i.e., it could challenge a sanction ordered under Fed.R.Civ.P. 37(b) on an appeal of the case's final judgment, or could challenge an order of criminal contempt immediately.
The Court concluded by giving credence to a "slippery slope" theory, noting that were it to find the order before it appealable, litigants would "likely seek to extend such a ruling to disclosure orders implicating many other categories of sensitive information, raising an array of line-drawing difficulties."
Finally, it is important to note that in Ohio state courts, an order to disclose material purportedly protected under the attorney-client privilege is final and appealable. R.C. § 2505.02(B)(4); Miles-McClellan Constr. Co. v. Bd. of Edn. Of Westerville City School, 10th Dist. Nos. 05AP-1112, 05AP-1113, 05AP-1114 and 05AP-1115, 2006-Ohio-3439, ? 8 ("In the case of an order compelling the production or disclosure of material allegedly protected by attorney-client privilege, . . . an interlocutory appeal will lie.").