The Supreme Court granted certiorari today in one case of interest to the business community:
Interlocutory Appeal—Claims of Attorney-Client Privilege
Under 28 U.S.C. § 1291, an appellate court has jurisdiction to review only "final decisions" of the district court. Discovery orders generally are not considered final orders for purposes of obtaining appellate jurisdiction; therefore, they usually are not immediately appealable. Nevertheless, the collateral order doctrine, established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), provides an exception to section 1291's finality requirement where an order conclusively determines the disputed question, resolves an important issue separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. Today the Supreme Court granted certiorari in Mohawk Industries, Inc. v. Carpenter (08-678) to decide whether, under Cohen, an appellate court has jurisdiction over the immediate appeal of an order compelling disclosure of information claimed to be protected by the attorney-client privilege.
The Court's resolution of the question, which has divided the lower courts, will clarify the scope of the collateral order doctrine.
In this case, the Eleventh Circuit held that it lacked jurisdiction over an interlocutory appeal of an order compelling disclosure of certain arguably privileged attorney-client communications because the district court's order could be effectively reviewed on an appeal from a final judgment. 541 F.3d 1048, 1053. Its holding put it in conflict with a number of other circuits, which have held that the collateral order doctrine permits immediate appeals of discovery orders implicating the attorney-client privilege.
Absent an extension, amicus briefs in support of the petitioner are due March 19, and amicus briefs in support of the respondent are due April 20. Any questions about this case should be directed to Dan Himmelfarb (+1 202 263-3035) in our Washington, DC office.
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