Publications
The Collateral Order Doctrine After ‘Mohawk’
A previous column [“Collateral Orders,” NLJ, 11-27-06] noted that the U.S. Supreme Court had narrowed the categories of orders that were immediately appealable under the “collateral order” doctrine, allowing such appeals only when the denial of immediate review would “imperil a substantial public interest.” Will v. Hallock, 546 U.S. 345, 352 (2006). The Supreme Court’s recent decision from December 2009 in Mohawk Industries v. Carpenter, 130 S. Ct. 599 (2009), holding that the rejection of claims of attorney-client privilege are not subject to immediate appeal as collateral orders, signals a further retrenchment.
The plaintiff in Mohawk sought to compel production of documents related to an internal investigative meeting between the plaintiff and counsel for his then-employer (Mohawk). The district court held that the company had waived the attorney-client privilege, and it ordered that the documents be produced. Recognizing the seriousness of its ruling, the district court suggested that a collateral order appeal would be appropriate. The U.S. Court of Appeals for the 11th Circuit, however, held that the collateral order doctrine did not apply, and the Supreme Court agreed.
