U.S. Supreme Court to consider attorney-client privilege.

• Date: 16 February 2009
• Published date: 16 February 2009

Byline: David Ziemer

Faced with an order in federal court to turn over a document that an attorney believes is protected by the attorney-client privilege, an attorney has only two choices.

He can turn it over; or he can refuse (and accept whatever sanctions the court may impose). Reise v. Board of Regents of University of Wisconsin System, 957 F.2d 293, 295 (7th Cir. 1992).

But seeking interlocutory review of the discovery order may become a viable option in the near future. On Jan. 26, the U.S. Supreme Court accepted certiorari in Mohawk Industries, Inc. v. Carpenter, No. 08-678, to review whether the Court of Appeals can accept jurisdiction in such cases.

In the Seventh Circuit, the court won't exercise jurisdiction for two reasons.

First, on policy grounds, the court believes that since so few appeals from discovery orders would result in reversal, the costs to the judicial system of entertaining these appeals, exceed in the aggregate the costs of the few erroneous discovery orders that might be corrected were...