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

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 appeals available. Id., 957 F.2d at 295.

Second, on legal grounds, discovery orders cannot be considered final orders. Id. This is the majority rule in the United States, but three circuits take the opposite position. In re Napster, Inc. Copyright Litig., 479 F.3d 1078 (1087-89 (9th Cir., 2007); U.S. v. Phillip Morris, Inc., 314 F.3d 612, 617-21 (D.C.Cir. 2003); and In re Ford Motor Co., 110 F.3d 954, 964 (3d Cir. 1997).

In Mohawk Industries, the Eleventh Circuit adopted the majority rule, concluding that a discovery order fails to meet the three requisites under Cohen v. Beneficial Industrial Loan Corp. 337 U.S. 541 (1949): (1) the order conclusively determines the disputed question; (2) the order resolves an important issue completely separate from the merits of the action; and (3) the order is effectively unreviewable on appeal from a final judgment.

The first two elements were indisputably met. However, the court held that, if a discovery order is erroneous, it can order a new trial after a final judgment, and thus, the erroneous order is reviewable.

But in their petition for review, attorneys Randall L. Allen and Daniel F. Diffley, of Alston & Bird LLP, in Atlanta, argue an erroneous denial of the attorney-client privilege cannot be effectively reviewed on appeal from the final judgment.

Because an attorney cannot know whether refusing to turn over documents will result in civil or criminal contempt, they maintain, Awaiting a...