Commercial Litigation and Arbitration

No Interlocutory Appeal of Privilege Decisions via Collateral Order Doctrine

Resolving a Circuit split, the Supreme Court, in Mohawk Indus. v. Carpenter, 2009 U.S. LEXIS 8942 (Dec. 8, 2009), declined to extend the collateral order doctrine to permit interlocutory appeals of district court decisions overruling assertions of attorney-client privilege. The Court pointed to “rulemaking, ‘not expansion by court decision,’ as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Id. at *24. Interlocutory review of adverse privilege determinations may be obtained only via 28 U.S.C. § 1292(b), mandamus, or suffering contempt. Id. at *25.

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