Commercial Litigation and Arbitration

Mandamus Jurisdiction to Review Denial of Privilege Assertion Post-Mohawk

On December 11, 2009, three days after the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009), the Ninth Circuit granted mandamus review of an order denying assertion of a First Amendment privilege against discovery, in Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2009). On remand, applying the standards articulated by the Ninth Circuit, the District Court again ordered production. The Ninth Circuit denied mandamus review a second time in Perry v. Schwarzenegger, 2010 U.S. App. LEXIS 7492 (9th Cir. April 12, 2010):

In Perry I, we exercised mandamus jurisdiction because the proceedings raised a particularly novel and important question of first impression — whether the First Amendment provides any protection against compelled disclosure of internal campaign communications, an issue that might otherwise have evaded appellate review. See Perry I, 591 F.3d at 1156-57, 1159. By contrast, the current proceedings present the application of that now recognized privilege. They thus do not present comparable concerns of novelty and evasion of review.

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