No. 08-678
`In the Supreme Court of the United States
`
`MOHAWK INDUSTRIES, INC., PETITIONER
`v.
`NORMAN CARPENTER
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`BRIEF FOR THE UNITED STATES
`AS AMICUS CURIAE SUPPORTING RESPONDENT
`
`ELENA KAGAN
`Solicitor General
`Counsel of Record
`TONY WEST
`Assistant Attorney General
`EDWIN S. KNEEDLER
`Deputy Solicitor General
`PRATIK A. SHAH
`Assistant to the Solicitor
`General
`MICHAEL S. RAAB
`ERIC FLEISIG-GREENE
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`(202) 514-2217
`
`
`In the Supreme Court of the United States
`
`MOHAWK INDUSTRIES, INC., PETITIONER
`v.
`NORMAN CARPENTER
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`BRIEF FOR THE UNITED STATES
`AS AMICUS CURIAE SUPPORTING RESPONDENT
`
`ELENA KAGAN
`Solicitor General
`Counsel of Record
`TONY WEST
`Assistant Attorney General
`EDWIN S. KNEEDLER
`Deputy Solicitor General
`PRATIK A. SHAH
`Assistant to the Solicitor
`General
`MICHAEL S. RAAB
`ERIC FLEISIG-GREENE
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`(202) 514-2217
`
`
`
`QUESTION PRESENTED
`Whether a party has the right to an immediate ap-
`peal under the collateral order doctrine, as set forth in
`Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
`(1949), from a district court’s order finding waiver of the
`attorney-client privilege and compelling production of
`privileged materials.
`
`(I)
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`Argument:
`Discovery orders finding waiver of the attorney-client
`privilege do not warrant immediate appeal under the
`collateral order doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
`A. The collateral order doctrine is limited to a small
`class of orders implicating sufficiently compelling
`constitutional or other public interests . . . . . . . . . . . . . 8
`B. Orders resolving attorney-client privilege
`disputes do not qualify for immediate appeal
`under the collateral order doctrine . . . . . . . . . . . . . . . . 12
`1. Discovery orders requiring disclosure of
`material allegedly subject to the attorney-
`client privilege do not as a class implicate
`an interest of a sufficiently high order . . . . . . . . . 13
`2. An order finding waiver of the attorney-client
`privilege is not sufficiently separate from the
`merits or effectively unreviewable in other
`ways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
`3. Certain privileges implicate interests of
`constitutional significance under the
`separation of powers and qualify under
`the collateral order doctrine . . . . . . . . . . . . . . . . . . 28
`Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
`Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
`
`(III)
`
`
`
`IV
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Abney v. United States, 431 U.S. 651 (1977)
`. . . . . . . . . . . 10
`Al Odah v. United States, 559 F.3d 539 (D.C. Cir.
`2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`Behrens v. Pelletier, 516 U.S. 299 (1996)
`. . . . . . . . . . . . 8, 12
`Chase Manhattan Bank, N.A. v. Turner & Newall,
`PLC, 964 F.2d 159 (2d Cir. 1992)
`. . . . . . . . . . . . . . . . . . 26
`Cheney v. United States Dist. Ct., 542 U.S. 367
`(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31
`Church of Scientology v. United States, 506 U.S. 9
`(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
`(1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 15
`Coopers & Lybrand v. Livesay, 437 U.S. 463
`(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 17, 18
`Cunningham v. Hamilton County, 527 U.S. 198
`(1999) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 16, 18, 21, 26, 27
`DiBella v. United States, 369 U.S. 121 (1962) . . . . . . . . . . 22
`Digital Equip. Corp. v. Desktop Direct, Inc.,
`511 U.S. 863 (1994) . . . . . . . . . . . . . . . . . 5, 8, 10, 11, 12, 13
`Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) . . . . . . 14
`El-Masri v. United States, 479 F.3d 296 (4th Cir.),
`cert. denied, 128 S. Ct. 373 (2007) . . . . . . . . . . . . . . . . . . 30
`Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368
`(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 25
`Flanagan v. United States, 465 U.S. 259 (1984) . . . . . . . . 14
`Gulfstream Aerospace Corp. v. Mayacamas Corp.,
`485 U.S. 271 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`
`
`
`V
`
`Cases—Continued:
`
`Page
`
`Helstoski v. Meanor, 442 U.S. 500 (1979) . . . . . . . . . . . . 9, 28
`Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1998) . . . . . . 9
`Lott, In re, 424 F.3d 446 (6th Cir. 2005), cert. denied,
`547 U.S. 1092 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
`MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116
`(4th Cir. 1994)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
`Mitchell v. Forsyth, 472 U.S. 511 (1985) . . . . . . . . . . 9, 10, 19
`Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,
`460 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`Nixon v. Fitzgerald, 457 U.S. 731 (1982) . . . . . . . . . . . . . . . 9
`Northrop Corp. v. McDonnell Douglas Corp.,
`751 F.2d 395 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . 28
`Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340
`(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`Oregon v. Elstad, 470 U.S. 298 (1985) . . . . . . . . . . . . . . . . . 22
`Osborn v. Haley, 549 U.S. 225 (2007)
`. . . . . . . . . . . . . . . 9, 28
`Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
`Eddy, Inc., 506 U.S. 139 (1993) . . . . . . . . . . . . . . . . . . 9, 28
`Regents of Univ. of Calif., In re, 101 F.3d 1386 (Fed.
`Cir. 1996), cert. denied, 520 U.S. 1193 (1997) . . . . . . . . 26
`Reise v. Board of Regents, 957 F.2d 293 (7th Cir.
`1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
`Richardson-Merrell Inc. v. Koller, 472 U.S. 424
`(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 18, 21
`Sell v. United States, 539 U.S. 166 (2003) . . . . . . . . . . . . . . 10
`Silverthorne Lumber Co. v. United States,
`251 U.S. 385 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
`Stack v. Boyle, 342 U.S. 1 (1951) . . . . . . . . . . . . . . . . . . . . . 14
`
`
`
`VI
`
`Cases—Continued:
`
`Page
`
`Swift & Co. Packers v. Compania Colombiana
`Del Caribe, S.A., 339 U.S. 684 (1950) . . . . . . . . . . . . . . . 15
`Swidler & Berlin v. United States, 524 U.S. 399
`(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
`Totten v. United States, 92 U.S. 105 (1876) . . . . . . . . . . . . 30
`United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) . . . 14
`United States v. Nixon, 418 U.S. 683 (1974)
`. . . . . 29, 30, 31
`United States v. Phillip Morris, Inc., 314 F.3d 612
`(D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24
`United States v. Rayburn House Office Bldg.,
`Room 2113, 497 F.3d 654 (D.C. Cir. 2007),
`cert. denied, 128 S. Ct. 1738 (2008) . . . . . . . . . . . . . . . . . 28
`United States v. Reynolds, 345 U.S. 1 (1953) . . . . . 29, 30, 31
`United States v. Ryan, 402 U.S. 530 (1971) . . . . . . . . . . . . 11
`United States v. Zolin, 491 U.S. 554 (1989 . . . . . . . . . . . . . 20
`Upjohn Co. v. United States, 449 U.S. 383 (1981) . . . . 13, 23
`Van Cauwenberghe v. Biard, 486 U.S. 517
`(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17, 18, 27
`Will v. Hallock, 546 U.S. 345 (2006)
`. . . . . . 5, 8, 9, 10, 11, 12
`Wong Sun v. United States, 371 U.S. 471 (1963) . . . . . . . . 22
`
`Constitution, statutes and rules:
`
`U.S. Const.:
`Art. I, § 6, Cl. 1 (Speech or Debate Clause) . . . . . . . . 9, 28
`Amend. XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 28
`28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 8, 9, 15, 29, 1a
`28 U.S.C. 1292(a)(1)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`28 U.S.C. 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15, 27
`
`
`
`VII
`
`Statutes and rules—Continued:
`
`Page
`
`28 U.S.C. 1292(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27
`42 U.S.C. 1985(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`Fed. R. Civ. P.:
`Rule 26(b)(5)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
`Rule 37(b)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`Fed. R. Evid.:
`Rule 502(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
`Rule 502(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
`Rule 502 explanatory note . . . . . . . . . . . . . . . . . . . . . . . . 20
`
`Miscellaneous:
`
`Raoul Berger & Abe Krash, Government Immunity
`from Discovery, 59 Yale L.J. 1451 (1950)
`. . . . . . . . . . . 28
`2 Paul R. Rice, Attorney-Client Privilege in the
`United States (rev. 2d ed. 2007) . . . . . . . . . . . . . . . . . . . 19
`3 Jack B. Weinstein & Margaret A. Berger,
`Weinstein’s Federal Evidence (2d ed. 2009) . . . . . . 13, 19
`Charles Alan Wright et al., Federal Practice &
`Procedure (2d ed.):
`Vol. 15B (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`Vol. 16 (1996 & Supp. 2005) . . . . . . . . . . . . . . . . . . . . . 26
`
`
`
`In the Supreme Court of the United States
`
`No. 08-678
`MOHAWK INDUSTRIES, INC., PETITIONER
`v.
`NORMAN CARPENTER
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`BRIEF FOR THE UNITED STATES
`AS AMICUS CURIAE SUPPORTING RESPONDENT
`
`INTEREST OF THE UNITED STATES
`This case presents the question whether the collat-
`eral order doctrine permits immediate appeal of a dis-
`trict court’s finding of waiver of the attorney-client priv-
`ilege. As the Nation’s most frequent litigator in federal
`court, the United States has a substantial interest in
`proper resolution of the question presented. The gov-
`ernment litigates the applicability of the attorney-client
`privilege in discovery disputes, as well as the applicabil-
`ity of the collateral order doctrine in a variety of other
`contexts. Additionally, resolution of the question pre-
`sented has potential implications for the immediate ap-
`pealability of orders pertaining to unique governmental
`privileges.
`
`(1)
`
`
`
`2
`
`STATEMENT
`1. In 2004, a group of individuals (not parties to
`the present dispute) filed a class action lawsuit against
`petitioner, Williams v. Mohawk Indus., Inc., No.
`4:04-cv-00003-HLM (N.D. Ga. filed Jan. 6, 2004), alleg-
`ing that petitioner (a carpet manufacturer) had unlaw-
`fully depressed the wages of its legally employed work-
`ers through a pattern of racketeering activity by know-
`ingly employing, harboring, and encouraging entry of
`illegal aliens. J.A. 50-52. During the pendency of the
`Williams action, petitioner hired respondent as a shift
`supervisor at one of its manufacturing facilities and sub-
`sequently terminated him. J.A. 54, 61. Respondent
`brought suit in federal court against petitioner and cer-
`tain of its executives, alleging that he had informed peti-
`tioner’s human resources department that it was em-
`ploying illegal aliens; that petitioner’s outside counsel
`had sought to compel him to recant his statements in
`order to insulate the company from liability in Williams;
`and that when he had refused, petitioner had terminated
`his employment based on pretext. Pet. App. 3a-4a; J.A.
`48-66. Respondent sought recovery under 42 U.S.C.
`1985(2) (conspiracy to deter him from testifying in Wil-
`liams) and under various Georgia laws. Pet. App. 3a;
`J.A. 66-78.
`Shortly after respondent filed suit, the plaintiffs in
`Williams sought an evidentiary hearing to explore the
`allegations in respondent’s complaint. Pet. App. 4a. In
`its response to that motion, petitioner offered its ac-
`count of the “true facts” behind respondent’s termina-
`tion. Ibid . Petitioner represented that respondent had
`“engaged in blatant and illegal misconduct” in circum-
`vention of federal immigration laws; that petitioner had
`commenced an investigation of respondent’s conduct and
`
`
`
`3
`
`claims; that “[a]s part of that investigation” petitioner’s
`outside counsel had interviewed respondent; and that, as
`a result of respondent’s misconduct, petitioner had fired
`him. Id. at 4a-5a; see J.A. 208-211.
`Respondent subsequently sought to compel produc-
`tion of information relating to his meeting with peti-
`tioner’s outside counsel, as well as information relating
`to petitioner’s decision to terminate his employment.
`Pet. App. 5a-6a, 22a. The district court granted respon-
`dent’s motion to compel. Id. at 29a-54a. The court held
`that the information at issue was protected by the
`attorney-client privilege, id . at 36a-42a, but that peti-
`tioner had impliedly waived the privilege through its
`response to the Williams plaintiffs’ request for an evi-
`dentiary hearing, id . at 43a-51a. The district court ex-
`plained:
`By making those representations, [petitioner] placed
`the actions of [petitioner’s outside counsel] in issue.
`In fairness, evaluation of those representations will
`require an examination of otherwise-protected com-
`munications between [petitioner’s outside counsel]
`and [respondent] and between [petitioner’s outside
`counsel] and [petitioner’s] personnel. Consequently,
`the Court must conclude that [petitioner] has waived
`the attorney-client privilege with respect to the com-
`munications relating to the interview of [respondent]
`and the decision to terminate [respondent’s] employ-
`ment.
`Id . at 6a, 51a. The district court stayed its order pend-
`ing appeal. Id. at 52a.
`2.
` The court of appeals dismissed petitioner’s ap-
`peal for lack of jurisdiction under 28 U.S.C. 1291, hold-
`ing that the challenged discovery order did not qualify
`for immediate review under Cohen v. Beneficial Indus-
`
`
`
`4
`
`trial Loan Corp., 337 U.S. 541 (1949). The court ex-
`plained that “[u]nder Cohen, an order is appealable if it
`(1) conclusively determines the disputed question; (2)
`resolves an important issue completely separate from
`the merits of the action; and (3) is effectively unreview-
`able on appeal from a final judgment.” Pet. App. 7a-8a.
`The court held that an order finding waiver of the
`attorney-client privilege and compelling production of
`the underlying information satisfied the first and second
`elements of Cohen’s test. Pet. App. 8a. The court held,
`however, that the district court’s order did not satisfy
`Cohen’s third element, reasoning that attorney-client
`privilege rulings could effectively be reviewed after final
`judgment by vacating any tainted verdict and ordering
`a retrial without the use of the privileged evidence. Id.
`at 8a-9a.
`The court also relied on circuit precedent rejecting
`collateral order review for denials of the accountant-cli-
`ent privilege in the discovery context. Pet. App. 10a-
`11a. Emphasizing the “potentially large volume of ap-
`peals [that] may arise out of such discovery orders” and
`the “powerful prudential reasons to avoid commonplace
`interlocutory appeals,” the court noted that aggrieved
`parties possess adequate alternative avenues of review,
`including a petition for a writ of mandamus and an ap-
`peal of a contempt order imposing sanctions for declin-
`ing to produce the assertedly privileged material. Id. at
`13a.
`The court of appeals then denied petitioner’s com-
`panion mandamus petition, reasoning that even if the
`district court had erred in holding the privilege waived,
`petitioner “still ha[d] not shown that its right to the issu-
`ance of the writ [was] clear and indisputable.” Pet. App.
`15a.
`
`
`
`5
`
`SUMMARY OF ARGUMENT
`Discovery orders finding waiver of the attorney-cli-
`ent privilege do not warrant immediate appeal under the
`collateral order doctrine. In addition to failing the sec-
`ond and third requirements of the traditional Cohen
`test, these numerous and routine orders are insuffi-
`ciently important to outweigh the strong interest
`against pre-finality appeals.
`A. In its more recent cases applying the collateral
`order doctrine, the Court has emphasized that the class
`of eligible orders must remain “narrow and selective in
`its membership” and limited to cases where delaying
`review would “imperil a substantial public interest.”
`Will v. Hallock, 546 U.S. 345, 347-353 (2006). While
`some orders adjudicating rights “embodied in a constitu-
`tional or statutory provision” or having a similarly “good
`pedigree in public law” (such as qualified immunity) are
`entitled to immediate review, orders adjudicating other
`rights are not. Digital Equip. Corp. v. Desktop Direct,
`Inc., 511 U.S. 863, 875, 879 (1994). This Court’s prece-
`dents have long denied collateral-order review to typical
`discovery orders because of the potential for undue de-
`lay arising from countless automatic appeals. The Court
`generally has insisted, as a filtering mechanism, that a
`party must instead disobey the disclosure order and
`appeal the resulting contempt order or pursue manda-
`mus or an appeal under 28 U.S.C. 1292(b).
`B. Although the attorney-client privilege serves an
`important purpose, it is not of constitutional or other
`exceptional public-law pedigree. And the instrumental
`interest in encouraging “full and frank communication”
`between client and counsel is not materially undermined
`by denying collateral order review of a finding of waiver.
`The sheer volume and garden-variety nature of produc-
`
`
`
`6
`
`tion orders involving assertions of the attorney-client
`privilege cut against petitioner’s contention that those
`orders are categorically of such special significance as to
`warrant immediate review.
`Such orders also do not satisfy the traditional re-
`quirements of the collateral order doctrine. A finding of
`waiver of the attorney-client privilege is ordinarily not
`“completely separate from the merits of the action.”
`Whether the attorney-client privilege has been waived—
`which may depend on a determination of the unfairness
`to the opposing party of litigating the merits without the
`privileged information—often will require an assess-
`ment of the significance of the privileged information to
`the merits.
`Nor is an order finding a waiver of attorney-client
`privilege “effectively unreviewable on appeal from a
`final judgment.” Several reasonable alternatives exist:
`Assuming a party complies, a district court may enter a
`protective order barring disclosure prior to trial, and an
`appeals court can vacate an adverse final judgment and
`exclude the use of any tainted evidence in a retrial. As-
`suming non-compliance, a district court may issue, in
`lieu of an immediately appealable contempt order, other
`sanctions short of contempt that preserve a party’s right
`to appeal. And, in especially important or egregious
`cases, a party can pursue a mandamus petition or an
`interlocutory appeal under 28 U.S.C. 1292(b). Should
`experience demonstrate that those various alternatives
`are inadequate, Congress—or the Court, pursuant to its
`rulemaking authority, see 28 U.S.C. 1292(e)—may clas-
`sify attorney-client privilege orders as immediately
`appealable.
`Although denials of the attorney-client privilege do
`not meet the Court’s stringent standards for collateral-
`
`
`
`7
`
`order review, denials of certain governmental privileges
`—in light of their constitutional grounding, rare invoca-
`tion, and unique importance to governmental functions
`—should qualify for immediate appealability. In partic-
`ular, the ordered disclosure of a Presidential communi-
`cation or state secret would more directly and irremedi-
`ably harm the purpose of the corresponding privilege
`(i.e., preserving confidentiality of top-level Executive
`Branch communications or protecting national security)
`than would disclosure of attorney-client privileged infor-
`mation.
`
`ARGUMENT
`DISCOVERY ORDERS FINDING WAIVER OF THE
`ATTORNEY-CLIENT PRIVILEGE DO NOT WARRANT IM-
`MEDIATE APPEAL UNDER THE COLLATERAL ORDER
`DOCTRINE
`The Court should apply in this case the same princi-
`ples that it has applied in its more recent cases address-
`ing the collateral order doctrine. That analysis requires,
`as part of or in addition to consideration of the tradi-
`tional Cohen factors, an inquiry into the relative impor-
`tance of the interest at stake—according special weight
`to interests of constitutional dimension or other substan-
`tial public interests. Thus, for example, the Court has
`found denials of immunity under the Speech or Debate
`Clause, absolute or qualified immunity of federal offi-
`cials, state sovereign immunity, and the assertion of the
`Presidential communications privilege to be immediately
`appealable under Section 1291. Applying that frame-
`work here, discovery orders concerning the attorney-
`client privilege—voluminous in quantity and often mun-
`dane in nature—are not subject to immediate appeal
`under the collateral order doctrine. But this is not to
`
`
`
`8
`
`say that no denial of a claim of privilege could satisfy the
`Court’s stringent standards. Privileges that are at once
`rarely invoked and of substantial constitutional signifi-
`cance under the separation of powers would merit imme-
`diate appeal under the Court’s framework, even though
`assertion of the privilege might arise in the discovery
`context.
`A. The Collateral Order Doctrine Is Limited To A Small
`Class Of Orders Implicating Sufficiently Compelling
`Constitutional Or Other Public Interests
`“Section 1291 of Title 28, U.S.C., gives courts of ap-
`peals jurisdiction over ‘all final decisions’ of district
`courts” not immediately appealable to this Court. Beh-
`rens v. Pelletier, 516 U.S. 299, 305 (1996). The Court
`has given Section 1291’s requirement of a “final deci-
`sion[]” a “practical rather than a technical construction,”
`Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
`(1949), so as to extend “appellate jurisdiction over ‘a
`narrow class of decisions that do not terminate the litiga-
`tion,’ but are sufficiently important and collateral to the
`merits that they should ‘nonetheless be treated as fi-
`nal.’” Will v. Hallock, 546 U.S. 345, 347 (2006) (quoting
`Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
`863, 867 (1994)). So understood, Section 1291 encom-
`passes orders “conclusively resolving ‘claims of right
`separable from, and collateral to, rights asserted in the
`action’” that are “‘too important to be denied review and
`too independent of the cause itself to require that appel-
`late consideration be deferred until the whole case is
`adjudicated.’ ” Id . at 349 (quoting Behrens, 516 U.S. at
`305; Cohen, 337 U.S. at 546).
`The Court has applied a three-pronged test to deter-
`mine whether a class of orders may qualify for immedi-
`
`
`
`9
`
`ate appeal under the “collateral order doctrine.” The
`orders must “[1] conclusively determine the disputed
`question, [2] resolve an important issue completely sepa-
`rate from the merits of the action, and [3] be effectively
`unreviewable on appeal from a final judgment.” Puerto
`Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.
`(P.R. Aqueduct), 506 U.S. 139, 144 (1993) (brackets in
`original) (quoting Coopers & Lybrand v. Livesay, 437
`U.S. 463, 468 (1978)). The Court has emphasized in its
`more recent cases that in order to preserve the impor-
`tant policies of judicial efficiency that underlie the final-
`ity requirement of Section 1291, the class of collateral
`orders must remain “narrow and selective in its mem-
`bership” and limited to cases where later review would
`“imperil a substantial public interest.” Hallock, 546
`U.S. at 350, 353; see id. at 350 (“[W]e have not men-
`tioned applying the collateral order doctrine recently
`without emphasizing its modest scope.”). As petitioner
`acknowledges (Br. 16), it must establish that the class of
`orders is sufficiently important to justify immediate ap-
`peal. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495,
`503 (1989) (Scalia, J., concurring) (framing inquiry as
`whether right to be vindicated is “sufficiently important
`to overcome the policies militating against interlocutory
`appeals”).
`Several types of orders that the Court has held sub-
`ject to immediate appeal under the collateral order doc-
`trine involve a party’s “entitlement not to stand trial or
`face the other burdens of litigation.” Mitchell v. For-
`syth, 472 U.S. 511, 526 (1985) (qualified immunity); see
`Osborn v. Haley, 549 U.S. 225 (2007) (Westfall Act cer-
`tification); P.R. Aqueduct, supra (Eleventh Amendment
`immunity); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (ab-
`solute immunity); Helstoski v. Meanor, 442 U.S. 500
`
`
`
`10
`
`(1979) (Speech or Debate Clause immunity); Abney v.
`United States, 431 U.S. 651 (1977) (double jeopardy).
`One premise of these decisions is that such a right would
`be “effectively lost if a case [were] erroneously permit-
`ted to go to trial.” Forsyth, 472 U.S. at 526. But the
`right to immediate appeal in such cases stems not
`merely (or necessarily) from “a right to avoid trial” as
`such, but as well from “a judgment about the value of
`the interests that would be lost through rigorous appli-
`cation of a final judgment requirement.” Hallock, 546
`U.S. at 350, 351-352 (citation omitted). The Court has
`thus denied immediate review of other collateral orders
`implicating a right to avoid trial, such as orders regard-
`ing application of the Federal Tort Claims Act’s judg-
`ment bar to preclude constitutional tort actions against
`federal officers, id . at 354-355; rescission of a private
`settlement agreement that would otherwise prohibit
`suit, Digital Equip., 511 U.S. at 873; and denial of
`dismissal based on asserted immunity from civil process
`for extradited persons and on forum non conveniens
`grounds, Van Cauwenberghe v. Biard, 486 U.S. 517
`(1988).
`Similarly, while the Court recently has permitted
`immediate review under the collateral order doctrine of
`orders implicating compelling interests of constitutional
`dimension, see Sell v. United States, 539 U.S. 166, 175-
`177 (2003) (forced medication of a prisoner to make him
`competent to stand trial), it has more often denied such
`review when important but non-constitutional interests
`are at stake, see, e.g., Cunningham v. Hamilton County,
`527 U.S. 198 (1999) (discovery sanctions order); Rich-
`ardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (dis-
`qualification of counsel in civil case); Coopers & Ly-
`brand, supra (order denying class certification).
`
`
`
`11
`
`In reconciling its modern collateral order prece-
`dents, the Court has explained that the doctrine applies
`only where the question considered implicates “some
`particular value of a high order,” such as “honoring the
`separation of powers, preserving the efficiency of gov-
`ernment and the initiative of its officials, respecting a
`State’s dignitary interests, [or] mitigating the govern-
`ment’s advantage over the individual.” Hallock, 546
`U.S. at 352-353. It is thus not merely an immediate in-
`terest, but “a substantial public interest, that counts
`when asking whether an order is ‘effectively’ unreview-
`able.” Id . at 353. In assessing the substantiality of par-
`ticular rights, the Court has made clear that those “orig-
`inating in the Constitution or statutes” are to be shown
`particular solicitude. Digital Equip., 511 U.S. at 879.
`While orders adjudicating certain rights “embodied in a
`constitutional or statutory provision” or having a simi-
`larly “good pedigree in public law” (such as qualified
`immunity) may be entitled to immediate review, orders
`adjudicating lesser interests are not. Id . at 875, 879.
`Although the relevant inquiry does not categorically
`exclude discovery orders from the collateral order doc-
`trine, “[a]s a general rule, a district court’s order enforc-
`ing a discovery request is not a ‘final order’ subject to
`appellate review.” Church of Scientology v. United
`States, 506 U.S. 9, 18 n.11 (1992). This Court’s prece-
`dents have long treated discovery orders differently
`because of their sheer volume, their often routine na-
`ture, and the potential that appeals from such orders
`would cause undue delay. The Court typically has stated
`that a party must disobey the disclosure order and ap-
`peal the resulting contempt order as a means of filtering
`disputes that justify immediate review. See, e.g., United
`States v. Ryan, 402 U.S. 530, 533 (1971) (“[T]he neces-
`
`
`
`12
`
`sity for expedition in the administration of the criminal
`law justifies putting one who seeks to resist the produc-
`tion of desired information to a choice between compli-
`ance with a trial court’s order to produce prior to any
`review of that order, and resistance to that order with
`the concomitant possibility of an adjudication of con-
`tempt if his claims are rejected on appeal.”); Behrens,
`516 U.S. at 319 (Breyer, J., dissenting) (“disobedience
`and contempt” requirement for discovery claims serves
`“to limit appeals to issues that are both important and
`reasonably likely to lead to reversal”) (quoting 15B
`Charles Alan Wright et al., Federal Practice & Proce-
`dure § 3914.23, at 154 (2d ed. 1992)).
`Application of the collateral order doctrine to the
`discovery context must be sensitive to the concerns ex-
`pressed in those precedents. See, e.g., Cunningham,
`527 U.S. at 209 (“Not only would [immediate appeals of
`discovery sanctions] ignore the deference owed by ap-
`pellate courts to trial judges charged with managing the
`discovery process, it also could forestall resolution of the
`case.”) (citing Firestone Tire & Rubber Co. v. Risjord,
`449 U.S. 368, 374 (1981)). Because the doctrine should
`“never be allowed to swallow the general rule” of a sin-
`gle post-judgment appeal, any allowance of an immedi-
`ate appeal in the discovery context must be narrow and
`limited to issues of such importance as the Court has
`found necessary in recent cases. Hallock, 546 U.S. at
`350 (quoting Digital Equip., 511 U.S. at 868).
`B. Orders Resolving Attorney-Client Privilege Disputes Do
`Not Qualify For Immediate Appeal Under The Collateral
`Order Doctrine
`The question remains whether discovery orders to
`produce information based on a finding that the attor-
`
`
`
`13
`
`ney-client privilege has been waived satisfy the tradi-
`tional Cohen criteria and implicate a sufficiently compel-
`ling interest to justify immediate appeal. Given the vol-
`ume and nature of such orders, the answer should be no.
`1. Discovery orders requiring disclosure of material
`allegedly subject to the attorney-client privilege do
`not as a class implicate an interest of a sufficiently
`high order
`a. The attorney-client privilege is not “embodied in
`a constitutional or statutory provision” or in “public
`law.” Digital Equip., 511 U.S. at 875, 879. Rather, like
`most discovery privileges, its origins are in common-law
`practice. While it is one of the oldest of such privileges,
`see Upjohn Co. v. United States, 449 U.S. 383, 389
`(1981), its modern evolution has been marked by an in-
`creasing array of exceptions designed to narrow the priv-
`ilege’s scope. See 3 Jack B. Weinstein & Margaret A.
`Berger, Weinstein’s Federal Evidence § 503.10[2], at
`503-13 (2d ed. 2009) (Weinstein) (“[T]he modern trend
`generally has been towards broader disclosure, mani-
`fested in ever-expanding provisions for discovery.”).
`The purpose of the attorney-client privilege is to pro-
`mote “the observance of law and administration of jus-
`tice” by encouraging “full and frank communication be-
`tween attorneys and their clients.” Upjohn, 449 U.S. at
`389. All parties can agree that this purpose is impor-
`tant. But for a class of orders to be immediately appeal-
`able, more is necessary. Here, the harm to the attorney-
`client relationship resulting from unjustified disclosure
`of their communications must outweigh the substantial
`costs of permitting pre-final-judgment appeals in all
`cases finding a waiver of the privilege.
`
`
`
`14
`
`The Court has not found other protections of the
`attorney-client relationship to justify immediate appeal.
`Fundamental to this relationship is, of course, the right
`to retain an attorney of one’s choosing. Indeed, for a
`criminal defendant, that right is protected by the Sixth
`Amendment. See, e.g., United States v. Gonzalez-Lopez,
`548 U.S. 140, 146 (2006). Yet an order infringing upon
`that interest cannot be immediately appealed. See
`Flanagan v. United States, 465 U.S. 259, 267 (1984)
`(order disqualifying criminal defense counsel not ap-
`pealable under collateral order doctrine); Richardson-
`Merrell, 472 U.S. at 435 (order disqualifying civil coun-
`sel not appealable under collateral order doctrine).
`When disqualification of chosen counsel, potentially in
`violation of the Constitution, does not give rise to an
`immediate appeal, denial of a common-law claim of privi-
`lege designed to strengthen the attorney-cli
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