Appellate Review of Discovery Orders in Federal Court: A Suggested Approach for Handling Privilege Claims

The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts have therefore applied varying exceptions or extensions to those requirements in an effort to encompass such privilege orders within them. This Article proposes a two-tiered system of review to remedy the harm caused by erroneous disclosure orders without stretching the current system of interlocutory review so far that the benefits of the final judgment rule vanish. The Article recommends that review begin in the district court with a motion to certify a discretionary appeal under 28 U.S.C. § 1292(b), which requires a district court to certify an order that \u27involves a controlling question of law as to which there is substantial ground for difference of opinion,\u27 if \u27an immediate appeal from the order may materially advance the ultimate termination of the litigation.\u27 If a district court refuses to certify an order even though it clearly satisfies the requirements of § 1292(b), then the appellate court should exercise its mandamus power to review the case. This two-tiered system of review would provide a consistent mechanism by which the most difficult and important privilege orders could be immediately reviewed, but would not impose too heavy a burden on the already-crowded appellate dockets. On January 26, 2009, the Supreme Court granted a writ certiorari in Mohawk Industries v. Carpenter, 08-676. Mohawk raises the question of whether a party may seek an interlocutory appeal of a district court order compelling production of material that is claimed to be subject to attorney-client privilege. The case is scheduled for argument on October 5, 2009