March 01, 2017

Privilege: After Mohawk: What Remedies Are Left for Litigants Facing Adverse Privilege Rulings?

Edna Selan Epstein

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Your client has just lost a privilege claim and has been ordered by the trial court to turn over attorney-client privileged documents. These may prove to be the nail in the coffin to your successful defense on the claims at issue. You are convinced that the trial court made a mistake in ruling that the documents were indeed privileged communications between your client and in-house counsel but that the privilege had been waived.

What are you to do? Appeals from trial court decisions that are not final are precluded under 28 U.S.C. ยง 1291. The discovery ruling is dispositive of your privilege claim, but it is not a final judgment on the underlying claims. However, until the Supreme Court weighed in on the question of interlocutory appeals in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), you had four arrows in your quiver. Thanks to Mohawk, you now have only three left.

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