[UPDATE: The Supreme Court issued its opinion in Mohawk Industries v. Carpenter, holding attorney-client privilege was not immediately appealable.]
Last week, the Fulton County Daily Report noted:
The Obama administration and a group of law professors and former federal judges are asking the U.S. Supreme Court to reject a Georgia company’s plea for a change in the way many appellate courts deal with questions of attorney-client privilege.
Earlier this year, a coalition of business interests and the American Bar Association filed amicus briefs joining carpet maker Mohawk Industries’ argument that parties in federal cases should be allowed to immediately appeal lower court findings that the parties have waived their rights to keep key information secret under attorney-client privilege. They argue that once privileged material is produced in discovery, the consequences of disclosure cannot be undone by an appellate reversal of the trial order mandating production.
But this month, the former Mohawk employee seeking information the company claims is privileged received some high-powered help of his own. U.S. Solicitor General Elena Kagan filed an amicus brief supporting the former employee, plaintiff Norman Carpenter, as did the group of 19 law professors and six former federal judges that includes former Whitewater independent counsel Kenneth W. Starr; former Federal Bureau of Investigation director William S. Sessions; former federal judges Patricia M. Wald and Abner J. Mikva; and legal scholar Erwin Chemerinsky. They argue that a Mohawk win at the Supreme Court would undermine district court judges’ ability to control the discovery process.
The relevant briefs and a synopsis of the arguments are available at SCOTUSwiki. Seeing Starr and Chemerinsky on the same side of an issue is almost as odd as seeing Ted Olson joining David Boies to sue for gay rights.
The position of the Chamber of Commerce and Defense Research Institute is no surprise: deny, distract and, above all, delay.
But why do bar associations (like the Philadelphia Bar Association) have a penchant for chiming in only on behalf of defendants?
In one sense, the question we’re really asking is one of balance. Everyone would like to have every issue decided against them made immediately appealable. But we can’t do that; as the former judges’ brief notes, the courts are overworked as is, and, as the plaintiff’s brief notes, there are dozens of serious issues — like those affecting constitutional rights and criminal convictions — which are not immediately appealable.
Where does attorney-client privilege (involving discussions regarding a separate case) fit on the totem pole?