The Supreme Court is set to hear oral arguments next month in an interesting matter that will resolve a split on whether a district court's order allowing discovery over an attorney-client privilege objection is immediately appealable under an exception to the finality requirements that normally govern appeals.
In Mohawk Industries, Inc. v. Carpenter, No. 08-678, argument is scheduled for October 5, 2009. The appeal is from a decision of the Eleventh Circuit in August 2008, dismissing an appeal from Mowhawk arising from the district court's order allowing discovery over Mowhawk's assertion of the attorney-client privilege.
The case arose after Carpenter reported to Mohawk that several temporary employees actually were illegal aliens. In the course of its investigation, Mohawk required Carpenter to talk to Mohawk's outside counsel. Mohawk later terminated Carpenter, causing Carpenter to file this lawsuit in which he alleged that he had been terminated in connection with his refusal to withdraw his report about illegal aliens.
During the litigation, Carpenter sought to obtain through discovery information about his interview with Mohawk’s outside counsel that had occurred at Mowhawk's insistence. Mohawk declined to provide any information, arguing that the interview and entire investigation were protected by the attorney-client privilege. The district court ruled that Mohawk had waived the privilege by putting the communications themselves in play during a separate class action lawsuit that was pending at the same time.
Mohawk appealed to the Eleventh Circuit, asserting that the district court's order allowing the discovery was immediately appealable under the collateral order doctrine providing an exception to the finality requirement of 28 U.S.C. § 1291. The Eleventh Circuit dismissed the appeal, rejecting Mowhak's argument that the collateral order doctrine applied, holding that the discovery order would not be “unreviewable” on appeal from the district court’s final judgment. See Carpenter v. Mowhawk Indus., Inc., 541 F.3d 1048 (11th Cir. 2008).
The Supreme Court court granted certiorari to resolve a circuit split on whether the collateral order doctrine permits an immediate appeal of a discovery order permitting discovery based on a finding of a waiver of the attorney-client privilege.
This will be an interesting one to see resolved.
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