According to the Court’s opinion, the employer was defending class action litigation which alleged that it was driving down the wages of its legal employees by employing undocumented immigrant workers (or illegal aliens). Unaware of this, the plaintiff emailed the employer’s human resources department that it was employing undocumented workers. Accordingly, he was asked to meet with the employer’s attorney who was defending the class action litigation. The plaintiff claims that he was unlawfully fired after he refused to recant his statement when pressured by the attorney. The district court ordered the employer to produce information about the plaintiff’s meeting with the attorney and the termination decision. Although the court agreed with the employer that the information was privileged, it found that the privileged had been implicitly waived through disclosures in the class action. In particular, when the class action plaintiffs sought information about the plaintiff’s termination, the employer claimed that he had been fired for recommending the hiring of undocumented workers and had been interviewed by the attorney to substantiate the investigation. By revealing the content of the communication and its relation to the plaintiff’s termination in the class action, the court found the employer waived attorney client privilege in the wrongful termination litigation as well. The district court stayed its order, but refused to certify the issue for immediate appeal. The Court of Appeals dismissed the appeal as well. On appeal, all of the Justices affirmed the dismissal, although Justice Thomas wrote his own concurring opinion.
On appeal, the employer conceded that the discovery order was not a final appealable order, but argued that jurisdiction existed nonetheless because it was an appealable collateral order.
The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.
The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.
The Court concluded that the employer could protect its privileged communications in a number of ways:
First, a party may ask the district court to certify, and the court of appeals to accept, a ninterlocutory appeal pursuant to 28 U. S. C. §1292(b). The preconditions for §1292(b) review—“a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation”—are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases. Second, in extraordinary circumstances—i.e., when a disclosure order “amount[s] to a judicial usurpation of power or a clear abuse of discretion,” or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. . . [Third, a]nother long-recognized option is for a party to defy a disclosure order and incur court-imposed sanctions. District courts have a range of sanctions from which to choose, including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses,” or “striking pleadings in whole or in part.” Fed. Rule Civ. Proc. 37(b)(2)(i)–(iii). Such sanctions allow a party to obtain post judgment review without having to reveal its privileged information. [Finally], when the circumstances warrant it, a district court may hold a noncomplying party in contempt. The party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
