Wednesday, December 09, 2009

On putting the genie back in the bottle

The Supreme Court held in Mohawk Industries v. Carpenter written by new Justice Sotomayor that if the trial court makes you fork over discovery that you think is covered by the attorney-client privilege, you cannot take an immediate appeal under the collateral order exception to the requirement that only "final" orders are appealable.

And, the rationale was that the wrongful disclosure of privileged documents can be fixed after the end of the case, or appealed some other way perhaps - such as defying the Court's order and getting thrown in jail, which seems like something that would not ordinarily be the path of choice.

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