In Mohawk Industries v. Carpenter, the U.S. Supreme Court held that there is no right to appeal from an interim court order requiring disclosure of information covered by the attorney-client privilege. Of course, a party can pursue the issue in a post-judgment appeal, but by that time the cat may be well out of the bag: the privileged information may have been turned over to the other side – and used by the other side – long ago. As the saying goes, it’s hard to unring the bell.
We noted the problem in an earlier article, and pointed out that in California state courts, the result would have been different (see Costco Wholesale Corp. v. Superior Court).
Bur the Ninth Circuit may have offered up a solution to the problem: issuance of a writ of mandate under the All Writs Act. Applying for such a writ is not an appeal, and hence it does not run afoul of the Mohawk ruling. Instead, the writ petition is s separate proceeding -- a new case, if you will -- asking a higher court to issue a writ to correct a mistake made by lower court judge in another case. To obtain relief, the petitioner must generally demonstrate that the problem cannot be corrected on an appeal and that the lower court ruling was “clearly erroneous.”
The ruling authorizing writ relief on an attorney-client privilege issue is Hernandez v. Tanninen, and a copy is attached for your convenience.