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Courts generally dislike interlocutory appeals, because they
delay litigation and increase appellate courts' workloads.
Courts traditionally have taken a more forgiving approach to
interlocutory appeals of lower court orders requiring the
production of privileged communications or work product –
because of the "cat out of the bag" effect. However, in
recent years federal courts have been retreating from this
forgiving approach. Most notably, in 2009 the United States Supreme
Court held that litigants could no longer rely on the collateral
order doctrine to seek an immediate appeal of such orders.
Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599
(2009).
In Ott v. City of Milwaukee, 682 F.3d 552 (7th Cir.
2012), the Seventh Circuit held that the Mohawk case
mentioned above applied with equal force to non-parties subject to
discovery under Rule 45. Five days earlier, in In re Grand
Jury, 680 F.3d 328 (3d Cir. 2012), the Third Circuit focused
on the Perlman doctrine, under which the privilege's
owner can immediately appeal an order requiring a third party to
produce the owner's privileged communications. The
Perlman doctrine rests on the assumption that the third
party would not want to risk contempt as a vehicle for
interlocutory appeal, because it does not own the privilege. The
Third Circuit held that the Perlman doctrine does
not apply if (1) the privilege's owner was
ordered to produce the communications, and (2) the owner could
obtain possession of the privileged communications from the third
party (in this case, a law firm which was ethically obligated to
hand privileged documents back to its client).
Appellate courts' hostility to interlocutory appeals raises
the stakes in any privilege fight at the trial court level
– because a litigant losing a privilege fight might have
to produce privileged communications during the litigation, and
wait until a final order is issued before seeking appellate relief
(which by then is largely useless).
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