Kurstin v. Bromberg Rosenthal, LLP
24 A.3d 88
| Md. | 2011Background
- This case concerns a discovery order in a pretrial context that compelled disclosure allegedly protected by attorney-client privilege.
- Petitioner Coralie Kurstin sought to appeal an January 8, 2009 circuit court order denying a motion to quash deposition and for protective order and holding that the attorney-client privilege had been waived.
- The District Court suit sought unpaid fees under an employment agreement; a counterclaim and related filings included a malpractice context related to prior divorce settlement arrangements.
- Respondents sought to depose petitioner’s present counsel, arguing waiver of the attorney-client privilege and seeking to probe communications relevant to a malpractice claim.
- The Court of Special Appeals dismissed the appeal as premature under the collateral order doctrine; the Maryland Supreme Court granted certiorari and addressed appellate jurisdiction and waiver issues.
- The Court ultimately held that the discovery order was not immediately appealable and affirmed the Court of Special Appeals’ judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Collateral order doctrine applicability to discovery orders | Kurstin argues immediate appeal is permitted | Respondents contend discovery orders are appealable under collateral order | No; not immediately appealable |
| Waiver of attorney-client privilege by suit | Petitioner did not waive by filing counterclaims | Petitioner’s counterclaims implicitly waived privilege | Not a waiver; privilege remains protected until properly pierced |
| Standards for appellate review of privilege determinations | Client holds the privilege; client should have appellate options | Attorney lacks standing to appeal in place of client | Client, not attorney, holds the privilege; immediate review not appropriate |
| Impact of Mohawk Industries on Maryland collateral order review | Mohawk supports broader immediate review | Mohawk dictates no collateral order review for privilege orders | Mohawk favors not extending collateral order review; postjudgment remedies available |
Key Cases Cited
- Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009) (disclosure orders adverse to attorney-client privilege not immediately appealable under collateral order doctrine)
- Harris v. State, 420 Md. 300 (2011) (discusses Mohawk in Maryland context; appellate jurisdiction alignment)
- St. Mary’s County v. Lacer, 903 A.2d 378 (Md. 2006) (recognizes general non-appealability of discovery orders under collateral order doctrine)
- In re Foley, 820 A.2d 587 (Md. 2003) (discovery orders are typically not appealable under collateral order doctrine)
- Falik v. Hornage, 991 A.2d 1243 (Md. 2010) (describes collateral order doctrine limitations on discovery orders)
- St. Joseph Medical Center v. Cardiac Surgery Associates, 896 A.2d 304 (Md. 2006) (discovery orders generally not appealable under collateral order doctrine)
- Sigma Reproductive Health Center v. State, 467 A.2d 483 (Md. 1983) (denial of motion to quash subpoena not appealable)
- Electronic Data Systems Corp. v. Westmoreland Associates, 536 A.2d 662 (Md. 1988) (collateral order doctrine not applicable to privileged-disclosure orders)
- Montgomery County v. Stevens, 654 A.2d 877 (Md. 1995) (illustrates collateral order doctrine application in MD)