958 F.3d 163
2d Cir.2020Background:
- Rosner sued the United States seeking tax refunds for 2006 and 2008, arguing the three-year limitations period was tolled because he was disabled and unable to manage his affairs under 26 U.S.C. § 6511(h).
- Rosner submitted letters from a psychologist and a psychiatrist diagnosing PTSD and other conditions to support the tolling claim.
- The government sought the therapists’ records and depositions; Rosner asserted the psychotherapist–patient privilege and objected to disclosure.
- The district court overruled Rosner’s privilege objection, finding he waived the privilege by placing his mental health at issue, and ordered disclosure.
- Rosner filed an interlocutory appeal challenging that disclosure order.
- The Second Circuit held it lacked jurisdiction: the disclosure order is non-final and is not appealable under the collateral-order doctrine or the Perlman exception because Rosner is a party with adequate post-judgment and other remedies.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non-final disclosure order adverse to the psychotherapist–patient privilege is immediately appealable | Rosner: the order is immediately appealable (relying on Perlman and motion-to-quash principles) | U.S.: not immediately appealable; post-judgment review and other remedies suffice (Mohawk controlling) | Dismissed for lack of jurisdiction; collateral-order doctrine does not apply |
| Whether the Perlman exception permits immediate appeal when the privilege holder is a party | Rosner: Perlman permits immediate review to prevent misuse of privileged materials | U.S.: Perlman limited; does not apply where the privilege holder is a litigant with other remedies | Perlman exception does not apply because Rosner is a party and has post-judgment and other review avenues |
Key Cases Cited
- Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (orders adverse to privilege are generally not immediately appealable; post-judgment relief usually adequate)
- Jaffee v. Redmond, 518 U.S. 1 (recognizing psychotherapist–patient privilege and its policy basis)
- Perlman v. United States, 247 U.S. 7 (earlier exception allowing immediate appeal when privilege holder cannot avert misuse of documents)
- United States v. Punn, 737 F.3d 1 (2d Cir. discussing Perlman exception and its limits)
- SEC v. Rajaratnam, 622 F.3d 159 (2d Cir. applying Mohawk to other privacy-based evidentiary rights)
- In re City of New York, 607 F.3d 923 (2d Cir. applying Mohawk to law-enforcement privilege)