United States v. Copar Pumice Company
2013 U.S. App. LEXIS 9148
| 10th Cir. | 2013Background
- This is an interlocutory appeal from discovery orders requiring Defendants’ law firms to produce documents containing legal advice regarding the legality of mining, transporting, processing, and marketing pumice from Brown Placer Claims 9-12 (El Cajete Mine).
- The United States sues Copar and the Cooks for trespass, conversion, and unjust enrichment based on removal and use of under-sized pumice in violation of the JNRAA and related regs.
- A magistrate judge found waiver of attorney-client privilege where Defendants asserted a good faith defense relying on legal advice, and ordered production of documents; Defendants did not comply.
- The district court limited the scope of waiver and noted prior concessions that work-product and post-2010 documents would be excluded; the magistrate clarified the scope in a later order.
- Defendants seek interlocutory review under collateral order, Perlman, and pragmatic finality doctrines; the government seeks dismissal for lack of jurisdiction.
- The court ultimately dismisses the interlocutory appeal for lack of jurisdiction, upholding that none of the doctrines authorizes immediate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the collateral order doctrine grants appellate jurisdiction. | United States argues collateral order jurisdiction fails. | Defendants contend collateral order applies due to waiver of privilege. | No collateral order jurisdiction. |
| Whether the Perlman doctrine applies to review of discovery orders in civil litigation. | United States argues Perlman extends to prevent premature waivers. | Defendants rely on Perlman to allow immediate review. | Perlman does not apply in civil discovery after Mohawk. |
| Whether the pragmatic finality doctrine supports interlocutory review. | United States contends exceptional circumstances justify review. | Defendants deny unique harm justifying immediate review. | Pragmatic finality doctrine does not apply. |
| Whether mandamus is warranted to review discovery of privileged information. | United States would be vindicated by immediate mandamus review. | Defendants argue mandamus is warranted in extraordinary circumstances. | Mandamus relief denied. |
| Whether post-judgment review provides adequate protection of attorney-client privilege. | Post-judgment review suffices to protect privilege rights. | Post-judgment review suffices; no immediate appeal. |
Key Cases Cited
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (collateral order doctrine framework and three-factor test)
- Perlman v. United States, 247 U.S. 7 (1918) (peripheral collateral-reviewavailability in certain subpoena contexts)
- Mohawk Industries, LLC v. Carpenter, 558 U.S. 100 (2009) (limits on attorney-client privilege disclosure orders; post-judgment review generally adequate)
- In re Motor Fuel, 641 F.3d 470, 641 F.3d 470 (10th Cir. 2011) (Mohawk applied to narrow collateral-order review; no collateral appeal here)
- Boughton v. Cotter Corp., 10 F.3d 746 (10th Cir. 1993) (collateral-order review not normally available for discovery orders)
- Holt-Orsted v. City of Dickson, 641 F.3d 230 (6th Cir. 2011) (Mohawk impact on Perlman; limits in civil actions)
- Wilson v. O’Brien, 621 F.3d 641 (7th Cir. 2010) (Mohawk limits on Perlman in civil discovery contexts)
- Krane v. United States, 625 F.3d 568 (9th Cir. 2010) (per discussion on Perlman applicability when privilege holder is non-party)