MOHAWK INDUSTRIES, INC. v. CARPENTER
No. 08-678
Supreme Court of the United States
Argued October 5, 2009-Decided December 8, 2009
558 U.S. 100
Randall L. Allen argued the cause for petitioner. With him on the briefs was Daniel F. Diffley.
Judith Resnik argued the cause for respondent. With her on the brief were J. Craig Smith, Dennis E. Curtis, Thomas J. Munger, Alan B. Morrison, Deepak Gupta, Brian Wolfman, and Sean K. McElligott.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae in support of respondent. With him on the brief were Solicitor General Kagan, Assistant Attorney General West, Pratik A. Shah, and Michael S. Raab.*
*Briefs of amici curiae urging reversal were filed for the American Bar Association by H. Thomas Wells, Jr., and Paul Mogin; for the Chamber of Commerce of the United States of America by Paul D. Clement, Jeffrey S. Bucholtz, Robin S. Conrad, and Amar D. Sarwal; and for DRI-The Voice of the Defense Bar by Constantine L. Trela, Jr., and Quin M. Sorenson.
Stephen I. Vladeck, Charles S. Sims, Mark D. Harris, and Anna G. Kaminska filed a brief for Former Article III Judges et al. as amici curiae urging affirmance.
Section 1291 of the Judicial Code confers on federal courts of appeals jurisdiction to review “final decisions of the district courts.”
The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.
I
In 2007, respondent Norman Carpenter, a former shift supervisor at a Mohawk manufacturing facility, filed suit in the United States District Court for the Northern District of Georgia, alleging that Mohawk had terminated him in violation of
After learning of Carpenter‘s complaint, the plaintiffs in the Williams case sought an evidentiary hearing to explore Carpenter‘s allegations. In its response to their motion, Mohawk described Carpenter‘s accusations as “pure fantasy” and recounted the “true facts” of Carpenter‘s dismissal. App. 208a. According to Mohawk, Carpenter himself had “engaged in blatant and illegal misconduct” by attempting to have Mohawk hire an undocumented worker. Id., at 209a. The company “commenced an immediate investigation,” during which retained counsel interviewed Carpenter. Id., at 210a. Because Carpenter‘s “efforts to cause Mohawk to circumvent federal immigration law” “blatantly violated Mohawk policy,” the company terminated him. Ibid.
As these events were unfolding in the Williams case, discovery was underway in Carpenter‘s case. Carpenter filed a motion to compel Mohawk to produce information concerning his meeting with retained counsel and the company‘s termination decision. Mohawk maintained that the requested information was protected by the attorney-client privilege.
The District Court agreed that the privilege applied to the requested information, but it granted Carpenter‘s motion to compel disclosure after concluding that Mohаwk had implicitly waived the privilege through its representations in the Williams case. See App. to Pet. for Cert. 51a. The court declined to certify its order for interlocutory appeal under
Mohawk filed a notice of appeal and a petition for a writ of mandamus to the Eleventh Circuit. The Court of Appeals dismissed the appeal for lack of jurisdiction under
A
By statute, courts of appeals “have jurisdiction of appeals from all final decisions of the district courts of the United States, . . . except where a direct review may be had in the Supreme Court.”
In applying Cohen‘s collateral order doctrine, we have stressed that it must “never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 868 (1994) (citation omitted); see also Will v. Hallock, 546 U. S. 345, 350 (2006) (“emphasizing [the doctrine‘s] modest scope“). Our admonition reflects a healthy respect for the virtues of the final-judgment rule. Permitting piecemeal, prejudgment appeals, we have recognized, undermines “efficient judicial administration” and encroaches upon the prerogatives of district court judges, who play a “special role” in managing ongoing litigation. Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981); see also Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 436 (1985) (“[T]he district judge can bеtter exercise [his or her] responsibility [to
The justification for immediate appeal must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes. This requirement finds expression in two of the three traditional Cohen conditions. The second condition insists upon “important questions separate from the merits.” Swint, 514 U. S., at 42 (emphasis added). More significantly, “the third Cohen question, whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement.” Digital Equipment, 511 U. S., at 878-879. That a ruling “may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment . . . has never sufficed.” Id., at 872. Instead, the decisive consideration is whether delaying review until the entry of final judgment “would imperil a substantial public interest” or “some particular value of a high order.” Will, 546 U. S., at 352-353.
In making this determination, we do not engage in an “individualized jurisdictional inquiry.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 473 (1978). Rather, our focus is on “the entire category to which a claim belongs.” Digital Equipment, 511 U. S., at 868. As long as the class of claims, taken as а whole, can be adequately vindicated by other means, “the chance that the litigation at hand might be speeded, or a ‘particular injustic[e]’ averted,” does not provide a basis for jurisdiction under § 1291. Ibid. (quoting Van Cauwenberghe v. Biard, 486 U. S. 517, 529 (1988); alteration in original).
B
In the present case, the Court of Appeals concluded that the District Court‘s privilege-waiver order satisfied the first
Mohawk does not dispute that “we have generally denied review of pretrial discovery orders.” Firestone, 449 U. S., at 377; see also 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3914.23, p. 123 (2d ed. 1992) (hereinafter Wright & Miller) (“[T]he rule remains settled that most discovery rulings are not final“). Mohawk contends, however, that rulings implicating the attorney-client privilege differ in kind from run-of-the-mill discovery orders because of the important institutional interests at stake. According to Mohawk, the right to maintain attorney-client confidences-the sine qua non of a meaningful attornеy-client relationship-is “irreparably destroyed absent immediate appeal” of adverse privilege rulings. Brief for Petitioner 23.
We readily acknowledge the importance of the attorney-client privilege, which “is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U. S. 399, 403 (1998). By assuring confidentiality, the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation. Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). This, in turn, serves “broader public interests in the observance of law and administration of justice.” Ibid.
The crucial question, howevеr, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until
We reach a similar conclusion here. In our estimation, postjudgment appeals generally suffice to protect the rights of litigants and ensure the vitality of the attorney-client privilege. Appellate сourts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.
Dismissing such relief as inadequate, Mohawk emphasizes that the attorney-client privilege does not merely “prohibi[t] use of protected information at trial“; it provides a “right not to disclose the privileged information in the first place.” Brief for Petitioner 25. Mohawk is undoubtedly correct that an order to disclose privileged information intrudes on the confidentiality of attorney-client communications. But deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.
One reason for the lack of a discernible chill is that, in deciding how freely to speak, clients and counsel are unlikely to focus on the remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal. Whether or not immediate collateral order appeals are available, clients and counsel must account for the possibility that they will later be required by law to disclose their communications for a variety of reasons-for example, because they misjudged the scope of the privilege, because they waived the privilege, or because their communications fell within the privilege‘s crime-fraud exception. Most district court rulings on these matters involve the routine application of settled legal principles. They are unlikely to be reversed on appeal, particularly when they rest on factual determinations for which appellate deference is the norm. See, e. g., Richardson-Merrell, 472 U. S., at 434 (“Most pretrial orders of district judges are ultimately affirmed by appellate courts“); Reise v. Board of Regents, 957 F. 2d 293, 295 (CA7 1992) (noting that “almоst all interlocutory appeals from discovery orders would end in affirmance” because “the district court possesses discretion, and review is deferential“). The breadth of the privilege and the narrowness of its exceptions will thus tend to exert a much greater influence on the conduct of clients and counsel than the small risk that the law will be misapplied.2
Moreover, were attorneys and clients to reflect upon their appellate options, they would find that litigants confronted with a particularly injurious or novel privilege ruling have several potential avenues of review apart from collateral order аppeal. First, a party may ask the district court to certify, and the court of appeals to accept, an interlocutory appeal pursuant to
Another long-recognized option is for a party to defy a disclosure order and incur court-imposed sanctions. District courts have a range of sanctions from which to choose, including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses,” or “striking pleadings in whole or in part.”
These established mechanisms for appellate review not only provide assurances to clients and counsel about the security of their confidential communications; they also go a long way toward addressing Mohawk‘s concern that, absent collateral order appeals of adverse attorney-client privilege rulings, some litigants may experience severe hardship. Mohawk is no doubt right that an order to disclose privileged material may, in some situations, have implications beyond the case at hand. But the same can be said about many categories of pretrial discovery orders for which collateral order appeals are unavailable. As with these other orders, rulings adverse to the privilege vary in their significance; some may be momentous, but others are more mundane. Section 1292(b) appeals, mandamus, and appeals from contempt citations facilitate immediate review of some of the more consequential attorney-client privilege rulings. Moreover, protective orders are available to limit the spillover effects of disclosing sensitive information. That a fraction of orders adverse to the attorney-client privilege may nevertheless harm individual litigants in ways that are “only imperfectly reparable” does not justify making all such orders immediately appealable as of right under § 1291. Digital Equipment, 511 U. S., at 872.
In short, the limited benefits of applying “the blunt, categorical instrument of § 1291 collateral order appeal” to privilege-related disclosure orders simply cannot justify the likely institutional costs. Id., at 883. Permitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings would unduly delay the resolution of district court litigation and needlessly burden the courts of appeals. See Wright & Miller § 3914.23, at 123 (“Routine appeal from disputed discovery orders would disrupt the orderly progress of the litigation, swamp the courts оf appeals, and substantially reduce the district court‘s ability to con-
C
In concluding that sufficiently effective review of adverse attorney-client privilege rulings can be had without resort to the Cohen doctrine, we reiterate that the class of collaterally appealable orders must remain “narrow and selective in its membership.” Will, 546 U. S., at 350. This admonition has acquired special force in recent years with the enactment of legislation designating rulemaking, “not expansion by court decision,” as the preferred means for determining whether and when prejudgment orders should be immediately appealable. Swint, 514 U. S., at 48. Specifically, Congress in 1990 amended the Rules Enabling Act,
Indeed, the rulemaking process has important virtues. It draws on the collective experience of bench and bar, see
* * *
In sum, we conclude that the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege. Effective appellate review can be had by other means. Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.
It is so ordered.
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I concur in the judgment and in Part II-C of the Court‘s opinion because I wholeheartedly agree that “Congress‘s designation of the rulemaking process as the way to define or refine when a district court ruling is ‘final’ and when an interlocutory order is appealable warrants the Judiciary‘s
The scope of federal appellate jurisdiction is a matter the Constitution expressly commits to Congress, see
We need not, and in my view should not, further justify our holding by applying the Cohen doctrine, which prompted the rulemaking amendments in the first placе. In taking this path, the Court needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit. See, e. g., Ashcroft v. Iqbal, 556 U. S. 662, 671-675 (2009); Will v. Hallock, 546 U. S. 345, 349 (2006); Sell v. United States, 539 U. S. 166, 177 (2003); Cunningham, supra, at 210; Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 884 (1994); Swint, supra, at 48; Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 498-501 (1989); Van Cauwenberghe v. Biard, 486 U. S. 517, 527 (1988). The Court‘s choice of analysis is the more ironic because applying Cohen to the facts of this case requires the Court to reach conclusions on, and thus potentially prejudice, the very matters it says would benefit from “the collective experience of bench and bar” and the “opportunity for full airing” that rulemaking provides. Ante, at 114.
“Finality as a condition of review is an historic characteristic of federal appellate procedure” that was incorporated in the first Judiciary Act and that Congress itself has “departed from only when observance of it would practically defeat the right to any review at all.” Cobbledick v. United States, 309 U. S. 323, 324-325 (1940). Until 1949, this Court‘s view of the appellate jurisdiction statute reflected this principle and the statute‘s text. See, e. g., Catlin v. United States, 324 U. S. 229, 233 (1945) (holding that § 128 of the Judicial Code (now
Cohen and the early decisions applying it allowed § 1291 appeals of interlocutory orders concerning the posting of a bond, see id., at 545-547, the attachment of a vessel in admiralty, see Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 688-689 (1950), and the imposition of notice costs in a class action, see Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 170-172 (1974). As the Court‘s opinion notes, later decisions sought to narrow Cohen lest its exception to § 1291 “swallow” the final judgment rule. Ante, at 106 (quoting Digital Equipment, supra, at 868); see generally Coopers & Lybrand v. Livesay, 437 U. S. 463, 467-468 (1978). The Court has adhered to that narrowing approach, principally by raising the bar on what types of interests are “important enough” to justify collateral order appeals. See, e. g., Will, supra, at 352-353 (exрlaining that an interlocutory order typically will be “important” enough to justify Cohen review only where “some particular value of a high order,” such as “honoring the separation of powers, preserving the efficiency of government . . . , [or] respecting a State‘s dignitary interests,” is “marshaled in support of the interest in avoiding trial” and the Court determines that denying review would “imperil” that interest); Digital Equipment, supra, at 878-879 (noting that appealability under Cohen turns on a “judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement,” and that an interest “qualifies as ‘important’ in Cohen‘s sense” if it is “weightier than the societal interеsts advanced by the ordinary operation of final judgment principles“). As we recognized last Term, however, our attempts to contain the Cohen doctrine have not all been successful or persuasive. See Ashcroft, supra, at 672 (“As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen“). In my view, this case presents an opportunity to improve our approach.
The privilege interest at issue here is undoubtedly important, both in its own right and when compared to some of the interests (e. g., in bond and notice-cost rulings) we have held to be appealable under Cohen. Accordingly, the Court‘s Cohen analysis does not rest on the privilege order‘s relative unimportance, but instead on its effective reviewability after final judgment. Ante, at 108-113. Although I agree with the Court‘s ultimate conclusion, I see two difficulties with this approach. First, the Court emphasizes that the alternative avenues of review it discusses (which did not prove adequate in this case) would be adequate where the privilege
*The Court concludes, for example, that in most cases final judgment review of an erroneous privilеge ruling will suffice to vindicate the injured party‘s rights because the appellate court can vacate the adverse judgment and remand for a new trial in which the protected material is excluded. Ante, at 109. But this case appears to involve one of the (perhaps rare) situations in which final judgment review might not be sufficient because it is a case in which the challenged order already has had “implications beyond the case at hand,” namely, in the separate class action in Williams v. Mohawk Indus., Inc., No. 4:04-CV-00003-HLM (ND Ga.). Ante, at 112. The Court also concludes that the “likely institutional costs” of allowing collateral order review would outweigh its benefits because, inter alia, such review would “needlessly burden the courts of appeals.” Ibid. But as the Court concedes, it must speculate on this point because the three Circuits that allow Cohen appeals of privilege rulings have not been overwhelmed. See ante, at 113.