Lead Opinion
delivered the opinion of the Court.
Section 1291 of the Judicial Code confers on federal
The question before us is whether disclosure orders
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 42 U. S. C. § 1985(2) and various Georgia laws. According to Carpenter’s complaint, his termination came after he informed a member of Mohawk’s human resources department in an e-mail that the company was employing undocumented immigrants. At the time, unbeknownst to Carpenter, Mohawk stood accused in a pending class-action lawsuit of conspiring to drive down the wages 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
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 Mohawk 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 28 U. S. C. § 1292(b). But, recognizing “the seriousness of its [waiver] finding,” it stayed its ruling to allow Mohawk to explore other potential “avenues to appeal . . . , such as a petition for mandamus or appealing this Order under the collateral order doctrine.” App. to Pet. for Cert. 52a.
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 28 U. S. C. § 1291, holding that the District Court’s ruling did not qualify as an immediately appealable collateral order within the meaning of Cohen,
II
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.” 28 U. S. C. § 1291. A “final decisio[n]” is
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.,
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,
In making this determination, we do not engage in an “individualized jurisdictional inquiry.” Coopers & Lybrand v. Livesay,
B
In the present case, the Court of Appeals concluded that the District Court’s privilege-waiver order satisfied the first two conditions of the collateral order doctrine — conclusiveness and separateness — but not the third — effective unreviewability. Because we agree with the Court of Appeals that collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege, we do not decide whether the other Cohen requirements are met.
Mohawk does not dispute that “we have generally denied review of pretrial discovery orders.” Firestone,
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,
The crucial question, however, 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 immediаte appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system. See, e.g., Richardson-Merrell,
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 courts can remedy the improper disclosurе of privileged material in the same way they
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 confidеntiality 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,
Moreover, were attorneys and clients to reflect upon their appellate options, they would find that litigants confrontеd with a particularly injurious or novel privilege ruling have several potential avenues of review apart from collateral order appeal. First, a party may ask the district court to certify, and the court of appeals to accept, an interlocutory appeal pursuant to 28 U. S. C. § 1292(b). The preconditions for § 1292(b) review — “a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation” — are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequеnce, and district courts should not hesitate to certify an interlocutory appeal in such cases. Second, in extraordinary circumstances — i. e., when a disclosure order “amount[s] to a judicial usurpation of power or a clear abuse of discretion,” or otherwise works a manifest injustice — a party may petition the court of appeals for a writ of mandamus. Cheney v. United States Dist. Court for D. C.,
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.” Fed. Rules Civ. Proc. 37(b)(2)(A)(i)-(iii). Such sanctions allow a party to obtain post judgment review without having to reveal its privileged information. Alternatively, when the circumstances warrant it, a district court may hold a noncomplying party in contempt. The party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment. See, e. g., Church of Scientology of Cal. v. United States,
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,
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 of appeals, and substantially reduce the district court’s ability to control the discovery process”); cf. Cunningham v. Hamilton County,
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,
Indeed, the rulemaking process has important virtues. It draws on the collective experience of bench and bar, see 28 U. S. C. § 2073, and it facilitates the adoption of measured, practical solutions. We expect that the combination of standard postjudgment appeals, § 1292(b) appeals, mandamus, and contempt appeals will continue to provide adequate protection to litigants orderеd to disclose materials purportedly subject to the attorney-client privilege. Any further avenue for immediate appeal of such rulings should be furnished, if at all, through rulemaking, with the opportunity for full airing it provides.
* * *
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.
Notes
Three Circuits have permitted collateral order appeals of attorney-client privilege rulings. See In re Napster, Inc. Copyright Litigation,
Perhaps the situation would be different if district courts were systematically underenforeing the privilege, but we have no indication that this is the case.
Mohawk itself petitioned the Eleventh Circuit for a writ of mandamus. See supra, at 105. It has not asked us to review the Court of Appeals’ denial of that relief.
Participating as amicus curiae in support of respondent Carpenter, the United States contends that collateral order appeals should be available for rulings involving certain governmеntal privileges “in light of their structural constitutional grounding under the separation of powers, relatively rare invocation, and unique importance to governmental functions.” Brief for United States 28. We express no view on that issue.
Concurrence Opinion
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 scopе of federal appellate jurisdiction is a matter the Constitution expressly commits to Congress, see Art. I, § 8, cl. 9, and that Congress has addressed not only in 28 U. S. C. §§ 1291 and 1292, but also in the Rules Enabling Act amendments to which the Court refers. See ante, at 113-114 (citing §§2072-2073). The Court recognizes that these amendments “designat[e] rulemaking, ‘not expansion by court decision,’ as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Ante, at 113 (quoting Swint, supra, at 48). Because that designation is entitled to our full respect, and because the privilege order here is not on all fours with orders we previously have held to be appealable under the collateral order doctrine, see Cohen v. Beneficial Industrial Loan Corp.,
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 place. 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,
“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 “departеd from only when observance of it would practically defeat the right to any review at all.” Cobbledick v. United States,
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.,
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 ruling at issue is “particularly injurious or novel.” Ante, at 110. If that is right, and it seems to me that it is, then the opinion raises the question why such avenues were not also adequate to address the orders whose unusual importance or particularly injurious nаture we have held justified immediate appeal under Cohen. See, e. g., Sell,
The Court concludes, for example, that in most cases final judgment review of an erroneous privilege 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 ease 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.