Tuesday, October 6, 2009

Yesterday's SCOTUS Argument in Mohawk Industries v. Carpenter

As previewed earlier here, Mohawk Industries, Inc. v. Carpenter presents the question:

Whether a party has an immediate appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), of a district court's order finding waiver of the attorney-client privilege and compelling production of privileged materials.

The transcript from yesterday's oral argument is available here.

Note that the Solicitor-General's office also received argument time as an amicus supporting the respondent (beginning at p.41 of the transcript). The government agreed with the respondent that an order rejecting a claim of attorney-client privilege was not immediately appealable under the collateral order doctrine, but it urged the Court "not to foreclose" the collateral order doctrine's applicability to the presidential communications privilege or the state secrets privilege.

For additional coverage of the argument, see the ABA Journal and National Law Journal.


PS: No one participating in the argument challenged the desirability or coherence of the collateral order doctrine as a means of obtaining immediate appellate review. For my own views on that issue, see Reinventing Appellate Jurisdiction, 48 Boston College L. Rev. 1237 (2007).


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The amicus brief of former Judges and Professors, in support of respondents was signed by, among others, Abner Mikva and Kenneth Starr. As one of the signers put it, "If Abner Mikva and Ken Starr agree, it must be the right answer."

Posted by: Howard Wasserman | Oct 7, 2009 4:59:08 AM

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