December 8, 2009
SCOTUS decision in Mohawk Industries v. Carpenter: the collateral order doctrine, discovery orders, and the attorney-client privilege
"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."
Justice Thomas concurred in judgment, writing separately to challenge the legitimacy of the collateral order doctrine (a.k.a., the Cohen doctrine):
"We need not, and in my view should not, further justify our holding by applying the Cohen doctrine.... In taking this path, the Court needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit."
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