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Argument Preview: Mohawk Industries, Inc. v. Carpenter

Below, Jake Phillips previews Mohawk Industries v. Carpenter, one of the three cases to be heard by the Supreme Court on its opening argument day of OT09, Monday, October 5. Jake is a rising third year at Berkeley Law School and a summer associate at Akin Gump. Check the Mohawk Industries v. Carpenter SCOTUSwiki page throughout the summer for additional updates and newly filed briefs.

Argument Preview

Under the collateral order doctrine, interlocutory appeals are permitted only when the three criteria established by the Court in Cohen v. Beneficial Industrial Loan Corp. are met – viz., (1) the district court order has conclusively determined the issue, (2) the issue is both important and collateral to (i.e. separate from) the merits, and (3) the issue would be effectively unreviewable upon appeal from a final decision.  On October 5, 2009, in No. 08-678, Mohawk Industries, Inc. v. Carpenter, the Court will consider whether a district court’s order to waive the attorney-client privilege to compel production of privileged materials is immediately appealable under the collateral order doctrine.


In March 2007, respondent Norman Carpenter filed this lawsuit after he was fired by petitioner Mohawk Industries.  Carpenter contends that he was let go because he refused to recant a report indicating that many of Mohawk’s temporary employees were illegal aliens; the report could have been damaging to Mohawk, which was the defendant in a class action suit pending at that time.  Mohawk, on the other hand, claims that Carpenter urged the company to hire a particular illegal worker, which he justified by stating that “90% of the people that come through the temp do not have good papers.”  Mohawk conducted an internal investigation, during which Carpenter was interviewed by an outside attorney who was also representing Mohawk in the class action suit.  Shortly thereafter, Mohawk fired Carpenter, who then brought suit against the company for conspiring to deter him by intimidation or threat from providing truthful testimony in the pending class action suit, under 42 U.S.C. § 1985(2) and various Georgia laws.

During discovery, Carpenter filed a motion to compel information related to his interview with Mohawk’s outside counsel during the internal investigation and Mohawk’s subsequent decision to terminate his employment.  The district court ordered Mohawk to provide the information, concluding that although the information was protected by the attorney-client privilege, Mohawk had waived that privilege when it put the attorney’s actions “in issue” in a response it filed in the class action case.

Mohawk filed an interlocutory appeal, which the Eleventh Circuit dismissed for lack of jurisdiction.  Acknowledging a circuit split on the issue, the court held that Mohawk’s challenge satisfied the first two factors of the collateral order doctrine, but that the third was not met because the discovery order at issue could effectively be reviewed upon appeal from a final judgment.

Mohawk filed a petition for certiorari, which was granted on January 26, 2009.

Petition for Certiorari

In its petition, Mohawk identified three primary reasons for granting certiorari.  First, there is a clear circuit split on this issue, with three circuits favoring application of the collateral order doctrine in similar circumstances and seven (including the Eleventh Circuit in this case) opposing it.  Second, the issue raises an important question for which other avenues of review-such writs of mandamus-are insufficient.  Third, the district court’s order satisfies all three Cohen factors.

Carpenter’s brief in opposition urged that the Court deny certiorari for three reasons.  First, the collateral order doctrine only applies to a very narrow class of cases, which does not include discovery orders related to the attorney-client privilege.  Moreover, the issue does not create a significant circuit split because the three minority decisions “effectively ignored this Court’s admonitions about expanding the Cohen doctrine.”  Second, the question is not sufficiently important to justify interlocutory review because the attorney-client privilege is already “fully and completely” protected by other means.  Third, the district court’s discovery order is not immediately appealable because it fails to satisfy the second and third Cohen factors.

Merits Briefing

In its brief on the merits, Mohawk expands on the arguments made in its petition for certiorari.  First, it emphasizes that the collateral order doctrine is not so much an exception to the final decision rule as a “practical construction” of it, permitting interlocutory appeals for a narrow class of decisions that are treated as final even though they do not end the litigation.  Crucial to this analysis is comparing the importance of the legal right at issue-here, the attorney-client privilege-with the efficiency arguments militating against an interlocutory appeal.

Second, Mohawk reiterates that the district court’s discovery order satisfies the three Cohen factors.  The brief again emphasizes both the importance of the issue and the extent to which it is distinct from the merits, asserting that it is “well-settled that the attorney-client privilege plays an essential and foundational role in the American legal system” and that a court could “resolve the privilege issues . . . without deciding the merits of the case.”  As to the third Cohen factor, Mohawk emphasizes that the district court’s order is effectively unreviewable after a final judgment because “there is no way to unscramble the egg scrambled by the disclosure.”  The knowledge gained by the opposing counsel cannot be erased, so it could still be used to develop evidentiary leads, make strategic decisions, and generally aid in litigation efforts even if it is no longer admissible in the courtroom.

Third, Mohawk emphasizes that neither “disobedience and contempt” nor mandamus provide adequate alternatives to the collateral order doctrine.  Since immediate appeal is only available following a finding of criminal contempt, a policy of relying on disobedience to safeguard the attorney-client privilege encourages parties to “affirmatively seek” criminal sanctions, which is undesirable.  Mandamus also falls short both because its standard of review is too limited to be effective and because the very availability of the collateral order doctrine necessarily precludes mandamus, which is an option only when there is no other remedy.

Finally, Mohawk argues that allowing interlocutory appeals for this narrow class of cases would not open the floodgates to a high volume of appeals.  Indeed, it emphasizes that although collateral order review is available for such cases in three circuits, the number of such appeals has in fact been extremely low.

In his merits brief, Carpenter first argues that the Court has consistently rejected immediate appeals from pretrial orders relating to discovery, privilege, and the attorney-client relationship.

Second, he reiterates (and augments) an argument he made in opposing certiorari – that  pretrial orders in this context are not immediately appealable under the Cohen test.  The district court has not “conclusively” decided the issue, because contempt proceedings offer the chance for a “second look” at the question.  Moreover, regardless of the facts of this specific case, appealability depends on the entire category of cases, in which waiver of the attorney-client privilege is often intertwined with the merits.  As to the “importance” of the issue, Carpenter questions whether the attorney-client privilege is more important than, for example, constitutional issues for which the Supreme Court has denied immediate appeals.

Third, Carpenter points out the circularity of Mohawk’s argument regarding mandamus.  That is, if the collateral order doctrine is not available, mandamus can step in as a substitute precisely because it is only available when there is no other remedy.  He also explains that 28 U.S.C. § 1292(b) provides an additional safety valve of “early appellate determination” for certain unusual cases concerning the attorney-client privilege.

Finally, Carpenter argues that expanding the Cohen doctrine would be a “slippery slope” with no limiting principle.  Contrary to the arguments made by Mohawk, such an expansion has in fact proven “unworkable” in the three circuits where it has been applied.

The United States filed an amicus brief in support of Carpenter, which crystallizes two main points.  First, the collateral order doctrine is extremely limited in scope and should only apply to sufficiently compelling public interest issues, such as constitutional questions.  Second, discovery orders requiring disclosure of privileged materials do not, as a class, rise to the necessary level of public interest.  Holding that they do rise to such a level could lead to costly and unwarranted threats of appeal.  Moreover, such orders-again, as a class-do not satisfy the second and third Cohen factors because they usually require scrutiny of the underlying dispute, “a sufficient number of such orders are enmeshed in the merits,” and a number of effective remedies are available upon appeal from a final judgment.  Finally, certain privileges, such as those protecting Presidential communications and state secrets, do implicate a sufficient public interest concern so as to qualify for immediate appeal under the collateral order doctrine even though the attorney-client privilege does not.