You may recall the U.S. Supreme Court’s decision in Mohawk Industs., Inc. v. Carpenter, 588 U.S. 100 (2009), where the Court held that a trial court’s order denying a privilege challenge is not immediately appealable under the collateral-order doctrine. If not, you may read the decision here and/or review the SCOTUSblog’s excellent assessment of the decision.
The Mohawk decision effectively placed the majority of federal common-law privilege rulings in the hands of the district courts. But what about state-court privilege rulings—are they immediately appealable?
The Ohio Supreme Court recently answered that question in the affirmative, ruling that a trial court’s order compelling the production of putatively privileged information is a final, appealable order. Burnham v. Cleveland Clinic, 2016 WL 7115886 (Ohio Dec. 7, 2016). Read it here. The Court’s ruling is a bit puzzling, however, as it limited, but ultimately left intact a prior opinion holding that a trial court’s order compelling an attorney’s work product is not immediately appealable.
What’s the difference? After all, you cannot unring the bell whether the bell is the attorney–client privilege or the work-product doctrine. Let’s discuss.