Richard Westfall at Rocky Mountain Appellate Blog wrote up the first SCOTUS opinion authored by Justice Sotomayor, Mohawk Industries, Inc. v. Carpenter, in which the unanimous court (with a separate concurrence from Justice Thomas) holds that a discovery order is not immediately appealable under the “collateral order doctrine.” Westfall summarized the case: In Mohawk, the district court ordered Mohawk to turn over documents Mohawk asserted were protected by the attorney-client privilege. The collateral-order doctrine allows for immediate appeals if: (1) the particular ruling conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final…
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Privilege within the Company
Lawyer advises the CEO of his client on some litigation strategy. Privileged communication, obviously. CEO then meets with his VPs and shares the information with them. Privileged? I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up. The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct…
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C.C.P. Section 1985.3 is Toothless
Just one decision out of the Court of Appeal yesterday, but it’s a doozy. In Foothill Federal Credit Union v. Superior Court, case no. B198664 (2d Dist. Sept. 24, 2007), the court holds that consumers’ claims against a credit union for disclosing consumer records in response to a subpoena are barred by the litigation privilege of Civil Code section 47. At least, that’s the way the court describes its holding, but there is more at work in the decision. The impact of this decision is hard to understate in light of Code of Civil Procedure section 1985.3, which requires a party seeking certain forms of consumer records in discovery to…
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Writ Review Appropriate where Discovery Ruling Threatens Privilege
You’ve seen me complain before about the court of appeal reviewing writ petitions on the merits without saying why. After all, there has to be something special in every instance of review, as more than 90% of writ petitions are summarily dismissed. Ombudsman Services of Northern California v. Superior Court, case no. C054737 (3d Dist. Sept. 5, 2007), the court is very explicit about why it reviewed the writ petition on the merits (citations omitted): “Although writ review of discovery rulings is generally disfavored, interlocutory review by writ is the only adequate remedy when, as here, a court compels the disclosure of documents or information that may be subject to…