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The Obama administration and a group of law professors and former federal judges are asking the U.S. Supreme Court to reject a Georgia company's plea for a change in the way many appellate courts deal with questions of attorney-client privilege.

Earlier this year, a coalition of business interests and the American Bar Association filed amicus briefs joining carpet maker Mohawk Industries' argument that parties in federal cases should be allowed to immediately appeal lower court findings that the parties have waived their rights to keep key information secret under attorney-client privilege. They argue that once privileged material is produced in discovery, the consequences of disclosure cannot be undone by an appellate reversal of the trial order mandating production.

But this month, the former Mohawk employee seeking information the company claims is privileged received some high-powered help of his own. U.S. Solicitor General Elena Kagan filed an amicus brief supporting the former employee, plaintiff Norman Carpenter, as did the group of 19 law professors and six former federal judges that includes former Whitewater independent counsel Kenneth W. Starr; former Federal Bureau of Investigation director William S. Sessions; former federal judges Patricia M. Wald and Abner J. Mikva; and legal scholar Erwin Chemerinsky. They argue that a Mohawk win at the Supreme Court would undermine district court judges' ability to control the discovery process.

Mohawk's appeal, set to be heard by the nation's highest court this fall, represents just the latest chapter in litigation over hiring practices at Mohawk, located in the northwest Georgia city of Calhoun. Carpenter's suit is an offshoot of a racketeering lawsuit pending against Mohawk before U.S. District Judge Harold L. Murphy in Rome, in which current and former Mohawk employees claim the company hired illegal aliens, thereby depressing the wages of Mohawk's employees who are legal U.S. residents. That case already has made one trip to the U.S. Supreme Court, and the parties to the racketeering case recently told Murphy in a joint filing that they have agreed to mediate the matter in the wake of a 11th U.S. Circuit Court of Appeals decision on class certification that favored the employee plaintiffs.

In the case to be heard at the high court in the fall, Carpenter, a former Mohawk shift supervisor, claims that he was fired from his job shortly after he complained to the company's human resources department that several temporary workers were living in the U.S. illegally. Carpenter alleges in his complaint that Washington lawyer Juan P. Morillo, who is outside counsel for Mohawk in the racketeering case, unsuccessfully pressured him to recant his report to human resources because it would damage the company's litigation position. In a brief in the related racketeering suit against the company -- a filing at the heart of the waiver issue before the high court -- Mohawk said that Carpenter's allegations are "pure fantasy" and that Morillo's interview of Carpenter was part of the company's investigation of both alleged misconduct by Carpenter and his allegations about the company.

Carpenter's lawyers have tried to get Mohawk to disclose documentation of his conversation with Morillo, but the company has claimed the information is protected by attorney-client privilege. Murphy found that Mohawk had waived the privilege by placing Morillo's actions at issue in the case and ordered Mohawk to produce the privileged material. He stayed that order so Mohawk could take its arguments to the 11th Circuit, but a panel of the court of appeals refused to bend its general rule against appealing in the middle of a case. The Supreme Court agreed to take up the matter, perhaps in part because the circuit courts disagree over how to handle the issue.

The case is set to be heard by the high court Oct. 5, which likely would be Sonia Sotomayor's first day on the Supreme Court bench if she is confirmed as a justice.

The ABA has backed Mohawk in its Supreme Court appeal, emphasizing the importance of the attorney-client privilege and contending that too often trial courts get privilege questions wrong. The amici on Carpenter's side say in their briefs that the frequency with which privilege questions arise cuts against allowing immediate appeals of orders like that against Mohawk.

The professors and former judges supporting Carpenter's position emphasize evidence that over the last decade or so the federal courts of appeal have been overloaded with burgeoning caseloads at the same time that the number of congressionally authorized judgeships has remained steady. To cope, the professors and judges say, circuit courts have increasingly resorted to deciding cases without oral argument, relying on staff attorneys and using unpublished dispositions.

(The 11th Circuit, which by one measure has the heaviest per-judge caseload of all of the nation's regional federal courts of appeal, frequently uses visiting judges to help ease the load. Some of the 11th Circuit judges have expressed opposition to increasing their number, however. Perhaps the most vocal has been Judge Gerald B. Tjoflat, who in a 1993 essay argued that as the number of appellate judges increase, both individual judges' productivity and the stability of a circuit's law suffer.)

Interestingly, the SG's brief backing Carpenter says that while orders like Murphy's should not be appealable immediately, orders denying certain governmental privileges should be. The brief makes clear the government wants to retain the right to appeal immediately denials of privileges such as the presidential communications privilege, calling that privilege fundamental to the operation of government.

Alston & Bird partner Randall L. Allen of Atlanta is expected to make Mohawk's argument at the Supreme Court. Counsel of record for Carpenter is J. Craig Smith, a Georgia native who explained that Carpenter is his cousin. Smith, who practices at Koskoff Koskoff & Bieder in Connecticut, said Carpenter's Supreme Court argument probably would be made by Yale Law School professor Judith Resnik.

The case at the Supreme Court is Mohawk Industries v. Carpenter, No. 08-678.

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