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It is fundamental that under 28 U.S.C. 1291, a litigant ordinarily may appeal only “final decisions” of a district court. Under the collateral-order doctrine, however, a party may appeal a narrow class of interlocutory trial court orders without waiting for final judgment. Two courts of appeals-the U.S. Circuit Court of Appeals for the District of Columbia and the 3d Circuit-have held that trial court decisions denying claims of attorney-client privilege are immediately appealable under this doctrine. Several other circuits have disagreed. A recent U.S. Supreme Court decision interpreting the collateral-order doctrine in a different context, along with the confirmation of D.C. and 3d Circuit alumni to the high court, suggest that this circuit split is ripe for resolution. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and its progeny, the Supreme Court explained that a collateral order is one that conclusively determines the disputed question; resolves an important issue completely separate from the merits of the action; and is effectively unreviewable on appeal from a final judgment. An issue is “important” under Cohen‘s second prong if it advances interests “weightier than the societal interests advanced by the ordinary operation of final judgment principles.” Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 879 (1994). For example, trial court decisions rejecting qualified immunity for a government official, rejecting a state’s assertion of sovereign immunity and rejecting a criminal defendant’s double jeopardy claim are all collateral orders. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy Inc., 506 U.S. 139 (1993) (state sovereign immunity); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity); Abney v. U.S., 431 U.S. 651, 660 (1977) (double jeopardy). Privilege rulings In the last decade, the D.C. Circuit and the 3d Circuit-the judicial training grounds for Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., respectively-have held that trial court decisions denying assertions of attorney-client privilege are also immediately appealable collateral orders. U.S. v. Philip Morris Inc., 314 F.3d 612 (D.C. Cir. 2003); In re Ford Motor Co., 110 F.3d 954 (3d Cir. 1997). (Neither Roberts nor Alito were on the panels deciding these cases.) In Philip Morris, which arose out of the federal government’s massive civil suit against Big Tobacco, a sharply divided D.C. Circuit panel held that British American Tobacco Co. (BAT) could immediately appeal the trial court’s denial of privilege with respect to a potential “smoking gun” memorandum authored by a BAT-affiliated attorney. Writing for the court, Judge David B. Sentelle, joined by Chief Judge Douglas H. Ginsburg, held that the attorney-client privilege is the type of “institutionally significant status or relationship” that justifies collateral-order review. Philip Morris, 314 F.3d at 618 (quoting Ford, 110 F.3d at 960). Indeed, the privilege “rests at the center of our adversary system and promotes ‘broader public interests in the . . . administration of justice’ ” by encouraging ” ‘full and frank communication between attorneys and their clients.’ ” Id. (quoting Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981)). If erroneous privilege rulings were routinely left uncorrected until final judgment, the resulting disclosure of privileged information could chill attorney-client communication. Accordingly, just as our jurisprudence has determined that the broader societal value of the privilege outweighs the loss of even highly probative evidence, Sentelle reasoned, “the institutional benefits of allowing interlocutory review . . . outweigh the costs of delay and piecemeal review that may result.” Id. at 618. Finally, the court concluded that rulings denying attorney-client privilege are effectively unreviewable after final judgment because the privileged material already would have been disclosed to the public, effectively eviscerating the attorney-client privilege. In other words, “the cat [would be] out of the bag” by the time ordinary appellate review runs its course. Id. at 619. Judge A. Raymond Randolph dissented, citing the general rule that discovery orders are not immediately appealable and expressing concern that the court’s decision would open the floodgates to interlocutory appeals. Randolph argued that in order to obtain immediate review, a party must refuse to comply with an adverse privilege ruling, be held in contempt and then appeal the contempt citation. Leaving aside the D.C. and 3d circuits, most courts echo Randolph’s concerns and hold that privilege rulings are generally not appealable under the collateral-order doctrine. See Ross v. City of Memphis, 423 F.3d 596 (6th Cir. 2005); Boughton v. Cotter Corp., 10 F.3d 746 (10th Cir. 1993); Texaco Inc. v. La. Land & Exploration Co., 995 F.2d 43 (5th Cir. 1993); Chase Manhattan Bank N.A. v. Turner & Newall PLC, 964 F.2d 159 (2d Cir. 1992); Reise v. Bd. of Regents, 957 F.2d 293 (7th Cir. 1992). And one could argue that Randolph’s “floodgates” prediction has proven prophetic in the circuits that allow immediate appealability. The D.C. Circuit has extended collateral-order jurisdiction, in an opinion by Roberts, to cover denial of a claim that a federal statute shields from disclosure the government’s internal deliberations concerning military promotions. In re England, 375 F.3d 1169 (D.C. Cir. 2004). And a 3d Circuit panel including Alito allowed a collateral appeal of a trial court’s protective order prohibiting a newspaper from publishing information about a case in which it had intervened. Shingara v. Skiles, 420 F.3d 301 (3d Cir. 2005). With an entrenched circuit split and two new justices who are familiar with the debate, it should only be a matter of time until the Supreme Court steps in. Unfortunately, the court’s recent decision in Will v. Hallock, 126 S. Ct. 952 (Jan. 18, 2006), while representing the court’s first discussion of the collateral-order doctrine in seven years, does little to resolve the dispute surrounding the appealability of privilege rulings. It does, however, offer plenty of ammunition for both sides of the debate. The court in Will unanimously held that federal agents could not collaterally appeal the district court’s ruling that the Federal Tort Claims Act’s “judgment bar” did not require dismissal of a lawsuit against them. The FTCA’s judgment bar mandates dismissal of any suit against a federal agent, such as a suit under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that has already been effectively resolved in an earlier FTCA lawsuit. In rejecting the agents’ invitation to invoke collateral-order jurisdiction, Justice David Souter repeatedly emphasized the doctrine’s restrictive nature. While the court “has been asked many times to expand the small class of collaterally appealable orders,” he explained, it has “instead kept it narrow and selective in its membership.” Will, 126 S. Ct. at 958. Moreover, Souter cautioned that the doctrine must be confined to a “modest” scope, covering only those orders that satisfy Cohen‘s “stringent” three-part test, lest the collateral-order exception swallow the final order rule. Id. at 957-58. Ultimately, the court held that the FTCA’s judgment bar did not protect interests as important as those at stake in the qualified immunity, double jeopardy and sovereign immunity cases. Therefore, the collateral-order doctrine did not permit an immediate appeal. ‘Will’ can be read two ways In a general sense, Will’s tone and rhetoric suggest that the court will be wary of admitting new members to the exclusive collateral-order club. Will could conceivably be read as limiting collateral orders to those rulings that, as in the governmental immunity and double jeopardy cases, affect a party’s right to avoid trial altogether. This interpretation of Will would categorically exclude privilege rulings and all interlocutory discovery orders, no matter how important the subject matter they address. Thus, Will can certainly be used by attorneys resisting the interlocutory appeal of a privilege ruling. On the other hand, a close examination of the court’s reasoning provides ample support for the opposite position. In Will‘s key passage, the court found the FTCA’s judgment bar more analogous to a run-of-the-mill res judicata defense-rejection of which is not immediately appealable-than to governmental immunity and double jeopardy defenses. Contrary to the judgment bar and res judicata, the court explained, governmental immunity and double jeopardy protect not “mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest,” such as “honoring the separation of powers, preserving the efficiency of government . . . , respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual.” Id. at 959. It seems, then, that the key to membership in the collateral-order club is protection of a vital societal interest. Under this reading, one could certainly argue that the court’s rationale applies to the attorney-client privilege. The privilege protects not merely the right to shield information from disclosure at trial. Rather, privileged information is excluded from trial to vindicate the broader public interest in securing the confidentiality of attorney-client communications. It is quite possible-as the D.C. Circuit found in Philip Morris-that this interest is just as valuable as those protected by the governmental immunity and double jeopardy doctrines. And like the trial-avoidance rights guaranteed by those doctrines, the attorney-client privilege is irretrievably lost if an immediate appeal is not available. While providing dicta to satisfy both sides, Will probably does little more than preserve the status quo in the privilege-appealability debate. Thanks to its narrow scope and uncertain implications, it is unlikely to cause the circuit courts to revisit their fundamentally incompatible positions. Thus, Judge Frank H. Easterbrook’s observation will probably remain as accurate in 2006 as it was three years ago: “Appellate approaches to this topic are now so disparate that only Congress or the Supreme Court could clear the air.” Burden-Meeks v. Welch, 319 F.3d 897, 901 (7th Cir. 2003). It is unfortunate that something as central to our legal system as attorney-client confidentiality is protected differently depending on the federal circuit in which one resides. With no congressional action on the horizon, perhaps Roberts and Alito can persuade their colleagues to grant certiorari in the next case presenting this issue. Even if the court ultimately disagrees with the views of the newest justices’ home circuits, it will have succeeded in bringing uniformity to the law in this vital area. In the meantime, trial and appellate lawyers should be aware of this important debate, learn the law of their own circuits and be ready to marshal the arguments on either side. Aaron M. Streett is an appellate associate in the Houston office of Baker Botts. He served as a law clerk for Chief Justice William H. Rehnquist in the October 2003 term and for Circuit Judge David B. Sentelle in 2002-2003, when U.S. v. Philip Morris Inc. was decided.

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