A party facing a discovery order, who wishes to protect the confidentiality of privileged information in documents held by its counsel, may need to regain possession of the documents, refuse to produce the privileged documents, and incur a contempt citation before appealing the order under a groundbreaking decision late last year by the Third Circuit.
The U.S. Court of Appeals for the Third Circuit’s decision in In re Grand Jury, 705 F.3d 133 (3d Cir. 2012), tentatively reaffirms the right of a grand jury subject to immediately appeal an adverse discovery order directed at a third party when the subject objects to the order on privilege grounds. But the decision does not resolve whether a similar avenue for immediate appeal is available to civil litigants, and it acknowledges that future guidance from the U.S. Supreme Court may be required to clarify whether the right to an immediate appeal of such orders exists at all after Mohawk Industries v. Carpenter, 558 U.S. 100 (2009).
