First Opinion of the Term Issued in Mohawk Industries, Inc. v. Carpenter

December 8th, 2009

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Justice Sotomayor Held: Disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined, and in which THOMAS, J., joined, as to Part II–C. THOMAS, J., filed an opinion concurring in part and concurring in the judgment.

From Thomas’s concurrence:

We need not, and in my view should not, further justifyour holding by applying the Cohen doctrine, which prompted the rulemaking amendments in the first place. In taking this path, the Court needlessly perpetuates ajudicial policy that we for many years have criticized and struggled to limit. See, e.g., Ashcroft v. Iqbal, 556 U. S. ___, ___ (2009) (slip op., at 8); Will v. Hallock, 546 U. S. 345, 349 (2006); Sell v. United States, 539 U. S. 166, 177 (2003); Cunningham, supra, at 210; Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 884 (1994); Swint, supra, at 48; Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 498–501 (1989); Van Cauwenberghe v. Biard, 486
U. S. 517, 527 (1988). The Court’s choice of analysis is the more ironic because applying Cohen to the facts of this case requires the Court to reach conclusions on, and thuspotentially prejudice, the very matters it says would bene-fit from “the collective experience of bench and bar” and the “opportunity for full airing” that rulemaking provides. Ante, at 13.