Allow Prompt Appeals for Privilege Rulings

Once in a while, a trial judge makes a mistake that will do irreparable damage unless it is fixed immediately. That is one rationale behind the “collateral order doctrine,” a narrow exception to the final judgment rule that allows federal appeals courts to review certain trial court decisions before final judgment. The doctrine recognizes that some protections — sovereign immunity and double jeopardy, for example — can be effectively preserved only if immediate appellate review is allowed.

It is time the U.S. Supreme Court added decisions denying claims of attorney-client privilege to the list of immediately appealable collateral orders — something it will have occasion to do this term in Carpenter v. Mohawk Industries , 08-678. Once a trial judge wrongly compels a litigant to turn over privileged documents to an adversary, the confidentiality afforded by the privilege is lost forever unless an appellate court can parachute in to correct the error. In an era when litigants often fight related battles against both private and governmental adversaries in multiple jurisdictions, an ill-advised disclosure order may entail harsh consequences beyond the case in which it arises — consequences that no appeal brought after final judgment can undo.