Mohawk Industries v. Carpenter

The Supreme Court has agreed to decide whether a party may immediately appeal a discovery order to disclose materials said to be covered by the attorney-client privilege.

In March 2007, former shift supervisor Norman Carpenter filed suit against carpet maker Mohawk Industries Inc., claiming that he was fired after he complained to the company’s human resources department that several temporary workers were living in the U.S. illegally.

After filing his report, Carpenter said he was required to meet with Mohawk attorney Juan P. Morillo, who was representing the company in a separate class-action racketeering lawsuit, Williams v. Mohawk Industries. Carpenter alleged that the meeting between him and Morillo was designed to coerce him into recanting his report, which could be damaging to the company’s defense in the Williams action.

After filing suit, Carpenter's lawyers immediately sought discovery that would document and support his version of his conversation with Morillo, only to have Mohawk assert that such information was protected by attorney-client privilege.

U.S. District Judge Harold L. Murphy of the Northern District of Georgia ordered the carpet maker to turn over information related to conversations between Carpenter and Mohawk counsel Juan P. Morillo.

Murphy determined that although the communications in question were privileged, Mohawk had implicitly waived that privilege in labeling Carpenter's claims as fiction.

"By making those representations, Murphy concluded, "defendant Mohawk placed the actions of attorney Morillo in issue. "In fairness, evaluation of those representations will require an examination of otherwise-protected communications between attorney Morillo and [Carpenter] and between attorney Morillo and defendant Mohawk's personnel."

In August 2008, a three-judge panel on the U.S. Court of Appeals for the Eleventh Circuit affirmed.

The court was “not persuaded by [Mohawk’s] argument that once the privileged material is turned over, the ‘cat is out of the bag’ and the damage is done.”

On Jan. 26, the Supreme Court granted certiorari to resolve a circuit split on the issue.

Question: Whether a party may immediately appeal a discovery order to disclose materials that party believes are covered by the attorney-client privilege.

The Supreme Court held today that a party may not immediately appeal a discovery order to disclose materials said to be covered by the attorney-client privilege.

In March 2007, former shift supervisor Norman Carpenter filed suit against carpet maker Mohawk Industries Inc., claiming that he was fired after he complained to the company’s human resources department that several temporary workers were living in the U.S. illegally.

After filing his report, Carpenter said he was required to meet with Mohawk attorney Juan P. Morillo, who was representing the company in a separate class-action racketeering lawsuit, Williams v. Mohawk Industries. Carpenter alleged that the meeting between him and Morillo was designed to coerce him into recanting his report, which could be damaging to the company’s defense in the Williams action.

After filing suit, Carpenter's lawyers immediately sought discovery that would document and support his version of his conversation with Morillo, only to have Mohawk assert that such information was protected by attorney-client privilege.

U.S. District Judge Harold L. Murphy of the Northern District of Georgia ordered the carpet maker to turn over information related to conversations between Carpenter and Mohawk counsel Juan P. Morillo.

Murphy determined that although the communications in question were privileged, Mohawk had implicitly waived that privilege in labeling Carpenter's claims as fiction.

"By making those representations, Murphy concluded, "defendant Mohawk placed the actions of attorney Morillo in issue. "In fairness, evaluation of those representations will require an examination of otherwise-protected communications between attorney Morillo and [Carpenter] and between attorney Morillo and defendant Mohawk's personnel."

In August 2008, a three-judge panel on the U.S. Court of Appeals for the Eleventh Circuit affirmed.

The court was "not persuaded by [Mohawk's] argument that once the privileged material is turned over, the ‘cat is out of the bag’ and the damage is done."

On Dec. 8, the Supreme Court affirmed the lower court order in an opinion by newest Justice Sonia Sotomayor.

"Postjudgment appeals, together with other review mecha-nisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege," Sotomayor wrote.

Justice Clarence Thomas joined in part and filed a separate opinion concurring in part and concurring in the judgment.

Question: Whether a party may immediately appeal a discovery order to disclose materials that party believes are covered by the attorney-client privilege.