A civil procedure revival has quietly been underway since the inception of the Roberts Court in 2005. Unnoticed and sweeping changes may be in the works following the “dramatic theoretical and doctrinal shifts” resulting from the Court’s rulings in more than twenty cases concerning core areas of civil procedure. Even considering the civil procedure revolution that has gone largely undetected, far less attention has been drawn to the Roberts Court’s decisions interpreting the Court’s role in determining the scope of the collateral order doctrine. The significance is practical as well as theoretical because the Court’s redefined role in shaping the collateral order doctrine has a direct effect on the immediate appealability of pre-judgment orders issued in both civil and criminal cases on a daily basis.
To put the significance of the issue in context, imagine yourself as the attorney for an allegedly wrongfully terminated employee. A district court has ordered you to disclose information concerning your client’s pre-termination interview with his previous employer’s attorney. You opposed such a disclosure on grounds of attorney-client privilege but were overruled. Considering the dilemma, you can identify only a few courses of action.
First, you could disclose the information. That approach, however, may not only adversely affect your client but also constitute an ethical violation for a breach of the attorney-client privilege. Second, you could refuse to disclose the information. This course would certainly justify the court in issuing both a contempt order and sanctions. Third, you could immediately appeal the disclosure order. There are various methods to pursue an immediate appeal; none of them, however, are likely to work.
In an increasingly small number of cases, an immediate appeal may be allowed under the certification procedures outlined in 28 U.S.C. § 1292(b). Under the certification procedure you would first have to persuade the district court to certify the issue, by showing the appeal would involve “‘a controlling question of law’ the prompt resolution of which ‘may materially advance the ultimate termination of the litigation.’” Even then, you still must persuade the court of appeals to accept the appeal. An alternative route to an immediate appeal would be to attempt the herculean task of showing such an extraordinary circumstance of manifest injustice to persuade the court of appeals to issue a writ of mandamus.
The last method of securing an immediate appeal is available only if the adverse disclosure order fell within “that small class” of cases that are exempted from the final judgment rule—those non-final orders qualifying as elite members of the collateral order doctrine. Although the Supreme Court has determined that a public official may immediately appeal an order denying his immunity defense, the Court has slammed the door on attempts to immediately appeal an adverse disclosure order.
This hypothetical situation frequently occurs in courts throughout the country. The obvious hardship of a wrongfully imposed disclosure order coupled with the difficulty and unpredictability of securing an immediate appeal leaves both the attorney and the client in an unnecessarily precarious position. The question has been asked before, but is worth asking again: why does our judicial system tolerate delayed appellate review of non-final orders, such as disclosure orders, but allow immediate appellate review of other orders, such as those concerning immunity defenses? The Court has provided a variety of attempted explanations and clarifications of its finality jurisprudence and the scope of the collateral order doctrine since its inception in 1949. But only recently—under the Roberts Court’s civil procedure revolution—has the Court resorted to invoking its rulemaking authority under 28 U.S.C. §§ 2072(c) and 1292(e) to steadfastly reject any novel attempts to expand the contours of the collateral order doctrine.
In Mohawk Industries, the Supreme Court reaffirmed its principled refusal to expand the list of immediately appealable non-final orders. The Court rested its conclusion on an interpretation that Sections 1292(e) and 2072(c) were designed as statutory limitations to prevent judicial expansion of the collateral order doctrine. The Court mistakenly used the statutes as a shield, defying both legislative history and prudential concerns. Instead, the Court should articulate a more flexible, balanced approach to the Cohen conditions—emphasizing the implicit similarities to the standards of relief for a preliminary injunction—that would inevitably expand, through judicial decision-making, the currently settled, strict confines of the collateral order doctrine.