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Disclosure waives work-product privilege

An attorney who discloses information pursuant to court order, despite asserting it is privileged, cannot file an interlocutory appeal of the order to disclose.

But it remains an open question whether an attorney could obtain interlocutory review if he defies the order.

The Seventh Circuit on Sept. 3 dismissed as moot a non-party’s appeal of an order that he answer questions at a deposition.

After his state court conviction for attempted murder was vacated, Robert Wilson filed suit in federal court under Section 1983 against several persons associated with his conviction, as well as the City of Chicago.

The defendants deposed Tyler Nims, who, while a law student, had interviewed a mental patient who claimed responsibility for Wilson’s crimes.

Nims refused to answer several questions, asserting the attorney work-product privilege, but the district court directed him to answer.

Nims complied, and then he and Wilson filed an interlocutory appeal. In an opinion by Judge Frank H. Easterbrook, the Seventh Circuit dismissed it.

The court discussed at length the uncertainty regarding interlocutory appeals of orders to disclose purportedly privileged information.

In Mohawk Industries, Inc., v. Carpenter, 130 S.Ct. 599 (2009), the U.S. Supreme Court held that the collateral-order doctrine does not permit an interlocutory appeal by a party to the litigation who contends that the district judge erred in resolving a dispute about an evidentiary privilege.

However, the opinion does not decide whether an interlocutory appeal may be brought by a non-party. Seventh Circuit law preceding Mohawk Industries holds that a non-party may file an interlocutory appeal. Burden-Meeks v. Welch, 319 F.3d 897 (7th Cir. 2003).

But, the court declined to decide whether Burden-Meeks remains good law, because the holding is premised on the attorney not having complied with the order.

Easterbrook wrote for the court, “Interlocutory review permits a decision before the cat is out of the bag. By answering the questions at his deposition, Nims revealed to the defendants the (assertedly) privileged information.”

Pursuant to Mohawk Industries, Wilson, as the party, must wait until the case is final to appeal the discovery order. “Until a final decision has been made in the district court,” Easterbrook concluded, “we do not have any legitimate say about the disposition of the material collected in discovery.”

David Ziemer can be reached at david.ziemer@wislawjournal.com

What the court held

Case: Wilson v. O’Brien, No. 10-2417

Issues: Can a non-party get interlocutory review of an order that he disclose purportedly information?

Holdings: Where the non-party complied with the order, the issue is moot.

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