Perlman Appeals After Mohawk
38 Pages Posted: 4 Jul 2015 Last revised: 11 Aug 2019
Date Written: July 3, 2015
When a federal district court orders the disclosure of allegedly privileged information, privilege claimants have had—until recently—at least one option for seeking immediate appellate review. Claimants who control disclosure can disobey the order, be found in contempt, and immediately appeal the contempt finding. Claimants who don't control disclosure can take what's called a Perlman appeal. But that latter option is disappearing for some litigants. Several courts of appeals recently have held that only non-parties can take Perlman appeals. For parties, an appeal after final judgment must suffice.
This development in the Perlman doctrine is mistaken. Contempt appeals and Perlman appeals both exist to protect against a specific harm of erroneous discovery orders—the disclosure of confidential information. Once confidential information is disclosed, its secrecy is lost and can never be recovered. Contempt appeals and Perlman appeals provide privilege claimants a chance at appellate review before the secrecy of privileged information is forever lost. And given this purpose, party or non-party status is irrelevant; an appeal after a final judgment is useless for both.
Analysis of this development in the Perlman doctrine reveals a larger point about interlocutory appeals. We are closer now than we have been in some time to codifying the judge-made exceptions to the final-judgment rule. But literature examining this area of law is incomplete. Too many discrete issues have been overlooked. And if codification is to succeed, much work needs to be done. I end this article by laying the groundwork for that future research—a taxonomy of exceptions to the final-judgment rule. Not only will this taxonomy provide some necessary structure for the study of appellate jurisdiction, but it will also help identify the many areas of appellate jurisdiction worth exploring and the connections between these areas.
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