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attorney-client privilege

United States v. Jicarilla Apache Nation (10-382)

in

Oral argument: Apr. 20, 2011

Appealed from: United States Court of Appeals for the Federal Circuit (Feb. 1, 2010)

ATTORNEY-CLIENT PRIVILEGE, FIDUCIARY EXCEPTION, JICARILLA APACHE NATION, INDIAN TUCKER ACT, TRUST BENEFICIARY

In 2002, the Jicarilla Apache Nation (“Jicarilla,” “Jicarilla Tribe” or “Tribe”) filed a breach of trust action against the United States, alleging mismanagement of funds held in trust for the Tribe. In 2008, Jicarilla moved to compel the production of a few hundred documents exchanged between the government and its attorneys, but the government refused to disclose nearly 160 documents on the ground of attorney-client privilege. The Court of Federal Claims subsequently granted Jicarilla’s motion to compel production of the documents, and the Federal Circuit affirmed. Now, the United States argues that disclosure of the documents was unwarranted because no statute or regulation specifically requires the disclosure. The Jicarilla Tribe, however, contends that the government must be treated like an ordinary private trustee and forced to disclose information exchanged with its attorneys.

Mohawk Industries, Inc. v. Carpenter (08-678)

in

Oral argument: Oct. 5, 2009

Appealed from: United States Court of Appeals for the Eleventh Circuit (Aug. 26, 2008)

EVIDENCE, DISCLOSURE, CONFIDENTIALITY, ATTORNEY-CLIENT PRIVILEGE, COLLATERAL ORDER DOCTRINE

Norman Carpenter, a shift supervisor for Mohawk Industries, Inc., reported to Mohawk that several of its temporary employees were illegal aliens. Mohawk investigated the report and required Carpenter to speak with its outside counsel who was defending Mohawk in a RICO class action filed by current and former Mohawk employees over the hiring of illegal aliens. Thereafter, Mohawk terminated Carpenter, and Carpenter filed suit, alleging that he had been terminated as a result of refusing to recant his report. Carpenter sought discovery of information regarding his interview with Mohawk’s counsel. Mohawk claimed the interview and investigation were protected by the attorney-client privilege. The District Court for the Northern District of Georgia held that Mohawk had impliedly waived the privilege by putting the protected communications in issue during the class action lawsuit. Mohawk appealed this order to the United States Court of Appeals for the Eleventh Circuit, arguing that the discovery order was immediately appealable under the collateral order doctrine. The Eleventh Circuit dismissed the appeal, holding that the collateral order doctrine did not apply, because the discovery order would not be effectively “unreviewable” on appeal from the district court’s final judgment. The Supreme Court’s decision will resolve a circuit split on whether the collateral order doctrine permits the immediate appeal of a discovery order finding waiver of the attorney-client privilege.

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