More Governmental-Privilege Appeals from the Fifth Circuit

A few years ago, I wrote about the Fifth Circuit’s caselaw that allows government officials to immediately appeal discovery orders via the collateral-order doctrine. The case that sparked that discussion did not address appellate jurisdiction at all—I had to go to the briefs to figure out why the court was hearing a discovery appeal. But two recent Fifth Circuit cases addressed the issue squarely, one in some depth. And the cases reinforce my view that the Fifth Circuit needs to go en banc to change this rule.

Discovery Appeals Generally

Some of the most persistently difficult issues in interlocutory appeals involve the appealability of discovery orders. Federal litigants have long tested the appealability of these orders. But the courts have largely rebuffed these efforts. And for good reason. Discovery decisions are often within the district court judge’s discretion. They’re accordingly less likely to be reversed and thus less in need of immediate review. Discovery rulings also can be subject to change as litigation proceeds, which might obviate the need to appeal a discovery order. And district courts might issue numerous discovery orders in a case. Immediate appellate review could pepper cases with interruptions and delay.

That being said, there are ways to immediately appeal some discovery orders. Those aggrieved by a discovery order can seek a certified appeal under 28 U.S.C. § 1292(b) or petition for a writ of mandamus. But the standard method is a contempt appeal. With this option, the targets of discovery orders can disobey a discovery order and risk being found in contempt of court. If found in contempt, they can (with one minor exception) immediately appeal the contempt ruling. And in that appeal, the target of discovery can challenge the underlying discovery order.

Until 2009, a few courts of appeals allowed one additional avenue for the immediate appeal of discovery orders. These courts had held that discovery orders adverse to the attorney-client privilege were immediately appealable under the collateral order doctrine. Under the collateral-order doctrine, certain kinds of district court orders are final and immediately appealable if they (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in a final-judgment appeal. Some courts reasoned that discovery orders adverse the attorney-client privilege satisfied these requirements, particularly because the potential loss of confidentiality could not be corrected in a later appeal. These courts thus allowed immediate appeals of certain discovery orders to allow some appellate review before secrecy was irrevocably lost.

The Supreme Court abrogated this line of cases in Mohawk Industries, Inc. v. Carpenter. The Court determined that “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” The Court also emphasized that privilege claimants have several other avenues for seeking immediate review of discovery orders, including certified appeals under 28 U.S.C. § 1292(b), writs of mandamus, and the contempt option. Given these existing means of seeking immediate review, the Court thought it unnecessary to also allow discovery appeals under the collateral-order doctrine.

The Fifth Circuit’s Governmental-Privilege Rule

Mohawk stands in some tension with a line of Fifth Circuit cases holding that government officials can immediately appeal discovery orders that reject a claim of governmental privilege without first being held in contempt.

This rule for governmental-privilege appeals can be traced back to at least 1970 and the Fifth Circuit’s decision in Carr v. Monroe Manufacturing Co. (and probably to that court’s 1955 decision in Overby v. U.S. Fidelity & Guaranty Co.). In Carr, the Fifth Circuit held that Mississippi could immediately appeal a discovery order that rejected a privilege claim over records of the Mississippi Employment Security Commission. Three years later, in Cates v. LTV Aerospace Corp., the court held that the Department of the Navy could immediately appeal a discovery order that rejected a claim of executive privilege. And in 1981’s Branch v. Phillips Petroleum Co., the Fifth Circuit held that the Equal Employment Opportunity Commission could immediately appeal a discovery order that rejected a claim of protection under Title VII’s confidentiality provisions. The Eleventh Circuit (which adopted the Fifth Circuit’s precedent upon separating from that court) has also applied this rule.

The Fifth Circuit has justified this rule as necessary to protect the government’s interest in maintaining the confidentiality of certain information:

The theory of allowing an appeal rests on the proposition that forced disclosure would irretrievably breach the claim of privilege and render an appeal from final judgment meaningless; hence, the exception.

But the Fifth Circuit has also recognized that this rule is in some tension with the Supreme Court’s decisions on discovery appeals:

The clear implication of the reasoning in [United States v. Ryan] is that the government’s interest in maintaining some privilege of non-disclosure is no more irretrievably breached than the private party’s energies irrevocably expended. In each case, the subpoenaed party has an alternative avenue through which to vindicate its rights without sacrificing the interest it seeks to protect.

Recent Adherence to the Governmental-Privileges Rule

The Fifth Circuit nevertheless adheres to its governmental-privilege rule. Two recent decisions illustrate as much.

In Jackson Municipal Airport Authority v. Harkins, the Fifth Circuit allowed non-party state legislators to appeal discovery orders adverse to a claim of legislative privilege. (An earlier appeal in the Jackson Municipal litigation sparked my post from a few years ago on this topic.) The explanation was not terribly in depth. But the court noted that Cates and Branch permitted the appeal.

A more in-depth discussion came in La Union Del Pueblo Entero v. Abbott. The Fifth Circuit again allowed non-party state legislators to immediately appeal discovery orders adverse to a claim of legislative privilege. The court also explained that these orders fit within the collateral-order doctrine. The discovery orders conclusively resolved the privilege issues and could subject the legislators to contempt. The orders involved important issues (protecting the confidentiality of the information and shielding litigators from the burdens of discovery) that were separate from the underlying merits (the legality of certain Texas election laws). And once the information was disclosed, a final-judgment appeal could not restore confidentiality. The Fifth Circuit added that the appeal implicated an interest of substantial public value: protecting legislators from the burdens and distractions of discovery.

As for Mohawk, the Fifth Circuit saw three important distinctions:

[H]ere we have governmental (not private) non-parties (not litigants) asserting legislative privilege (not attorney-client privilege).

The Fifth Circuit accordingly agreed with the Eleventh Circuit that Mohawk was not sufficiently on point to abrogate the rule for governmental-privilege appeals.

Still Wrong

I still think that the Fifth Circuit’s rule for governmental-privilege appeals is still wrong. All the reasons I gave a few years ago still stand. And I’m not persuaded by La Union Del Pueblo Entero. The opinion doesn’t explain why the alternative sources of appellate jurisdiction—§ 1292(b), mandamus, and the contempt option—don’t suffice for legislative privilege just as much as they suffice for the attorney-client privilege.

An additional point concerns the third-party status of the appellants. La Union Del Pueblo Entero noted the appellants’ non-party status while distinguishing Mohawk. And a recent Fifth Circuit dissent suggested that third-party status alone might be sufficient for appellate jurisdiction. After all, non-parties don’t always have the same opportunities to appeal from final judgments as parties do.

But third-party status is irrelevant in this context. The main interest protected by an immediate appeal from a discovery order is the confidentiality of the discoverable material. Once confidential information is disclosed, that confidentiality is gone. So it’s often said—correctly—that a final-judgment appeal cannot protect this interest in confidentiality.

This inadequacy of final-judgment appeals is the same for both parties and non-parties. Whether party or non-party, an appeal needs to be immediate to protect confidentiality. So non-parties are not situated any differently from parties when it comes to taking these appeals. Non-party status is thus a meaningless distinction in this context.

Jackson Municipal Airport Authority v. Harkins, 2023 WL 3333607 (5th Cir. May 10, 2023), available at the Fifth Circuit and Westlaw

La Union Del Pueblo Entero v. Abbott, 2023 WL 3494770 (5th Cir. May 17, 2023), available at the Fifth Circuit and Westlaw