Interlocutory appeals and privilege


The Supreme Court decision that issued last week of general appellate interest was the first opinion from Justice Sotomayor, Mohawk Industries Inc. v. Carpenter, 08-678.  The decision was unanimous (with a concurrence from Justice Thomas).

The issue was whether the grant of a motion to compel what a party deems privileged information is immediately appealable under the collateral order doctrine.  The answer is no.  While you might not be able to unring the bell in a practical sense, you can in the legal sense, after the fact:  the court can remand for a new trial without the use of the information.  Justice Sotomayor also noted that other potential avenues for interlocutory review may obtain in the right circumstances:  a certification under 28 U.S.C. s. 1292(b); mandamus; or appeal of defiance under F.R.Civ.P. 37(b)(2) or a contempt ruling.

How does this compare with Maine law?  There is no interlocutory appeal for a motion to quash based on privilege – you must defy the order and be held in contempt. I n re Willoughby, 487 A.2d 636, 638 (Me. 1985).   See also Lewellyn v. Bell, 635 A.2d 945, 947 (Me. 1993).