Discovery, Privilege & Transfer

The residual route after Mohawk

A district judge orders privileged documents produced, keeps a case in a district with no connection to it, certifies a class, or sends a dispute to arbitration. The order is interlocutory, so there is no appeal of right; the harm is immediate, so waiting for final judgment is worthless. This is where mandamus does its heaviest work in current federal practice, and where the petitions are most often filed by lawyers rather than by parties acting alone.

The controlling development is Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), which held that disclosure orders adverse to the attorney-client privilege are not immediately appealable as collateral orders and pointed to what remains: certification under 28 U.S.C. § 1292(b), defiance and contempt, and a petition for mandamus under 28 U.S.C. § 1651. That is what makes the writ the residual route for privilege rulings rather than an exotic one. Venue transfer under 28 U.S.C. § 1404(a) is reviewed the same way, following In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (en banc), and the Federal Circuit has built an entire body of transfer practice on it. Class certification has its own discretionary channel in Fed. R. Civ. P. 23(f), which usually displaces the writ. Non-party subpoena fights arise under Fed. R. Civ. P. 45, consolidated proceedings under 28 U.S.C. § 1407, and remand orders are largely walled off from review by 28 U.S.C. § 1447(d). The threshold in all of them is the one Cheney v. U.S. District Court, 542 U.S. 367 (2004), states.

Criminal discovery and grand jury material are governed by different rules and are covered in Criminal & Trial Courts. Records held by a federal agency, including FOIA disputes, belong to Agencies & Administrative Law. State discovery mandamus, which several states use far more freely than the federal courts, is in State Practice. The general test is in Foundations.