Mohawk Industries, Inc. v. Carpenter

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MOHAWK INDUSTRIES, INC. v. CARPENTER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT

No. 08–678. Argued October 5, 2009—Decided December 8, 2009
When respondent Norman Carpenter informed the human resources
department of his employer, petitioner Mohawk Industries, Inc., that
the company employed undocumented immigrants, he was unaware
that Mohawk stood accused in a pending class action—the Williams
case—of conspiring to drive down its legal employees’ wages by know
ingly hiring undocumented workers. Mohawk directed Carpenter to
meet with the company’s retained counsel in Williams, who allegedly
pressured Carpenter to recant his statements. When he refused,
Carpenter maintains in this unlawful termination suit, Mohawk fired
him under false pretenses. In granting Carpenter’s motion to compel
Mohawk to produce information concerning his meeting with re
tained counsel and the company’s termination decision, the District
Court agreed with Mohawk that the requested information was pro
tected by the attorney-client privilege, but concluded that Mohawk
had implicitly waived the privilege through its disclosures in the Wil
liams case. The court declined to certify its order for interlocutory
appeal, and the Eleventh Circuit dismissed Mohawk’s appeal for lack
of jurisdiction, holding, inter alia, that the District Court’s ruling did
not qualify as an immediately appealable collateral order under
Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, because a
discovery order implicating the attorney-client privilege can be ade
quately reviewed on appeal from final judgment.
Held: Disclosure orders adverse to the attorney-client privilege do not
qualify for immediate appeal under the collateral order doctrine.
Pp. 4–13.
(a) Courts of Appeals “have jurisdiction of appeals from all final de
cisions of the district courts.” 28 U. S. C. §1291. “Final decisions”
encompass not only judgments that “terminate an action,” but also a
2 MOHAWK INDUSTRIES, INC. v. CARPENTER

Syllabus

“small class” of prejudgment orders that are “collateral to” an action’s
merits and “too important” to be denied immediate review, Cohen,
supra, at 545–546. “That small category includes only decisions that
are . . . effectively unreviewable on appeal from the final judgment in
the underlying action.” Swint v. Chambers County Comm’n, 514
U. S. 35, 42. The decisive consideration in determining whether a
right is effectively unreviewable is whether delaying review until the
entry of final judgment “would imperil a substantial public interest”
or “some particular value of a high order.” Will v. Hallock, 546 U. S.
345, 352–353. In making this determination, the Court does not en
gage in an “individualized jurisdictional inquiry,” Coopers & Lybrand
v. Livesay, 437 U. S. 463, 473, but focuses on “the entire category to
which a claim belongs,” Digital Equipment Corp. v. Desktop Direct,
Inc., 511 U. S. 863, 868. If the class of claims, taken as a whole, can
be adequately vindicated by other means, “the chance that the litiga
tion at hand might be speeded, or a ‘particular injustic[e]’ averted,”
does not provide a basis for §1291 jurisdiction. Ibid. Pp. 4–6.
(b) Effective appellate review of disclosure orders adverse to the at
torney-client privilege can be had by means other than collateral or
der appeal, including postjudgment review. Appellate courts can
remedy the improper disclosure of privileged material in the same
way they remedy a host of other erroneous evidentiary rulings: by va
cating an adverse judgment and remanding for a new trial in which
the protected material and its fruits are excluded from evidence.
Moreover, litigants confronted with a particularly injurious or novel
privilege ruling have several potential avenues of immediate review
apart from collateral order appeal. First, a party may ask the district
court to certify, and the court of appeals to accept, an interlocutory
appeal involving “a controlling question of law” the prompt resolution
of which “may materially advance the ultimate termination of the
litigation.” §1292(b). Second, in extraordinary circumstances where
a disclosure order works a manifest injustice, a party may petition
the court of appeals for a writ of mandamus. Cheney v. United States
Dist. Court for D. C., 542 U. S. 367, 380. Another option is for a party
to defy a disclosure order and incur court-imposed sanctions that,
e.g., “direc[t] that the matters embraced in the order or other desig
nated facts be taken as established,” “prohibi[t] the disobedient party
from supporting or opposing designated claims or defenses,” or
“strik[e] pleadings in whole or in part.” Fed. Rule Civ. Proc. 37(b)(2).
Alternatively, when the circumstances warrant, a district court may
issue a contempt order against a noncomplying party, who can then
appeal directly from that ruling, at least when the contempt citation
can be characterized as a criminal punishment. See, e.g., Church of
Scientology of Cal. v. United States, 506 U. S. 9, 18, n. 11. These es
 Cite as: 558 U. S. ____ (2009) 3

Syllabus

tablished appellate review mechanisms not only provide assurances
to clients and counsel about the security of their confidential commu
nications; they also go a long way toward addressing Mohawk’s con
cern that, absent collateral order appeals of adverse attorney-client
privilege rulings, some litigants may experience severe hardship.
The limited benefits of applying “the blunt, categorical instrument of
§1291 collateral order appeal” to privilege-related disclosure orders
simply cannot justify the likely institutional costs, Digital Equip
ment, supra, at 883, including unduly delaying the resolution of dis
trict court litigation and needlessly burdening the courts of appeals,
cf. Cunningham v. Hamilton County, 527 U. S. 198, 209. Pp. 6–12.
(c) The admonition that the class of collaterally appealable orders
must remain “narrow and selective in its membership,” Will, supra,
at 350, has acquired special force in recent years with the enactment
of legislation designating rulemaking, “not expansion by court deci
sion,” as the preferred means for determining whether and when pre
judgment orders should be immediately appealable, Swint, supra, at
48. Any further avenue for immediate appeal of adverse attorney
client privilege rulings should be furnished, if at all, through rule
making, with the opportunity for full airing it provides. Pp. 12–13.
541 F. 3d 1048, affirmed.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO,
JJ., joined, and in which THOMAS, J., joined, as to Part II–C. THOMAS,
J., filed an opinion concurring in part and concurring in the judgment.
 Cite as: 558 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–678
_________________

MOHAWK INDUSTRIES, INC., PETITIONER v.

NORMAN CARPENTER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[December 8, 2009]

JUSTICE SOTOMAYOR delivered the opinion of the Court.
Section 1291 of the Judicial Code confers on federal
courts of appeals jurisdiction to review “final decisions of
the district courts.” 28 U. S. C. §1291. Although “final
decisions” typically are ones that trigger the entry of
judgment, they also include a small set of prejudgment
orders that are “collateral to” the merits of an action and
“too important” to be denied immediate review. Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541, 546
(1949). In this case, petitioner Mohawk Industries, Inc.,
attempted to bring a collateral order appeal after the
District Court ordered it to disclose certain confidential
materials on the ground that Mohawk had waived the
attorney-client privilege. The Court of Appeals dismissed
the appeal for want of jurisdiction.
The question before us is whether disclosure orders
adverse to the attorney-client privilege qualify for imme
diate appeal under the collateral order doctrine. Agreeing
with the Court of Appeals, we hold that they do not.
Postjudgment appeals, together with other review mecha
nisms, suffice to protect the rights of litigants and pre
2 MOHAWK INDUSTRIES, INC. v. CARPENTER

Opinion of the Court

serve the vitality of the attorney-client privilege.
I
In 2007, respondent Norman Carpenter, a former shift
supervisor at a Mohawk manufacturing facility, filed suit
in the United States District Court for the Northern Dis
trict of Georgia, alleging that Mohawk had terminated
him in violation of 42 U. S. C. §1985(2) and various Geor
gia laws. According to Carpenter’s complaint, his termi
nation came after he informed a member of Mohawk’s
human resources department in an e-mail that the com
pany was employing undocumented immigrants. At the
time, unbeknownst to Carpenter, Mohawk stood accused
in a pending class-action lawsuit of conspiring to drive
down the wages of its legal employees by knowingly hiring
undocumented workers in violation of federal and state
racketeering laws. See Williams v. Mohawk Indus., Inc.,
No. 4:04–cv–00003–HLM (ND Ga., Jan. 6, 2004). Com
pany officials directed Carpenter to meet with the com
pany’s retained counsel in the Williams case, and counsel
allegedly pressured Carpenter to recant his statements.
When he refused, Carpenter alleges, Mohawk fired him
under false pretenses. App. 57a–64a.
After learning of Carpenter’s complaint, the plaintiffs in
the Williams case sought an evidentiary hearing to ex
plore Carpenter’s allegations. In its response to their
motion, Mohawk described Carpenter’s accusations as
“pure fantasy” and recounted the “true facts” of Carpen
ter’s dismissal. Id., at 208a. According to Mohawk, Car
penter himself had “engaged in blatant and illegal mis
conduct” by attempting to have Mohawk hire an
undocumented worker. Id., at 209a. The company “com
menced an immediate investigation,” during which re
tained counsel interviewed Carpenter. Id., at 210a. Be
cause Carpenter’s “efforts to cause Mohawk to circumvent
federal immigration law” “blatantly violated Mohawk
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Opinion of the Court

policy,” the company terminated him. Ibid.
As these events were unfolding in the Williams case,
discovery was underway in Carpenter’s case. Carpenter
filed a motion to compel Mohawk to produce information
concerning his meeting with retained counsel and the
company’s termination decision. Mohawk maintained that
the requested information was protected by the attorney
client privilege.
The District Court agreed that the privilege applied to
the requested information, but it granted Carpenter’s
motion to compel disclosure after concluding that Mohawk
had implicitly waived the privilege through its representa
tions in the Williams case. See App. to Pet. for Cert. 51a.
The court declined to certify its order for interlocutory
appeal under 28 U. S. C. §1292(b). But, recognizing “the
seriousness of its [waiver] finding,” it stayed its ruling to
allow Mohawk to explore other potential “avenues to
appeal . . . , such as a petition for mandamus or appealing
this Order under the collateral order doctrine.” App. to
Pet. for Cert. 52a.
Mohawk filed a notice of appeal and a petition for a writ
of mandamus to the Eleventh Circuit. The Court of Ap
peals dismissed the appeal for lack of jurisdiction under 28
U. S. C. §1291, holding that the District Court’s ruling did
not qualify as an immediately appealable collateral order
within the meaning of Cohen, 337 U. S. 541. “Under
Cohen,” the Court of Appeals explained, “an order is ap
pealable if it (1) conclusively determines the disputed
question; (2) resolves an important issue completely sepa
rate from the merits of the action; and (3) is effectively
unreviewable on appeal from a final judgment.” 541 F. 3d
1048, 1052 (2008) (per curiam). According to the court,
the District Court’s waiver ruling satisfied the first two of
these requirements but not the third, because “a discovery
order that implicates the attorney-client privilege” can be
adequately reviewed “on appeal from a final judgment.”
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Ibid. The Court of Appeals also rejected Mohawk’s man
damus petition, finding no “clear usurpation of power or
abuse of discretion” by the District Court. Id., at 1055.
We granted certiorari, 555 U. S. __ (2009), to resolve a
conflict among the Circuits concerning the availability of
collateral appeals in the attorney-client privilege context.1
II

A

By statute, Courts of Appeals “have jurisdiction of ap
peals from all final decisions of the district courts of the
United States, . . . except where a direct review may be
had in the Supreme Court.” 28 U. S. C. §1291. A “final
decisio[n]” is typically one “by which a district court disas
sociates itself from a case.” Swint v. Chambers County
Comm’n, 514 U. S. 35, 42 (1995). This Court, however,
“has long given” §1291 a “practical rather than a technical
construction.” Cohen, 337 U. S., at 546. As we held in
Cohen, the statute encompasses not only judgments that
“terminate an action,” but also a “small class” of collateral
rulings that, although they do not end the litigation, are
appropriately deemed “final.” Id., at 545–546. “That
small category includes only decisions that are conclusive,
that resolve important questions separate from the merits,
and that are effectively unreviewable on appeal from the
——————
1 Three Circuits have permitted collateral order appeals of attorney

client privilege rulings. See In re Napster, Inc. Copyright Litigation,
479 F. 3d 1078, 1087–1088 (CA9 2007); United States v. Philip Morris
Inc., 314 F. 3d 612, 617–621 (CADC 2003); In re Ford Motor Co., 110 F.
3d 954, 957–964 (CA3 1997). The remaining Circuits to consider the
question have found such orders nonappealable. See, e.g., Boughton v.
Cotter Corp., 10 F. 3d 746, 749–750 (CA10 1993); Texaco Inc. v. Louisi
ana Land & Exploration Co., 995 F. 2d 43, 44 (CA5 1993); Reise v.
Board of Regents, 957 F. 2d 293, 295 (CA7 1992); Chase Manhattan
Bank, N. A. v. Turner & Newall, PLC, 964 F. 2d 159, 162–163 (CA2
1992); Quantum Corp. v. Tandon Corp., 940 F. 2d 642, 643–644 (CA
Fed. 1991).
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Opinion of the Court

final judgment in the underlying action.” Swint, 514
U. S., at 42.
In applying Cohen’s collateral order doctrine, we have
stressed that it must “never be allowed to swallow the
general rule that a party is entitled to a single appeal, to
be deferred until final judgment has been entered.” Digi
tal Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863,
868 (1994) (citation omitted); see also Will v. Hallock, 546
U. S. 345, 350 (2006) (“emphasizing [the doctrine’s] mod
est scope”). Our admonition reflects a healthy respect for
the virtues of the final-judgment rule. Permitting piece
meal, prejudgment appeals, we have recognized, under
mines “efficient judicial administration” and encroaches
upon the prerogatives of district court judges, who play a
“special role” in managing ongoing litigation. Firestone
Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981);
see also Richardson-Merrell Inc. v. Koller, 472 U. S. 424,
436 (1985) (“[T]he district judge can better exercise [his or
her] responsibility [to police the prejudgment tactics of
litigants] if the appellate courts do not repeatedly inter
vene to second-guess prejudgment rulings”).
The justification for immediate appeal must therefore be
sufficiently strong to overcome the usual benefits of defer
ring appeal until litigation concludes. This requirement
finds expression in two of the three traditional Cohen
conditions. The second condition insists upon “important
questions separate from the merits.” Swint, 514 U. S., at
42 (emphasis added). More significantly, “the third Cohen
question, whether a right is ‘adequately vindicable’ or
‘effectively reviewable,’ simply cannot be answered with
out a judgment about the value of the interests that would
be lost through rigorous application of a final judgment
requirement.” Digital Equipment, 511 U. S., at 878–879.
That a ruling “may burden litigants in ways that are only
imperfectly reparable by appellate reversal of a final
district court judgment . . . has never sufficed.” Id., at 872.
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Opinion of the Court

Instead, the decisive consideration is whether delaying
review until the entry of final judgment “would imperil a
substantial public interest” or “some particular value of a
high order.” Will, 546 U. S., at 352–353.
In making this determination, we do not engage in an
“individualized jurisdictional inquiry.” Coopers & Ly
brand v. Livesay, 437 U. S. 463, 473 (1978). Rather, our
focus is on “the entire category to which a claim belongs.”
Digital Equipment, 511 U. S., at 868. As long as the class
of claims, taken as a whole, can be adequately vindicated
by other means, “the chance that the litigation at hand
might be speeded, or a ‘particular injustic[e]’ averted,”
does not provide a basis for jurisdiction under §1291. Ibid.
(quoting Van Cauwenberghe v. Biard, 486 U. S. 517, 529
(1988) (alteration in original)).
B
In the present case, the Court of Appeals concluded that
the District Court’s privilege-waiver order satisfied the
first two conditions of the collateral order doctrine—
conclusiveness and separateness—but not the third—
effective unreviewability. Because we agree with the
Court of Appeals that collateral order appeals are not
necessary to ensure effective review of orders adverse to
the attorney-client privilege, we do not decide whether the
other Cohen requirements are met.
Mohawk does not dispute that “we have generally de
nied review of pretrial discovery orders.” Firestone, 449
U. S., at 377; see also 15B C. Wright, A. Miller, & E. Coo
per, Federal Practice and Procedure §3914.23, p. 123 (2d
ed. 1992) (hereinafter Wright & Miller) (“[T]he rule re
mains settled that most discovery rulings are not final”).
Mohawk contends, however, that rulings implicating the
attorney-client privilege differ in kind from run-of-the-mill
discovery orders because of the important institutional
interests at stake. According to Mohawk, the right to
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Opinion of the Court

maintain attorney-client confidences—the sine qua non of
a meaningful attorney-client relationship—is “irreparably
destroyed absent immediate appeal” of adverse privilege
rulings. Brief for Petitioner 23.
We readily acknowledge the importance of the attorney
client privilege, which “is one of the oldest recognized
privileges for confidential communications.” Swidler &
Berlin v. United States, 524 U. S. 399, 403 (1998). By
assuring confidentiality, the privilege encourages clients
to make “full and frank” disclosures to their attorneys,
who are then better able to provide candid advice and
effective representation. Upjohn Co. v. United States, 449
U. S. 383, 389 (1981). This, in turn, serves “broader public
interests in the observance of law and administration of
justice.” Ibid.
The crucial question, however, is not whether an inter
est is important in the abstract; it is whether deferring
review until final judgment so imperils the interest as to
justify the cost of allowing immediate appeal of the entire
class of relevant orders. We routinely require litigants to
wait until after final judgment to vindicate valuable
rights, including rights central to our adversarial system.
See, e.g., Richardson-Merrell, 472 U. S., at 426 (holding an
order disqualifying counsel in a civil case did not qualify
for immediate appeal under the collateral order doctrine);
Flanagan v. United States, 465 U. S. 259, 260 (1984)
(reaching the same result in a criminal case, notwith
standing the Sixth Amendment rights at stake). In Digi
tal Equipment, we rejected an assertion that collateral
order review was necessary to promote “the public policy
favoring voluntary resolution of disputes.” 511 U. S., at
881. “It defies common sense,” we explained, “to maintain
that parties’ readiness to settle will be significantly damp
ened (or the corresponding public interest impaired) by a
rule that a district court’s decision to let allegedly barred
litigation go forward may be challenged as a matter of
8 MOHAWK INDUSTRIES, INC. v. CARPENTER

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right only on appeal from a judgment for the plaintiff’s
favor.” Ibid.
We reach a similar conclusion here. In our estimation,
postjudgment appeals generally suffice to protect the
rights of litigants and assure the vitality of the attorney
client privilege. Appellate courts can remedy the improper
disclosure of privileged material in the same way they
remedy a host of other erroneous evidentiary rulings: by
vacating an adverse judgment and remanding for a new
trial in which the protected material and its fruits are
excluded from evidence.
Dismissing such relief as inadequate, Mohawk empha
sizes that the attorney-client privilege does not merely
“prohibi[t] use of protected information at trial”; it pro
vides a “right not to disclose the privileged information in
the first place.” Brief for Petitioner 25. Mohawk is un
doubtedly correct that an order to disclose privileged
information intrudes on the confidentiality of attorney
client communications. But deferring review until final
judgment does not meaningfully reduce the ex ante incen
tives for full and frank consultations between clients and
counsel.
One reason for the lack of a discernible chill is that, in
deciding how freely to speak, clients and counsel are
unlikely to focus on the remote prospect of an erroneous
disclosure order, let alone on the timing of a possible
appeal. Whether or not immediate collateral order ap
peals are available, clients and counsel must account for
the possibility that they will later be required by law to
disclose their communications for a variety of reasons—for
example, because they misjudged the scope of the privi
lege, because they waived the privilege, or because their
communications fell within the privilege’s crime-fraud
exception. Most district court rulings on these matters
involve the routine application of settled legal principles.
They are unlikely to be reversed on appeal, particularly
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Opinion of the Court

when they rest on factual determinations for which appel
late deference is the norm. See, e.g., Richardson-Merrell,
472 U. S., at 434 (“Most pretrial orders of district judges
are ultimately affirmed by appellate courts.”); Reise v.
Board of Regents, 957 F. 2d 293, 295 (CA7 1992) (noting
that “almost all interlocutory appeals from discovery
orders would end in affirmance” because “the district court
possesses discretion, and review is deferential”). The
breadth of the privilege and the narrowness of its excep
tions will thus tend to exert a much greater influence on
the conduct of clients and counsel than the small risk that
the law will be misapplied.2
Moreover, were attorneys and clients to reflect upon
their appellate options, they would find that litigants
confronted with a particularly injurious or novel privilege
ruling have several potential avenues of review apart from
collateral order appeal. First, a party may ask the district
court to certify, and the court of appeals to accept, an
interlocutory appeal pursuant to 28 U. S. C. §1292(b). The
preconditions for §1292(b) review—“a controlling question
of law,” the prompt resolution of which “may materially
advance the ultimate termination of the litigation”—are
most likely to be satisfied when a privilege ruling involves
a new legal question or is of special consequence, and
district courts should not hesitate to certify an interlocu
tory appeal in such cases. Second, in extraordinary cir
cumstances—i.e., when a disclosure order “amount[s] to a
judicial usurpation of power or a clear abuse of discretion,”
or otherwise works a manifest injustice—a party may
petition the court of appeals for a writ of mandamus.
Cheney v. United States Dist. Court for D. C., 542 U. S.
367, 390 (2004) (citation and internal quotation marks
——————
2 Perhaps the situation would be different if district courts were sys

tematically underenforcing the privilege, but we have no indication
that this is the case.
10 MOHAWK INDUSTRIES, INC. v. CARPENTER

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omitted); see also Firestone, 449 U. S., at 378–379, n. 13.3
While these discretionary review mechanisms do not
provide relief in every case, they serve as useful “safety
valve[s]” for promptly correcting serious errors. Digital
Equipment, 511 U. S., at 883.
Another long-recognized option is for a party to defy a
disclosure order and incur court-imposed sanctions. Dis
trict courts have a range of sanctions from which to
choose, including “directing that the matters embraced in
the order or other designated facts be taken as established
for purposes of the action,” “prohibiting the disobedient
party from supporting or opposing designated claims or
defenses,” or “striking pleadings in whole or in part.” Fed.
Rule Civ. Proc. 37(b)(2)(i)–(iii). Such sanctions allow a
party to obtain postjudgment review without having to
reveal its privileged information. Alternatively, when the
circumstances warrant it, a district court may hold a
noncomplying party in contempt. The party can then
appeal directly from that ruling, at least when the con
tempt citation can be characterized as a criminal punish
ment. See, e.g., Church of Scientology of Cal. v. United
States, 506 U. S. 9, 18, n. 11 (1992); Firestone, 449 U. S., at
377; Cobbledick v. United States, 309 U. S. 323, 328
(1940); see also Wright & Miller §3914.23, at 140–155.
These established mechanisms for appellate review not
only provide assurances to clients and counsel about the
security of their confidential communications; they also go
a long way toward addressing Mohawk’s concern that,
absent collateral order appeals of adverse attorney-client
privilege rulings, some litigants may experience severe
hardship. Mohawk is no doubt right that an order to
disclose privileged material may, in some situations, have
——————
3 Mohawk itself petitioned the Eleventh Circuit for a writ of manda

mus. See supra, at 3–4. It has not asked us to review the Court of
Appeals’ denial of that relief.
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implications beyond the case at hand. But the same can
be said about many categories of pretrial discovery orders
for which collateral order appeals are unavailable. As
with these other orders, rulings adverse to the privilege
vary in their significance; some may be momentous, but
others are more mundane. Section 1292(b) appeals, man
damus, and appeals from contempt citations facilitate
immediate review of some of the more consequential at
torney-client privilege rulings. Moreover, protective or
ders are available to limit the spillover effects of disclosing
sensitive information. That a fraction of orders adverse to
the attorney-client privilege may nevertheless harm indi
vidual litigants in ways that are “only imperfectly repara
ble” does not justify making all such orders immediately
appealable as of right under §1291. Digital Equipment,
511 U. S., at 872.
In short, the limited benefits of applying “the blunt,
categorical instrument of §1291 collateral order appeal” to
privilege-related disclosure orders simply cannot justify
the likely institutional costs. Id., at 883. Permitting
parties to undertake successive, piecemeal appeals of all
adverse attorney-client rulings would unduly delay the
resolution of district court litigation and needlessly burden
the Courts of Appeals. See Wright & Miller §3914.23, at
123 (“Routine appeal from disputed discovery orders
would disrupt the orderly progress of the litigation, swamp
the courts of appeals, and substantially reduce the district
court’s ability to control the discovery process.”); cf. Cun
ningham v. Hamilton County, 527 U. S. 198, 209 (1999)
(expressing concern that allowing immediate appeal as of
right from orders fining attorneys for discovery violations
would result in “the very sorts of piecemeal appeals and
concomitant delays that the final judgment rule was de
signed to prevent”). Attempting to downplay such con
cerns, Mohawk asserts that the three Circuits in which
the collateral order doctrine currently applies to adverse
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Opinion of the Court

privilege rulings have seen only a trickle of appeals. But
this may be due to the fact that the practice in all three
Circuits is relatively new and not yet widely known. Were
this Court to approve collateral order appeals in the attor
ney-client privilege context, many more litigants would
likely choose that route. They would also likely seek to
extend such a ruling to disclosure orders implicating many
other categories of sensitive information, raising an array
of line-drawing difficulties.4
C
In concluding that sufficiently effective review of ad
verse attorney-client privilege rulings can be had without
resort to the Cohen doctrine, we reiterate that the class of
collaterally appealable orders must remain “narrow and
selective in its membership.” Will, 546 U. S., at 350. This
admonition has acquired special force in recent years with
the enactment of legislation designating rulemaking, “not
expansion by court decision,” as the preferred means for
determining whether and when prejudgment orders
should be immediately appealable. Swint, 514 U. S., at
48. Specifically, Congress in 1990 amended the Rules
Enabling Act, 28 U. S. C. §2071 et seq., to authorize this
Court to adopt rules “defin[ing] when a ruling of a district
court is final for the purposes of appeal under section
1291.” §2072(c). Shortly thereafter, and along similar
lines, Congress empowered this Court to “prescribe rules,
in accordance with [§2072], to provide for an appeal of an
interlocutory decision to the courts of appeals that is not

——————
4 Participating as amicus curiae in support of respondent Carpenter,

the United States contends that collateral order appeals should be
available for rulings involving certain governmental privileges “in light
of their structural constitutional grounding under the separation of
powers, relatively rare invocation, and unique importance to govern
mental functions.” Brief for United States as Amicus Curiae 28. We
express no view on that issue.
 Cite as: 558 U. S. ____ (2009) 13

Opinion of the Court

otherwise provided for under [§1292].” §1292(e). These
provisions, we have recognized, “warran[t] the Judiciary’s
full respect.” Swint, 514 U. S., at 48; see also Cunning
ham, 527 U. S., at 210.
Indeed, the rulemaking process has important virtues.
It draws on the collective experience of bench and bar, see
28 U. S. C. §2073, and it facilitates the adoption of meas
ured, practical solutions. We expect that the combination
of standard postjudgment appeals, §1292(b) appeals,
mandamus, and contempt appeals will continue to provide
adequate protection to litigants ordered to disclose mate
rials purportedly subject to the attorney-client privilege.
Any further avenue for immediate appeal of such rulings
should be furnished, if at all, through rulemaking, with
the opportunity for full airing it provides.
* * *
In sum, we conclude that the collateral order doctrine
does not extend to disclosure orders adverse to the attor
ney-client privilege. Effective appellate review can be had
by other means. Accordingly, we affirm the judgment of
the Court of Appeals for the Eleventh Circuit.

It is so ordered.
 Cite as: 558 U. S. ____ (2009) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–678
_________________

MOHAWK INDUSTRIES, INC., PETITIONER v.

NORMAN CARPENTER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[December 8, 2009]

JUSTICE THOMAS, concurring in part and concurring in
the judgment.
I concur in the judgment and in Part II–C of the Court’s
opinion because I wholeheartedly agree that “Congress’s
designation of the rulemaking process as the way to define
or refine when a district court ruling is ‘final’ and when an
interlocutory order is appealable warrants the Judiciary’s
full respect.” Swint v. Chambers County Comm’n, 514
U. S. 35, 48 (1995); ante, at 13 (quoting Swint, supra;
citing Cunningham v. Hamilton County, 527 U. S. 198,
210 (1999)). It is for that reason that I do not join the
remainder of the Court’s analysis.
The scope of federal appellate jurisdiction is a matter
the Constitution expressly commits to Congress, see Art. I,
§8, cl. 9, and that Congress has addressed not only in 28
U. S. C. §§1291 and 1292, but also in the Rules Enabling
Act amendments to which the Court refers. See ante, at
12–13 (citing §§2072–2074). The Court recognizes that
these amendments “designat[e] rulemaking, ‘not expan
sion by court decision,’ as the preferred means of deter
mining whether and when prejudgment orders should be
2 MOHAWK INDUSTRIES, INC. v. CARPENTER

Opinion of THOMAS, J.

immediately appealable.” Ante, at 12 (quoting Swint,
supra, at 48). Because that designation is entitled to our
full respect, and because the privilege order here is not on
all fours with orders we previously have held to be appeal
able under the collateral order doctrine, see Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), I
would affirm the Eleventh Circuit’s judgment on the
ground that any “avenue for immediate appeal” beyond
the three avenues addressed in the Court’s opinion must
be left to the “rulemaking process.” Ante, at 13; see ante,
at 9–12 (discussing certification under 28 U. S. C.
§1292(b), petitions for mandamus, and appeals from con
tempt orders).
We need not, and in my view should not, further justify
our holding by applying the Cohen doctrine, which
prompted the rulemaking amendments in the first place.
In taking this path, the Court needlessly perpetuates a
judicial policy that we for many years have criticized and
struggled to limit. See, e.g., Ashcroft v. Iqbal, 556 U. S.
___, ___ (2009) (slip op., at 8); Will v. Hallock, 546 U. S.
345, 349 (2006); Sell v. United States, 539 U. S. 166, 177
(2003); Cunningham, supra, at 210; Digital Equipment
Corp. v. Desktop Direct, Inc., 511 U. S. 863, 884 (1994);
Swint, supra, at 48; Lauro Lines s.r.l. v. Chasser, 490 U. S.
495, 498–501 (1989); Van Cauwenberghe v. Biard, 486
U. S. 517, 527 (1988). The Court’s choice of analysis is the
more ironic because applying Cohen to the facts of this
case requires the Court to reach conclusions on, and thus
potentially prejudice, the very matters it says would bene
fit from “the collective experience of bench and bar” and
the “opportunity for full airing” that rulemaking provides.
Ante, at 13.
“Finality as a condition of review is an historic charac
teristic of federal appellate procedure” that was incorpo
rated in the first Judiciary Act and that Congress itself
has “departed from only when observance of it would
 Cite as: 558 U. S. ____ (2009) 3

Opinion of THOMAS, J.

practically defeat the right to any review at all.” Cobble
dick v. United States, 309 U. S. 323, 324–325 (1940). Until
1949, this Court’s view of the appellate jurisdiction statute
reflected this principle and the statute’s text. See, e.g.,
Catlin v. United States, 324 U. S. 229, 233 (1945) (holding
that §128 of the Judicial Code (now 28 U. S. C. §1291)
limits review to decisions that “en[d] the litigation on the
merits and leav[e] nothing for the court to do but execute
the judgment”). Cohen changed all that when it an
nounced that a “small class” of collateral orders that do
not meet the statutory definition of finality nonetheless
may be immediately appealable if they satisfy certain
criteria that show they are “too important to be denied
review.” 337 U. S., at 546.
Cohen and the early decisions applying it allowed §1291
appeals of interlocutory orders concerning the posting of a
bond, see id., at 545–547, the attachment of a vessel in
admiralty, see Swift & Co. Packers v. Compania Colombi
ana Del Caribe, S. A., 339 U. S. 684, 688–689 (1950), and
the imposition of notice costs in a class action, see Eisen v.
Carlisle & Jacquelin, 417 U. S. 156, 170–172 (1974). As
the Court’s opinion notes, later decisions sought to narrow
Cohen lest its exception to §1291 “ ‘ swallow’ ” the final
judgment rule. Ante, at 5 (quoting Digital Equipment,
supra, at 868); see generally Coopers & Lybrand v. Live
say, 437 U. S. 463, 467–468 (1978). The Court has ad
hered to that narrowing approach, principally by raising
the bar on what types of interests are “important enough”
to justify collateral order appeals. See, e.g., Will, supra, at
352–353 (explaining that an interlocutory order typically
will be “important” enough to justify Cohen review only
where “some particular value of a high order,” such as
“honoring the separation of powers, preserving the effi
ciency of government . . . , [or] respecting a State’s digni
tary interests,” is “marshaled in support of the interest in
avoiding trial” and the Court determines that denying
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Opinion of THOMAS, J.

review would “imperil” that interest); Digital Equipment,
supra, at 878–879 (noting that appealability under Cohen
turns on a “judgment about the value of the interests that
would be lost through rigorous application of a final judg
ment requirement,” and that an interest “qualifies as
‘important’ in Cohen’s sense” if it is “weightier than the
societal interests advanced by the ordinary operation of
final judgment principles”). As we recognized last Term,
however, our attempts to contain the Cohen doctrine have
not all been successful or persuasive. See Ashcroft, supra,
at ___ (slip op., at 8) (“[A]s a general matter, the collateral
order doctrine may have expanded beyond the limits
dictated by its internal logic and the strict application of
the criteria set out in Cohen”). In my view, this case pre
sents an opportunity to improve our approach.
The privilege interest at issue here is undoubtedly
important, both in its own right and when compared to
some of the interests (e.g., in bond and notice-cost rulings)
we have held to be appealable under Cohen. Accordingly,
the Court’s Cohen analysis does not rest on the privilege
order’s relative unimportance, but instead on its effective
reviewability after final judgment. Ante, at 8–12. Al
though I agree with the Court’s ultimate conclusion, I see
two difficulties with this approach. First, the Court em
phasizes that the alternative avenues of review it dis
cusses (which did not prove adequate in this case) would
be adequate where the privilege ruling at issue is “particu
larly injurious or novel.” Ante, at 9. If that is right, and it
seems to me that it is, then the opinion raises the question
why such avenues were not also adequate to address the
orders whose unusual importance or particularly injurious
nature we have held justified immediate appeal under
Cohen. See, e.g., Sell, supra, at 177. Second, the facts of
this particular case seem in several respects to undercut
the Court’s conclusion that the benefits of collateral order
review “cannot justify the likely institutional costs.” Ante,
 Cite as: 558 U. S. ____ (2009) 5

Opinion of THOMAS, J.

at 11.* The Court responds that these case-specific argu
ments miss the point because the focus of the Cohen
analysis is whether the “entire category” or “class of
claims” at issue merits appellate review under the collat
eral order doctrine. Ante, at 6 (internal quotation marks
omitted). That is exactly right, and illustrates what in
creasingly has bothered me about making this kind of
appealability determination via case-by-case adjudication.
The exercise forces the reviewing court to subordinate the
realities of each case before it to generalized conclusions
about the “likely” costs and benefits of allowing an excep
tion to the final judgment rule in an entire “class of cases.”
The Court concedes that Congress, which holds the consti
tutional reins in this area, has determined that such value
judgments are better left to the “collective experience of
bench and bar” and the “opportunity for full airing” that
rulemaking provides. Ante, at 13. This determination is
entitled to our full respect, in deed as well as in word.
Accordingly, I would leave the value judgments the Court
makes in its opinion to the rulemaking process, and in so
doing take this opportunity to limit—effectively, predicta
bly, and in a way we should have done long ago—the
——————
* The Court concludes, for example, that in most cases final judgment
review of an erroneous privilege ruling will suffice to vindicate the
injured party’s rights because the appellate court can vacate the
adverse judgment and remand for a new trial in which the protected
material is excluded. Ante, at 8. But this case appears to involve one of
the (perhaps rare) situations in which final judgment review might not
be sufficient because it is a case in which the challenged order already
has had “implications beyond the case at hand,” namely, in the sepa
rate class action in Williams v. Mohawk Indus., Inc., No. 4:04–CV–
0003–HLM (ND Ga.). Ante, at 11. The Court also concludes that the
“likely institutional costs” of allowing collateral order review would
outweigh its benefits because, inter alia, such review would “needlessly
burden the Courts of Appeals.” Ibid. But as the Court concedes, it
must speculate on this point because the three Circuits that allow
Cohen appeals of privilege rulings have not been overwhelmed. See
ante, at 12.
6 MOHAWK INDUSTRIES, INC. v. CARPENTER

Opinion of THOMAS, J.

doctrine that, with a sweep of the Court’s pen, subordi
nated what the appellate jurisdiction statute says to what
the Court thinks is a good idea.