dissenting:
I do not believe we have appellate jurisdiction over the district court’s discovery orders and I would therefore deny the stay.
The question is whether the orders are “final decisions” within the meaning of 28 U.S.C. § 1291. The court holds that an order requiring a party to produce a document allegedly protected by the attorney-client privilege is immediately appealable under § 1291, pursuant to the interpretation of that provision in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-75, 101 S.Ct. 669, 673-74, 66 L.Ed.2d 571 (1981).
If the underlying action here had been a grand jury proceeding, we would not have appellate jurisdiction over BATCo’s appeal. The law is settled that if a district court requires a grand jury witness to produce documents over the witness’s objections, the witness may not immediately appeal under § 1291, but must first subject himself to contempt and appeal the contempt citation. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971), so holds and we *623have consistently followed this rule in grand jury cases involving attorney-client privilege claims. See, e.g., In re Sealed Case, 162 F.3d 670, 672-73 (D.C.Cir.1998); In re Sealed Case, 107 F.3d 46, 48 n. 1 (D.C.Cir.1997); In re Sealed Case, 737 F.2d 94, 97 (D.C.Cir.1984).
This is a civil case, but § 1291 also governs appeals in criminal cases. Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 640, 540-41, 84 L.Ed. 783 (1940); United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 1549, 56 L.Ed.2d 18 (1978). Why then is it that in a grand jury proceeding the witness must disobey the order to produce and be held in contempt before appealing, but — as the court now holds — in a civil action a party may appeal the order forthwith? Byrd v. Reno, 180 F.3d 298 (D.C.Cir.1999), the majority explains, holds that civil contempt orders are not final under § 1291. Thus BATCo could not appeal if it refused to produce the document and were held in civil contempt. But it seems to me that this is a reason against — not in favor of — taking jurisdiction of an appeal from an order that would serve as the predicate for holding the party in contempt. At issue in both appeals would be whether the district court correctly rejected a privilege claim and ordered the party to disclose attorney-client communications. Of the two cases, civil contempt is far more serious; a party may be imprisoned for violating a court’s disclosure order, as Hickman v. Taylor, 329 U.S. 495, 500, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947), illustrates.
In any event, the majority’s distinction cannot account for the difference between civil cases and grand jury proceedings. In both types of proceedings a person may be held in civil contempt, rather than criminal contempt, for refusing to obey a district court order to testify or produce documents. See 28 U.S.C. § 1826; Shillitani v. United States, 384 U.S. 364, 371 n. 9, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966). In fact, the Supreme Court has instructed the district courts to prefer civil contempt as a sanction to force compliance with their orders even in criminal proceedings. See id. The prospect of civil contempt, in other words, looms as much in grand jury proceedings as in civil cases.
I believe there is another explanation. One of the policies underlying the final judgment rule of § 1291 is “avoiding] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Cobbledick, 309 U.S. at 325, 60 S.Ct. 540 at 541. “The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Cohen, 337 U.S. at 546, 69 S.Ct. at 1224. But in grand jury proceedings a recalcitrant witness usually can obtain review of his attorney-client privilege claim only on review of a criminal or civil contempt order. See 2 Saua Sun Beale et al., GRAND Jury Law and Praotioe § 11:18, at 11-65 (2d ed. Supp.2001). The same is true regarding non-party witnesses in civil cases. See Byrd, 180 F.3d at 300. There will be no other final judgment from which an appeal may be brought. Civil contempt orders against grand jury witnesses are therefore appeal-able, see Beale, Grand Jury Law § 11:18, at 11-65, and so are civil contempt orders against non-party witnesses in civil cases, see Byrd, 180 F.3d at 300; United States v. Johnson, 801 F.2d 597, 599 (2d Cir.1986). That is why the Court in Ryan, 402 U.S. at 532, 91 S.Ct. at 1581-82, after saying that the grand jury witness there could appeal a contempt citation, did not distinguish between civil and criminal contempt. (Congress has required in 28 *624U.S.C. § 1826(b) — the recalcitrant witness statute applicable to court proceedings and grand jury proceedings — that appeals from civil contempt orders must be “disposed of’ no later than 30 days from the filing of the appeal.) I do not read Byrd as holding otherwise. See 180 F.3d at 302.
What I have written thus far serves to distinguish In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672 (D.C.Cir.1979). As the caption indicates, this was a grand jury proceeding in which a company, in response to a subpoena, inadvertently turned over allegedly privileged documents to the government. The district court rejected the company’s motion to have the documents returned. We held that the court’s order was “final” under § 1291. The appeal came within the doctrine of Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), because the company could not contest the order by refusing to comply with it, and thus could not subject itself to contempt. The appeal also fell within the rationale of Cohen, not because there was anything particularly special about the attorney-client privilege, but because this was the company’s only opportunity for appellate review of its privilege claim. No criminal trial was pending. No final judgment other than the denial of the motion for return could bring up the issue. Ocean Transp., 604 F.2d at 673-74. That is not the situation here. BATCo could raise the issue later on appeal if it lost on the merits in the district court, or on cross-appeal if it prevailed and the government appealed.
I agree with the majority that it is necessary to analyze orders that might lead to civil contempt, on the one hand, and civil contempt citations themselves, on the other, separately under the three-prong Cohen test. Maj. op. at 620-21. But our judgment in Byrd that civil contempt citations are not appealable indicates that the underlying issues — identical to those at the predicate order stage — fail either the importance or the effective unreviewability prong of Cohen. Cf. Powers v. Chicago Transit Auth., 846 F.2d 1139, 1142 (7th Cir.1988).
Aside from this, there is an entirely separate reason why we do not have appellate jurisdiction over this appeal. The circuits are split on the question whether, in civil cases, discovery orders rejecting a party’s attorney-client privilege claim are immediately appealable. The Second, Fifth, and Tenth Circuits hold that there is no appellate jurisdiction because such orders are not final. See Boughton v. Cotter Corp., 10 F.3d 746, 749-50 (10th Cir.1993); Texaco Inc. v. Louisiana Land & Exploration Co., 995 F.2d 43, 44 & n. 4 (5th Cir.1993); Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 162-63 (2d Cir.1992). A case from the Seventh Circuit indicates that it too would refuse jurisdiction in such an appeal. See Reise v. Bd. of Regents, 957 F.2d 293, 295-96 (7th Cir.1992). In re Ford Motor Co., 110 F.3d 954 (3d Cir.1997), on which my colleagues rely, goes the other way. I will assume arguendo that Ford Motor is correct, although I have severe doubts. I am willing to make this assumption because I do not believe this appeal is anything other than a run-of-the-mill discovery dispute. The Court’s assertion that “[a]n erroneous finding of waiver ... eviscerates the same important institutional interests” as an erroneous attorney-client privilege ruling, maj. op. at 618, is incorrect. The interests protected by the attorney-client privilege are not threatened by requiring BATCo to await final judgment before bringing the issue to us.
The order before us has nothing to do with the elements of the attorney-client privilege and everything to do with BAT-Co’s satisfaction of discovery rules. To *625decide whether the district court properly required production of the disputed memorandum we will not have to consider, as we would in a true privilege dispute, any of the elements of the privilege — under what conditions the memorandum was written, or for what purpose. Instead, this appeal will turn on whether BATCo’s attorneys complied with Fed.R.CivP. 26(b)(5), which requires that a party claiming a privilege “make the claim expressly and ... describe the nature of the documents ... not produced” with some specificity. Our decision therefore will have no impact on confidential communications between clients and their attorneys. Cf. Swidler & Berlin v. United States, 524 U.S. 399, 407, 118 S.Ct. 2081, 2086, 141 L.Ed.2d 379 (1998). If we did not hear the appeal, clients’ incentives to communicate frankly with their attorneys would remain as strong as ever. The only possible change would be that clients might be more careful to hire attorneys who comply rigorously with the discovery rules.
For good reasons, discovery orders are not usually appealable before the end of the litigation in the district court. See McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 353 (D.C.Cir.1995). The “costs of delay via appeal, and the costs to the judicial system of entertaining these appeals, exceed in the aggregate the costs of the few erroneous discovery orders that might be corrected were appeals available. ... Discovery orders ... are readily reviewable after final decision. A party aggrieved by the order assures eventual review by refusing to comply.” Reise, 957 F.2d at 295. I would therefore deny the stay pending appeal. If BATCo wishes to preserve the discovery issue, it should refuse to produce the memorandum and bring the question to us after final judgment. It is no answer to say that the company might be unwilling to risk sanctions for disobeying a court order. Maj. op. at 620. The risk of sanctions facing parties in civil cases is the same as that faced by recalcitrant grand jury witnesses, yet we require grand jury witnesses to face contempt before appealing, which at least gives some assurance that the claim of privilege is sincerely interposed.