dissenting and concurring: While I agree with the majority as to its determination of the constitutionality of and the construction of the privilege statutes in issue, I disagree with its actions in retaining an interlocutory appeal which was filed beyond the clearly stated time period established by our statutes and rules.
The considerable delay at all earlier stages of these proceedings (cause of action arose in July 1992; suit filed July 20, 1994; discovery motion argued June 1995 but not journalized until October 1996; permission to take interlocutory appeal granted December 10, 1996; notice of appeal filed January 3, 1997) is not a sufficient reason for us to retain an appeal filed too late.
*175The majority correctly sets forth K.S.A. 60-2102(b) (nearly identical to the federal interlocutory appeal statute, 28 U.S.C. § 1292[b] [1994]), which brings into play Supreme Court Rule 4.01 (1997 Kan. Ct. R. Annot. 26) and fixes the time for the notice of appeal to be filed as being “within the time fixed by K.S.A. 60-2103, for taking an appeal or within ten (10) days after permission to appeal is granted, whichever is later.” Because more than 30 days had elapsed from the entry of the district court’s order from which the appeal was taken, the time within which this appeal had to be filed was 10 days from December 10, 1996.
The appeal was filed January 3, 1997, 24 days later.
Thus, after first obtaining the approval of a district judge and then the Court of Appeals to grant a discretionary appeal because (1) the issue involves a controlling question of law, (2) as to which there is a substantial ground for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation, the appellant filed a notice of appeal which was 14 days late.
I recognize the distinction between time periods established by statute and those established by our rules, as was discussed in Jones v. Continental Can Co., 260 Kan. 547, 558, 920 P.2d 939 (1996). While a majority of this court has the right to do as it has done, I am of the opinion it is a mistake. The majority opinion should not be read as authority to rely on the whim of the court to save the dilatory acts of counsel.
I do agree with the majority’s statement that any attempt to interpret Rule 4.01 to grant 30 days after a permission to accept an interlocutory appeal is granted within which to file a notice of appeal defies logic and has absolutely no merit.
While the specific issue is only collaterally before us, I also question the wisdom of granting interlocutory appeals on discovery issues notwithstanding the involvement here of questions of privileges. I recognize the divergent views as to the granting of interlocutory appeals, see Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d §§ 3929-31 (1996); Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 702-03 (5th Cir. 1961), but when *176the time line of this case is analyzed, it should be before us after a trial rather than in its present posture.
If we had a statute or rule that expedited interlocutory appeals or we were waiting with clean dockets to quickly decide cases like this, a better justification for taking interlocutory appeals such as this one would be present. Neither of these conditions exists.
While the majority has answered difficult questions which at some point needed to be decided and our result might have required a new trial had this case been tried with the appealed-from discovery orders in effect, I still believe litigants are better served if we answer questions like this after a trial has been held. Our longstanding rules requiring finality before permitting appeals are clearly justified.
This appeal should have been dismissed at the time St. Francis’ motion to dismiss was considered by the Court of Appeals on February 21, 1997. Having failed to take that opportunity to recognize the appeal was filed out of time, we should do so now.