Burnham v. Cleveland Clinic - Supreme Court limits prior holding restricting appellate jurisdiction

Yesterday the Supreme Court issued its decision in Burnham v. Cleveland Clinic, holding 6-1 that an order compelling the production of attorney-client privileged material is immediately appealable. This is good news. That such an order is appealable might seem obvious at first blush, but it was very much in doubt after the Court's holding last year in Smith v. Chen.

Chen involved an appeal of an order to produce a video that was purportedly work-product privileged. Rule 26(B)(3) says that work product is generally not discoverable except upon a showing of good cause. The trial court ruled that there was good cause to discover the video, because the risk of surprise or unfairness outweighed the interest in delayed disclosure. The Eighth District affirmed, and expressly noted that it had jurisdiction over the appeal because the order appealed from involved the assertion of a privilege.

The Supreme Court accepted a jurisdictional appeal on the substantive question of whether the video was protected by the work product privilege at all. But then after oral argument, the Court sua sponte issued a show-cause order relating to whether the Tenth District had jurisdiction to hear the appeal in the first place. (As best I can tell, this issue never came up either in the briefs or at oral argument.) The Court then dismissed the case, holding that the order was not final under R.C. 2505.2(B)(4)(b), because there was no showing that the appellant would not have a meaningful remedy on appeal from final judgment.

This has caused some chaos in the appellate courts; it has been generally accepted for some time that any order requiring the disclosure of privileged information was an order from which an adversely affected party could not obtain a meaningful remedy on appeal from final judgment.  After Chen, appellate courts began questioning their jurisdiction to review appeals from all orders requiring the production of privileged material. (For example, the First District held in Walker v. Taco Bell that the mere contention that "the proverbial bell cannot be unrung" did not satisfy Chen's purported requirement of a particularized showing of the absence of a meaningful remedy on appeal. Other districts have issued similar rulings, and certainly still more cases were dismissed without a published decision. I myself have had such a case dismissed, though we had settled the matter in the days leading up to the dismissal order.)

The Court accepted the appeal in Burnham to clarify the scope of Chen, and to address whether its holding should apply to attorney-client privilege, as opposed to work-product privilege.

And as it turns out, the Court says that the work-product privilege at issue in Chen is not properly understood as a true "privilege" at all, and thus Chen is now is "limit[ed] . . . solely to its facts." The Court wrote that the "privilege" covered in Rule 26(B)(1) is properly understood as matters covered by specific constitutional or statutory privileges, and that while "attorney work-product doctrine is frequently called a privilege in the popular sense," it is "not technically a privilege in the strict sense," apparently because it is provided for by rule rather than statute or constitution, and because it can be pierced upon a showing of good cause. The Court essentially chastised itself on this point: "Using 'privilege' as shorthand for the attorney work-product doctrine can be useful in many contexts when it promotes conceptual simplicity. But the use of 'privilege' as shorthand does not cause an attorney’s work product to be on the same footing as a client’s substantive right to confidentiality." (Justice Lanzinger was in the majority in, but did not author, the Chen decision that she is now criticizing.) To be fair, the Court also chastised the Chen appellant, writing that even after being ordered to show cause why there would be no adequate remedy through an appeal from final judgment, Chen "merely repeated" the observation that work product constitutes a qualified privilege, and made no particularized showing of any potential harm. At the end of the day, it seems as though the majority essentially says that Chen should be interpreted less as a decision about appellate jurisdiction, and more as a decision regarding whether the video at issue was in fact work product. This, of course, was not the Chen Court's actual holding, but it seems as though such a holding may be retconned in, as a practical matter.

After a lengthy discussion of why attorney-client privilege and the work-product doctrine are different and protect different interests, the Court concluded that "prejudice would be inherent in violating the confidentiality guaranteed by the attorney-client privilege, and therefore, an appeal after final judgment would not provide an adequate remedy." Thus, after Burnham, orders compelling the production of attorney-client privileged materials are categorically immediately appealable, and orders compelling the production of work-product materials may be immediately appealable, so long as there is a specific showing that the party would not have an adequate remedy through appeal from a final judgment.

Justice Kennedy forcefully argues in a lengthy and well-written concurrence that "Chen was wrongly decided," that it "has proven difficult to apply," and that it should be overruled entirely. She was joined by Justices O'Donnell and French. The concurring justices are the same three who dissented in Chen.

Justice Pfeiffer authored a very short dissent. He would have found that the document at issue was not within the attorney-client privilege in the first place.

It remains to be seen whether Burnham's limitation of Chen to its facts creates sufficient clarity in the courts of appeals. Come January only two members of the Chen majority will remain on the Court, so mark Chen down as precedent that may be endangered. If not, it may nevertheless be relegated to history as an exercise in error correction rather than substantive lawmaking.