Discovery decisions involving the attorney-client privilege and work product doctrine almost always lack the finality that allows review by an appellate level court. Although some federal courts use narrow exceptions to the finality doctrine in hearing appeals, many (if not most) privilege and work product rulings arrive at the appellate level in a mandamus proceeding. It is easy to forget what a difficult standard a litigant faces in this setting.
In In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000), the Fifth Circuit denied Occidental’s request for mandamus relief to overturn the district court’s order requiring Occidental to produce allegedly privileged documents. The Fifth Circuit explained that Occidental would have to prove ” not only that the district court erred, but that it clearly and indisputably erred.” Occidental would also have to prove that such error “is irremediable on ordinary appeal.”
One reason why discovery fights involving the attorney-client privilege and work product doctrine are so important at the trial court level is the great difficulty litigants face in seeking appellate relief.