Federal courts have eliminated nearly any chance for unsuccessful trial court litigants to immediately appeal adverse privilege or work product rulings – inexplicably rejecting the obvious “cat out of the bag” nature of such rulings. In federal court, the difficult “mandamus” route normally provides the only remedy.
But in state courts, losing trial court litigants have more hope. In Petzold v. Castro, No. 2D22-4024, 2023 Fla. App. LEXIS 4029 (Fla. Dist. Ct. App. June 16, 2023), the Florida Court of Appeal interlocutorily overruled the trial court’s erroneous decision equating the subject matter waiver impact of an inadvertent disclosure of a privileged communication and an intentional disclosure. Approximately two weeks later in McGlothlin v. Astrosky, No. 1 CA-SA 23-0059, 2023 Ariz. App. LEXIS 276 (Ariz. Ct. App. June 29, 2023), the Arizona Court of Appeals interlocutorily reviewed what it found to be the trial court’s erroneous in camera review of privileged documents, although ultimately agreeing with the trial court’s substantive conclusions.
Litigants familiar with the very slim odds of interlocutory appeals in federal court privilege disputes might be pleasantly surprised when litigating in a state court.