When To Appeal Privilege Claims - State And Federal Differences

In Commonwealth of Pennsylvania v. Harris, No. 8 EAP 20098 (Pa. 2011) (McCaffrey, J.), the Pennsylvania Supreme Court reaffirmed its prior rule that orders overruling claims of privilege are immediately appealable as of right under Pennsylvania law, rejecting a recent U.S. Supreme Court opinion to the contrary.

Francis Harris was found guilty of first-degree murder and sentenced to death for the killing of a witness who was scheduled to testify against him in a trial on aggravated assault charges. After affirmance of the sentence, Harris filed a petition under Pennsylvania's Post Conviction Relief Act. He argued that his attorney in the criminal trial had ineffectively introduced the testimony of a psychologist hired to testify at the sentencing hearing about past psychological trauma suffered by Harris.

The Lackawanna County Court of Common Pleas ruled that Harris had waived privilege as to the psychologist's testimony and granted the Commonwealth's request to subpoena the psychologist as well as retain him as an expert witness. Harris appealed to the Pennsylvania Supreme Court. The Supreme Court, affirmed in part and reversed in part, holding that the Commonwealth could subpoena the psychologist to testify to the extent Harris had waived any privilege, but that the Commonwealth could not retain him as an expert.

Significantly for trial attorneys and litigants alike, the Court affirmed its earlier ruling in Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), that orders overruling claims of privilege were immediately appealable as of right. In Ben v. Schwartz, the Court had applied Pennsylvania Rule of Civil Procedure 313(b) to find that orders overruling claims of privilege met the three-pronged test to qualify for interlocutory appeal as collateral orders.

But in 2009, the United States Supreme Court decided Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (U.S. 2009), the first opinion authored by Justice Sotomayor. In Mohawk, the Court refused to allow interlocutory appeals of privilege rulings in the federal courts, holding that under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), such appeals were not "effectively unreviewable." The Mohawk Court ruled that "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege," and that "Section 1292(b) appeals, mandamus, and appeals from contempt citations facilitate...