Carpenter v. Mohawk Industries, Inc.

• Decision Date: 26 August 2008
• Docket Number: No. 07-15208.,No. 07-15691.,07-15208.,07-15691.
• Citation: 541 F.3d 1048
• Parties: Norman CARPENTER, Plaintiff-Appellee, v. MOHAWK INDUSTRIES, INC., Defendant-Appellant. In Re: Mohawk Industries, Inc., Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

541 F.3d 1048

Norman CARPENTER, Plaintiff-Appellee, v. MOHAWK INDUSTRIES, INC., Defendant-Appellant.

In Re: Mohawk Industries, Inc., Petitioner.

No. 07-15208.

No. 07-15691.

United States Court of Appeals, Eleventh Circuit.

August 26, 2008.

Daniel F. Diffley, Leigh R. Rhoads, Randall Allen, Alston & Bird, LLP, Atlanta, GA, for Mohawk Industries, Inc.

Thomas J. Munger, Benjamin A. Stone, Munger & Stone, LLP, Atlanta, GA, for Carpenter.

Appeal from the United States District Court for the Northern District of Georgia.

On Petition for Writ of Mandamus to the United States District Court for the Northern District of Georgia.

Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,^* District Judge.

PER CURIAM.

Before the Court are the following: (1) Appellant's appeal of a district court's order granting Appellee's motion to compel responses and produce documents Appellant contends are protected by the attorney-client privilege; (2) Appellant's companion petition for writ of mandamus seeking to compel the district court judge to vacate the order as it relates to the motion to compel; and (3) Appellee's motion to dismiss the appeal for lack of jurisdiction. After review and oral argument, we conclude that this Court should decline to extend the "collateral order" doctrine established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to the exercise of this Court's jurisdiction over an interlocutory appeal of a discovery order implicating the attorney-client privilege. Additionally, with respect to Appellant's companion petition for writ of mandamus, we conclude that Appellant has not shown that its "right to issuance of the writ is `clear and indisputable.'" In re Lopez-Lukis, 113 F.3d 1187, 1188 (11th Cir.1997)(citing Kerr v. U.S. Dist. Court for the Northern Dist. of California, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). Accordingly, we dismiss Appellant's appeal for lack of jurisdiction and deny Appellant's petition for writ of mandamus.

I. Background

Plaintiff/Appellee Norman Carpenter ("Appellee") initiated this action on March 15, 2007 in the United States District Court for the Northern District of Georgia against Defendant/Appellant Mohawk Industries, Inc. ("Mohawk" or "Appellant"), and also against various employees of Mohawk Industries, Inc., alleging that he was terminated in violation of 42 U.S.C. § 1985(2) and various Georgia laws. Specifically, Appellee contends in his complaint that he reported to Mohawk's human resources department that several temporary employees, hired by Mohawk through a temporary employment agency, were illegal aliens. After making his report, Appellee was required to meet with attorney Juan P. Morillo, who represents Mohawk in a separate lawsuit, Williams v. Mohawk Industries, Inc., Civil Action File No. 4:04-cv-0003-HLM.¹

Appellee alleges that the meeting between him and attorney Juan P. Morillo was designed to coerce him into recanting his report, which Appellant knew would be damaging to its defense in the Williams action. Appellee refused to recant his report, and he was terminated the day after the meeting. Appellant's stated reason for terminating Appellee was because it had discovered that Appellee was committing immigration crimes by harboring illegal aliens.

After learning about Appellee's complaint, the plaintiffs in the Williams action filed an emergency motion for an evidentiary hearing, to which Mohawk's counsel in the Williams action filed a response. The response stated, in relevant part:

Plaintiffs admit that the only basis for their Motion are the allegations in the complaint filed two weeks ago in Carpenter v. Mohawk Industries. Plaintiffs have never spoken to Mr. Carpenter, and they have not produced any other evidence corroborating his allegations. Nor could they. As his own statements demonstrate, Mr. Carpenter's wild allegations that he was fired because of some conspiracy to influence his testimony are pure fantasy. The true facts are these. On June 1, 2006, Mohawk hired Mr. Carpenter as a Shift Supervisor at Mohawk's Union Grove manufacturing facility. Mr. Carpenter was hired as a salaried employee, and his responsibilities included the supervision of hourly Mohawk employees. Shortly after he arrived at Mohawk, Mr. Carpenter engaged in blatant and illegal misconduct . . . . Mr. Carpenter's attempt to have Mohawk send a worker that Mr. Carpenter believed to be unauthorized to a temporary agency was a clear violation of Mohawk's Code of Ethics and an attempt to circumvent federal immigration law.

. . .

After receiving Ms. Hale's complaint, Mohawk responded in an entirely appropriate manner. It commenced an immediate investigation of Mr. Carpenter's efforts to cause Mohawk to circumvent federal immigration law and his claim that other temporary workers at the Union Grove Road facility were not authorized to work in the United States. As part of that investigation, Mohawk's outside counsel Juan P. Morillo interviewed Mr. Carpenter.

As a result of Mr. Carpenter's misconduct, Mohawk fired Mr. Carpenter and did not give him any severance package. His attempt to knowingly cause Mohawk to obtain and utilize an unauthorized worker blatantly violated Mohawk policy.²

After engaging in some initial discovery exchanges in the instant case, Appellee filed a motion to compel responses to both his interrogatories and document requests, seeking information Appellant contended was protected by the attorney-client privilege. Specifically, Appellee sought information related to his communications with Attorney Juan P. Morillo and information related to Appellant's decision to terminate Appellee. The district court found that the communications at issue were protected by the attorney-client privilege, but it went on to conclude that Appellant had implicitly waived the attorney-client privilege due to the response Appellant filed in the Williams action. The district court stated that:

By making those representations, Defendant Mohawk placed the actions of Attorney Morillo in issue. In fairness, evaluation of those representations will require an examination of otherwise-protected communications between Attorney Morillo and Plaintiff and between Attorney Morillo and Defendant Mohawk's personnel. Consequently, the Court must conclude that Defendant Mohawk has waived the attorney-client privilege with respect to the communications relating to the interview of Plaintiff and the decision to terminate Plaintiff's employment.

The district court then ordered Appellant to respond to Appellee's interrogatories and document production requests, but it stayed that portion of its order if Appellant chose to appeal.

Appellant, believing that it had not waived the attorney-client privilege and not wanting to turn over the information at issue, challenges the district court's order in this appeal. Appellee has moved to dismiss the appeal on the basis that this Court lacks jurisdiction to consider the appeal of a non-final discovery order. Appellant has also filed a petition for a writ of mandamus, seeking to compel the district court judge to vacate the order as it relates to Appellee's motion to compel. We consolidated the appeal, motion to dismiss, and petition for a writ of mandamus and will, therefore, consider them together.

II. Motion to Dismiss—Jurisdiction

As an initial matter, we must address this Court's jurisdiction to review Appellant's claims by way of interlocutory appeal. Generally, discovery orders are not final orders of the district court for purposes of obtaining appellate jurisdiction under 28 U.S.C. § 1291. A final decision is one that "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1338 (11th Cir.2007) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)). Therefore, discovery orders are normally not immediately appealable. See Rouse Constr. Int'l, Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir.1982). However, the collateral order doctrine, established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), provides an exception to the finality requirement of 28 U.S.C. § 1291. Under Cohen, an order is appealable if it (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

Appellant argues that the challenged discovery order is an appealable "collateral order" under Cohen, because all three prongs of the Cohen test are met. We conclude that the challenged discovery order meets the first and second prongs of the relevant test. The district court's order requiring Appellant to produce the disputed information leaves no room for the district court to further consider whether the information at issue is protected. As for the second prong, we agree that the attorney-client privilege is important and that the district court can resolve the privilege issues (i.e., whether Appellant must produce the disputed documents and communications) without deciding the merits of the case.

As for the third prong, however, we do not find that a discovery order that implicates the attorney-client privilege is effectively unreviewable on appeal from a final judgment. If this Court were to determine on appeal from a final judgment that privileged information was wrongly turned over and was used to the detriment of the party asserting the privilege, we could reverse any adverse judgment and require a new trial, forbidding any use of the improperly disclosed information, as well as any documents, witnesses, or other evidence obtained...