Tony Mauro reports:
A Georgia company’s efforts to resist disclosure of communications with its lawyer provoked a rare discussion at the U.S. Supreme Court on Monday over the importance of attorney-client privilege.
On the first day of its fall term, the Court heard hourlong arguments in Mohawk Industries Inc. v. Carpenter, which asks when a party can appeal a judge’s finding that it has waived the privilege in an order releasing material for discovery.
Several justices seemed skeptical that the attorney-client privilege should be protected any more strongly than other privileges or other possible grounds for appealing judicial orders.
“Mr. Allen, except for the fact that you and I are lawyers,” said Justice Antonin Scalia, “do you really think that confidentiality right is any more important to the proper functioning of society than, let’s say, the protection of trade secrets?” In jest, Scalia threw out the hypothetical of a judge ordering the release of “the formula for Coca-Cola.”
Justice Sonia Sotomayor also seemed skeptical, noting that there are already exceptions to the attorney-client privilege, which are “not going to stop people from talking to lawyers if they really need to.”
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