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Ashcraft & Gerel v. Shaw5/3/1999
Court in saying that the privilege "is one of the oldest recognized privileges for confidential communications . . . intended to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of Justice." Swidler & Berlin v. United States, 524 U.S. 399, ____, 118 S. Ct. 2081, 2084 (1998). Although the general importance of the privilege is a consideration, the mere assertion of the attorney-client privilege will not necessarily satisfy the "importance" criteria in determining the collateral order exception. See Electronic Data Sys. Fed. Corp. v. Westmoreland Assocs., Inc., 311 Md. 555, 556 (1988) (interlocutory order of trial court compelling production of documents alleged to be privileged under the attorney-client relationship was not appealable under the collateral order doctrine); see also In re Ford, 110 F.3d at 959; Melia v. Hartford Fire Ins. Co., 520 A.2d 605, 607 (Conn. 1987) (the "occasional violation of the attorney-client privilege that cannot be fully rectified upon review of the final judgment is a lesser evil than that posed by the delay in the progress of cases in the trial court likely to result from interlocutory appeals of disclosure orders."); In re Rinehardt, 575 A.2d 1079, 1081 (Del. Super. Ct. 1990) ("proscription against appellate review of interlocutory orders . . . does not change merely because the discovery/disclosure order implicates the attorney-client privilege."); Lewellyn v. Bell, 635 A.2d 945, 948 (Me. 1993) (quoting Melia in dismissing appeal asserting that discovery order violated attorney-client privilege). In making the importance determination, we should consider the asserted privilege in the context of the particular case.
The Supreme Court has explained that piecemeal review "can make it more difficult for trial Judges to do their basic job --supervising trial proceedings can threaten those proceedings with delay, adding costs and diminishing coherence." Johnson, 515 U.S. at 309, 115 S. Ct at 2154. Under the circumstance of the present case, however, the cost of piecemeal review is not high because there is no trial pending that is delayed awaiting appellate resolution of the appeal. Thus, in balancing the costs of a piecemeal review against the danger of denying Justice by delay, we conclude that the Order is sufficiently important to meet the importance requirement.
The third requirement is that the order be completely separate from the merits of the action. As we stated above, the issue presented here of whether A&G;must disclose certain documents to the guardian is not related to the issues to be addressed in the ongoing Guardianship or CINA Cases. The Guardianship Case will involve ongoing reports by the guardian to the court about Larry's assets, how they are invested, and distributions for Larry's benefit. The case may also involve a request by the guardian for court authorization to file suit against A&G; But the guardian's request to file a suit against A&G;and the court's consideration of that request are separate from the merits of any actual suit filed because the merits would not be decided in the Guardianship or CINA Cases.
For the reasons stated above, we hold that the Order is appealable, and appellant's appeal from the Order should be addressed on its merits.
II.
Did the Circuit Court Have Jurisdiction Over A&G;
Appellant argues on appeal that the circuit court did not have the authority to order A&G;to produce its files relating to Larry because: 1) A&G;was not a party to the proceeding; and 2) there was no legal action pending in which A&G;s rep
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