Robert Wilson v. James O’brien

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2417
ROBERT WILSON,
Plaintiff-Appellant,
v.
JAMES O’BRIEN, et al.,
Defendants-Appellees.
Additional appellant:
TYLER NIMS
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 3994—Charles P. Kocoras, Judge.
SUBMITTED AUGUST 5, 2010—DECIDED SEPTEMBER 3, 2010
Before EASTERBROOK, Chief Judge, and KANNE and
HAMILTON, Circuit Judges.
EASTERBROOK, Chief Judge. After a state court set aside
his conviction for attempted murder, Robert Wilson
filed this suit in federal court under 42 U.S.C. §1983
against persons associated with the prosecution, plus
the City of Chicago.

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2 No. 10-2417
Defendants took the deposition of Tyler Nims, who
while a law student had interviewed (on Wilson’s behalf)
a mental patient who took responsibility for the acts
of which Wilson had been convicted. Nims sat for the
deposition on May 12, 2010, and refused to answer
several questions, asserting the attorney work-product
privilege. The district court held a hearing by telephone
and directed Nims to answer. Nims complied with this
order.
Defendants want to use Nims’s answers in support of
a motion for summary judgment and, if necessary, at
trial. Wilson and Nims have filed an interlocutory
appeal, invoking the collateral-order doctrine of Cohen
v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). We
issued an order requiring the parties to file memoranda
addressing the question whether the appeal comes
within our jurisdiction in light of Mohawk Industries, Inc. v.
Carpenter, 130 S. Ct. 599 (2009), which held that the
collateral-order doctrine does not support an interlocu-
tory appeal by a party to the litigation who contends
that the district judge erred in resolving a dispute about
an evidentiary privilege. The Supreme Court concluded
that an appeal from the final decision suffices to deal
with any error. See also In re Whirlpool Corp., 597 F.3d
858 (7th Cir. 2010). But appellants contend that Nims, as
a non-party who will be unable to appeal from the
final decision, can maintain an interlocutory appeal
notwithstanding Mohawk Industries, and that Wilson
also may do so because the order to disclose was not
directed against him.

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No. 10-2417 3
Although that line of argument is in tension with
United States v. Ryan, 402 U.S. 530 (1971), which held that
a non-party may obtain appellate review only by
refusing to comply and being held in contempt of court,
we concluded before Mohawk Industries that Cohen
allows an immediate appeal by a non-party who is
ordered to disclose assertedly privileged information.
See Burden-Meeks v. Welch, 319 F.3d 897, 900-01 (7th Cir.
2003) (collecting cases). We analogized to Perlman v.
United States, 247 U.S. 7 (1918), in which a party, who
had supplied information to his lawyer, wanted to
prevent the lawyer from turning the information over
to another of the litigants. The Court observed in Perlman
that the original source of the information had no other
way to enforce his claim of confidentiality, for there
was nothing he could do if the information’s current
holder was disposed to comply with the judicial turn-
over order. Later decisions have understood Perlman as
establishing a rule that a party may obtain interlocutory
appellate review of disclosure orders directed against
disinterested third parties. See, e.g., Church of Scientology
v. United States, 506 U.S. 9, 18 n.11 (1992). By contrast,
when an order of disclosure is directed against a person
whose legal interests are affected, that person has a
means to obtain appellate review: refuse to comply, be
subjected to sanctions in contempt, and then appeal from
the sanctions. That approach puts the objecting person’s
sincerity to the test by attaching a price to the demand
for immediate review. Only serious and substantial
disputes will interrupt the proceedings in the district
court.

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4 No. 10-2417
Our first decision after Mohawk Industries arose from
an appeal by a non-party, but we did not decide whether
Burden-Meeks and similar decisions survived Mohawk
Industries or are reconcilable with Ryan. See Sandra T.E. v.
South Berwyn School District 100, 600 F.3d 612, 617-18
(7th Cir. 2010). Mohawk Industries calls Perlman and its
successors into question, because, whether the order is
directed against a litigant or a third party, an appeal
from the final decision will allow review of the district
court’s ruling. Only when the person who asserts a privi-
lege is a non-litigant will an appeal from the final deci-
sion be inadequate. The reason we bypassed the subject
in Sandra T.E. is that the appeal had been resolved
before the Supreme Court issued its opinion in Mohawk
Industries, with a notation that an opinion would fol-
low. After our decision, but before the release of our
opinion, the Justices issued Mohawk Industries; our
panel thought it inappropriate to dismiss the appeal on
jurisdictional grounds, given that it had already been
resolved on the merits, but flagged the subject for
further attention.
As it happens, this is not the occasion for that further
attention, because there is another jurisdictional prob-
lem, one that takes precedence. From Nims’s perspective,
this matter is moot. He complied with the district
judge’s order. The privilege (if there is one) belongs
to Wilson, not to Nims, who interviewed the mental
patient as Wilson’s agent. There is no case or contro-
versy between Nims and any of the litigants, and he has
no continuing duties under the district court’s order, so
his appeal must be dismissed.

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No. 10-2417 5
The premise of an interlocutory appeal in a case such
as Perlman or Burden-Meeks is that the holder of the infor-
mation has yet to comply with the order. Interlocutory
review permits a decision before the cat is out of the
bag. By answering the questions at his deposition, Nims
revealed to the defendants the (assertedly) privileged
information. Wilson’s appeal cannot achieve an order
relieving Nims of the choice between disclosing and
standing in contempt; Nims has disclosed already. The
only remaining question is whether defendants may
use information that they now possess. Mohawk Industries
holds that the district court’s resolution of that issue
be reviewed on appeal from the final decision.
The record on appeal includes a sealed envelope con-
taining Nims’s answers during the deposition. The enve-
lope will be returned, unopened, to the district court.
Mohawk Industries tells us that access to assertedly privi-
leged information is within the district judge’s control
while the litigation proceeds in the district court. Until a
final decision has been made in the district court, we
do not have any legitimate say about the disposition of
the material collected in discovery.
The appeal is dismissed for lack of jurisdiction.
9-3-10

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