Mohawk Industries, Inc. v. Carpenter - Oral Argument - October 05, 2009

Mohawk Industries, Inc. v. Carpenter

Media for Mohawk Industries, Inc. v. Carpenter

Audio Transcription for Opinion Announcement - December 08, 2009 in Mohawk Industries, Inc. v. Carpenter

Audio Transcription for Oral Argument - October 05, 2009 in Mohawk Industries, Inc. v. Carpenter

John G. Roberts, Jr.:

We will hear argument next in Case 08-678, Mohawk Industries v. Carpenter.

Mr. Allen.

Randall L. Allen:

Mr. Chief Justice, and may it please the Court:

For well over a century this Court has recognized the importance of the attorney-client privilege.

In Hunt v. Blackburn in 1888, the Court clearly stated that the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest of justice, that the aid and advice of persons having knowledge and skill in the practice of law provide that advice in a manner that is safely and readily available and, importantly, free from the consequences or apprehension of disclosure.

Antonin Scalia:

Mr. Allen, except for the fact that you and I are lawyers, do you really think that the -- that confidentiality right is any more important to the proper functioning of society than, let's say, the protection of trade secrets?

So that in a case of discovery where the defendant says, if I produce this I would be giving up a trade secret and it's not necessary for the case, and the judge says no, turn it over -- would there be in your view a right to interlocutory appeal in that case?

And if not there, then why here?

Randall L. Allen:

Justice Scalia, there are -- there are several answers to the question.

Let me start, first, with the -- the issue of the importance of -- of the attorney-client privilege as a key and central element of the administration of justice that this Court has recognized, not just with Hunt, but in a number of cases since.

But the question I think also goes more to prong three of Cohen, which is the reviewability standard.

In the context of attorney-client privileged information, once that information is disclosed to your adversary, it is disclosed to the last person on earth you might want to see it.

Antonin Scalia:

The same thing with a trade secret.

It is a suit between another company who is a competitor of yours--

Randall L. Allen:


Antonin Scalia:

--And the Judge says, turn over your trade secret, the formula for Cocoa-Cola, and you say no.

No interlocutory appeal, right?

Randall L. Allen:

--I think with trade secrets--

Antonin Scalia:

Or do you say there should be an interlocutory appeal there?

Randall L. Allen:

--Your Honor, we do not argue that -- here, that there should be an interlocutory appeal for trade secrets.

I think the practical resolution to the trade secret question is present in most cases of commercial litigation, where the court would provide a protective order limiting access to the trade secret; in other words, limiting access to counsel.

Sonia Sotomayor:

But what if the court doesn't, as Justice Scalia has posited?

The court here could do the same thing, depending on the secret being disclosed.

It could set up any number of protective mechanisms.

The issue is broader than that, which is: Why is the public policy of anti-disclosure any more important in the attorney-client privilege than in the trade secret context?

Randall L. Allen:

Yes, Justice Sotomayor.

But, with regard to the attorney-client privilege, first on the issue of the protective order, the protective order cannot limit the adversary's counsel from seeing the information.

As I said earlier, I think that's the last person in the world you would want to see.

You could limit access to trade secrets to counsel, who could make no use of the Coca-Cola formula or -- or Colonel Sanders' chicken recipe, but -- but the--

Sonia Sotomayor: