Wilson v. O'BRIEN, 621 F.3d 641 (7th Cir. 2010). · Go Syfert
Wilson v. O'BRIEN, 621 F.3d 641 (7th Cir. 2010). Cases Citing This Book View Copy Cite
47 citation events (47 in the last 25 years) across 10 distinct courts.
Strongest positive: Rosner v. United States (ca2, 2020-05-08) · Strongest negative: United States v. Krane (ca9, 2010-10-29)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
cited Cited "but see" United States v. Krane
9th Cir. · 2010 · signal: but cf. · confidence high
But cf. Wilson v. O’Brien, 621 F.3d 641, 641 (7th Cir.2010) (Easterbrook, C.J.) (questioning Perlman’s vitality after Mohawk under different factual circumstances). 4 .
discussed Cited as authority (verbatim quote) Rosner v. United States
2d Cir. · 2020 · quote attribution · 1 verbatim quote · confidence high
only when the person who asserts a privilege is a non-litigant will an appeal from the final decision be inadequate.
discussed Cited as authority (rule) In re: Grand Jury 2021 Subpoenas (2×) also: Cited "see"
4th Cir. · 2023 · confidence medium
Mohawk might be read to say that interlocutory appeals . . . should not be permitted when the privilege-holder has other means to protect his privilege rights.” (simplified)), Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir. 2010) (ultimately declining to reach the issue, but explaining that Mohawk “calls Perlman . . . into question, because, whether the [discovery] 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.
discussed Cited as authority (rule) In re: Grand Jury 2021 Subpoenas (2×) also: Cited "see"
4th Cir. · 2023 · confidence medium
Mohawk might be read to say that interlocutory appeals . . . should not be permitted when the privilege-holder has other means to protect his privilege rights.” (simplified)), Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir. 2010) (ultimately declining to reach the issue, but explaining that Mohawk “calls Perlman . . . into question, because, whether the [discovery] 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.
discussed Cited as authority (rule) In re: Grand Jury 2021 Subpoenas (2×) also: Cited "see"
4th Cir. · 2023 · confidence medium
Mohawk might be read to say that interlocutory appeals . . . should not be permitted when the privilege-holder has other means to protect his privilege rights.” (simplified)), Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir. 2010) (ultimately declining to reach the issue, but explaining that Mohawk “calls Perlman . . . into question, because, whether the [discovery] 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.
discussed Cited as authority (rule) In re: Grand Jury Matter 3 v. (2×)
3rd Cir. · 2016 · confidence medium
The Contempt Rule To obtain immediate appellate review of a disclosure order, the order’s target must ordinarily comply with what is known as the “contempt rule”: He “must refuse compliance, be held in contempt, and then appeal the contempt order.”17 The party may immediately appeal the district court’s contempt order because that order is a final judgment imposing penalties on the willfully disobedient party in what is effectively a separate proceeding.18 The contempt route “is a firmly established feature of federal appellate procedure, . . . but the decision to travel that rou…
discussed Cited as authority (rule) Drummond Co. v. Collingsworth
11th Cir. · 2016 · confidence medium
See United States v. Copar Pumice Co., 714 F.3d 1197, 1207-09 (10th Cir.2013) (declining to exercise jurisdiction over interlocutory appeal of a disclosure order directed to a third party where the appealing privilege holder was a party to the litigation who could appeal from final judgment); Holt-Orsted v. City of Dickson, 641 F.3d 230, 237-38 (6th Cir. 2011) (same); Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010) (noting that after Mohawk “whether the [disclosure] order is directed against a litigant or a third party, an appeal from final judgment will allow review of the district co…
cited Cited as authority (rule) Chevron Corporation v. Aaron Page
4th Cir. · 2014 · confidence medium
Interlocutory review permits a decision before the cat is out of the bag.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010).
discussed Cited as authority (rule) Jane Doe v. Roy Black
11th Cir. · 2014 · confidence medium
As the Seventh Circuit explained about the scope of the Perlman doctrine after Mohawk, “[o]nly when the person who asserts a privilege is a nonlitigant will an appeal from a final decision be inadequate.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010); see also In re Grand Jury, 705 F.3d at 145 -46 & n.11 (rejecting that Mohawk narrowed Perlman “at least in the grand jury context”); Holt-Orsted v. City of Dickson, 641 F.3d 230, 239 (6th Cir.2011) (recognizing that Perlman jurisdiction remains when a nonparty asserts a privilege); Krane, 625 F.3d at 572 (ruling that “Perlman an…
discussed Cited as authority (rule) Jane Doe v. Roy Black
11th Cir. · 2014 · confidence medium
As the Seventh Circuit explained about the scope of the Perlman doctrine after Mohawk, “[o]nly when the person who asserts a privilege is a non- litigant will an appeal from a final decision be inadequate.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir. 2010); see also In re Grand Jury, 705 F.3d at 145–46 & n.11 (rejecting that Mohawk narrowed Perlman “at least in the grand jury context”); Holt-Orsted v. City of Dickson, 641 F.3d 230, 239 (6th Cir. 2011) (recognizing that Perlman jurisdiction remains when a nonparty asserts a privilege); Krane, 625 F.3d at 572 (ruling that “Perlm…
discussed Cited as authority (rule) United States v. Punn
2d Cir. · 2013 · confidence medium
See, e.g., United States v. Copar Pumice Co., 714 F.3d 1197 , 1208 n.5 (10th Cir. 2013) (collecting cases); In re Grand Jury, 705 F.3d 133 , 144‐46 (3d Cir. 2012) (holding Perlman exception remains viable after Mohawk in case where privilege‐holder is a grand jury subject); Holt‐ Orsted v. City of Dickson, 641 F.3d 230, 238 (6th Cir. 2011) (“[T]he Mohawk decision has altered the legal landscape related to collateral appeals of discovery orders adverse to the attorney‐client privilege and narrowed the category of cases that qualify for interlocutory review. . . . “[W]here the privil…
discussed Cited as authority (rule) United States v. Punn
2d Cir. · 2013 · confidence medium
See, e.g., United States v. Copar Pumice Co., 714 F.3d 1197 , 1208 n. 5 (10th Cir.2013) (collecting cases); In re Grand Jury, 705 F.3d 133, 144-46 (3d Cir.2012) (holding Perlman exception remains viable after Mohawk in case where privilege-holder is a grand jury subject); Holt Orsted v. City of Dickson, 641 F.3d 230, 238 (6th Cir.2011) ("[T]he Mohawk decision has altered the legal landscape related to collateral appeals of discovery orders adverse to the attorney-client privilege and narrowed the category of cases that qualify for interlocutory review....” "[W]here the privilege holder is a …
discussed Cited as authority (rule) In Re: Sealed Case
D.C. Cir. · 2013 · confidence medium
See In re Grand Jury, Nos. 12-1697 & 12-2878, 2012 U.S. App. LEXIS 25318, *20 (3d Cir. Dec. 11, 2012); In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470,485 (lOth Cir. 2011); Wilson v. O'Brien, 621 F.3d 641, 642-43 (7th Cir. 2010); United States v. Krane, 625 F.3d 568, 573 (9th Cir. 2010); United States v. Myers, 593 F.3d 338, 345 (4th Cir. 2010); John B. v. Goetz, 531 F.3d 448 , 458 n.6 (6th Cir. 2008); In re Air Crash at Belle Harbor, 490 F.3d 99, 106 (2d Cir. 2007); Gill v. Gulfstream Park Racing Ass 'n, 399 13 PUBLIC COPY- SEALED INFORMATION DELETED ~s to do in order to fin…
discussed Cited as authority (rule) United States v. Copar Pumice Company (2×)
10th Cir. · 2013 · confidence medium
See, e.g., Holt-Orsted, 641 F.3d at 237-38 (discussing in a civil action the tension between Mohawk and Perlman and holding that “where the privilege holder is a party to the litigation with recourse *1208 in a post-judgment appeal, we conclude that Perlman no longer affords jurisdiction to hear, this interlocutory appeal”); Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010) (noting that after Mohawk, “[ojnly when the person who asserts a privilege is a non-litigant will appeal from the final decision be inadequate,” but ultimately dismissing appeal as moot).
discussed Cited as authority (rule) In re Sealed Case
D.C. Cir. · 2013 · confidence medium
See In re Grand Jury, 705 F.3d 133, 144 (3d Cir.2012); In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 485 (10th Cir.2011); Wilson v. O'Brien, 621 F.3d 641, 642-43 (7th Cir.2010); United States v. Krane, 625 F.3d 568, 573 (9th Cir.2010); United States v. Myers, 593 F.3d 338, 345 (4th Cir.2010); John B. v. Goetz, 531 F.3d 448 , 458 n. 6 (6th Cir.2008); In re Air Crash at Belle Harbor, 490 F.3d 99, 106 (2d Cir.2007); Gill v. Gulfstream Park Racing Ass’n, 399 F.3d 391, 397-98 (1st Cir.2005); In re Grand Jury Subpoena, 190 F.3d 375, 382-83 (5th Cir.1999); In re Grand Jury Proc…
cited Cited as authority (rule) In Re Grand Jury Subpoena
10th Cir. · 2013 · confidence medium
Requiring the witness to violate the subpoena and risk a contempt citation “puts the objecting person’s sincerity to the test.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010).
examined Cited as authority (rule) In Re: Grand Jury v. (4×) also: Cited "see, e.g."
3rd Cir. · 2012 · confidence medium
Requiring a person who objects to a disclosure order to “refuse to comply, be subjected to sanctions in contempt, and then appeal from the sanctions ...[,] puts the objecting person’s sincerity to the test by attaching a price to the demand for immediate review.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010).
examined Cited as authority (rule) In Re Grand Jury ABC Corp. (7×) also: Cited "see"
3rd Cir. · 2012 · confidence medium
Requiring a person who objects to a disclosure order to “refuse to comply, be subjected to sanctions in contempt, and then appeal from the sanctions ____[,] puts the objecting person’s sincerity to the test by attaching a price to the demand for immediate review.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.2010).
examined Cited as authority (rule) Harris v. State (3×) also: Cited "see, e.g."
Md. · 2011 · confidence medium
Wilson v. O’Brien, 621 F.3d 641, 642-43 (7th Cir.2010).
cited Cited as authority (rule) Holt-Orsted v. City of Dickson
6th Cir. · 2011 · confidence medium
Only when the person who asserts a privilege is a non-litigant mil an appeal from the final decision be inadequate.” Id. at 643 (emphasis added). 4 We agree.
Retrieving the full opinion text from the archive…
Robert WILSON, Plaintiff-Appellant,
v.
James O’BRIEN, Et Al., Defendants-Appellees. Additional Appellant: Tyler Nims
10-2417.
Court of Appeals for the Seventh Circuit.
Sep 3, 2010.
621 F.3d 641
2010 U.S. App. LEXIS 18443
2010 WL 3447650
Locke E. Bowman, III, Attorney (submitted), MacArthur Justice Center, Chicago, IL, for Plaintiff-Appellant., John S. Elson, Attorney, Northwestern University Legal Clinic, Chicago, IL, for Appellant., Nadine J. Wichern, Attorney, City of Chicago Law Department, Chicago, IL, for Defendants-Appellees.
Easterbrook, Kanne, Hamilton.
Cited by 25 opinions  |  Published
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.

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, 69 S.Ct. 1221, 93 L.Ed. 1528 (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, — U.S.-, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), which held that the collateral-order doctrine does not support an interlocutory 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.

Although that line of argument is in tension with United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (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, 38 S.Ct. 417, 62 L.Ed. 950 (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 turnover 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, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). By contrast, when an order of disclosure is directed against a person whose legal interests are[*643] 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.

Our first decision after Mohawk Industries arose from an appeal by a non-party, but we did not decide whether BurdenMeeks 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 privilege is a non-litigant will an appeal from the final decision 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 follow. 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 problem, 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 controversy 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.

The premise of an interlocutory appeal in a case such as Perlman or Burderir-Meeks is that the holder of the information 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 containing Nims’s answers during the deposition. The envelope will be returned, unopened, to the district court. Mohawk Industries tells us that access to assertedly privileged 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.