Overview
In a decision yesterday, Judge Furman declined to certify an interlocutory appeal on the question of whether an individual employee can force his former employer to waive privilege so the employee can assert an advice-of-counsel defense. Judge Furman had previously found that the employer cannot be forced to waive the privilege, and noted that an interlocutory appeal would only serve to further delay the litigation:
[T]he Court cannot find that an immediate appeal would materially advance the ultimate termination of the litigation. This case was filed over three years ago, and discovery - which has been contentious and protracted - is due to close in only eighteen days . . . . Put simply, an interlocutory appeal would not promote the efficient administration of justice, as the risk of having to retry the case against [the former employee defendant] after final judgment is much smaller than the near certainty of multiple trials and multiple appeals that would follow from allowing an interlocutory appeal.The decision is part of the government's FIRREA case against Wells Fargo (previous coverage here).