The Seventh Circuit today turned back Whirlpool's effort to stop the hand-over of documents it claimed fell within its attorney-client privilege.  The panel noted that, in Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009) (post here), the Court barred appeals from pretrial orders that breached a claim of privilege.  The panel also concluded that Whirlpool hadn't met the tough test for granting extraordinary mandamus relief:

The district court carefully considered Whirlpool's arguments that communications between its counsel and outside advertising agencies should be protected by the attorney-client privilege, either because agency staff functioned as de facto Whirlpool employees or because the agencies and Whirlpool shared a common legal interest.  And the cases Whirlpool cites, most of them from district courts, fail to establish that the district court's rejection of Whirlpool's position was patently erroneous or usurpative in character — in other words, a serious error.  Without that, mandamus is inappropriate, regardless of whether Whirlpool has any other opportunities for appellate review, such as refusing to turn over the documents and then using the ensuing sanctions under Fed. R. Civ. P. 37(b)(2) as the basis of an appeal.

LG Electronics USA, Inc. v. Whirlpool Corp., 09-3777, slip op. at 3-4 (7th Cir. Mar. 3, 2010) (per curiam).

Blawgletter thinks the panel got the result right, mainly because Whirlpool's grounds for privilege strike us as thin.  Imagine Mad Men serving as "de facto employees" of Kodak or sharing a legal interest with Conrad Hilton in making ads 100 percent truthful.  We think not.