US v. Austin et al
No. 04-10576 (8-2-05). This is an attempt to get interlocutory jurisdiction for a district court's (ROS's) decision that a joint defense agreement (JDA) does not make privileged the discussions between codefendants absent the presence of counsel. The collateral order doctrine requires that the issue be conclusively determined, that it resolve an important issue, and that it be effectively unreviewable later. The defendants meet the first two factors but fail on the third because they cannot point to any privileged communication with specificity. Moreover, a ruling would not end prosecution, like double jeopardy, or involve such rights a free speech. Unlike other cases, the communications here may or may not be privileged, and could be on an ongoing issue. The 9th goes on to deny other grounds for extraordinary relief, such a s mandamus.