                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CAROL ANN AGSTER, personal               
representative of the Estate of
Charles J. Agster, III, deceased,
and as surviving parent of Charles
J. Agster, III; CHARLES J. AGSTER,
JR., surviving parent of Charles J.
Agster, III,
                 Plaintiffs-Appellees,
                  v.
MARICOPA COUNTY, a public entity;
MARICOPA COUNTY CORRECTIONAL
HEALTH SERVICES, a division of
Maricopa County,                              No. 04-15466
             Defendants-Appellants,
                                               D.C. No.
                                             CV-02-01686-JAT
                 and
MARICOPA COUNTY SHERIFF’S                       OPINION
OFFICE, a division of Maricopa
County; JOSEPH M. ARPAIO,
Sheriff; BETTY J. LEWIS; JOHN DOE
LEWIS, husband; BARUCH A.
REUSCH; JANE DOE REUSCH, wife;
LEAH R. COMPTON; JOHN DOE
COMPTON, husband; KRISTINE
KEMPER; JAMES E. CROUCH,
husband, aka John Doe Kemper;
AMANDA S. GARRISON; JOHN DOE
GARRISON, husband; SUSAN E.
FISHER; JOHN DOE FISHER, husband;
                                         


                              4747
4748             AGSTER v. MARICOPA COUNTY


ERIC NULPH; JANE DOE NULPH,          
wife; KATHERINA BROKSCHMIDT;
CHARLES BROKSCHMIDT, husband,
aka John Doe Brokschmidt;
MICHAEL C. WILKINS; KATHLEEN         
WILKINS, wife, aka Jane Doe
Wilkins; LAURA SODEMAN; JOHN
DOE SODEMAN, husband,
                       Defendants.
                                     
        Appeal from the United States District Court
                 for the District of Arizona
        James A. Teilborg, District Judge, Presiding

                  Argued and Submitted
         March 16, 2005—San Francisco, California

                   Filed April 28, 2005

       Before: John T. Noonan, Sidney R. Thomas, and
             Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Noonan
4750             AGSTER v. MARICOPA COUNTY


                         COUNSEL

Michael D. Wolver, Phoenix, Arizona, for the defendants-
appellants.

Sean B. Berberian, Phoenix, Arizona, for the plaintiffs-
appellees.


                         OPINION

NOONAN, Circuit Judge:

   The parents and the representative of the estate of Charles
J. Agster III (Agster) brought this action against individuals
and Maricopa County and Maricopa County Sheriff’s Office
(collectively, the County) for the death of Agster while in the
custody of the County. In this interlocutory appeal, the
County challenges the order of the district court compelling
production of the mortality review conducted by Correctional
Health Services. We hold that we have jurisdiction to consider
the County’s claim of privilege, and we hold that federal law
recognizes no privilege of peer review in the context of a case
involving the death of a prisoner.
                   AGSTER v. MARICOPA COUNTY                   4751
                FACTS AND PROCEEDINGS

   On August 6, 2001, Agster was arrested and taken to the
county jail where he was placed in a restraint chair. His respi-
ration decreased, and he developed an irregular heartbeat.
Attempts were made to resuscitate him. He was ultimately
transported to a hospital where he was placed on life support.
On August 9, 2001, he was pronounced dead.

   Correctional Health Services, whose employees had given
medical care to Agster at the jail, was obligated to undertake
a mortality review by its own policies and by Standard J-10
of the National Commission on Correctional Health Care
Standards for Health Services in Jails. The review, designated
as a “Critical Incident Report” was begun August 7, 2001 and
finished November 8, 2001. The review was intended to be,
and was, kept confidential.

   On August 6, 2002, the plaintiffs brought this action in Ari-
zona state court. On August 29, 2002, the County removed
the action to the federal district court. Prior to trial, the plain-
tiffs sought discovery of the mortality review. The motion
was opposed by the County evoking Arizona law to maintain
its confidentiality. On January 30, 2002, the district court
ruled “that no federal peer review has been adopted in the
Ninth Circuit.” The court overruled the claim of privilege and
ordered the production of the document. The court declined
to certify the order for interlocutory appeal.

  The County appeals.

                           ANALYSIS

   Jurisdiction. Our jurisdiction is of final judgments, 28
U.S.C. § 1291, with a gloss admitting appeal of “a narrow
class of decisions that do not terminate the litigation, but
must, in the interest of achieving a healthy legal system, none-
theless be treated as final.” Digital Equip. Corp. v. Desktop
4752              AGSTER v. MARICOPA COUNTY
Direct, Inc., 511 U.S. 863, 867 (1994) (internal quotations
and citations omitted). Such decisions must “conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
The present appeal meets these stringent conditions.

   [1] The issue of the production of the mortality review is
conclusively resolved. The issue is important: the statutory
grant of the claimed privilege by Arizona and other states
attests to its importance. If the matter is not resolved on this
appeal, the document will influence the outcome of the trial,
but it will be difficult to determine the difference it made.
Therefore, we find jurisdiction to decide the dispute now.

   [2] The Privilege. Arizona recognizes the privilege attached
to peer review of “the professional practices within the hospi-
tal or center for the purposes of reducing morbidity and mor-
tality and for the improvement of the care of patients provided
in the institution.” Ariz. Rev. Stat. §§ 36-445, 36-445.01. But
we are not bound by Arizona law, and the defendants deliber-
ately chose the federal forum to litigate this suit.

   [3] No case in this circuit has recognized the privilege. But
we can create a new privilege as a matter of federal common
law. A “public good transcending the normally predominant
principle” disfavoring testimonial privileges may justify such
creation. Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (internal
quotations and citation omitted). The law of privilege is not
frozen. The process of recognizing one is “evolutionary.” Id.
(citation omitted). It is earnestly urged that the evolution has
reached the point here that the protection of confidentiality in
peer review in order to assure candor in the review has been
recognized by most states. Weekoty v. United States, 30 F.
Supp. 2d 1343, 1348 (D. N.M. 1998); Note, The Medical
Review Committee Privilege: A Jurisdictional Survey, 67
N.C.L. Rev. 179 (1988).
                  AGSTER v. MARICOPA COUNTY                4753
   [4] We are constrained by two considerations, one general
and the other particular to this case. We must be “especially
reluctant to recognize a privilege in an area where it appears
that Congress has considered the relevant competing concerns
but has not provided the privilege itself.” Univ. of Pennsylva-
nia v. EEOC, 493 U.S. 182, 189 (1990). The Health Care
Quality Improvement Act of 1986 granted immunity to partic-
ipants in medical peer reviews, but did not privilege the report
resulting from the process. See 42 U.S.C. §§ 11101-11152.
Congress amended the act in 1987 to state that “nothing in
this subchapter shall be construed as changing the liabilities
or immunities under law or preempting or overriding any
State law.” Pub. L. No. 100-177, § 402(c). As Congress has
twice had occasion and opportunity to consider the privilege
and not granted it either explicitly or by implication, there
exists a general objection to our doing so.
   [5] The particular objection is that the privilege is sought
to protect a report bearing on the death of a prisoner. Whereas
in the ordinary hospital it may be that the first object of all
involved in patient case is the welfare of the patient, in the
prison context the safety and efficiency of the prison may
operate as goals affecting the care offered. In these circum-
stances, it is peculiarly important that the public have access
to the assessment by peers of the care provided. Given the
demands for public accountability, which seem likely to guar-
antee that such reviews take place whether they are privileged
or not, we are not convinced by the County’s argument that
such reviews will cease unless kept confidential by a federal
peer review privilege. Accordingly, we are unwilling to create
the privilege in this case.
   [6] The State Law Claims. Where there are federal question
claims and pendent state law claims present, the federal law
of privilege applies. Fed. R. Evid. 501 advisory committee
note; see also Wm. T. Thompson Co. v. Gen. Nutrition Corp.,
671 F.2d 100, 104 (3rd Cir. 1982).
   AFFIRMED.
