A split Fifth Circuit held that non-party discovery orders rejecting undue-burden claims are not immediately appealable under the collateral-order doctrine. It was a step in the right direction for a circuit that has some questionable caselaw on discovery appeals.
July 6, 2022
In Leonard v. Martin, a split Fifth Circuit held that non-parties cannot use the collateral-order doctrine to immediately appeal discovery orders that reject a claim of undue burden. Other avenues for immediate review—certified appeals under 28 U.S.C. § 1292(b), writs of mandamus, and contempt appeals—were available. The majority accordingly concluded that collateral-order appeals were unnecessary to ensure meaningful review of orders denying motions to quash on undue-burden grounds. Judge Haynes dissented, contending that the discovery order in question implicated important issues that could not be effectively reviewed via other means. And she suggested that non-party status alone might be enough to warrant an immediate appeal.
The Fifth Circuit has some questionable caselaw on appealing discovery orders via the collateral-order doctrine. I think the court allows too many of these appeals. I’m glad to see a case going the other way.
The Leonard Litigation
Simplifying a bit, Leonard arose from car accident. A large part of the plaintiff’s damages were for ongoing medical treatment that an anesthesiologist/pain-management specialist recommended. In discovery, the defendant sought to discover the frequency with which the doctor recommended this treatment as well as how often patients followed through with it. Apparently the defendant thought that the doctor recommended this treatment “simply a means of inflating the amount of damages in personal injury litigation.”
The doctor moved to quash the subpoena, contending that the request was unduly burdensome. The doctor explained that responding to the subpoena required time-consuming review of his files and creating records that did not already exist. The district court denied the motion to quash. The doctor then appealed and, alternatively, petitioned for mandamus.
Appealing Discovery Orders
Most discovery orders are not immediately appealable. And for good reason. Discovery decisions are often within the district court judge’s discretion. They’re accordingly less likely to be reversed and thus less in need of immediate review. Discovery rulings can also be subject to change as litigation proceeds, which might obviate the need to appeal a discovery order. And discovery orders are part of a district court judge’s control over pretrial litigation. Immediate appellate review of discovery orders could thus interfere with the judge’s management of the litigation.
But discovery orders are not entirely beyond immediate review. The standard method is a contempt appeal. With this option, the targets of discovery orders can disobey the order and risk being found in contempt of court. If found in contempt, they can often immediately appeal the contempt ruling. And in that appeal, they can challenge the underlying discovery order. Other options include certified appeals under 28 U.S.C. § 1292(b) and writs of mandamus.
Until 2009, some courts of appeals allowed immediate appeals of certain discovery orders via the collateral-order doctrine. But in Mohawk Industries, Inc. v. Carpenter, the Supreme Court held that parties cannot use the collateral-order doctrine to immediately appeal discovery orders adverse to a claim of privilege. The court concluded that these discovery orders were not effectively unreviewable. The just-mentioned other avenues for review—along with normal post-judgment appeals—“suffice[d] to protect the rights of litigants and assure the vitality of the attorney-client privilege.”
The Fifth Circuit on Appealing Discovery Orders Generally
Mohawk Industries seemed to throw cold water on the prospects of appealing discovery orders via the collateral-order doctrine. But it has not entirely shut down litigants’ efforts. And in the Fifth Circuit, litigants have found some success.
For example, in Whole Woman’s Health v. Smith, a split Fifth Circuit used the collateral-order doctrine to review a discovery order requiring the disclosure of information that implicated the discovery target’s First Amendment rights. In Stallworth v. Bryant, the Fifth Circuit continued to apply its pre-Mohawk Industries caselaw that uses the collateral-order doctrine to review discovery orders that reject a claim of governmental privilege. And in Document Operations, L.L.C. v. AOS Legal Technologies, Inc., the Fifth Circuit said a discovery order could be reviewed via the collateral-order doctrine because the order implicated a party’s rights under the United States-Japan Consular Convention of 1964.
There’s also Vantage Health Plan, Inc. v. Willis-Knighton Medical Center, in which the Fifth Circuit held that sealing and unsealing orders are immediately appealable via the collateral-order doctrine. In the course of doing so, the court noted that it has not “reach[ed] the question whether third-party status alone, absent some constitutional or other issue that calls into question the ‘general familiarity of courts with standards governing [the dispute],’ may suffice to invoke the collateral order doctrine.”
The Fifth Circuit on Appealing Discovery Orders Involving Claims of Undue Burden
But in Leonard, a majority of the Fifth Circuit held that the discovery order was not immediately appealable via the collateral-order doctrine.
The court began by characterizing the category of orders in which the doctor’s appeal fell. Courts are supposed to apply the collateral-order doctrine categorically, not on a case-by-case basis. The doctor argued that the relevant category was “orders that require nonparty physicians to conduct patient audits and generate statistical materials.” But that category, the majority explained, was too narrow. Appealability should not turn on case-specific inquiries. The majority instead characterized the order as one “denying a nonparty’s motion to quash a subpoena on undue burden grounds.”
Given this broader category of order, the rest of the analysis was straightforward. Other avenues for immediate appellate review—contempt appeals, § 1292(b), and mandamus—existed. Given those alternative avenues for review, immediate appeals via the collateral-order doctrine were not necessary to effectively review discovery orders adverse to a claim of undue burden.
The majority also denied the doctor’s writ of mandamus, concluding that the district court’s decision was not sufficiently erroneous to warrant the writ.
Judge Haynes’s Dissent
Judge Haynes dissented on both the collateral-order doctrine and mandamus issues.
As for the collateral-order doctrine, Judge Haynes contended that the discovery order was effectively unreviewable. The doctor was a third party to the litigation, such that a traditional final-judgment appeal was unhelpful. And the interests at stake in Leonard were particularly important. As Judge Haynes saw things, requiring a doctor to disobey a court order to obtain a contempt appeal could have professional consequences.
Alternatively, assuming the court lacked jurisdiction, Judge Haynes would have granted the doctor’s mandamus petition.
A Proper Rejection of a Discovery Appeal
The majority has this one right. But it didn’t do much to deal with the Fifth Circuit’s caselaw on appealing discovery orders
As for Judge Haynes’s dissent, I see two problems. First, some of her analysis is case-specific, focusing not on a broad category of orders but on the facts of Leonard. That’s not right. To be sure, divining the category of orders at issue is subject to debate—reasonable minds can disagree about the proper level of generality. But too much of her analysis looked to the specifics of the order in Leonard.
More troubling is Judge Haynes’s statements about non-party discovery appeals. She seemed to place a lot of emphasis on the doctor’s non-party status and prior cases that mentioned the difficulties non-parties might have when it comes to appealing discovery orders. She ended her discussion of the collateral-order doctrine by noting that the Fifth Circuit has “not foreclosed the possibility that third-party status alone, in certain circumstances, is enough to invoke the collateral order doctrine.”
If Judge Haynes is suggesting that non-parties should have a right to appeal discovery orders, I disagree. Non-parties have the same options for immediate appellate review of discovery orders as parties. In fact, non-parties have one additional avenue: although parties normally cannot appeal an order of civil contempt, non-parties can. And similar reasons for delaying appellate review of discovery orders apply to non-parties. District courts are unlikely to commit reversible error, such that immediate review would have few benefits. And non-party discovery orders are common (though not as common as those involving parties), such that a right to immediate review could produce a lot of appeals.
Leonard v. Martin, 2022 WL 2353372 (5th Cir. June 30, 2022), available at the Fifth Circuit and Westlaw.