From time to time, a judicial opinion not only resolves the dispute before it but serves as a primer on an area of law. That was the case with a recent decision of the United States Fifth Circuit Court of Appeals. Leonard v. Martin, __ F. 4th__, 2022 WL 2353372 (5th Cir. June 30, 2022). The context was appellate practice.

In a “run-of-the-mill personal injury lawsuit arising out of a car accident,” the defendant served a document subpoena on a pain-management doctor.[1] That doctor had recommended that the plaintiff receive a certain medical treatment annually for the next several years. The treatment was expensive. It “ma[d]e up a large percentage of [the plaintiff’s] life care plan and alleged damages.” The defendant was skeptical. It sought discovery from the doctor, including all records of patients over a 10-year period who received the same recommendation and the bills associated with any such services they received. (The subpoena attempted to moot HIPAA issues by preemptively suggesting redaction). The doctor objected; the magistrate judge modified the subpoena but otherwise upheld it; and the doctor sought immediate review from the appellate court.

First, the result. The doctor lost, mainly because the Fifth Circuit ruled that it lacked appellate jurisdiction. The court began with the basics. With few exceptions, appellate jurisdiction is limited to reviewing final decisions. But over 70 years ago, the Supreme Court held that a final decision includes not only judgments that end the case but also “a ‘small class’ of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’” To fit within that class, “the order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgement.” The appellant’s burden is heavy. To fit within the so-called “Cohen collateral order doctrine,” the justification for immediate appeal must be “sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.”

In ruling that the doctor’s challenge to a subpoena he considered overly burdensome was not immediately appealable, the court helpfully gave examples of cases that do and do not fall within the Cohen doctrine.

• On one hand, courts often allow an immediate appeal from orders rejecting absolute or qualified immunity, orders denying a state’s Eleventh Amendment immunity, rulings that deny a defendant's double jeopardy defense, and discovery orders that unseal a nonparty’s confidential information or allow nonparty discovery that raises substantial First Amendment issues.
   
• On the other hand, the courts have not allowed an immediate appeal from orders refusing to enforce a forum-selection clause, declining to enforce a settlement agreement, denying motions to disqualify counsel, and requiring nonparties to comply with discovery orders.

Over a dissent, the panel majority held that the doctor’s challenge fell into the latter category of cases. The majority was unwilling to broaden the collateral order doctrine to allow immediate appeals of nonparty discovery orders based on burdensomeness arguments.

The majority noted that, aside from seeking the costs of compliance in the district court, the doctor had another avenue at his disposal, but it was not without peril. He could have chosen to disobey the district court order, received a contempt citation, and then challenged the discovery order when appealing the contempt finding. Or, though the prospects were bleak, the doctor could have asked the district court to certify the question for immediate appeal under 28 U.S.C. § 1292(b). That process, rarely used, also requires the appellate court to agree that certification is warranted.

There was one more option: mandamus. Once again, the odds are slim. A writ of mandamus is a “drastic” and “extraordinary” remedy reserved for “extraordinary causes.” It is appropriate only where the petitioner shows a clear and indisputable right to the writ; the petitioner has no other adequate means to attain the relief he desires; and the court is satisfied that the writ is appropriate under the circumstances. It's not enough to show that the district court misinterpreted the law, misapplied the law to the facts, or abused its discretion. Instead, the party seeking that relief must show either a “clear abuse[ ] of discretion that produce[s] patently erroneous results” or exceptional circumstances amounting to a “judicial usurpation of power.” Even though all three members of the panel doubted the merits of the discovery order, the majority found that the doctor failed to meet this burden. Considering the district court’s broad discretion to regulate discovery, the opinion suggests that — apart from questions of privilege — mandamus is not a realistic option for third parties challenging the relevance or burdensomeness of subpoenas.

About the Author...

Thomas M. Flanagan
Flanagan Partners, LLP
Complex Litigation Committee Chair