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Kicking discovery orders upstairs: you may not have to wait until the end of your case to raise discovery issues on appeal. Special writs and other remedies can get harmful or onerous discovery orders before an appellate court - before they cause irreparable harm to your case.

The discovery process lets parties in a lawsuit examine relevant, nonprivileged information while keeping expenses and burdens as low as possible. (1) The trial court's role is to ensure that the process does not favor one party over another or give either side a tactical advantage. As one court said, "'The discovery process was not designed to be a scorched-earth battlefield upon which the rights of the litigants and the efficiency of the justice system should be sacrificed to mindless, overzealous representation of plaintiffs and defendants.'"(2)

But sometimes, discovery orders are wrong--they might direct parties to withhold critical evidence or force them to produce sensitive, potentially harmful information. If that happens, relief may be available from the appellate courts.

In most cases, discovery orders cannot be appealed until the case is over, because courts prefer to wait until they can perform a "unitary" appeal, looking at all appealable issues in the context of the whole case, rather than taking up appeals on an "interlocutory" basis. (3) As the Supreme Court has noted, "Finality as a condition of review is an historic characteristic of federal appellate procedure," and the same can be said of state courts. (4)

Judicial efficiency can work against litigants, however, if it denies access to critical evidence (5) or orders the production of embarrassing data that could harm one side's ability to mount a solid case. (6) If a court orders discovery of certain information over one side's objections, "effective review after final judgment is difficult," since the matters reviewed after a trial focus on the events occurring at trial and "an erroneous grant of discovery may affect trial if the fruits of discovery were erroneously admitted in evidence, but otherwise it will be difficult to find prejudicial error." (7)

Being denied access to key parts of discovery may not only make it harder for you to prevail at trial; it will also make it hard to explain to an appellate court how your client was prejudiced by this missing evidence, since you do not actually know what is missing. Appellate courts do not condone unfounded speculation about prejudice, (8) and trial judges have substantial discretion in ruling on discovery requests. (9)

Even if you are successful on appeal, you will have to go to a second trial. You can avoid that by getting questionable discovery rulings evaluated on appeal before the case is finished.

There are three ways to do this. The first is through a special writ, either of mandamus (10) or prohibition, (11) which is an interim appellate order to compel a trial judge to rule in a particular manner. (12) The second is to seek entry of an appellate court's discretionary order for leave to take an interlocutory appeal. (13) In the federal system and some states, a third avenue exists under the "collateral order doctrine." (14)

Special writs

Imagine that you represent the plaintiff in an auto collision and learn that the defendant was interviewed by her liability insurer within days of the crash, recounting details of how it occurred. Now, in discovery, the defense declines to produce a transcript of the interview, claiming work-product and attorney-client privilege. The trial judge agrees and denies disclosure of the document. You fear the defendant's deposition account of what happened is mere creative memory, and you long to impeach her. What to do?

You should think about a special writ to seek appellate review immediately. As one court noted, "A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand." (15)

When the trial court has confused the protection of attorney work-product impressions with the normal information-gathering operation of insurance adjusters, the remedy is clear: Reach for a writ of prohibition seeking to bar enforcement of the trial judge's errant order.

Now consider a scenario in which the tables are turned: The defense has obtained an order compelling you to disclose an e-mail that your client's wife sent him while he was in the hospital. The request is based on the defense's representation to the judge that they suspect she was responding to your client's drug-induced statement to her that he was to blame for the industrial accident that injured him. Once it is revealed, that communication loses any protection under the marital privilege. What should you do in this situation?

Extraordinary review of a discovery order has been granted when a ruling threatens immediate harm, such as loss of a privilege against disclosure, in the absence of another adequate remedy. (16) An extraordinary writ is warranted in such cases, but not usually to review discovery orders, since discovery is subject to substantial discretion. (17)

Generally, a writ of mandamus is available if the trial courtviolates a duty imposed by law or clearly abuses its discretion in resolving factual or legal issues. (18) Courts have held that where a discovery order compels production of irrelevant documents and there is no adequate remedy by appeal, a writ of mandamus may be issued on an interlocutory basis. (19)

For example, on the defense side of the ledger, courts have found an abuse of discretion and granted mandamus when trial courts have ordered defendants to produce information and documents outside the scope of relief sought by the plaintiff's complaint. (20) Trial courts have also been deemed to have abused their discretion when requiring defendants to search for documents over a long time span or a large geographic area. (21)

Mandamus relief is available when there is no adequate remedy at law. (22) To give other examples: If a discovery order potentially violates First Amendment rights, there is no adequate remedy by appeal, so mandamus is appropriate. (23) If the trial court erroneously orders the disclosure of privileged information that will materially affect a plaintiff's rights, mandamus is appropriate. "The extraordinary writ of mandamus is appropriate 'to confine an inferior tribunal to the lawful exercise of its proper jurisdiction [.]'" (24)

Special writs are usually limited to those situations where privilege is threatened, but they can also serve to constrain overzealous or onerous discovery orders. To obtain special writs, you must establish

* the risk of an immediate, irreparable harm that cannot be adequately addressed by other judicial relief, such as damages or a later reversal of the offending order.

* the loss of privilege, potential destruction or modification of critical evidence, or something else that cannot be adequately addressed by awarding compensation.

* evidence of the trial court's abuse of discretion as shown by the availability of other remedies that yield less harm to litigants, or proof that the trial judge has contravened the bounds of state or federal rule or law regarding discovery.

Discretionary appeals

Let's say your client hasn't been able to work since an auto accident and the vocational evaluation says he cannot even operate a home computer well enough to perform menial telemarketing tasks. The defense secures a trial court order compelling production of his home computer's hard drive, suspecting that it may yield evidence that he has used e-mail or surfed the Web and is capable of some work. They also hope it will show he has visited some tawdry Web sites so they can discredit him. Is there any appellate relief at this stage of the process?

Discretionary appeals ask the appellate court to exercise its plenary power to ensure that justice is served by reviewing a matter that may not otherwise be reviewable under traditional rules of appellate jurisdiction. Their availability depends on the individual protocol of the appellate court system in question, but generally they are based on the following criteria:

* The matter is not otherwise appealable as a matter of right under court rules, as it is a nonfinal order.

* Hearing an appeal on an interlocutory basis is in the interest of justice--to address a matter of importance to the justice system as a whole, conserve judicial resources, and address an issue that could be highly influential on the outcome, if not dispositive of the matter.

* Some irreparable harm not otherwise addressable by the court may occur if review is not immediately taken.

In this case, for instance, if the defense has failed to articulate a just reason for the inspection of the computer, and given that several family members use the same computer, the marginal utility of producing the hard drive--which could include confidential e-mails to or from a lawyer--is outweighed by the loss of privilege and by the collateral harm that the search could cause.

Collateral order doctrine

Consider a final scenario, in which the defendant automaker contends that the materials sought in a discovery order would reveal trade secrets. The company seeks an interim appeal contending that while the order does not finally dispose of the case, the questions raised over whether technical information is a trade secret have reached a final disposition that--though collateral to the case--are of critical importance to it. Does the defendant have to wait to appeal?

In Cohen v. Beneficial Industrial Loan Corp., the Supreme Court expanded the scope of reviewable orders under 29 U.S.C. [section] 1291 in what is now known as the collateral order doctrine, which allows for an interlocutory appeal even though the entire case is not over, or "final." (25) Under this doctrine, a final order is not one that terminates the action but, rather, is a final decision by the district court on a particular question in the case.

Courts have held that the requirements of the collateral order doctrine are satisfied when a party appeals a discovery order involving information that the party claims to be privileged or a trade secret. (26) The collateral order doctrine requires that the order

* be final in the sense that the district court's ruling is not "open, unfinished or inconclusive" and "tentative, informal, or incomplete." (97)

* be collateral or separable in the sense that it is "separable from, and cob lateral to, rights asserted in the action," and that it is "too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." (28)

* be elusive of other review in that a delay until the conclusion of the whole case "will be too late effectively to review" the order. (29)

* pose hardship from a threatened immediate harm if review is not taken immediately; this means something more than merely having to submit to a trial that may otherwise be wasted (30) and showing the issue is "too important to be denied review" on an interlocutory basis. (31) Sometimes this concept of an "important issue" or "unsettled question" is viewed as a separate element. (32)

In the right circumstances, if you meet the criteria, you can get an interlocutory appeal.

Discovery can make or break a case. Whether it is an order denying access to critical evidence or one that grants production of privileged or damaging information, a discovery order is the tail that wags the dog.

While appellate courts prefer finality over interlocutory appeals, there are ways to get relief if you have been wronged by a discovery order. You can apply for special writs, seek discretionary review of critically important matters, or use the collateral order doctrine.

All of these measures require proof of immediate and irreparable harm, so you should understand the requirements and build your case accordingly. Understanding which mechanisms apply to your situation--and how to use them--is a critical part of giving full representation to your clients and exploring every remedy available.

Notes

(1.) See State exrel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 606 (Mo. 2002).

(2.) Id. (quoting State ex rel. Madlock v. O'Malley, 8 S.W.3d 890, 891 (Mo.1999) (en banc)).

(3.) See FTC v. Alaska Land Leasing, Inc., 778 F.2d 577 (10th Cir. 1985); Clark v. Dist. Ct., 668 F.2d 3 (Colo. 1983); State v. Powell, 442 A.2d 939 (Conn. 1982); Bass v. Cincinnati, Inc., 536 N.E.2d 831,832 (Ill. App. 1989); Matter of Liquidation of Hornsby & Landry, 532 So. 2d 559 (La. App. 1988); In re Guardianship of Johnson, 519 N.E.2d 655, 658 (Ohio App. 1987); In re Burlington Bagel Bakery, Inc., 549 A.2d 1044, 1045 (Vt. 1988).

(4.) Cobbledick v. U.S., 309 U.S. 323, 324 (1940).

(5.) See e.g. Gibbons v. CIT Group/Sales Financing, Inc., 400 S.E.2d 104 (N.C. App. 1991) (regarding answers to interrogatories in a class action case).

(6.) See e.g. Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007) (involving production of documents ordered over which privilege had been asserted).

(7.) Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure vol. 15B, [section] 3914.23 (2d ed. West 1992 & Supp. 2008).

(8.) See e.g. Jadwin v. City of Dayton, 379 N.W.2d 194, 197 (Minn. App. 1985); Hughes v. Commonwealth, 446 S.E.2d 451,463 (Va. App. 1994) (en banc).

(9.) See e.g. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1310 (3d Cir. 1995); Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (enbanc).

(10.) Courts have held that where a discovery order compels production of irrelevant documents and there is no adequate remedy by appeal, a writ of mandamus may be issued on an interlocutory basis. See In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam). Generally, mandamus relief is available if the trial court violates a duty imposed by law or clearly abuses its discretion, either in resolving factual issues or in determining legal issues, when there is no adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

(11.) Compare Berthelot v. Dezso, 714 N.E. 2d 888, 890 (Ohio 1999) (per curiam) (holding that an extraordinary writ will usually not issue to control judicial discretion, "even if that discretion is abused") and Farm Sow. Coop. v. Cummins, 561 S.W.2d 317, 319 (Ark. 1978) (holding that an order for discovery is interlocutory and not appealable, and a writ of prohibition will not lie) with State Farm Mut. Auto. Ins. Co. v. Stephens, 425 S.E.2d 577, 579 (W. Va. 1992) ("A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.") and Johnson v. Dist. Ct. of Okla. Co., 738 P.2d 151 (Okla. 1987) (issuing writ of prohibition to bar defense from interviewing plaintiff's treating doctors in medical malpractice case); see also Wilson v. Naifeh, 539 P.2d 390 (Okla. 1975); State ex rel. Delmar Gardens N. Operating, LLC v: Gaerther, 239 S.W.3d 608 (Mo. 2007).

(12.) Generally, a writ of mandamus directs that a judicial officer must do a particular thing, and a writ of prohibition orders that he or she must not do a particular thing. Depending on the organization of the appellate court system, in some states the writ used is referred to simply as a writ of certiorari, and it issues to protect the disclosure of privileged information. See e.g. Allstate Ins. Co. v. Langston, 655 So. 2d 91,94 (Fla. 1995); Quarles & Brady, LLP v. Birdsall, 802 So. 2d 1205 (Fla. App. 2002); State Farm Mut. Auto. Ins. Co. v. Kendrick, 780 So. 2d 231 (Fla. App. 2001).

(13.) This approach depends on the individual rules of the court system involved and ranges from rules that allow discretionary interim appeals in the interest of justice (see e.g. Minn. R. Civ. App. P. 105) to petitions for writs of certiorari (see e.g. Kendrick, 780 So. 2d 231).

(14.) See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989) (under 28 U.S.C. [section] 1291, an interlocutory appeal is allowed pursuant to the collateral order doctrine if the matter appealed is collateral to the merits and would be effectively unreviewable if an immediate appeal were not allowed and the outcome of the case would be conclusively determined by resolution of the issue).

(15.) Doe 2 v. Super. Ct., 34 Cal. Rptr. 3d 458, 466 (App. 2005) (quoting Paterno v. Cal., 87 Cal. Rptr. 2d 754, 766 (App. 1999)).

(16.) O'Grady v. Super. Ct., 44 Cal. Rptx: 3d 72, 83 (App. 2006).

(17.) Clark Co. Liquor & Gaming Licensing Bd. v. Clark, 730 F.2d 443, 447 (Nev. 1986).

(18.) See Walker, 827 S.W.2d at 839-40.

(19.) See In re CSX Corp., 124 S.W.3d at 151.

(20.) See e.g. In re Am. Optical Corp., 988 S.W.2d 711,713 (Tex. 1998) (per curiam).

(21.) See e.g. In re CSX Corp., 124 S.W.3d at 152.

(22.) See Walker, 827 S.W.2d at 840.

(23.) See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371,374-75 (Tex. 1998).

(24.) State ex rel. Marsland v. Ames, 788 P.2d 1281, 1283 (Haw. 1990) (per curiam) (quoting State v. Shintaku, 640 F.2d 289,293 (Haw. 1982) (per curiam)).

(25.) 337 U.S. 541 (1949).

(26.) See Montgomery Co. v. MicroVote Corp., 175 F.3d 296,300 (3d Cir. 1999); In re Ford Motor Co., 110 F.3d 954, 957-58 (3d Cir. 1997); Smith v. BIC Corp., 869 F.2d 194, 198 (3d Cir. 1989).

(27.) Cohen, 337 U.S. at 546.

(28.) Id.

(29.) Id.

(30.) See generally EEOC v. Kerrville Bus Co., 925 F.2d 129,134-35 (5th Cir. 1991).

(31.) U.S. v. Perkins, 433 F.2d 1182, 1186 (D.C. Cir. 1970).

(32.) See e.g. Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982).

WIL FLUEGEL practices trial and appellate law in Minneapolis. He can be reached at wilfluegel@aol.com.
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