Transferring a third-party discovery dispute from a distant jurisdiction to one's home forum may lead to an unfavorable and unreviewable decision. A recent decision construing the 2013 revised version of Federal Rule of Civil Procedure Rule 45(f) determined that such a transfer precludes immediate appeal from denial of a motion to compel and may preclude any effective review.
P.H. Glatfelter Co. v. Windward Prospects Ltd. involved an attempt to enforce a third‑party subpoena served in the First Circuit for a matter pending in the Seventh Circuit. When the recipient of the subpoena refused to comply, the propounding party brought a motion to compel before a district court in the First Circuit.
In conjunction with its motion, the movant requested transfer of the matter pursuant to Federal Rule of Civil Procedure Rule 45(f) to the U.S. District Court for the Eastern District of Wisconsin, the court where the substantive case was pending. The movant based the request, which the respondent opposed, on exceptional circumstances. The district court transferred the matter.
The Eastern District of Wisconsin considered and denied the motion to compel. The movant sought review in the Seventh Circuit.
Court Finds That Transfer Precludes Immediate Appeal
The Seventh Circuit determined that denial of the motion to compel would have been immediately reviewable in the First Circuit had the motion to compel been litigated there. Because the matter had been transferred to the same court as the underlying litigation on the merits, however, it was not reviewable in the Seventh Circuit until the issuance of final judgment in that matter. Accordingly, the court dismissed the appeal for lack of jurisdiction. Nevertheless, "while the opinion suggests that an appeal from a different [trial] court within the same circuit would be premature, it left that question open," noted Angela K. Olalde, League City, TX, cochair of the Content Subcommittee of the ABA Section of Litigation's Appellate Practice Committee.
In support of the unreviewable ruling, the court noted that pretrial discovery orders are generally not considered final orders and are not subject to immediate appeal. Under the "collateral order doctrine," however, "where an order 'conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment," an immediate appeal will lie.
Although the movant relied upon the collateral order doctrine to support its argument for immediate appeal, the court rejected its application. Instead, the court found that it would allow immediate appeal of pretrial discovery orders "only where they were issued by a district court in an ancillary proceeding and said district court was not within the jurisdiction of the circuit court having appellate jurisdiction to review the final adjudication of the main action." The court declined to extend that rule to matters where the ancillary proceeding was in the same court as the main action.
The Seventh Circuit rejected the movant's claim that its decision led to an unjust result of either requiring litigation of the ancillary proceeding before a court having no connection to the main case or of forcing a party to give up its right to meaningful appeal. To the contrary, "[the movant] has it backwards," as transfer under Rule 45(f) is meant to preclude "piecemeal litigation in multiple fora as well as piecemeal appeals," and the "collateral order doctrine 'must never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.'"
A Trap for the Unwary
The Glatfelter decision illustrates the rule of "be careful what you wish for," because this decision will be a "bit of a land mine if you are not aware of it," opined Kenneth M. Klemm, New Orleans, LA, cochair of the ABA Section of Litigation's Pretrial Practice & Discovery Committee. As a litigator, "when issuing a subpoena to a third-party, I'd rather be in my home forum," but the Glatfelter decision makes that a decision to "weigh more carefully," both as the party propounding the discovery and when considering whether to agree to a motion to transfer as the respondent, Klemm adds. Alternatively, attorneys might "consider whether to seek mandamus relief, to avoid the collateral order doctrine's stringent jurisdictional requirements and obtain merits review before trial," to avoid the issue altogether, Olalde suggests.
Adam E. Lyons is a contributing editor for Litigation News.
Keywords: compel, transfer, collateral order, third-party subpoena
- » Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (209).
- » United States v. P.H. Glatfelter Co., 768 F.3d 662, 665–67 (7th Cir. 2014).
- » Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1020 (Fed. Cir. 1986).
- » Ariel v. Jones, 693 F.2d 1058 (11th Cir. 1982) (per curium).
- » Josh Jacobson, "Appeals in Intra-Circuit Ancillary Proceedings," Appellate Practice (2013).
- » Steven C. Corhern, "Changes to FRCP 45 Substantially Alter Federal Subpoena Practice," Pretrial Practice & Discovery (2014).