Boughton v. Cotter Corp.

• Decision Date: 30 November 1993
• Docket Number: No. 93-1088,93-1088
• Citation: 10 F.3d 746
• Parties: Lynn E. BOUGHTON, et al., Plaintiffs-Appellees, v. COTTER CORPORATION; Commonwealth Edison Company, Defendants-Appellants, Atchison, Topeka and Santa Fe Railway Company, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 746

10 F.3d 746

27 Fed.R.Serv.3d 1368

Lynn E. BOUGHTON, et al., Plaintiffs-Appellees, v. COTTER CORPORATION; Commonwealth Edison Company Defendants-Appellants Atchison, Topeka and Santa Fe Railway Company, Defendant.

No. 93-1088.

United States Court of Appeals Tenth Circuit.

Nov. 30, 1993.

John Leonard Watson (Edward J. McGrath and Edward E. Stevenson, also of Holme, Roberts & Owen, with him on the briefs), Denver, CO, for defendants-appellants.

Kenneth N. Kripke, Denver, CO (Stanley M. Chesley and Louise M. Roselle of Waite, Schneider, Bayless & Chelsey Co., Cincinnati, OH; James R. Christoph of McCormic &amp Christoph, Boulder, CO; and David Kreutzer, Boulder, CO, with him on the briefs), for plaintiffs-appellees.

Before LOGAN, EBEL and KELLY, Circuit Judges.

LOGAN, Circuit Judge.

Defendants Cotter Corporation and Commonwealth Edison Company appeal from a district court order denying their motion for reconsideration of a magistrate judge's discovery order. The magistrate judge's order requires defendants to produce 112 documents in response to a discovery request by plaintiff Lynn E. Boughton and more than 500 coplaintiffs in this suit involving the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and other claims. Defendants assert that these documents, created in preparation for an administrative licensing proceeding and to address subsequent license compliance measures, are protected from discovery under the attorney-client privilege, the attorney work product doctrine, and/or the non-testifying expert privilege of Fed.R.Civ.P. 26(b)(4).

We consider whether the particular circumstances of this case allow us to break with the normal strictures of 28 U.S.C. Sec. 1291 and exercise jurisdiction over the interlocutory appeal of a discovery order under the Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), "collateral order" exception, by construing the appeal as a petition for a writ of mandamus, or under the "pragmatic finality" doctrine.

I

In 1989, plaintiffs filed suit in the District of Colorado asserting claims arising from defendants' operation of a uranium mill in Canon City, Colorado. Discovery began, and defendants willingly produced thousands of documents. However, when plaintiffs sought to discover 125 documents pertaining to state and federal uranium mill licensing issues--eighty created by defendants in preparation for a 1979 licensing hearing regarding defendants' Canon City mill and forty-five dealing with subsequent license compliance issues--defendants refused to produce the requested materials on the grounds that they were privileged. Plaintiffs moved to compel production of the disputed documents, and following an in camera review, the federal magistrate judge ruled that only thirteen documents were shielded from discovery by the attorney-client privilege and that the remaining 112 items should be turned over to the plaintiffs. Defendants moved for reconsideration of the magistrate judge's discovery order and their motion was denied by the district court. When the district court denied 28 U.S.C. Sec. 1292(b) certification defendants filed this appeal. We issued a temporary stay pending briefing, argument, and decision by this court on whether we have jurisdiction to decide the merits of defendants' claims.

Final decision jurisdiction under 28 U.S.C. Sec. 1291 typically "depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). District court orders for the production of documents during the course of litigation are not "final orders" subject to immediate appellate review. Church of Scientology v. United States, --- U.S. ----, ---- n. 11, 113 S.Ct. 447, 452 n. 11, 121 L.Ed.2d 313 (1992); Hooker v. Continental Life Ins. Co., 965 F.2d 903, 904 (10th Cir.1992). While recognizing that most interlocutory orders disadvantage or inflict some degree of harm on one of the parties to a litigation, this court must balance that concern against the need for efficient judicial administration, the delay caused by interlocutory appeals, and the burden on appellate courts imposed by fragmentary and piecemeal review of the district court's myriad rulings in the course of a typical case. Arthur Andersen & Co. v. Finesilver, 546 F.2d 338, 342 (10th Cir.1976), cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543 (1977). Allowing interlocutory appeals before a final judgment on the merits erodes "the deference appellate courts owe to the district judge's decisions on the many questions of law and fact that arise before judgment." Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 2760, 86 L.Ed.2d 340 (1985) (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981)).

II

Defendants argue that the challenged discovery order is properly classified as an appealable "collateral order" under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In order to meet the Cohen exception to Sec. 1291, an order "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, 437 U.S. at 468, 98 S.Ct. at 2458. Unless all three requirements are established, jurisdiction is not available under the collateral order doctrine. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988). The instant discovery order arguably meets the first and second prongs of the relevant test. But the only sense in which the order can be argued to satisfy the third prong of the Cohen test is that it exposes to others' view documents that defendants contend should not be so exposed. The practical consequences of the district court's decision on the controversy between the parties can be effectively reviewed on direct appeal following a judgment on the merits. If this court determines that privileged documents were wrongly turned over to the plaintiffs and were used to the detriment of defendants at trial, we can reverse any adverse judgment and require a new trial, forbidding any use of the improperly disclosed documents. Plaintiffs would also be forbidden to offer at trial any documents, witnesses, or other evidence obtained as a consequence of their access to the privileged documents.

This circuit has repeatedly held that discovery orders are not appealable under the Cohen doctrine. See Hooker v. Continental Life Ins. Co., 965 F.2d 903, 904-05 (10th Cir.1992); Graham v. Gray, 827 F.2d 679, 681 (10th Cir.1987); FTC v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir.1985); Usery v. Ritter, 547 F.2d 528, 532 (10th Cir.1977); Arthur Andersen & Co. v. Finesilver, 546 F.2d 338, 342 (10th Cir.1976), cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543 (1977); Paramount Film Distrib. Corp. v. Civic Ctr. Theatre, Inc., 333 F.2d 358, 361-62 (10th Cir.1964). Indeed, only in a few rare cases have we allowed an interlocutory appeal. The first was Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965), in which nonparty witnesses sought a right to protection from disclosure of trade secrets. ¹ Later in Alaska Land Leasing, we stated that United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), indirectly overruled Covey. Alaska Land Leasing, 778 F.2d at 578. Regardless of Covey's vitality, we do not here have a nonparty attempting to protect a trade secret. Rather, we have parties to litigation claiming the attorney-client and work product privileges against disclosure of documents they own.

This circuit has not directly addressed the question whether a discovery order compelling disclosure of documents claimed to be privileged can be appealed before final judgment under Cohen. ² But in virtually every case in other circuits involving similar attorney-client privilege claims, the courts have refused to take jurisdiction. See Texaco Inc. v. Louisiana Land & Exploration Co., 995 F.2d 43, 44 (5th Cir.1993); Chase Manhattan Bank v. Turner & Newall, PLC, 964 F.2d 159, 162-63 (2d Cir.1992); Reise v. Board of Regents of the Univ. of Wis. Sys., 957 F.2d 293, 295 (7th Cir.1992) ("The travail and expense of discovery and trial cannot be reversed at the end of the case, yet this has never been thought sufficient to allow pre-trial appeals.... Indeed, even orders to produce information over strong objections based on privilege are not appealable, despite the claim that once the cat is out of the bag the privilege is gone."); ³ Quantum Corp. v. Tandon Corp., 940 F.2d 642, 644 (Fed.Cir.1991); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 377 (11th Cir.1989); American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 280 (2d Cir.1967) ("The rule of nonappealability is no different when a claim of attorney's work-product under Hickman v. Taylor [329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ] ... is made."). But cf. In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672 (D.C.Cir.) (appeal permitted but relief denied where documents had been inadvertently disclosed), cert. denied, 444 U.S. 915, 100 S.Ct. 229, 62 L.Ed.2d 169 (1979).

Judge Feinberg, writing for the Second Circuit in American Express Warehousing, 380 F.2d 277, stated the following regarding Cohen appealability of a claim of attorney work product privilege:

We do not think that the mere possibility of erroneous application of the Hickman principle to a...