Hanley v. Evans

• Decision Date: 30 March 1982
• Citation: Hanley v. Evans, 443 A.2d 65 (Me. 1982)
• Parties: Deborah HANLEY v. D. Douglas EVANS.
• Court: Maine Supreme Court

Page 65

443 A.2d 65

Deborah HANLEY v.D. Douglas EVANS.

Supreme Judicial Court of Maine.

Argued March 16, 1982.

Decided March 30, 1982.

David J. Corson(orally), Nixon & Corson, Yarmouth, Ravech, Aronson & Shuman, P.C., Ned C. Lofton, Boston, Mass., for plaintiff.

Bourque & Clegg, Ronald D. Bourque(orally), Sanford, for defendant.

Before GODFREY, NICHOLS, ROBERTS, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

WATHEN, Justice.

In this paternity action, plaintiff Hanley appeals from a protective order prohibiting deposition of the defendant's wife.We dismiss the appeal as premature.

Plaintiff filed the action on April 7, 1981.Since that date there has been substantial discovery: interrogatories, requests for admissions, document discovery, and a lengthy deposition of the defendant.In the course of discovery plaintiff obtained extensive information on defendant's financial resources as well as significant admissions on the issue of paternity.Ostensibly for the purpose of obtaining additional information on defendant's financial condition and other matters, plaintiff sought a deposition of defendant's wife.The wife moved for a protective order prohibiting the plaintiff from deposing her; this order was granted, and the plaintiff brings this appeal.

Plaintiff should be aware that discovery orders are interlocutory and not appealable: the aggrieved party must seek relief in appeal from the final judgment.SeeField, McKusick & Wroth, Maine Civil Practice§ 26.18b (2d ed., Supp. 1981);8 C. Wright & A. Miller, Federal Practice & Procedure§ 2006(1970);4 Moore's Federal PracticeP 26.83(3)(2d ed. 1981);Developments in the Law-Discovery, 74 Harv.L.Rev. 940, 992-93(1961);Grinnell Corp. v. Hackett, 519 F.2d 595, 596(1st Cir.1975);Borden Co. v. Sylk, 410 F.2d 843, 845(3d Cir.1979).The fact that the plaintiff was seeking discovery against a non-party does not change this rule-at least where the request for discovery was denied, so that the aggrieved person is a party to the action and can seek relief in an appeal from the final judgment.Field, McKusick & Wroth, supra, at 212;C. Wright & A. Miller, supra, at 30.

Plaintiff seeks to characterize the Superior Court's protective order as a "collateral order" from which an interlocutory appeal is permitted-if the issue is to be saved, as held in Boyle v. Share, Me., 377 A.2d 458(1977).However, Boyle v. Share has no applicability in this context; it dealt with attachment orders, which are an established category of collateral orders.Northeast Investment Co. v. Leisure Living Communities, Inc., Me., 351 A.2d 845(1976);Foisy v. Bishop, Me., 232 A.2d 797(1967).

The appealability of this order must be evaluated by reference to the leading case on collateral orders, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528(1949).Cohen is interpreted as establishing a three-fold standard for determining whether an order is collateral and hence appealable: first, it must be a final determination of a claim separable from and collateral to the gravamen of the lawsuit; second, it must present a major and unsettled question of law, and third, the need for appellate review must be urgent, in the sense that the rights claimed will be irreparably lost if resolution of the issue is postponed until appeal from the final judgment.9 Moore's Federal Practice, supra, P 110.10;Grinnell Corp. v. Hackett, supra, at 596.In an exceptional case the urgency of the issue alone will justify interlocutory review.SeeMoffett v. City of Portland, Me., 400 A.2d 340(1979).

It is patent that in this case none of the three prongs suggested by Cohen is present.This discovery order is inextricable from the merits of the case: plaintiff simply seeks to gather further evidence for her claims.The issues involved in this protective order are the same as are involved in any routine discovery order: the possibility of obtaining probative evidence must be weighed against waste of time, risk of harassment and the like.The matter presents no important issues on appeal.Nor is it urgent that the order be reviewed now rather than later; as with any routine discovery order, no rights...