Insurers Syndicate for Joint Underwriting of Medico-Hospital Professional Liability Ins., In re, MEDICO-HOSPITAL

• Decision Date: 09 December 1988
• Docket Number: Nos. 88-1845,MEDICO-HOSPITAL,88-1905,s. 88-1845
• Citation: 864 F.2d 208
• Parties: In re INSURERS SYNDICATE FOR the JOINT UNDERWRITING OFPROFESSIONAL LIABILITY INSURANCE, Petitioner. CORPORACION INSULAR de SEGUROS, Plaintiff, Appellee, v. Hon. Juan Antonio GARCIA, etc., Defendant, Appellee. Appeal of INSURERS SYNDICATE FOR the JOINT UNDERWRITING OFPROFESSIONAL LIABILITY INSURANCE, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 208

864 F.2d 208

In re INSURERS SYNDICATE FOR the JOINT UNDERWRITING OF MEDICO-HOSPITAL PROFESSIONAL LIABILITY INSURANCE Petitioner CORPORACION INSULAR de SEGUROS, Plaintiff, Appellee, v. Hon. Juan Antonio GARCIA, etc., Defendant, Appellee Appeal of INSURERS SYNDICATE FOR the JOINT UNDERWRITING OF MEDICO-HOSPITAL PROFESSIONAL LIABILITY INSURANCE, Appellant.

Nos. 88-1845, 88-1905.

United States Court of Appeals First Circuit.

Heard Dec. 9, 1988.

Decided Dec. 28, 1988.

Patricio Martinez Lorenzo with whom Hon. Hector Rivera Cruz, Secretary of Justice, Jose Luis Gonzalez Castaner and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for petitioner-appellant.

Sheldon H. Nahmod with whom Jesus R. Rabell Mendez and Cancio, Nadal & Rivera, Hato Rey, P.R., were on brief, for appellee Corporacion Insular de Seguros.

Before BOWNES, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The federal district court commanded the Insurers Syndicate for the Joint Underwriting of Medico-Hospital Professional Liability Insurance (SIMED) to produce for inspection, subject to a protective order, sensitive business information (including rate filings, schedule and experience rating plans, lists of insureds, lists of producers, and data anent premium dollar distribution and reserves). SIMED, nonplussed by the decree and little comforted by the protective order, brought the matter to our attention in two ways: it petitioned for a writ of mandamus (No. 88-1845) ¹ and soon thereafter filed a notice of appeal (No. 88-1905). We consolidated the proceedings and granted expedited review. Because we find that petitioner-appellant's twin challenges (1) do not come within the encincture of our appellate jurisdiction under any recognized exception to the finality principle, and (2) are not appropriate fodder for the rarely-used mandamus cannon, we pretermit the proceedings without unnecessary ado.

I. BACKDROP

SIMED was created by virtue of P.R.Laws Ann. tit. 26, Sec. 4101 et seq. (Supp.1987) as part of the legislative response to a perceived crisis in the availability and affordability of medical malpractice coverage in Puerto Rico. We need not dwell on the mechanics of the law or SIMED's precise structure; it suffices to acknowledge that the legislature, faced with a situation wherein a mere handful of insurers were willing to underwrite malpractice risks, attempted to stimulate the marketplace by establishing a syndicate which would actively compete for such business. The syndicate (SIMED) was created on a "compulsory participation" basis, that is, "[a]ll insurers in Puerto Rico licensed to contract any type of insurance.... shall be members of the Syndicate and their participation in it shall be an indispensable condition for them to continue underwriting insurance in the Commonwealth of Puerto Rico." Id. at Sec. 4104.

Whatever the merits of the plan, Corporacion Insular de Seguros (CIS) did not cotton to it. CIS, a licensed insurer which was itself writing medical malpractice insurance, sued in federal district court under 42 U.S.C. Sec. 1983, challenging the constitutionality of the Commonwealth's scheme. ² In the course of pretrial discovery, CIS sought access to confidential data pertaining to SIMED's operations, including the information described above. After much procedural skirmishing, the district court determined the material relevant and granted the motion subject to an elaborate protective order. ³ CIS v. Garcia, Civ. No. 87-0431 (RLA), slip op. (D.P.R. Aug. 15, 1988). That order triggered the present proceedings.

It is against this backdrop that we consider petitioner-appellant's dual offerings. We look first at the appeal, focusing on its lack of a jurisdictional foundation; we then turn to the matter of mandamus, with no more propitious a result.

II. THE APPEAL

Our jurisdiction over appeals derives primarily from 28 U.S.C. Sec. 1291, which provides that the courts of appeals may review "final decisions of the district courts of the United States." An order is usually considered "final" only when it "resolv[es] the contested matter, leaving nothing to be done except execution of the judgment." In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.1988) (quoting United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988)). It is apodictic that "discovery orders, in general, are not final." Recticel, 859 F.2d at 1002. See also Appeal of Licht & Semonoff, 796 F.2d 564, 568 (1st Cir.1986); Boreri v. Fiat S.P.A., 763 F.2d 17, 21 (1st Cir.1985); City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.1984); Grinnell Corp. v. Hackett, 519 F.2d 595, 596 (1st Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975); Sheehan v. Doyle, 513 F.2d 895, 898 (1st Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 144, 46 L.Ed.2d 106 (1975); cf. Bridge C.A.T. Scan Assocs. v. Technicare Corp., 710 F.2d 940, 943 (2d Cir.1983) (discovery orders usually not appealable under 28 U.S.C. Sec. 1292(a)(1)). SIMED attempts to skirt this formidable barrier by bringing its plea within the collateral-order exception to the finality principle. ⁴ See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). It might as well seek to have the cow jump over the moon.

Collaterality, in the Cohen sense, requires conformity to certain hard-and-fast essentials:

The order must involve: (1) an issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial; (2) a complete resolution of the issue, not one that is "unfinished" or "inconclusive"; (3) a right incapable of vindication on appeal from final judgment; and (4) an important and unsettled question of controlling law, not merely a question of the proper exercise of the trial court's discretion.

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979); accord Licht v. Semonoff, 796 F.2d at 570-71; Boreri, 763 F.2d at 21. As we have recently observed, "discovery orders rarely satisfy all four of these criteria." Recticel, 859 F.2d at 1004.

This case is not beyond the mainstream. It involves a fairly typical discovery decision, committed principally to the trial court's sound and informed discretion. We do not balk, therefore, at barring the Cohen door by reliance upon the copious authority which has rather consistently held discovery orders compelling production of documents not appealable within the Cohen formulation. See, e.g., Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 953 (8th Cir.), cert. denied, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979); Miller v. Reighter, 581 F.2d 1181, 1181-82 (8th Cir.1978) (per curiam); Pauls v. Secretary of the Air Force, 457 F.2d 294, 298 (1st Cir.1972); Borden Co. v. Sylk, 410 F.2d 843, 845-46 (3d Cir.1969); Paramount Film Distrib. Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 361-62 (10th Cir.1964). Here, as with discovery orders generally, interruption of the district court's ongoing supervision of what promises to be a long, drawn-out discovery process would carry with it much too high a systemic price in terms of disruption, delay, and diminished efficiency. See Recticel, 859 F.2d at 1003; cf. Spiegel v. Trustees of Tufts College, 843 F.2d 38, 46 (1st Cir.1988) (discussing

dangers attending "too easily available piecemeal appellate review").

III. THE PETITION

We need not loiter long over the claim that our mandamus power should be activated. "[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam). As we have recently cautioned:

Mandamus should be dispensed sparingly and only in pursuance of the most carefully written prescription, not made available over the counter, on casual demand. It is not a substitute for interlocutory appeal.

Recticel, 859 F.2d at 1005. This case does not warrant a dose of such strong medicine.

Among other things, a mandamus petition must exhibit "clear entitlement to the relief requested," id. (footnote omitted), that is, the right to the writ must be "clear and indisputable." Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) (quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899)). It is for precisely that reason that mandamus, as a general rule, will not issue to control exercises of judicial discretion. See Allied Chemical, 449 U.S. at 36, 101 S.Ct. at 190-91; Recticel, 859 F.2d at 1006. Fundamentally, appellate oversight of trial court discretion is what SIMED seeks in this instance. Unhappy with the protective order crafted by the district court, distrustful that plaintiff's counsel will abide by the rigorous terms of the order, concerned that its secrets will unfairly be used against it in vistas beyond the pending litigation, petitioner-appellant asks that we employ one of "the most potent weapons in the judicial arsenal." Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 280, 19 L.Ed.2d 305 (1967). But we should be hesitant to use so formidable a cannon to combat a gnat, howsoever bothersome; finetuning a protective order, though of undoubted consequence to the litigants, lacks the extraordinary characteristics essential for mandamus relief.

What we said in Recticel, we think, has plain pertinency here:

Interlocutory procedural orders ... rarely will satisfy th[e] precondition for mandamus relief. Trial courts enjoy a broad measure of discretion in managing pretrial affairs, including the conduct of discovery. Decisions regarding the scope of discovery, ... and the protections to be afforded parties in the discovery process, are ordinarily left to the informed judgment of the district judge, who is in a unique position to gauge and balance the potentially conflicting interests at stake.

Recticel, 859 F.2d at 1006. The...