Iowa Beef Processors, Inc. v. Bagley, 78-1855

Citation601 F.2d 949
Decision Date13 August 1979
Docket NumberNo. 78-1855,78-1855
Parties1979-1 Trade Cases 62,460 IOWA BEEF PROCESSORS, INC., Appellant, v. Hughes A. BAGLEY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

James T. Malysiak and Edward W. Rothe of Freeman, Rothe, Freeman & Salzman, Chicago, Ill., for appellant.

John M. Fitzgibbons, Sp. Counsel, Congress of the U. S., House of Representative, Committee on Small Business, Washington, D. C., for appellee.

Before BRIGHT, HENLEY and McMILLIAN, Circuit Judges.

HENLEY, Circuit Judge.

Iowa Beef Processors, Inc. (IBP) appeals from the district court order which partially lifted a protective order entered in the course of discovery proceedings in this diversity suit. Treating the notice of appeal as a petition for a writ of mandamus, we grant the writ, vacate the district court's order, and remand the case with directions to reinstate, in full, the protective order.

I.

IBP, which is described in the briefs as the world's largest meat packing concern, has been the target of numerous private antitrust suits in recent years. Many of these lawsuits have been brought by members of an organization calling itself the Meat Price Investigators Association and have been pursued by two lawyers, Lex Hawkins and John Cochrane. A number of these cases have been transferred to the United States District Court for the Northern District of Texas for consolidated pretrial proceedings. See In re Beef Industry Antitrust Litigation, 432 F.Supp. 211 (Jud.Pan.Mult.Lit.1977); In re Beef Industry Antitrust Litigation, 419 F.Supp. 720 (Jud.Pan.Mult.Lit.1976). This antitrust litigation has, in turn, generated a massive amount of collateral litigation.

The instant case was begun by IBP in the Northern District of Iowa on August 1, 1977. IBP sued a number of defendants including Hawkins, Cochrane, and one Hughes A. Bagley, a former vice president of IBP. In its complaint, IBP alleged that Bagley had taken a number of documents with him when he left IBP's employ in 1975 and that these documents contained confidential business information which, if disclosed, would damage IBP's business. IBP further alleged that Bagley had disclosed certain confidential information and records to Hawkins, Cochrane, and others in violation of various contractual obligations and common law fiduciary duties. The case came before Chief Judge McManus who on February 13, 1978 issued an order deciding a number of pretrial motions. In part, the order granted IBP's motion for a protective Over a period of time, the House Subcommittee on SBA and SBIC Authority and General Small Business Problems (the Subcommittee) of the House Committee on Small Business has become interested in pricing practices in the meat industry. In that connection, the Subcommittee served Hawkins and one Glen L. Freie with congressional subpoenas duces tecum compelling them to produce a number of documents, including some which were subject to a protective order issued in connection with the Texas antitrust cases. 1 Hawkins and Freie moved to dissolve the protective order. Their motion was denied by United States District Judge William M. Taylor, who held that the Subcommittee's attempt to subpoena the documents covered by the protective order violated the due process clause. In Re Beef Industry Antitrust Litigation, 457 F.Supp. 210 (N.D.Tex.1978). An appeal from that decision was recently dismissed by the Fifth Circuit, Smith et al. v. National Provisioner et al., 589 F.2d 786 (5th Cir. 1979).

order preventing disclosure of IBP's confidential business information and limiting its use to defense counsel in the Iowa case and to Hawkins and Cochrane in connection with Texas antitrust cases.

Frustrated in its efforts to obtain this material in the Texas proceedings, the Subcommittee changed tactics. In late October, 1978 it served a similar subpoena duces tecum on Bagley, requiring him to produce a number of documents covered by Judge McManus' February 13 protective order. Bagley moved to dissolve the protective order and IBP opposed the motion. By order filed November 24, 1978 the district court granted Bagley's motion and partially lifted the protective order to the extent necessary to allow Bagley to comply with the subpoena. It is from this order that IBP appeals.

In a telephone conversation John M. Fitzgibbons, Special Counsel to the Subcommittee, was apprised of the district court's order the day it was entered. On November 27 a Subcommittee investigator, Nick Wultich, appeared at the office of Bagley's counsel and took physical possession of seven boxes of documents.

IBP's counsel learned of the order on November 28 and subsequently learned that the Subcommittee had acquired the documents. On November 30 IBP filed a notice of appeal from the order lifting the protective order. On December 4 IBP filed a motion for a stay and other appropriate relief in this court. By order dated December 4 Judge Henley stayed the district court order pending a hearing before a panel of the court and recited an agreement whereby the Subcommittee and its staff would take no action with respect to the documents until, and including, December 16. The matter came on for a hearing before this panel on December 12, and on December 14 we issued an order denying the motion for a stay, but ordering the appeal expedited. Iowa Beef Processors, Inc. v. Hughes A. Bagley, 588 F.2d 638 (8th Cir. 1978).

Despite the strenuous efforts of counsel to persuade us otherwise, we find that the case in its current posture presents a relatively narrow question, I. e., did the district court abuse its discretion in granting Bagley's motion to lift the protective order? Prior to addressing this question, however, we must first examine our jurisdiction.

II.

The district court order partially lifting the protective order is clearly not a "final decision" as that term is used in 28 U.S.C. § 1291, because the order is not "one which ends the litigation . . . and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Thus, unless the order falls within a statutory or judicially-created exception to the finality doctrine, appellate review at this time is premature.

The order is not appealable under the Interlocutory Appeals Act, 28 U.S.C. § 1292. The order is not one granting or denying an injunction under § 1292(a) (1) nor did IBP move for certification under § 1292(b).

IBP argues that the order partially lifting the protective order is a "collateral order" within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 122, 93 L.Ed. 1528 (1949). Most courts, including this one, have held that orders compelling the production of documents or testimony are not appealable as collateral orders or otherwise. See, e. g., Miller v. Reighter, 581 F.2d 1181 (8th Cir. 1978); Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir. 1973); Childs v. Kaplan, 467 F.2d 628 (8th Cir. 1972); Borden Co. v. Sylk, 410 F.2d 843 (3d Cir. 1969); Paramount Film Distributing Corp. v. Civil Center Theatre, Inc., 333 F.2d 358 (10th Cir. 1964). We review an order partially lifting a protective order as the functional equivalent of an order compelling production of documents or testimony and find the reasoning of the above-listed cases to be persuasive in this case. As the court observed in Borden Co. v. Sylk, supra, 410 F.2d at 845-46:

We have detected what appears to be an irresistible impulse on the part of appellants to invoke the 'collateral order' doctrine whenever the question of appealability arises. Were we to accept even a small percentage of these sometime exotic invocations, this court would undoubtedly find itself reviewing more 'collateral' than 'final' orders.

Every interlocutory order involves, to some degree, a potential loss. That risk, however, must be balanced against the need for efficient federal judicial administration as evidenced by the Congressional prohibition of piecemeal appellate litigation. To accept the appellant's view is to invite the inundation of appellate dockets with what have heretofore been regarded as nonappealable matters.

Accordingly, we hold that we have no appellate jurisdiction. This does not, however, end our consideration of possible bases of jurisdiction.

As an alternative to appellate jurisdiction, IBP contends that this is an appropriate case for us to invoke our discretionary writ-issuing authority under the All Writs Act, 28 U.S.C. § 1651(b), 2 and issue a writ of mandamus compelling reinstatement of the protective order and/or return of the documents. 3

We begin by noting that the power conferred by the All Writs Act "is meant to be used only in the exceptional case where there is clear abuse of discretion or 'usurpation of judicial power.' " Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). In addition, invocation of power under the Act must be carefully circumscribed, lest appellate courts find themselves reviewing "nonappealable orders on the mere ground that they may be erroneous." Will v. United States, 389 U.S. 90, 98 n.6, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967). Bearing in mind these salutary and well-established restrictions, we nevertheless conclude that this case presents an appropriate occasion for us to invoke our power under the All Writs Act.

First, a number of courts, including this one, have found mandamus to be an appropriate vehicle to review orders compelling the production of documents or testimony Second, the unique circumstances in which disclosure of these materials was allowed give rise to serious policy considerations which we deem sufficiently compelling to require immediate appellate attention. The parties have not cited, nor has our research...

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