A-Mark Auction Galleries v. American Numismatic Ass'n

• Decision Date: 06 December 2000
• Docket Number: No. 99-11219,A-MARK,99-11219
• Citation: 233 F.3d 895
• Parties: (5th Cir. 2000) AUCTION GALLERIES, INC., d.b.a. Superior Stamp & Coin, and STACKS, LLC, Plaintiffs-Appellees / Cross-Appellants, v. AMERICAN NUMISMATIC ASSOCIATION, et al., Defendants, v. HERITAGE CAPITAL CORPORATION and HERITAGE NUMISMATIC AUCTIONS, INC., Defendants-Appellants / Cross-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 895

233 F.3d 895 (5th Cir. 2000)

A-MARK AUCTION GALLERIES, INC., d.b.a. Superior Stamp & Coin, and STACKS, LLC, Plaintiffs-Appellees / Cross-Appellants, v. AMERICAN NUMISMATIC ASSOCIATION, et al., Defendants, v. HERITAGE CAPITAL CORPORATION and HERITAGE NUMISMATIC AUCTIONS, INC., Defendants-Appellants / Cross-Appellees.

No. 99-11219

UNITED STATES COURT OF APPEALS, Fifth Circuit

December 6, 2000

REVISED - December 18, 2000

Appeals from the United States District Court for the Northern District of Texas.

Before DAVIS, EMILIO M.. GARZA, Circuit Judges, and POGUE, Judge^*.

W. EUGENE DAVIS, Circuit Judge:

Heritage Capital Corporation and Heritage Numismatic Auctions, Inc. (collectively "Heritage") appeal from a discovery order entered by the District Court in the Northern District of Texas relating to a case pending between the other parties to this appeal in the United States District Court for the District of Colorado. As the nonfinal discovery order is not a final decision under 28 U.S.C. § 1291 and does not fall within the collateral order exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we dismiss the appeal for lack of jurisdiction.

I.

Appellees, A-Mark Auction Galleries, Inc. and Stack's, LLC (together "A-Mark") are large dealers of coins who, among other activities, conduct coin auctions. In 1998, A-Mark sued the American Numismatic Association (the "ANA") in the United States District Court for the District of Colorado alleging claims of negligent misrepresentation, fraud and violation of the Colorado consumer protection statute. Essentially, A-Mark complains of the process the ANA used to select auctioneers for the auctions held at ANA conventions and of the unadvertised benefits, including exclusive use of ANA mailing lists, referrals and endorsements, conferred on the winning bidder. A-Mark's action against ANA is currently pending in the United States District Court for the District of Colorado.

In connection with its action against the ANA, A-Mark served subpoenas duces tecum on Heritage at its home office in Dallas, Texas, seeking the production of certain documents. Heritage had been the winning bidder for the right to conduct auctions at ANA conventions and so presumably had received the improper benefits conferred by the ANA. However, Heritage is not a party to the Colorado action. The documents A-Mark sought related to agreements between Heritage and the ANA, benefits received from those agreements with the ANA, sales and consignment information, financial information, referrals from the ANA, advertisements placed with the ANA, and how Heritage used the ANA mailing lists to procure sales. Heritage produced some documents in response to the subpoenas, but asserted that most of the documents requested by A-Mark contained trade secrets. Heritage accordingly refused to make any further response to the subpoenas served on it.

A-Mark responded to this refusal by filing an action in the United States District Court for the Northern District of Texas to compel compliance with the subpoenas. The district court referred the discovery dispute to a magistrate judge. The magistrate judge made brief findings regarding the relevancy and necessity of the discovery requested by A-Mark as well as the confidentiality interests of Heritage. He then granted A-Mark's demand in part by making reference to certain numbered requests for documents. He granted production of these documents on the condition that they only be used for the prosecution and defense of the Colorado action. He also allowed Heritage to mark documents produced in response to certain requests as "Highly Confidential" and ordered that those documents only be disclosed to A-Mark's counsel and to outside experts retained by A-Mark. Heritage objected to the magistrate judge's order. The district court, after reviewing the law applicable to the discovery of documents alleged to contain trade secrets, affirmed the order of the magistrate judge in its entirety. Heritage now appeals¹ the district court's order.

II.

A.

As a threshold matter, we must determine whether this court has jurisdiction to review the discovery order Heritage appeals. Subject to certain exceptions, this court only has jurisdiction over "final decisions" of the district court. 28 U.S.C. § 1291. Discovery orders generally do not "end[] the litigation on the merits and leave[] 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, discovery orders do not constitute final decisions under § 1291 and are not immediately appealable. Church of Scientology v. United States, 506 U.S. 9, 18, n. 11 (1992).

Heritage contends that the discovery order appealed from is a final order because it finally resolves its discovery obligation, which was the only issue presented to the district court. Heritage argues that garden variety discovery cases we have decided on review of district courts within this circuit do not control today's case. This is so, according to Heritage, because the order in this case is not interlocutory and the concerns applicable to interlocutory appeals, i.e. piecemeal appeals and delay, do not apply to judgments in ancillary proceedings, like this one, that resolve all issues between the parties that are before a particular court. We disagree.

We follow the well reasoned opinion in MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 119 (4th. Cir. 1994), in which the Fourth Circuit addressed a situation almost identical to the facts in this case. In that case, the main case was pending in district court in the Sixth Circuit; the discovery dispute, involving access to claimed trade secrets, was litigated in district court in the Fourth Circuit; and that district court issued an order granting the requested discovery with certain protections and limitations. The Fourth Circuit dismissed the appeal of the discovery order for want of jurisdiction.

Addressing the argument that the case did not present the routine discovery dispute between two parties to a court proceeding, the court concluded that the appeal of the discovery order before it could not be considered apart from the course of the main litigation. Id. at 121. Although discussed in the context of the independent question requirement of the Cohen collateral order doctrine, the court's comments are equally applicable to Heritage's argument that the discovery order in this case is a separate final order under § 1291. The MDK court stated:

While the district court's order compelling discovery may seem a self-contained piece of litigation when viewed in isolation, that view fails to capture the full scope of these proceedings. The discovery order in question is but one of several discovery requests Mike's has made in order to secure the information necessary to prosecute its claim of monopolization against Lionel. Resolving the issue of whether Mike's will be able to secure this information from MDK perforce impacts the manner in which the Michigan trial will be conducted. Likewise, the time required to resolve an appeal of the North Carolina decision can only delay resolution of the Michigan litigation. Thus, this appeal cannot be considered apart...