Sealed Case, In re, 98-5062

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: WILLIAMS; KAREN Le CRAFT HENDERSON
• Citation: 141 F.3d 337
• Parties: In re: SEALED CASE
• Docket Number: No. 98-5062,98-5062
• Decision Date: 14 April 1998

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141 F.3d 337 329 U.S.App.D.C. 374 In re: SEALED CASE No. 98-5062. United States Court of Appeals,
District of Columbia Circuit. Argued March 20, 1998.
Decided April 1, 1998.
Printed April 14, 1998.

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[329 U.S.App.D.C. 376] On Petition for Writ of Mandamus Directed to the United States District Court for the District of Columbia (No. 98ms00042).

Herbert J. Miller, Jr., argued the cause and filed the Petition for Writ of Mandamus.

Robert S. Bennett argued the cause and filed the response.

Before: WILLIAMS, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Concurring Opinion filed by Circuit Judge HENDERSON.

WILLIAMS, Circuit Judge:

Respondent, defendant in a civil case pending in the United States District Court for the Eastern District of Arkansas, served a subpoena duces tecum on petitioner, a law firm, demanding production of documents and testimony at a deposition in Washington, D.C. That subpoena, in conformance with Federal Rule of Civil Procedure 45(a)(2), issued from the United States District Court for the District of Columbia. When petitioner objected to the subpoena, respondent filed a motion to compel in district court here, and petitioner responded with a motion to quash the subpoena, also in district court here. Further, suggesting that the trial court in Arkansas was more familiar with the issues presented, respondent moved the district court here to transfer the motions to the Eastern District of Arkansas. Petitioner objected, but the trial court granted the transfer motion. Petitioner thereupon sought review of the transfer order via this mandamus petition.

Finding that the district court lacked authority to transfer the motions under the Federal Rules of Civil Procedure, we vacate the order.

I.

Mandamus will issue only upon a showing that the petitioner's right is "clear and indisputable," Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143-44, 99 L.Ed.2d 296 (1988), and that "no other adequate means to attain the relief" exist, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). We leave to part II the analysis of petitioner's right and here determine only the threshold issue of the adequacy of other means of relief.

A conceivable alternative would have been for petitioner to proceed by direct appeal. In all likelihood, of course, the only consequence of finding that this was a viable alternative would be a need to relabel the mandamus action an appeal, but it turns out that appeal is not available.

Ordinarily a discovery order is not considered final and hence may not be immediately appealed under 28 U.S.C. § 1291. A party seeking interlocutory review must instead disobey the order and be cited for contempt. He may then appeal the contempt order, which is considered final, and argue that the discovery order was flawed. See Church of Scientology of California v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 452 n. 11, 121 L.Ed.2d 313 (1992) (citing United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971)); In re Kessler, 100 F.3d 1015, 1016 (D.C.Cir.1997). Under the so-calledPerlman doctrine,

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[329 U.S.App.D.C. 377] however, discovery orders addressed to disinterested nonparties are immediately appealable. SeeChurch of Scientology, 506 U.S. at 18 n. 11, 113 S.Ct. at 452 n. 11 (citingPerlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918); In re Sealed Case, 655 F.2d 1298, 1300-01 (D.C.Cir.1981)) ("Sealed Case I").

Perlman appears inapplicable to these facts, however. It reflected concern that where the subject of the discovery order (characteristically the custodian of documents) and the holder of a privilege are different, the custodian might yield up the documents rather than face the hazards of contempt, and would thereby destroy the privilege. See Sealed Case I, 655 F.2d at 1300-01. Here, however, petitioner is asserting its own interests in work product and in not being subject to what it claims is burdensome and abusive discovery, plus the privilege of its client (which it is normally duty-bound to assert, see Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir.1967); Model Rules of Professional Conduct Rule 1.6 (1995)). ¹ Thus it has the requisite incentives (as well as the clear ability) to risk contempt and thereby force review into the usual channel. Accordingly, direct appeal is unavailable as an alternative avenue for relief. ²

Respondent suggests that petitioner may file a motion in Arkansas requesting that the matter be retransferred. This strikes us as plainly inadequate. Petitioner rests its objection to the transfer order precisely on the theory that the Rules of Civil Procedure protect it from having to litigate in or travel to any forum other than that which issued the subpoena, i.e., the district court for the District of Columbia. Sending it to the federal court in Arkansas to press that claim obviously denies it, in a way that cannot be remedied on appeal.

This circuit has frequently exercised its mandamus jurisdiction to vacate transfer orders, especially where the transfer was beyond the district court's power, as petitioner alleges here. See, e.g., Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 548 (D.C.Cir.1992); In re Briscoe, 976 F.2d 1425, 1427 (D.C.Cir.1992); In re Scott, 709 F.2d 717, 719 (D.C.Cir.1983). Respondent tries to distinguish these cases as involving transfers of an entire civil action, as opposed to a motion. The distinction may bear on the district court's power to make the transfer, but we do not see how it undermines the case for mandamus relief. Petitioner is not a party to the underlying litigation. From its perspective, and indeed from ours as well, the controversy between it and the respondent consists solely of the discovery dispute. Thus, in the absence of any explanation by respondent of his conclusory argument against application of the principle allowing mandamus for review of a transfer order, we find it available as it would be to any transfer of any case, large or (as here) small.

The writ is available not only to "confin[e] 'an inferior court to a lawful exercise of its prescribed jurisdiction' " In re Halkin, 598 F.2d 176, 198 (D.C.Cir.1979) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941-42, 87 L.Ed. 1185 (1943)), but also "to prevent abuses of a district court's authority to transfer a case." Ukiah, 981 F.2d at 548 (quoting In re Chatman-Bey, 718 F.2d 484, 486 (D.C.Cir.1983)). Mandamus vacating the transfer order and keeping the matter in this circuit would, moreover, be "in aid of" our jurisdiction, thus fitting neatly within the language of the All Writs Act, 28 U.S.C. § 1651(a). Satisfied that the nature of the alleged error is such as to permit correction by mandamus, we now turn to the merits.

II.

The district court rested its conclusion largely on the Advisory Committee's

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[329 U.S.App.D.C. 378] Note to the 1970 amendments to Rule 26(c), but the place to start, whatever the Note's ultimate relevance, is the text ofRule 45. That text offers no authorization to transfer a motion to quash and seems at least implicitly to forbid it. The rule permits, and in some circumstances requires, "the issuing court" to quash or modify a subpoena. See Fed.R.Civ.P. 45(c)(3)(A). It allows enforcement of a subpoena following objections only "pursuant to an order of the court by which the subpoena was issued." Fed.R.Civ.P. 45(c)(2)(B). It provides that failure to obey a subpoena may be deemed contempt "of the court from which the subpoena issued." Fed.R.Civ.P. 45(e). ...