United States v. Diabetes Treatment ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0128p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES ex rel. POGUE,
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No. 04-6130
v.
,
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DIABETES TREATMENT CENTERS OF AMERICA, INC., -
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Defendants, -
et al.,
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Appellants. -
HCA, INC. and WEST PACES MEDICAL CENTER,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 99-03298—Royce C. Lamberth, District Judge.
Argued: September 14, 2005
Decided and Filed: April 11, 2006
Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Richard P. Bress, LATHAM & WATKINS, Washington, D.C., for Appellants. Bruce
J. McKee, HARE, WYNN, NEWELL & NEWTON, Birmingham, Alabama, for Appellee.
ON BRIEF: Richard P. Bress, LATHAM & WATKINS, Washington, D.C., Steven A. Riley, Amy
Jo Everhart, BOWEN, RILEY, WARNOCK & JACOBSON, Nashville, Tennessee, for Appellants.
James B. Helmer, Jr., HELMER, MARTINS, RICE & POPHAM CO., Cincinnati, Ohio, for
Appellee.
GIBBONS, J., delivered the opinion of the court, in which CLAY, J., joined. GRIFFIN, J.
(pp. 11-14), delivered a separate opinion concurring except as to Section II B.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Appellants West Paces Medical Center (“West
Paces”) and HCA, Inc. (“HCA”) appeal a discovery order issued by the United States District Court
for the District of Columbia in the case of United States ex rel. Pogue v. Diabetes Treatment Centers
of America, Inc. Plaintiff-appellee Scott Pogue brought suit under the False Claims Act, 31 U.S.C.
1
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§ 3729 et seq., alleging that various financial incentive arrangements between health care providers
and referring physicians violate federal law. Pogue’s case was filed in the United States District
Court for the Middle District of Tennessee (the “Tennessee district court”). On October 26, 2000,
the Pogue case was transferred by the Judicial Panel on Multi-District Litigation (“JPMDL”), along
with related cases from at least ten other districts, for consolidated pretrial proceedings before Judge
Royce C. Lamberth in the United States District Court for the District of Columbia (the “D.C.
district court”).
West Paces, a hospital, was one of the original defendants in the Pogue case, but had the
claims against it dismissed on May 27, 2004, pursuant to a settlement agreement. The Pogue case
continues, however, against Diabetes Treatment Centers of America, Inc. (“DTCA”). HCA, a health
care provider with approximately 191 affiliated hospitals worldwide, wholly owns West Paces.
Pogue maintains that both West Paces and other HCA-owned hospitals maintained illegal
relationships with DTCA. In addition to being the corporate parent of West Paces and the corporate
parent of other hospitals allegedly connected to DTCA, HCA is itself a party defendant in many of
the other multi-district litigation (“MDL”) cases that have been consolidated before Judge Lamberth
along with the Pogue case. The consolidated litigation is collectively captioned In re
Columbia/HCA Healthcare Corp. Qui Tam Litigation, No. 10-MS-50 (JPMDL No. 1307). Despite
these connections, HCA has never technically been a party to the Pogue case.
During discovery, HCA inadvertently disclosed certain documents to Pogue. Before Pogue
could copy the documents, however, HCA recovered them and asserted that it would not reproduce
them because they were privileged attorney-client communications. The district court’s order,
which forms the basis of this appeal, compels HCA to turn over to Pogue the previously disclosed
documents and further orders that any privilege over the subject matter of the disclosed documents
has been waived.
For the following reasons, we dismiss the appeal for lack of jurisdiction.
I.
On February 20, 2002, Pogue served a subpoena duces tecum on HCA, which is
headquartered in Nashville, Tennessee. Because Pogue sought to inspect HCA documents in1
Brentwood, Tennessee, the documents-only subpoena issued from the Tennessee district court.
After the parties failed to agree on the scope of the production that would occur pursuant to the
subpoena, Pogue moved to enforce the subpoena in the D.C. district court. HCA filed a short
response to Pogue’s motion, asserting that the D.C. district court lacked jurisdiction to enforce the
subpoena duces tecum because only the issuing court may enforce a subpoena. HCA informed
Judge Lamberth that it would move the Tennessee district court to quash the subpoena.
HCA then filed a motion to quash in the Tennessee district court. In its supporting
memorandum, HCA argued that the Tennessee district court was the most appropriate forum to rule
upon its motion to quash. Pogue filed a response, opposing the motion, in part, on the grounds the
MDL court was the most appropriate forum to enforce, modify, or quash the subpoena. On
November 21, 2002, the Tennessee district court issued an order finding that it lacked jurisdiction
1
We briefly note, so as to avoid any unnecessary confusion, that the propriety of the Tennessee district court’s
issuance of the subpoena is not in any way connected to the fact that the Pogue case was originally filed in the Tennessee
district court. The issuance of the subpoena duces tecum by the Tennessee district court was proper pursuant to Fed.
R. Civ. P. 45(a)(2)(C), which states, “A subpoena must issue . . . for production and inspection, if separate from a
subpoena commanding a person’s attendance, from the court for the district where the production or inspection is to be
made.”
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to consider HCA’s motion to quash. The Tennessee district court held that a motion to quash a
subpoena issued in a case that has been transferred for MDL proceedings must be decided by the
MDL court, because the motion to quash is part of the consolidated pretrial proceedings. HCA did
not appeal the Tennessee district court’s order.
After the Tennessee district court denied HCA’s motion to quash, HCA refiled the motion
in the D.C. district court. Pogue then refiled his response to HCA’s motion to quash, as well as the
Tennessee district court’s order. Thus, the D.C. district court effectively had before it all of the
documents filed with or issued by the Tennessee district court.
In a memorandum opinion and order issued on December 18, 2002, Judge Lamberth found
that he had jurisdiction to rule on Pogue’s motion to compel compliance with the subpoena. United
States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, Inc., 238 F. Supp. 2d 270, 273 (D.D.C.
2002). Finding that HCA’s motion to quash the subpoena was untimely, failed to comply with the
local rules of the district in which it was filed, and failed to satisfy the signature requirement of Fed.
R. Civ. P. 7(b)(3), Judge Lamberth held that HCA had failed to challenge the merits of Pogue’s
motion to compel. Judge Lamberth issued an order enforcing the subpoena duces tecum as written.
Id. at 278-79. In another memorandum opinion also issued on December 18, which concerned the
progress of discovery, Judge Lamberth stated that he trusted that HCA’s response to the discovery
orders would take place within the month.
HCA began producing boxes of documents pursuant to the subpoena duces tecum and the
D.C. district court’s order enforcing the subpoena on January 6, 2003. Pursuant to prior protective
orders issued by the D.C. district court, Pogue’s counsel would review and mark for copying
documents of interest, at which point counsel for HCA would screen the marked documents for
confidentiality and patient confidentiality. On February 11, 2003, HCA produced 399 additional
boxes of documents. During its review of these boxes, Pogue’s counsel identified and marked for
copying various documents. Pogue’s counsel also took notes memorializing one such document –
a letter from HCA attorney Richard Knight to Joe Calcutt, the Chief Financial Officer of West Paces.
The Knight letter discussed a loan from West Paces to a physician. Later that day, during the
protective-order review of the documents marked for copying, HCA contract attorneys discovered
both the Knight letter, on which Pogue’s counsel had taken notes, as well as one other similar letter.
The HCA attorneys removed these documents from the boxes to be copied. The next day, HCA’s
counsel sent an email to Pogue’s counsel, indicating that the documents marked for copying had
been reviewed “for confidentiality and patient confidentiality” and were ready to be picked up for
copying. HCA did not inform Pogue that it had removed any documents from the boxes.
Upon additional review of the boxes that were ready for copying, Pogue’s counsel
discovered that the Knight letter had been removed. Pogue’s counsel immediately faxed a letter
questioning HCA’s counsel about the removal. HCA’s counsel then confirmed that the Knight
letter, as well as one other letter that had been marked for copying, had been removed subsequent
to Pogue’s review of the documents. HCA’s counsel asserted that the two letters, which HCA
claimed were produced inadvertently, had been removed from the copying boxes because they were
protected by the attorney-client privilege. Counsel for Pogue and HCA exchanged letters.
Generally, Pogue’s counsel argued that any privilege had been waived and the documents must be
returned to the boxes. HCA’s counsel argued that the privilege had not been waived by the
inadvertent disclosure and that the documents would not be returned.
Pogue moved the D.C. district court to compel production of the documents removed from
the copying boxes and for sanctions. On May 18, 2004, Judge Lamberth found that the inadvertent
disclosure of the documents effected a waiver of any attorney-client privilege that might have
protected their disclosure. Judge Lamberth also held, under the precedent of the D.C. Circuit, that
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the scope of the waiver included all communications relating to the same subject matter.
Accordingly, Judge Lamberth entered an order compelling HCA to produce the removed letters and
any other communications relating to the same subject matter. Defendant HCA filed a motion to
alter or amend the order, which the district court denied. HCA filed a timely notice of appeal.
II.
The substantive questions underlying this appeal are whether the inadvertent disclosure of
the allegedly protected documents constitutes a waiver of the attorney-client privilege and, if it does,
what is the scope of such a waiver. The parties also dispute whether Judge Lamberth should have
applied D.C. Circuit or Sixth Circuit precedent on inadvertent disclosures in deciding these issues.
Before we might address these questions, however, we must determine whether we are the correct
court to review this order and, if so, whether we may review it at this time. Although we conclude
that this appeal was taken to the correct court of appeals under 28 U.S.C. §§ 1294 and 1407; we
hold, in accordance with 28 U.S.C. § 1291, that the order is not reviewable at this time.
A.
The MDL statute, 28 U.S.C. § 1407, allows for the transfer of civil actions that are pending
in different districts to a single district for coordinated or consolidated pretrial proceedings if the
cases involve one or more common questions of fact. 28 U.S.C. § 1407(a). Although the MDL
statute does not address which appellate court is the proper appellate forum for appeals from an
MDL court’s pre-trial orders, the general rule is that appeals from reviewable decisions of a district
court are taken to the court of appeals for the circuit embracing that district. See 28 U.S.C. § 1294.
Appeals from pre-trial orders issued by an MDL court are ordinarily no different; these appeals
typically go to the appellate court embracing the MDL district court. See In re Corrugated
Container Antitrust Litig., 662 F.2d 875, 880 (D.C. Cir. 1981); In re Plumbing Fixture Cases, 298
F. Supp. 484, 494-95 (Jud. Pan. Mult. Lit. 1968); see also In re Upjohn Co. Antibiotic Cleocin
Prods. Liab. Litig., 664 F.2d 114, 116-18 (6th Cir. 1981).
When the MDL court’s order that is being appealed compels some discovery action by or
imposes a discovery sanction on a nonparty located in a foreign district, however, our analysis is
different. As the Fifth and D.C. circuits held in the Corrugated Container cases, appeals from
orders holding a nonparty deponent in contempt go to the circuit court of appeals embracing the
deposition or discovery district. See 662 F.2d at 880-81; In re Corrugated Container Antitrust
Litig., 620 F.2d 1086, 1090-91 (5th Cir. 1980). Accord In re Corrugated Container Antitrust Litig.,
644 F.2d 70, 74 n.6 (2d Cir. 1981); In re Corrugated Container Antitrust Litig., 655 F.2d 748, 750
n.2 (7th Cir. 1981). Although this court has never explicitly considered the analysis underpinning
the Corrugated Container decisions, we find the reasoning, which we explain in the following two
paragraphs, persuasive.
Pretrial proceedings in MDL cases operate pursuant to both Section 1407 and the Federal
Rules of Civil Procedure. Therefore, we start by examining discovery involving nonparties under
the Federal Rules in general. A subpoena to depose a nonparty witness or for document production
from a nonparty must issue from the court for the district where the deposition will be taken or the
production will be made. Fed. R. Civ. P. 45(a)(2)(B)-(C). Moreover, any disputes that arise over
the subpoena of a nonparty are decided by the court that issued the subpoena. See Fed. R. Civ. P.
45(c)(2)(B) (“If objection is made, the party serving the subpoena shall not be entitled to inspect and
copy the materials or inspect the premises except pursuant to an order of the court by which the
subpoena was issued.”). The power to quash or modify the subpoena likewise resides with the
issuing court. See Fed. R. Civ. P. 45(c)(3)(A). In addition, a nonparty witness cannot be compelled
to travel more than 100 miles from where the witness resides, is employed, or regularly transacts
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business in person to comply with the subpoena. See Fed. R. Civ. P. 45(c)(3)(A)(ii). With regard
to the district court’s enforcement authority, the Federal Rules provide that a motion to compel
discovery or disclosure by a nonparty must be made to the court in the district where the discovery
is being taken.2 Fed. R. Civ. P. 37(a)(1). Finally, a nonparty that refuses to comply with3 such an
order is thereby in contempt of and subject to sanctions by the court that issued the order. Fed. R.
Civ. P. 37(b)(1). Thus, the Federal Rules are designed to ensure that district courts remain firmly
in control of those depositions and document productions involving nonparties located in their
districts.
Because these rules could hamstring an MDL court’s ability to conduct coordinated pretrial
proceedings over cases that have been consolidated from far-flung foreign districts, the MDL statute
empowers an MDL judge to act as a judge of the deposition or discovery district. See 28 U.S.C.
§ 1407(b) (“The judge or judges to whom such [MDL] actions are assigned . . . may exercise the
powers of a district judge in any district for the purpose of conducting pretrial depositions in such
coordinated or consolidated pretrial proceedings.”). A judge presiding over an MDL case therefore
can compel production by an extra-district nonparty; enforce, modify, or quash a subpoena directed
to an extra-district nonparty; and hold an extra-district nonparty deponent in contempt,
notwithstanding the nonparty’s physical situs in a foreign district where discovery is being
conducted.4 However, because the MDL judge is acting as a judge of the deposition or discovery
district when he uses the authority outlined in Section 1407(b), appeal from the exercise of such
authority lies in the circuit court embracing that deposition or discovery district.
In this case, Judge Lamberth acted as a judge of the Tennessee district court when he issued
the order compelling HCA to return the inadvertently disclosed documents. Indeed, Judge Lamberth
expressly invoked the authority of the Tennessee district in the order that enforced the subpoena in
the first instance, stating that the D.C. district court was “act[ing] as a Court of the Middle District
of Tennessee in regard to the subpoena duces tecum issued by [Pogue] to HCA . . . .” Id. at 279.
The accompanying memorandum opinion likewise states that “this Court finds that it has jurisdiction
to entertain [Pogue]’s motions to compel compliance with his subpoenas duces tecum as a judge of
the Middle District of Tennessee.” Pogue, 238 F. Supp. 2d at 273. Although Section 1407(b)
empowered him to do so, appeal from this decision and order lies in the circuit court of appeals
embracing the discovery district. Judge Lamberth acknowledged this too, stating that “appeal goes
to the circuit of the district in which the deposition is being taken because of the ‘need for uniformity
in decisions on depositions within each of those circuits.’” Pogue, 238 F. Supp. 2d at 276 (quoting
Corrugated Container, 662 F.2d at 881 n.11). Our decision that we are the proper appellate court
to review the order under Sections 1294 and 1407 is therefore consistent with Judge Lamberth’s
previous decisions in this case and the parties’ reasonable expectations.
2
In contrast to the procedure for compelling production by a nonparty, “[a]n application for an order to a party
shall be made to the court in which the action is pending.” Fed. R. Civ. P. 37(a)(1).
3
In contrast, “[i]f a party or an officer, director, or managing agent of a party . . . fails to obey an order to
provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure
as are just . . . .” Fed. R. Civ. P. 37(b)(2).
4
An argument can be made that Section 1407(b)’s grant of authority to the MDL judge to oversee nonparty
discovery occurring outside the MDL district does not extend to enforcement of documents-only subpoenas. See VISX,
Inc. v. Nidek Co., 208 F.R.D. 615, 616 (N.D. Cal. 2002). Section 1407(b) gives the transferee court the power to
“exercise the powers of a district judge in any district for the purposes of conducting pretrial depositions.” (emphasis
added). We agree with both the Tennessee and D.C. district courts that the rationale underlying the MDL statute of “just
and efficient” resolution of pretrial proceedings requires the conclusion that Section 1407(b)’s grant of authority applies
to both deposition subpoenas and documents-only subpoenas.
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Pogue makes a number of arguments asserting why this court lacks jurisdiction to hear
HCA’s appeal under Section 1294. Pogue first argues that the D.C. Circuit is the appropriate court
to hear the appeal because the Tennessee district court previously dismissed HCA’s motion to quash
for lack of jurisdiction and HCA chose not to seek review of that decision in this court. According
to Pogue, the Tennessee district court’s decision to dismiss the motion to quash without prejudice
for jurisdictional reasons, which HCA did not challenge, is the law of the case. Similarly, Pogue
argues that HCA’s elective filing of its motion to quash in the D.C. district court, which followed
the Tennessee district court’s dismissal of the motion, thereby waived this court’s jurisdiction on
appeal.
These arguments by Pogue largely depend on an unwillingness to accept Section 1407(b)’s
directive that an MDL judge may act as a judge of the deposition district court, as Judge Lamberth
did in this case. We also note, however, that none of the events leading up to Judge Lamberth’s
exercising his authority under Section 1407(b) divested jurisdiction from this court. The Tennessee
district court’s jurisdictional ruling did not limit our jurisdiction on appeal. Nor did the Tennessee
district court try to do so; rather, it stated, “this District lacks the jurisdiction to consider the motion
to quash the subpoena duces tecum.”5 We also do not see how HCA’s litigation strategy – either
its filing the motion to quash in the Tennessee district court or its defending the motion to enforce
in the D.C. district court – can define this court’s jurisdiction over an appeal under Section 1294.
Pogue’s other arguments generally press the notion that HCA, although not a party, is a
unique type of nonparty deponent. According to Pogue, HCA was the “raison d’etre” and the
“animating force” for the MDL proceedings. It is true that HCA was a party to other litigation
consolidated before Judge Lamberth. HCA also owns West Paces, one of the original defendants
in the Pogue case. Judge Lamberth’s order, however, clearly refers to HCA as a nonparty. Pogue,
238 F. Supp. 2d at 279-80. Whatever connections may exist between HCA and the Pogue case or
the larger MDL litigation, HCA is plainly not a party to the Pogue case. As a nonparty compelled
to produce disclosed documents, HCA correctly appealed to the circuit court of appeals embracing
the deposition district.
5
Our review of the caselaw leads us to conclude that there is no settled answer to the question of whether, in
light of the ongoing MDL proceedings, the Tennessee district court should have dismissed the motion on jurisdictional
grounds or merely abstained from deciding the motion as a practical matter. A number of other courts have endorsed
the latter procedure. In In re Orthopedic Bone Screw Prods. Liability Litigation, the Seventh Circuit declined to provide
mandamus relief to nonparty deponents whose applications for protective orders had been transferred from the
(Wisconsin) deposition district courts to the (Pennsylvania) MDL court. In so holding, the court stated that, although
the motions could not technically be “transferred,” the deposition district court should ordinarily “stay local proceedings
and then [] abide by the decision of the [MDL] district court.” 79 F.3d 46, 48 (7th Cir. 1996). Accord In re Welding
Rod Products Liab. Litig., — F.Supp.2d — , 2005 WL 3525726, at *3 (N.D. Cal. 2005); In Re Subpoenas Served on
Wilmer, Cutler & Pickering and Goodwin Proctor LLP, 255 F. Supp. 2d 1, 3 (D.D.C. 2003); In Re Subpoena Issued to
Boies, Schiller & Flexner LLP, No. M8-85, 2003 WL 1831426, at *1 (S.D.N.Y. Apr. 3, 2003). We have not found any
other case in which a deposition district court held that it lacked “jurisdiction” to decide such a motion, as the Tennessee
district court appears to have done in this case. For purposes of this appeal, however, the basis on which the Tennessee
district court declined to decide the motion is immaterial, because neither a jurisdictional nor a discretionary basis could
deprive our court of its appellate jurisdiction.
We also note that the district court’s opinion discussing its “jurisdictional” decision relies on our decision in
In re Upjohn Co. Antibiotic Cleocin Prods. Liab. Litig., 664 F.2d 114 (6th Cir. 1981). However, in that case, we
discussed the “disruptive” effect of a transferor court being able to “act in matters of discovery independently of the
transferee [MDL] court, at least until the proceedings are finally remanded to it.” Id. at 118. Upjohn therefore concerned
the allocation of authority as between transferor and transferee district courts in MDL proceedings, not as between
deposition and MDL district courts. The fact that, in this case, the Tennessee district court also happened to be the
transferor district court prior to consolidation is irrelevant for purposes of deciding whether it should abstain from
exercising its powers as the deposition district court in light of the MDL statute.
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Finally, Pogue argues that, with regard to only appellant West Paces, the D.C. Circuit
properly has jurisdiction over its appeal because West Paces, unlike HCA, was a party to the Pogue
litigation. We note that the original subpoena duces tecum and the D.C. district court order
enforcing the subpoena duces tecum as written were directed only at HCA. It is only Judge
Lamberth’s final order compelling production of the three removed documents that refers to
“HCA/West Paces” as the subject of the order. It appears likely that the challenged order is limited
to HCA because the original subpoena duces tecum and the prior order to enforce the subpoena were
limited, as we understand them, to HCA. Nonetheless, any necessary clarification of this issue is
left to the D.C. district court in the first instance.
Having concluded that we are the correct court to review the order compelling disclosure
under Sections 1294 and 1407, we must now decide whether the order is a reviewable decision.
B.
Under 28 U.S.C. § 1291, we review only “final decisions” of district courts. The Supreme
Court has “consistently interpreted this language as indicating that a party may not take an appeal
under this section until there has been a decision by the District Court that ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.” Firestone Tire & Rubber
Co. v. Risjord, 449 U.S. 368, 373 (1981) (internal quotation omitted). The requirement of finality
has “deep roots in American law.” Starcher v. Corr. Med. Sys., Inc., 144 F.3d 418, 422 (6th Cir.
1998), aff’d sub nom. Cunningham v. Hamilton County, 527 U.S. 198 (1999). In Cobbledick v.
United States, 309 U.S. 323, 326 (1940), the Supreme Court noted the origin of the finality
requirement in the Judiciary Act of 1789. The final judgment rule prevents “piecemeal appeals,”
the allowance of which can undermine the independence of the district judge, obstruct the resolution
of just claims by means of harassment and cost, or generally prevent efficient judicial
administration. Firestone, 449 U.S. at 374.
Discovery orders generally are not final decisions and cannot be reviewed unless the trial
court enters a final judgment disposing of all claims. Starcher, 144 F.3d at 422. In Alexander v.
United States, 201 U.S. 117 (1906), the Supreme Court held that an order compelling nonparties to
produce subpoenaed documents is a non-appealable interlocutory order. Id. at 121. The Court in
Alexander stated that the necessary finality would exist, however, if the nonparties were held in
contempt of the order. Id. at 121-22. The rule laid out in Alexander – that an individual seeking to
appeal a discovery order must first disobey the order and suffer a contempt citation – remains the
general rule today. As this court has previously noted, “[t]he Supreme Court’s adherence to the
Alexander procedure for obtaining appellate review of discovery orders has been unswerving.”
Starcher, 144 F.3d at 422 n.4 (citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 18
n. 11 (1992)); United States v. Ryan, 402 U.S. 530, 532-33 (1971)); see also Cunningham, 527 U.S.
at 204 n. 4 (1999) (“[W]e have repeatedly held that a witness subject to a discovery order, but not
held in contempt, generally may not appeal the order.”) (collecting cases).
Despite these requirements, HCA argues that this court has jurisdiction over this appeal
pursuant to the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949). In the alternative, HCA requests that this court convert its appeal into a petition for writ of
mandamus, which it claims is “an appropriate vehicle” with which to address the novel and
important issues of inadvertent waiver.
The collateral order doctrine is an exception to the final judgment rule. See Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). Under the doctrine, an order is appealable under
Section 1291 if the order (1) conclusively determines a disputed issue; (2) resolves an issue separate
from the merits of the action that is too important to be denied review; and (3) will be effectively
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unreviewable on appeal from a final judgment. Id.; see also P.R. Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 144 (1993). This court has repeatedly held, however, that discovery
orders are generally not appealable under the collateral order doctrine. See, e.g., Starcher, 144 F.3d
at 424; Coleman v. Am. Red Cross, 979 F.2d 1135, 1138 (6th Cir. 1992); FDIC v. Ernst & Whinney,
921 F.2d 83, 85 (6th Cir.1990); Dow Chem. Co. v. Taylor, 519 F.2d 352, 354-55 (6th Cir. 1975).
Rather, to obtain review from this court, a complaining party must disobey the discovery order and
incur an appealable contempt citation if that party is able to do so. See Coleman, 979 F.2d at 1138;
Taylor, 519 F.2d at 355. HCA has not done so in this case.
We recognize that Judge Lamberth’s order “sanctions” HCA under Rule 37(b) and awards
Pogue’s expenses, including attorney fees, under Rule 37(a). This court has previously indicated
that an order issuing Rule 37(b) sanctions may be sufficient to obtain immediate review under the
collateral order doctrine. See Dow Chem. Co. v. Taylor, 519 F.2d 352, 355 (6th Cir. 1975). In this
case, however, the D.C. district court did not find that HCA was in contempt. Moreover, although
Judge Lamberth nominally sanctioned HCA, the only penalty was the requirement that HCA
disclose the documents. Thus, we think the “sanction” in this order does not meaningfully
distinguish it from a routine discovery order which, absent a contempt citation, is not immediately
reviewable. Moreover, in Starcher, this court held that an order imposing fees and costs under Rule
37(a) on an attorney because her opponents were forced to move for an order compelling her to
comply with a previous discovery order was not immediately appealable under the collateral order
doctrine. See Starcher, 144 F.3d at 423-24. The challenged order was not “completely separate”
from the merits of the underlying case, as Cohen requires. See Starcher, 144 F.3d at 424. On writ
of certiorari, the Supreme Court affirmed, holding that no Rule 37(a) sanction should be given
immediate collateral review under Cohen. See Cunningham, 527 U.S. at 206 (“Perhaps not every
discovery sanction will be inextricably intertwined with the merits, but we have consistently
eschewed a case-by-case approach to deciding whether an order is sufficiently collateral.”). We
therefore do not believe that the presence in the appealed order of an expense award or a nominal
sanction under Rule 37 alters our analysis.
In addition to the contempt route to review, we have allowed for a petition for writ of
mandamus as a “means of immediate appellate review of orders compelling the disclosure of
documents and information claimed to be protected from disclosure by privilege or other interests
in confidentiality.” In re Perrigo Co., 128 F.3d 430, 436 (6th Cir. 1997). Although mandamus relief
is available, it “is an extraordinary remedy, only infrequently utilized by this court.” See Perrigo,
128 F.3d at 435. Indeed, the Supreme Court has said that the “remedy of mandamus is a drastic one,
to be invoked only in extraordinary situations.” Kerr v. United States Dist. Ct. for N. Dist. of Cal.,
426 U.S. 394, 402 (1976). Finally, our cases indicate that mandamus relief is properly limited to
“‘questions of unusual importance necessary to the economical and efficient administration of
justice,’ or ‘important issues of first impression.’” Perrigo, 128 F.3d at 435 (quoting EEOC v.
K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir. 1982)).
The decision whether to grant mandamus relief involves analysis of five factors: (1) the party
seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired;
(2) the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) the district
court’s order is clearly erroneous as a matter of law; (4) the district court’s order is an oft-repeated
error, or manifests a persistent disregard of the federal rules; (5) the district court’s order raises new
and important problems, or issues of first impression. Id. at 435 (citing In re Chimenti, 79 F.3d 534,
540 (6th Cir. 1996)). Focusing on the first of these five factors, the ability of an aggrieved deponent
to obtain an appealable contempt citation constitutes other adequate means to attain the relief
desired.
No. 04-6130 United States ex rel. Pogue v. Diabetes Page 9
Treatment Centers of America, Inc., et al.
Two recent decisions of this court have noted that two of our sister circuits use the collateral
order doctrine, as opposed to mandamus, for immediate review of discovery orders involving claims
of privilege. See In re Lott, 424 F.3d 446, 448 n.2 (6th Cir. 2005) (noting United States v. Philip
Morris, Inc., 314 F.3d 612, 619 (D.C. Cir. 2003) and In re Ford Motor Co., 110 F.3d 954, 964 (3d
Cir. 1997)); Ross v. City of Memphis, 423 F.3d 596, 599 (6th Cir. 2005) (same); see also Lott, 424
F.3d at 464 n.5 (Boggs, C.J., dissenting) (suggesting that this court may wish to adopt this position).
As those cases note, however, this court has traditionally viewed mandamus as the sole method by
which we might review a discovery order involving a claim of privilege. See Lott, 424 F.3d at 449;
Ross, 423 F.3d at 599; see also Ernst & Whinney, 921 F.2d at 85. We decline to determine whether
the collateral order doctrine or the writ of mandamus is the more appropriate basis on which we
might review a discovery order requiring immediate attention. We will assume, solely for the
purpose of deciding the jurisdictional question in this appeal, that either jurisdictional basis would
allow this court to provide relief in the extraordinary case.6
This case is not, however, extraordinary. HCA has a clear alternate route to achieve review
of this order. If HCA seeks to challenge7 the propriety of the district court’s order, it may disobey
the order and suffer a contempt citation. As the Fourth Circuit noted:
We recognize, of course, that the contempt route is a difficult path to appellate
review, and one that may carry with it a significant penalty for failure. In discovery
disputes, however, this difficulty is deliberate. As Judge Friendly has noted, the
contempt limitation ensures that the aggrieved party will first take a careful “second
look” at the issue in question to determine whether it truly warrants inviting a
contempt citation. National Super Spuds v. New York Mercantile Exch., 591 F.2d
6
The concurring opinion overlooks the requirement that mandamus relief be used only in extraordinary
situations. Contrary to the concurring opinion’s suggestions, its approach is not consistent with the reasoning of In re
Lott, which specifically analyzed whether a death row inmate’s claim of actual innocence in a petition for writ of habeas
corpus constitutes an implicit waiver of the attorney-client and work product privileges to the extent necessary for the
government to defend the actual innocence claim. See 424 F.3d at 448. In that case, the court stated that “whether an
assertion of actual innocence effects an implied waiver of the attorney-client and work product privileges is plainly an
issue of first impression in this Circuit, and apparently an issue of first impression in the federal courts.” Id. at 450.
Similarly, in In re Perrigo, the extraordinary nature of the petition was apparent on its face, because the district court
had conditioned its review of the defendant’s motion to dismiss on the defendant’s compliance with the discovery order
in question. 128 F.3d 434. Although In re Powerhouse Licensing ostensibly supports conducting a merits inquiry into
the privilege claim, in that case, the court expressly found that petitioners had no other readily available means of relief
from the orders at issue. --- F.3d ----, 2006 WL 509390, at *4 (6th Cir. 2006). Rather than identify some substantial or
novel issue requiring immediate review, the concurring opinion undertakes a straight-forward merits review of a routine
discovery order issued to a nonparty.
7
Unlike a party, which can only immediately appeal an adjudication of criminal contempt, a nonparty can
immediately appeal an adjudication of either civil or criminal contempt. See United States Catholic Conference v.
Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) (“The right of a nonparty to appeal an adjudication of
contempt cannot be questioned. The order finding a nonparty witness in contempt is appealable notwithstanding the
absence of a final judgment in the underlying action. . . . Once the right to appeal a civil contempt order is acknowledged,
arguments in its legitimate support should not be so confined that the power of the issuing court remains untested.”
(citations omitted)); United States v. Johnson, 736 F.2d 358, 359 n.1 (6th Cir. 1984) (“[A] judgment of civil contempt
against a party is normally not final and appealable but . . . a judgment of civil contempt against a nonparty is final and
appealable.”); In re Manufacturers Trading Corp., 194 F.2d 948, 955 (6th Cir. 1952) (“An order adjudging one guilty
of criminal contempt is final and appealable; an order adjudging a party litigant in civil contempt is said to be
interlocutory and reviewable only on appeal from the final decree in the main action. But a civil contempt order against
a person not a party to the suit is said to be final and appealable.” (citations omitted)); see also 16 Charles Alan Wright
et al., Federal Practice and Procedure § 3914.23, at (2d ed. 1996 & supp. 2005) (“A nonparty can appeal an order of
either civil or criminal contempt; a party can appeal an order of criminal contempt, but is not supposed to be able to
appeal an order of civil contempt.”).
No. 04-6130 United States ex rel. Pogue v. Diabetes Page 10
Treatment Centers of America, Inc., et al.
174, 180 (2d Cir. 1979). Indeed, the discovery appeals that arise from that calculus
will most likely be those of the greatest significance to both parties–the party
resisting discovery must risk a citation for contempt, while the party seeking
discovery must move for contempt and thereby risk an interlocutory appeal. Id. The
alternative to the contempt route, by contrast, is one that encourages appeal of every
unpalatable discovery ruling.
MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 121-22 (4th Cir. 1994) (footnote omitted).
Although it is not a party to the Pogue litigation, HCA’s status as both the privilege-holder and
document-possessor seeking to prevent disclosure gives it powerful incentives to suffer such a
contempt citation.8
III.
For the foregoing reasons, the appeal is dismissed.
8
These interests distinguish this case from those that would fit under the doctrine announced in Perlman v.
United States, 247 U.S. 7 (1918). The Perlman doctrine allows for immediate appeal from a discovery order when the
order is directed to a disinterested nonparty who will not risk contempt merely to protect privacy interests that are more
important to someone else. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 18 n.11 (1992) (citing
Perlman); see also Ross, 423 F.3d at 599.
No. 04-6130 United States ex rel. Pogue v. Diabetes Page 11
Treatment Centers of America, Inc., et al.
_____________________
CONCURRENCE
_____________________
GRIFFIN, Circuit Judge, concurring.
I join in the majority opinion except for Section II B, which requires appellants West Paces
Medical Center (“West Paces”) and HCA, Inc., to disobey the district court’s discovery order and
suffer a contempt citation in order to challenge the propriety of the order. Under the present
circumstances, in which the discovery order implicates the attorney-client privilege, I would hold,
consistent with In re Lott, 424 F.3d 446 (6th Cir. 2005), that mandamus, not contempt, is the
appropriate jurisdictional avenue to address appellants’ claims. However, because the district court
did not clearly err in concluding that appellants’ inadvertent disclosure of the privileged materials
forfeited the privilege, I conclude that mandamus should not issue. Thus, I concur in the result,
which is the dismissal of the appeal.
I.
As the majority recognizes, this Court has eschewed the collateral order doctrine as a means
to obtain jurisdiction and undertake immediate review of orders compelling discovery during the
course of ongoing litigation. See, e.g., In re Lott, 424 F.3d at 449 n.2; Ross v. City of Memphis, 423
F.3d 596, 599 (6th Cir. 2005); Starcher v. Correctional Medical Systems, Inc., 144 F.3d 418, 422-25
(6th Cir. 1998); Coleman v. Am. Red Cross, 979 F.2d 1135, 1138 (6th Cir. 1992); Fed. Dep. Ins.
Corp. v. Ernst & Whinney, 921 F.2d 83, 85 (6th Cir. 1990); Dow Chemical Co. v. Taylor, 519 F.2d
352, 354-55 (6th Cir. 1975). In the interest of avoiding piecemeal litigation, we have typically
limited a litigant who seeks to challenge a discovery order to two possible remedies – either fail to
comply with the order and then appeal from a sentence of contempt,1 or 2seek the extraordinary
remedy of a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651.
Recently, however, in In re Lott, we noted that where a claim of privilege is involved,3 the
use of discretion inherent in our mandamus jurisdiction is particularly appropriate. We stated:
The inability to cure an unlawful piercing of the privilege through direct appeal has
led numerous courts of appeals to regularly utilize mandamus when important
interests such as privilege are at issue. “Writ review is rather frequently provided
. . . because of the desire to protect against discovery of information that is claimed
to be protected by the Constitution, privilege, or more general interests in privacy.”
16 Charles Alan Wright et al., Federal Practice and Procedure, § 3935.3, at 605-06
(2d ed. 1996 & supp. 2005) (emphasis added); . . . Hahnemann University Hospital
v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996); see also In re Regents of University of
California, 101 F.3d 1386, 1387 (Fed. Cir. 1996), cert. denied 520 U.S. 1193, 117
S. Ct. 1484, 137 L. Ed. 2d 695 (issuing mandamus to set aside discovery order where
district court erroneously ordered discovery over claim of attorney-client privilege);
1
See, e.g., Coleman, 979 F.2d at 1138; Butcher v. Bailey, 753 F.2d 465, 471 (6th Cir. 1985); Dow, 519 F.2d
at 355.
2
See, e.g., In re Perrigo Co., 128 F.3d 430, 435-37; Fed. Dep. Ins. Corp., 921 F.2d at 85-86.
3
In In re Lott, a death row inmate successfully petitioned this Court for mandamus relief from a discovery order
in which the district court “waived” his attorney-client privilege because he claimed actual innocence.
No. 04-6130 United States ex rel. Pogue v. Diabetes Page 12
Treatment Centers of America, Inc., et al.
Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir.
1992) (similar); In re Bieter, 16 F.3d 929, 931-33 (8th Cir. 1994) (similar). This
Court has utilized the All Writs Act to alter a discovery order implicating the
attorney-client privilege. In re Perrigo, 128 F.3d 430, 441 (1997) (altering a
discovery order that would have required public disclosure of information protected
by the attorney-client privilege).
These Courts have all found that forcing a party to disclose confidential
communications and seek redress via direct appeal after the court has reached a final
judgment is an inadequate remedy. In Hahnemann, the Court of Appeals for the
[Third] Circuit held that the type of relief afforded by direct appeal is usually
insufficient when a claim of privilege is made. 74 F.3d at 461 (“when a district court
orders production of information over a litigant’s claim of a privilege not to disclose,
appeal after a final decision is an inadequate remedy . . . for compliance with the
production orders complained of destroys the right sought to be protected.”) (quoting
Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591 (3d Cir, 1984)); see also University
of California, 101 F.3d at 1387 (“an appeal after disclosure of the privileged
communication is an inadequate remedy”) (citation omitted).
424 F.3d at 450-51.
We further rejected the notion that in such circumstances, mandamus is unnecessary because
this Court could remedy any harm on direct appeal:
By this logic, if discovery proceeded and privileged material was both disclosed and
admitted into evidence against Lott, this Court could find that the privileged material
should not have been used against him and treat the admission just as we would any
other evidentiary error. But as the Court of Appeals for the Second Circuit has
noted, “a pertinent aspect of confidentiality will be lost, even though
communications later deemed to be privileged will be inadmissible at trial.” Chase
Manhattan Bank, 964 F.2d at 165. The damage to the attorney-client relationship
will have already been done by the disclosure itself.
Id. at 451. See also In re Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997) (holding that “forced
disclosure of privileged material may bring about irreparable harm” and, thus, the petitioner
appealing an order requiring the production of a privileged statement had “no adequate means to
attain the discovery relief it [sought] except by mandamus . . . .”).
It is significant to note, in this respect, that “a judgment of civil contempt is not a final decree
and therefore is not appealable in itself.” Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir.
1976) (citing Fox v. Capital Co., 299 U.S. 105, 107 (1936); McAlpin v. Lexington 76 Auto Truck
Stop, Inc., 229 F.3d 491, 500 (6th Cir. 2000). Thus, the contempt route requires an aggrieved party
claiming privilege to be penalized by a contempt citation, while in the interim presumably being
forced to disclose the privileged materials until after a final judgment has issued and an appeal has
been pursued. This is, I believe, an arduous and ineffective method of resolving a discovery dispute
dealing with sensitive privileged information.
The disobedience and contempt route, used under these circumstances, contradicts the notion
that our judicial system largely depends on the voluntary acceptance of court orders. “Being forced
to disobey an order of the district court in order to obtain review of the court’s ruling seems a harsh
choice.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1480 (9th Cir. 1992). As
more bluntly stated by another court, “[W]e reject the suggestion that an appeal can properly come
No. 04-6130 United States ex rel. Pogue v. Diabetes Page 13
Treatment Centers of America, Inc., et al.
before us only if some officer of IBM refuses to deliver the 1,200 documents, subjects himself to
the consequences of contempt, and appeals from the contempt judgment. The law today must be
more ingenious, flexible and resourceful in its ability to avoid any such old-fashioned and semi-
barbaric procedure.” International Bus. Machs. Corp. v. United States, 471 F.2d 507, 511 (2d Cir.
1972), vacated on other grounds, 480 F.2d 293 (2d Cir. 1973). See also United States v. Philip
Morris, Inc., 314 F.3d 612, 620 (D.C. Cir. 2003) (allowing a collateral order appeal from a discovery
order rejecting an attorney-client privilege and noting that the contempt route is an unsatisfactory
means to appeal).
In their treatise, Wright and Miller, acknowledging that the contempt route is a well-
entrenched path to appeal, nonetheless have observed that: “We are accustomed to appeals that are
available as a matter of right or that depend on an explicit exercise of discretion by the trial court,
court of appeals, or both. A system that depends on a gamble with contempt, and for parties a
gamble that the contempt sanctions may be civil and not appealable, seems unprincipled.” 15B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure
§ 3914.23, p. 155 (2d ed. 1992). Conversely,
Mandamus provides the most direct way around the rule that generally bars final
judgment appeals from discovery orders. The great advantages of mandamus are that
it is discretionary and can be adapted much more easily than final judgment doctrine
to provide review of questions that are important either intrinsically or because of
general impact, without simultaneously opening the door to review of similar
questions in all future cases.
Id., § 3914.23 at 132.
Most recently, in In re Powerhouse Licensing, LLC, 2006 WL 509390 (6th Cir. March 2,
2006) (unpublished), we recognized the applicability of mandamus to analogous circumstances
when we considered a petition for a writ of mandamus in an appeal from an order requiring the
production of documents containing privileged attorney-client communications. Although we
ultimately denied mandamus, concluding that the petitioner had waived the privilege, we favorably
cited In re Lott for the proposition that “the scope of the attorney-client privilege implicates the kind
of important interests that would normally favor mandamus.” 2006 WL 509390 at *4 n.3.
Thus, consistent with the rationale employed in In re Lott, I would treat the current appeal
as a petition for writ of mandamus and evaluate it pursuant to the multi-factor test which our Court
has endorsed for determining the propriety of mandamus, i.e., whether: (1) the party seeking the
writ has no other adequate means, such as direct appeal, to attain the relief desired; (2) the petitioner
will be damaged or prejudiced in a way not correctable on appeal; (3) the district court’s order is
clearly erroneous as a matter of law; (4) the district court’s order is an oft-repeated error, or
manifests a persistent disregard of the federal rules; and (5) the district court’s order raises new and
important problems, or issues of law of first impression. In re Lott, 424 F.3d at 449 (citing In re
Chimenti, 79 F.3d 534, 539 (6th Cir. 1996), in turn citing In re Bendectin Products Liability
Litigation, 749 F.2d 300, 304 (6th Cir. 1984)). In weighing these factors, we employ a “flexible
rather than a rigid approach.” In re Perrigo Co., 128 F.3d at 435.
In this case, it is clear that the first and second factors favor appellants. As already
discussed, they have no other adequate means to attain relief from the discovery order and an appeal
after final judgment is an ineffectual remedy. However, with regard to the third factor, I conclude
that the district court’s order requiring the production of the privileged materials was, under the
circumstances, not clearly erroneous as a matter of law. In re Lott, 424 F.3d at 449. The district
court, properly applying the relevant law of the District of Columbia, specifically, In re Sealed Case,
No. 04-6130 United States ex rel. Pogue v. Diabetes Page 14
Treatment Centers of America, Inc., et al.
877 F.2d 976, 980 (D.C. Cir. 1989), held that appellants’ inadvertent disclosure of the documents
at issue effected a waiver of the privilege.4 I agree.
In In re Sealed Case, the D.C. Circuit Court of Appeals opined that, despite the importance
of the attorney-client privilege, “[t]he courts will grant no greater protection to those who assert the
privilege than their own precautions warrant. We therefore agree with those courts which have held
that the privilege is lost ‘even if the disclosure is inadvertent.’” 877 F.2d at 980 (internal citations
omitted). Such an inadvertent waiver extends to all other communications relating to the same
subject matter. Id. at 980-81.
Here, appellants produced the documents at issue for plaintiff Pogue’s review and then, after
realizing that they had mistakenly disclosed the privileged information, secreted the materials from
the production box. Pursuant to In re Sealed Case, this disclosure, even though a product of human
error, resulted in the forfeiture of the privilege as to the documents in question. Id. at 980. In the
absence of extraordinary circumstances that would otherwise excuse this waiver, see Transamerica
Computer Co. v. IBM Corp., 573 F.2d 646, 651 (9th Cir. 1978), the district court appropriately
ordered the production of “all letters and memoranda containing information about prohibited
financial arrangements with physicians, and remuneration to physicians for referrals that may violate
kickback and self-referral laws.”
Consequently, I concur in the result reached by the majority, albeit for different reasons. The
contempt route is not a viable remedy for a party who challenges an order implicating the production
of privileged information. Rather, mandamus provides the appropriate channel by which to review
a discovery order of this nature. In re Lott, 424 F.3d at 449-51. However, because the third factor
of the mandamus test weighs heavily against the entitlement to such extraordinary relief under these
particular circumstances, I conclude that a petition for mandamus should not issue and this Court
otherwise lacks jurisdiction to entertain this appeal. The appeal should therefore be dismissed.
4
The district court’s waiver decision is reviewed de novo. United States v. Collis, 128 F.3d 313, 320 (6th Cir.
1997).