Martin v. Turnipseed

Case: 21-30475 Document: 00516378091 Page: 1 Date Filed: 06/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2022
No. 21-30475 Lyle W. Cayce
Clerk
Jennifer Leonard,
Plaintiff,
versus
Tyler Martin; Wadena Insurance Company,
Defendants—Appellees,
versus
Joseph W. Turnipseed, M.D.; The Spine Diagnostic &
Pain Treatment Center,
Interested Parties—Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-827
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Before Jones, Haynes, and Costa, Circuit Judges.
Edith H. Jones, Circuit Judge:
This appeal relates to a Fed. R. Civ. Pro. 45 subpoena issued to third
party Dr. Joseph Turnipseed requiring him to perform patient record audits
and generate data about how frequently he recommends a particular course
of treatment. Turnipseed moved to quash the subpoena on undue burden
grounds. The district court denied his motion to quash. He appealed. In the
alternative, he sought a writ of mandamus ordering the district court to quash
the subpoena. With misgivings about the district court’s substantive ruling,
we DISMISS Turnipseed’s appeal for lack of jurisdiction and DENY his
alternative petition for a writ of mandamus.
I.
This is a run-of-the-mill personal injury lawsuit arising out of a car
accident. Plaintiff Jennifer Leonard alleges that Tyler Martin rear-ended her
when she stopped in traffic. She sued Martin and his insurer, Wadena
Insurance Company, in Louisiana state court seeking damages for injuries she
allegedly sustained during the accident. Martin removed the lawsuit to
federal court based on the existence of diversity jurisdiction.
Turnipseed, an anesthesiologist and pain management specialist,
treated Leonard for neck and back pain allegedly caused by the accident.
Among other treatments, Turnipseed performed a cervical radiofrequency
neurotomy on Leonard. A cervical radiofrequency neurotomy is a procedure
done to reduce chronic back and neck pain that has not “improved with
medications or physical therapy, or when surgery [is not] an option.” 1
According to Turnipseed, Leonard responded favorably to the cervical
neurotomy and he recommended that she undergo the procedure annually
1
Radiofrequency Neurotomy, Mayo Clinic (Feb. 25, 2022), https://www.mayo
clinic.org/tests-procedures/ radiofrequency-neurotomy/about/pac-20394931 (last visited
April 12, 2022).
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for the next five to six years. These future treatments make up a large
percentage of Leonard’s life care plan and alleged damages.
The defendants dispute the medical necessity of those expensive,
future treatments. They suggest that Turnipseed frequently recommends
annual cervical radiofrequency neurotomies over the course of several years
but that few patients follow through with the treatments. The subtext, of
course, is that Turnipseed’s recommendation is simply a means of inflating
the amount of damages in personal injury litigation. The defendants
therefore subpoenaed Turnipseed and his medical practice, The Spine
Diagnostic & Pain Treatment Center, under Rule 45, seeking: (1) all records
of patients in the past ten years who Turnipseed recommended undergo
cervical neurotomies for ten years, twenty years, and life; and (2) bills for
services rendered and records produced in connection with (1). The
subpoena specified that all patient health information should be redacted.
Turnipseed moved to quash the original subpoena. He argued that it
was overly broad, unduly burdensome, and sought privileged information.
The magistrate judge granted his motion in part and denied it in part. He
agreed that the subpoena was overly broad because it requested the entirety
of patient records and targeted patients that Turnipseed recommended
cervical neurotomies for periods of ten years, twenty years, and life, even
though Turnipseed only recommended that Leonard undergo annual
neurotomies for five to six years. The magistrate judge likewise agreed that
the subpoena was overbroad in seeking ten years of data.
The magistrate judge, however, approved a narrower version of the
subpoena that required production of only (1) the number of patients in the
last five years that Turnipseed recommended get annual cervical
neurotomies over the course of five to six years; and (2) the number of known
patients who actually underwent the procedures. That information is
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sufficiently relevant, the magistrate judge reasoned, because it bears on
Turnipseed’s credibility. Moreover, the magistrate judge rejected
Turnipseed’s objection, as he concluded that producing the information
targeted by the narrower subpoena—raw numbers, rather than patient
files—would not be unduly burdensome.
Turnipseed filed a Rule 72(a) motion to review the magistrate judge’s
ruling in the district court. The district court held that the magistrate judge
expressly considered the relevant factors—the scope of the information
requested, the importance of that information, the burden to Turnipseed,
and the privacy rights of Turnipseed’s patients—and tailored his ruling
accordingly and, as a result, did not clearly err. Turnipseed appealed. He
contends that district court abused its discretion in allowing the discovery to
go forward.
II.
This court cannot reach the question whether the district court abused
its discretion until we first “assure ourselves of our own federal subject
matter jurisdiction.” Keyes v. Gunn, 890 F.3d 232, 235 n.4 (5th Cir. 2018).
We requested supplemental briefing addressing the basis for appellate
jurisdiction to review an order denying a nonparty’s motion to quash.
Turnipseed posits that this court has jurisdiction under the collateral order
doctrine. Alternatively, Turnipseed suggests that the court may treat his
appeal as a petition for a writ of mandamus. Martin, by contrast, disagrees
that we have jurisdiction and contends that, even if the court were to treat
this appeal as a petition for a writ of mandamus, the criteria for mandamus
relief are not satisfied. We conclude that an order denying this nonparty’s
motion to quash is not reviewable under the collateral order doctrine and
that, although we may treat Turnipseed’s appeal as a petition for a writ of
mandamus, he fails to meet the requirements for such extraordinary relief.
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A. Collateral Order Doctrine
With few exceptions not applicable here, appellate jurisdiction is
statutorily confined to review of “final decisions.” 28 U.S.C. § 1291. The
archetypal final decision is one that “ends the litigation on the merits and
leaves nothing more for the court to do but execute the judgment.” Digit.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S. Ct. 1992, 1995
(1994) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633
(1945)). Nevertheless, the Supreme Court “has long given” § 1291 a
“practical rather than a technical construction.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1226 (1949). Section 1291
encompasses not only the final decisions that terminate an action, “but also
a ‘small class’ of collateral rulings that, although they do not end the
litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106, 130 S. Ct. 599, 605 (2009) (quoting Cohen,
337 U.S. at 545-46, 69 S. Ct. at 1225-26).
To fit within the small class of immediately appealable collateral
rulings, the order must “(1) conclusively determine the disputed question,
(2) resolve an important issue completely separate from the merits of the
action, and (3) be effectively unreviewable on appeal from a final judgment.”
Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th
Cir. 2019) (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164,
171 (5th Cir. 2009)). For an order to be appealable under the collateral order
doctrine, the “justification for immediate appeal must . . . be sufficiently
strong to overcome the usual benefits of deferring appeal until litigation
concludes.” Mohawk Indus., 558 U.S. at 107, 130 S. Ct. at 605. Critically, the
Supreme Court has repeatedly admonished lower courts that the collateral
order doctrine must “never be allowed to swallow the general rule that a
party is entitled to a single appeal, to be deferred until final judgment has been
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entered.” Digit. Equip. Corp., 511 U.S. at 868, 114 S. Ct. at 1996 (citation
omitted).
An order is not “effectively unreviewable” just because it “may
burden litigants in ways that are only imperfectly reparable by appellate
reversal of a final district court judgment.” Digit. Equip. Corp., 511 U.S. at
872, 114 S. Ct. at 1998. The “decisive consideration is whether delaying
review until the entry of final judgment ‘would imperil a substantial public
interest’ or ‘some particular value of a high order.’” Id. (quoting Will v.
Hallock, 546 U.S. 345, 352-53, 126 S. Ct. 952, 959 (2006)); see also Lauro
Lines S.R.L. v. Chasser, 490 U.S. 495, 202, 109 S. Ct. 1976, 1980 (1989)
(Scalia, J., concurring) (“The importance of the right asserted has always
been a significant part of our collateral order doctrine.”). Generally, this is
only the case “where the order at issue involves ‘an asserted right the legal
and practical value of which would be destroyed if it were not vindicated
before trial.’” Midland Asphalt Corp. v. United States¸489 U.S. 794,
109 S. Ct. 1494 (1989) (quoting United States v. MacDonald, 435 U.S. 850,
860, 98 S. Ct. 1547, 1552 (1978)). A court must make this determination “on
a categorical basis, looking only at whether ‘the class of claims, taken as a
whole, can be vindicated by other means’ than immediate appeal.” Martin
v. Halliburton, 618 F.3d 476, 483 (5th Cir. 2010) (quoting Mohawk Indus.,
558 U.S. at 107, 130 S. Ct. at 605).
Turnipseed posits that collateral order appeals are necessary to ensure
effective review of orders requiring nonparty physicians to conduct patient
audits and generate statistical materials. He claims that the only alternative
means of review is to disobey the discovery order and risk being held in
contempt; and risking contempt is an intolerable alternative for physicians,
he suggests, because a contempt citation may have collateral professional
consequences. Turnipseed makes this collateral-consequences assertion
without providing any support. Moreover, he suggests that allowing this sort
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of discovery will chill physicians’ willingness to treat patients involved in
litigation. Finally, Turnipseed points out that complying with similar
patient-audit discovery orders will further overburden physicians.
Turnipseed concludes that the justification for allowing immediate appeals
far outweighs the usual benefits of deferring review.
A comparison of the types of orders that do and do not fall under the
collateral order doctrine is instructive. On one hand, courts routinely allow
immediate appeal from orders that reject absolute or qualified immunity,
Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S. Ct. 2806, 2815-16 (1985),
deny a state’s Eleventh Amendment immunity, Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 141, 113 S. Ct. 684, 686 (1993),
or, in the criminal context, deny a defendant’s double jeopardy defense,
Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 2040 (1977).
Moreover, in the discovery context, this court allows immediate appeal of
orders that unseal a nonparty’s confidential business documents, Vantage
Health Plan, 913 F.3d at 449-50, or allow discovery against a nonparty with
substantial First Amendment implications, Whole Woman’s Health v. Smith,
896 F.3d 362, 368 (5th Cir. 2018). Each of these cases implicates “some
particular value of a high order” or “substantial public interest” that would
be imperiled or destroyed if review were delayed until after entry of an
archetypal final judgment. Mohawk Indus., 558 U.S. at 107, 130 S. Ct. at 605(quoting Will, 546 U.S. at 352-53, 126 S. Ct. at 959).
On the other hand, courts do not permit immediate appeal from orders
denying motions to enforce a forum selection clause, Lauro Lines, 490 U.S.
at 496, 109 S. Ct. at 1977, refusing to effectuate a settlement agreement,
Digit. Equip., 511 U.S. at 865, 114 S. Ct. at 1994, denying motions to
disqualify counsel, Firestone Tire, 449 U.S. at 370, 101 S. Ct. at 671, or
declining to apply the judgment bar of the Federal Tort Claims act, Will,
546 U.S. 345, 347, 126 S. Ct. 952, 956 (2006). Furthermore, cases are legion
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that deny immediate appeals under the collateral order doctrine in an array
of discovery contexts. 2 Indeed, this court and every other circuit court hold
that the collateral order doctrine does not provide jurisdiction over a
nonparty’s appeal from a discovery order because nonparties have alternative
avenues for appellate review. A-Mark Auction Galleries v. Am. Numismatic
Ass’n, 233 F.3d 895, 898-99 (5th Cir. 2000) (holding that the court lacked
jurisdiction over appeal from discovery order against nonparty because
nonparty may disobey the order, be cited for contempt, and challenge the
discovery order in appealing the contempt citation). 3
Turnipseed’s appeal falls decidedly into the latter category of cases.
As a threshold matter, Turnipseed paints the relevant class of orders too
narrowly. Turnipseed posits that the relevant class is orders that require
nonparty physicians to conduct patient audits and generate statistical
materials. Collateral-order theory, however, does not depend on such
2
See, e.g., Mohawk Indus., 558 U.S. at 103, 130 S. Ct. at 603 (discovery order
implicating attorney-client privilege); Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198,
204 n.4, 119 S. Ct. 1915, 1920 n.4 (collecting cases); United States v. Ryan, 402 U.S. 530,
531-32, 91 S Ct. 1580, 1581-82 (1971) (order denying motion to quash subpoena); Sealed
Appellees v. Sealed Appellants, 112 F.3d 173, 174 (5th Cir. 1997) (discovery order compelling
production over attorney work-product objection); see also 15B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3914.23 (“[T]he rule remains settled that most discovery rulings are
not final.”).
3
See Ott v. City of Milwaukee, 682 F.3d 552, 555 (7th Cir. 2012); United States v.
Acad. Mortg. Corp., 968 F.3d 996, 1006-07 (9th Cir. 2020); Drummond Co. v. Terrance P.
Collingsworth, Conrad & Scherer, LLP, 816 F.3d 1319, 1325-27 (11th Cir. 2016); Corporacion
Insular de Seguros v. Garcia, 876 F.2d 254, 256-57 (1st Cir. 1989); Nat. Super Spuds, Inc. v.
New York Mercantile Exchange, 591 F.2d 174, 177 (2d Cir. 1979); In re Flat Glass Antitrust
Litigation, 288 F.3d 83, 88 (3d Cir. 2002); MDK, Inc. v. Mike's Train House, Inc., 27 F.3d
116, 122 (4th Cir. 1994); U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc.,
444 F.3d 462, 471 (6th Cir. 2006); In re Burlington N. Inc., 679 F.2d 762, 768 (8th Cir.
1982); F.T.C. v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir. 1985); U.S. v.
Anderson, 464 F.2d 1390, 1391 (D.C. Cir. 1972).
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“individualized jurisdictional inquir[ies].” See Mohawk Indus., 558 U.S. at
107, 130 S. Ct. at 605 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
98 S. Ct. 2454, 2460 (1978)). Thus, the class of orders should be defined at
a higher level of generality. In our view, the class of orders at issue here is
those denying a nonparty’s motion to quash a subpoena on undue burden
grounds. Cf. Mohawk Indus., 558 U.S. at 108, 130 S. Ct. at 606 (defining the
class of claims as “orders adverse to the attorney-client privilege”).
Under this broader view, Turnipseed’s contention that the relevant
class of orders is effectively unreviewable falls apart. Where a district court
denies a nonparty’s motion to quash on undue burden grounds, the nonparty
has several potential avenues of review apart from a collateral order appeal.
For one, the nonparty may disobey the district court’s order, be cited for
contempt, and then challenge the underlying discovery order in appealing the
contempt citation. See A-Mark Auction Galleries, 233 F.3d at 233. Indeed,
the contempt route is broader for nonparties than it is for parties. Unlike a
party, who may only appeal a criminal contempt citation, a nonparty may
appeal either a criminal or a civil contempt order. See Texas v. Dep’t of Labor,
929 F.3d 205, 209 n.9 (5th Cir. 2019). Alternatively, a nonparty may request
that the district court certify a § 1292(b) appeal or, in extraordinary cases,
seek a writ of mandamus. Mohawk Indus., 558 U.S. at 110-11, 130 S. Ct. at
607. Finally, where, as here, the thrust of the motion to quash concerns the
burdens of complying with the subpoena, a nonparty may comply and seek
reimbursement for costs. 15B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and
Procedure § 3914.23 (citing United States v. Columbia Broad. Sys., Inc.,
666 F.2d 364 (9th Cir. 1982)). If the district court denies those costs, the
nonparty may immediately appeal. Id.Because these alternative means of review exist, Turnipseed cannot
show that collateral order appeals are necessary to ensure effective review of
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orders denying motions to quash on undue burden grounds. Accordingly,
this court lacks jurisdiction under the collateral order doctrine.
B. Mandamus
Even though this court lacks jurisdiction under § 1291 to review the
district court’s order, a writ of mandamus may still be appropriate. 4 A writ
of mandamus is “a ‘drastic and extraordinary’ remedy ‘reserved for really
extraordinary causes.’” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380,
124 S. Ct. 2576, 2586 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60,
67 S. Ct. 1559, 1559 (1947)). Mandamus is appropriate only where: (1) the
petitioner shows a “clear and indisputable right to the writ”; (2) the
petitioner has “no other adequate means to attain the relief he desires”; and
(3) the court is “satisfied that the writ is appropriate under the
circumstances.” Defense Distributed v. Bruck, 30 F.4th 414, 426 (5th Cir.
2022) (quoting Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81,
124 S. Ct. 2576, 2587 (2004)); see also In re JPMorgan Chase & Co., 916 F.3d
494, 499 (5th Cir. 2019). Although we are concerned that the district court
may have erred in denying Turnipseed’s motion to quash, Turnipseed
nevertheless fails to demonstrate a clear and indisputable right to a writ of
mandamus. 5
4
Although Turnipseed did not formally seek a writ of mandamus under Federal
Rule of Appellate Procedure 21, this court may, in its discretion, treat an appeal as a petition
for a writ of mandamus. In re Deepwater Horizon, 793 F.3d 479, 491 n.12 (5th Cir. 2015)
(quoting In re Grand Jury Subpoena, 190 F.3d 375, 389 n.16 (5th Cir. 1999)); see also Jefferson
v. Delgado Cmty. Coll. Charity Sch. of Nursing, 602 F App’x 595, 598-99 (5th Cir. 2015)
(unpublished).
5
In mandamus cases, this court often holds “that a district court erred, despite
stopping short of issuing a writ of mandamus.” In re Dupuy Orthopaedics, 870 F.3d at 347
n.4 (collecting cases).
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Demonstrating a clear and indisputable right to a writ of mandamus
“require[s] more than showing that the district court misinterpreted the law,
misapplied it to the facts, or otherwise engaged in an abuse of discretion.” In
re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015). Rather,
Turnipseed must show a “clear abuse[] of discretion that produce[s] patently
erroneous results,” Lloyd’s Reg., 916 F.3d at 290 (quoting In re Volkswagen of
Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008)), or “exceptional circumstances
amounting to a judicial usurpation of power,” In re Dupuy Orthopaedics, Inc.,
870 F.3d 345, 350 (5th Cir. 2017) (quoting Cheney, 542 U.S. at 380, 124 S. Ct.
at 2587). In other words, Turnipseed “must show not only that the district
court erred, but that it clearly and indisputably erred” in denying his motion to
quash. In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000).
Under Rule 45, a court must modify or quash a subpoena that subjects
a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). To determine
whether a subpoena presents an undue burden, this court weighs the
following factors: “(1) [the] relevance of the information requested; (2) the
need of the party for the documents; (3) the breadth of the document request;
(4) the time period covered by the request; (5) the particularity with which
the party describes the requested documents; and (6) the burden imposed.”
Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004).
Moreover, where a subpoena requests information from a nonparty, as it does
here, the court must be sensitive to the nonparty’s compliance costs. Id. In
our estimation, two salient factors here, relevance and burdens, weigh in
Turnipseed’s favor. 6
6
Turnipseed does not seriously challenge the subpoena under the second, third,
fourth, and fifth elements of the undue burden test articulated in Wiwa.
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First, relevance. For purposes of the undue burden test, relevance is
measured according to Fed. R. Civ. Pro. 26(b)(1). Under that rule,
information is relevant if it “bears on, or that reasonably could lead to other
matters that could bear on, any issue related to the claim or defense of any
party.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (internal
quotation omitted). The defendants posit that how often Turnipseed
recommends repeated cervical neurotomies for a period of five to six years
and the number of patients that follow through with that treatment course
bear on Turnipseed’s credibility. Such information could show, for instance,
that Turnipseed regularly recommends recurring cervical neurotomies but
few patients ever undergo treatment. Turnipseed counters that the
requested information has no bearing on his credibility. He emphasizes that
his records do not accurately reflect the number of patients that follow his
recommended course of treatment. For example, patients may undergo
treatment at different facilities because of a change in residence or another
facility’s greater scheduling flexibility. At best, he concludes, the
information that he must produce will present a misleading view of his
credibility. We agree that, for the reasons Turnipseed articulates, the
requested information is only tenuously relevant.
Second, the burden imposed. The defendants’ subpoena, as modified
by the district court, requires Turnipseed to audit his patient records and
generate new information about how often he has recommended repeated
cervical neurotomies and how many of those patients underwent the
procedures. A Rule 45 subpoena may require a nonparty to produce
“designated documents, electronically stored information, or tangible things
in that person’s possession, custody, or control.” Fed. R. Civ.
P. 45(a)(1)(A)(iii). By the terms of the Rule, these are items that already
exist. Rule 45 does not contemplate a subpoena requiring a nonparty to
analyze documents in the nonparty’s possession and generate new
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information. 7 Accordingly, to the extent that the subpoena requires
Turnipseed to do more than simply produce documents already in existence,
it imposes an undue burden on him.
Finally, the cost of complying with the subpoena. Turnipseed alleges
that complying with the modified subpoena would be costly and burdensome.
Based on a sample review, Turnipseed estimates that it will take him
approximately three hours to review twenty patient files. Further, he
estimates that complying with the district court’s order would require him to
review about four hundred patient files, which if accurate would require at
least sixty hours of work. At Turnipseed’s typical $1,000/hour rate, the cost
of complying with the subpoena is excessive, particularly because the amount
in dispute here is only about $120,000. In our view, even if Turnipseed
somewhat overstates the cost of compliance, it is nevertheless
disproportionate to any value that the information has with respect to
Turnipseed’s credibility.
Based on the above-articulated circumstances, it appears that the
subpoena, even as modified by the district court, imposes an undue burden
on Turnipseed. Nevertheless, district courts are afforded wide discretion in
discovery matters, and as the district court here found, the magistrate judge
7
See, e.g., McGlone v. Centrus Energy Corp., No. 2:19-cv-2196, 2020 WL 4462305,
at *3 (S.D. Ohio Aug. 4, 2020) (collecting cases); Taylor v. Kilmer, No. 18-cv-7403,
2020 WL 606781, at *3 (N.D. Ill. Feb 7, 2020) (same); Mir v. L-3 Commc’ns Integrated Sys,
L.P., 319 F.R.D. 220, 227 (N.D. Tex. 2016) (same); 9 James W. Moore et. al.,
Moore’s Federal Practice § 45.10 (Matthew Bender 3d ed. 2021) (“A command
to produce may be made only for documents, electronically stored information, or things
already in existence; accordingly, although a subpoena may compel a person to produce a
document or thing, it may not compel the person to create the document or thing in the first
instance.”).
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purported to apply the relevant law. Thus, Turnipseed fails to show a clear
and indisputable right to the writ, and we must deny mandamus relief. 8
III.
For the foregoing reasons, Turnipseed’s appeal is DISMISSED for
lack of jurisdiction and his petition for a writ of mandamus is DENIED.
8
Rule 45(d)(2)(B)(ii) states that, when a court orders a nonparty to comply with a
subpoena over an objection, “the order must protect” the nonparty “from significant
expense resulting from compliance.” In other words, Rule 45 requires a district court to
shift a nonparty’s cost of complying with a subpoena if those costs are significant. In re
Modern Plastics Corp., 890 F.3d 244, 252 (6th Cir. 2018); Legal Voice v Stormans Inc.,
738 F.3d 1178, 1184 (9th Cir. 2013); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.
Cir. 2001). If, in fact, Turnipseed’s cost of complying with the subpoena is significant, the
district court should shift those costs to the defendants. Given the value of Turnipseed’s
time and the number of patient files he may have to review, it seems almost certain that the
cost of complying will be significant. Cf. Legal Voice, 738 F.3d at 1185 (“[W]e have no
trouble concluding that $20,000 is ‘significant’”); Linder, 251 F.3d at 182 (suggesting that
even $9,000 may be sufficient significant to justify shifting costs under Rule
45(d)(2)(B)(ii)).
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Haynes, Circuit Judge, dissenting:
I agree with much of the majority opinion’s discussion, but not its
conclusion. For example, the majority opinion correctly determines that the
district court erred by denying Turnipseed’s motion to quash a subpoena for
an entirely irrelevant and overly burdensome request for documents.
Unfortunately, it then holds that it is powerless to grant Turnipseed the relief
to which it tacitly agrees he is entitled. That is where we differ. As a
preliminary matter, I disagree as to the conclusion that we lack jurisdiction
under the collateral order doctrine. But, even assuming arguendo we lack
appellate jurisdiction, I conclude we have the authority to grant mandamus
relief and Turnipseed is entitled to that relief from the district court’s clearly
and indisputably erroneous discovery order. I respectfully dissent.
I.
The majority opinion “decidedly” concludes that Turnipseed’s claim
is not reviewable on appeal under the collateral order doctrine. I’m not so
sure. That determination turns on one question: whether Turnipseed’s
claim is “effectively unreviewable on appeal from a final judgment.” See
Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th
Cir. 2019). Per the majority opinion, Turnipseed’s claim is not effectively
unreviewable because he actually “has several potential avenues of review.”
Majority Op. at 9. For one, Turnipseed can simply disobey the district
court’s order, be charged with contempt, and then appeal the contempt
citation. The majority opinion is unpersuaded by the fact that this option
forces Turnipseed to violate his code of ethics and put his license to practice
medicine at risk. 1
1
The majority opinion’s lack of concern about this issue seemingly stems from the
erroneous conclusion that Turnipseed’s adverse professional consequences claim lacks
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I recognize that we have previously endorsed this path for nonparties
who wish to challenge discovery orders. See A-Mark Auction Galleries, Inc. v.
Am. Numismatic Ass’n, 233 F.3d 895, 898–99 (5th Cir. 2000). However,
recognizing that “[t]hird parties have no power to control the course of
litigation nor any influence over an appeal from a final judgment,” we have
also held that such an extreme avenue is not always required for nonparties.
See, e.g., Vantage Health Plan, 913 F.3d at 449–50; Whole Woman’s Health v.
Smith, 896 F.3d 362, 368 (5th Cir. 2018). In Vantage Health Plan, for
example, we did not force the nonparty seeking review to first defy the
court’s order and face contempt because “incurring sanctions is risky.” 913
F.3d at 449. More notably, in Whole Woman’s Health, we concluded that the
relevant discovery order was “effectively unreviewable” on appeal in part
because it was directed at a third party. 896 F.3d at 367–68. 2 Our analysis in
that case was replete with concern about the nonparty’s inability to benefit
from a party’s appeal of a final judgment. See id. at 367–68, 375. That
concern is mysteriously absent from the majority opinion’s analysis here.
support given his brief discussion of the same. See Majority Op. at 7. But as a physician
practicing in Louisiana, Turnipseed is governed by state law protecting against, inter alia,
physicians engaging in “unprofessional conduct.” See La. Rev. Stat. Ann. § 37:1261.
Because the statute does not define “unprofessional conduct,” Louisiana courts look to the
Louisiana Rules of Professional Conduct governing “professional misconduct” of a lawyer
for guidance. Doe v. La. State Bd. of Med. Exam’rs, 788 So. 2d 1234, 1239–40 (La. Ct. App.
2001) (citing La. R. Pro. Conduct 8.4(a)–(h)). Louisiana case law makes clear that failure
to comply with a court order constitutes “professional misconduct” in violation of Rule
8.4(d) and can result in the suspension of a law license. In re Robinson, 819 So. 2d 280, 284–
85 (La. 2002) (per curiam) (“A review of our jurisprudence of this court indicates we have
considered an attorney’s knowing failure to comply with the orders of a tribunal to be a
serious professional violation.”). Accordingly, Turnipseed’s concern that he risks losing
his professional license by violating the district court’s discovery order is hardly
unsupported.
2
We also held that the standards of the collateral order doctrine were met because
the case was “practically sui generis from the standpoint of the type of discovery sought and
the issues raised by [the nonparty].” Whole Woman’s Health, 896 F.3d at 368.
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Tellingly, neither Vantage Health Plan nor Whole Woman’s Health discusses
(let alone cites) A-Mark, a fact the majority opinion overlooks.
The majority opinion concludes that Vantage Health Plan and Whole
Woman’s Health are different because they “implicate[] ‘some particular
value of a high order’ or ‘substantial public interest’ that would be imperiled
or destroyed if review were delayed.” Majority Op. at 7–8. Stated
differently, the importance and sensitivity of the potentially discoverable
material qualified the orders for immediate appellate review and excused the
third parties from being required to defy the orders and seek contempt. See
Vantage Health Plan, 913 F.3d at 449; Whole Woman’s Health, 896 F.3d at
368. But in Vantage Health Plan, we questioned “whether third-party status
alone, absent some constitutional or other issue that calls into question the
‘general familiarity of courts with standards governing [the dispute],’ may
suffice to invoke the collateral order doctrine.” 913 F.3d at 450 n.2
(alteration in original) (quoting Whole Woman’s Health, 896 F.3d at 368).
Importantly, the Supreme Court case that took us down this path was
about a party appealing a discovery order as a collateral order, noting the
general rule that “a party is entitled to a single appeal.” See Mohawk Indus.
v. Carpenter, 558 U.S. 100, 101, 106 (2009). But no one argues that
Turnipseed has “an appeal” in this case; even Martin does not claim that. In
the “ordinary case” between parties there can be dozens of discovery
disputes and rulings, and the Supreme Court understandably (and correctly)
did not approve of a back and forth between the district courts and the
appellate courts over these issues. But this is not the situation here where a
non-party was ordered to create documents.
Even if Mohawk’s general rule applies across the board, in my view,
the majority opinion’s holding here does implicate a high order—it requires
a licensed professional to violate his code of ethics (which requires following
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court orders). Our core as judges is ethics: would we think it is okay to violate
our rules of ethics to protest an order as a non-party in a case? Would we
want to throw our positions and our reputations as highly ethical judges out
the window just so we could appeal a completely erroneous order? I cannot
agree with that notion.
In addition to that point, forcing physicians to perform burdensome
patient population audits that yield information immaterial to an underlying
litigation—and potentially chilling physicians’ willingness to treat patients
involved in litigation—implicates a “value of a high order” and a
“substantial public interest” particularly in this pandemic era where doctors
are being placed to the test every day. See Mohawk, 558 U.S. at 107 (quotation
omitted). At the very least, it seemingly calls into question district courts’
“general familiarity” with the standards governing the scope of permissible
discovery from third party physicians. 3 In any event, we have not foreclosed
the possibility that third-party status alone, in certain circumstances, is
enough to invoke the collateral order doctrine. See Vantage Health Plan, 913
F.3d at 450 n.2. Forcing Turnipseed to defy the discovery order, violate his
code of ethics, spend wasted time on an improper order, and risk losing his
medical license is an extraordinary and unacceptable result. I accordingly
urge that the circumstances present here warrant immediate appealability.
II.
For this section I will assume arguendo that we do not have appellate
jurisdiction under the collateral order doctrine. In that circumstance, given
that the untenable disobey-and-seek-contempt route is the only path forward
3
A motion to quash a discovery order is a routine district court ruling. However,
no circuit court has yet to opine on whether this type of information from a treating
physician is discoverable.
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for an appeal, then a writ of mandamus is all the more appropriate here, as
Turnipseed is left without “adequate means to attain relief.” In re
Volkswagen of Am., Inc., 545 F.3d 304, 318 (5th Cir. 2008) (en banc); see also
16 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3935.3 (3d ed.
Supp. 2022) (“Writ review, indeed, may be specifically justified on the
ground that the alternative of disobedience and contempt is not a suitable or
adequate remedy.”).
I recognize that the writ is an “extraordinary remedy” and that its
requirements are difficult to satisfy. See In re Volkswagen, 545 F.3d at 311.
But the writ’s high hurdles “are not insuperable.” Id. (quotation omitted).
Indeed, a writ of mandamus is a useful “safety valve for promptly correcting
serious errors.” Mohawk Indus., 558 U.S. at 111 (internal quotation marks,
citation, and brackets omitted). That’s especially true where, as here,
“unfettered discovery” that “otherwise might elude appellate review” is an
overwhelming burden. See generally Wright & Miller § 3935.3. Cf. In
re Burlington N., Inc., 822 F.2d 518, 522 (5th Cir. 1987) (“[T]he difficulty of
obtaining effective review of discovery orders, the serious injury that
sometimes results from such orders, and the often recurring nature of
discovery issues support use of mandamus in exceptional cases.”). It seems
clear that the order in question is “truly irremediable on ordinary appeal.”
See, e.g., In re A&D Ints., Inc., 33 F.4th 254, 256 (5th Cir. 2022), pet. for reh’g
en banc filed, May 17, 2022.
The majority opinion concedes that the discovery order at issue here
is both irrelevant and unduly burdensome, but nevertheless concludes that
Turnipseed has failed to show a clear and indisputable right to the writ
because “district courts are afforded wide discretion in discovery matters”
and the magistrate judge here “purported to apply the relevant law.”
Majority Op. at 14. But a district court’s discretion is not unlimited, see
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Munoz v. Orr, 200 F.3d 291, 305 (5th Cir. 2000), nor is it a talisman
precluding otherwise appropriate mandamus relief, see In re Volkswagen, 545
F.3d at 311–12. Mandamus is warranted when the circumstances demand as
much. 4
In In re Volkswagen, for example, our en banc court granted a writ to
review a district court’s forum non conveniens transfer even though “[t]here
[is] no question” that “district courts have broad discretion in deciding
whether to order a transfer.” Id. at 307, 311 (internal quotation marks and
citation omitted). Despite that discretion, we concluded that a writ in that
case was appropriate because the “district court’s errors resulted in a
patently erroneous result.” Id. at 318–19.
That is true here as well. The majority opinion outlines the problems
with the discovery order, see Majority Op. at 12–14, so I merely reemphasize
the major issues. I start with the discovery order’s complete lack of
relevance. Defendants argue that the number of patients who follow through
with Turnipseed’s recommended treatment bears on his credibility. But a
doctor’s credibility turns on whether a recommended treatment plan works,
not on whether a patient decides to follow it. A person’s decision not to quit
smoking or their refusal to eat healthy and exercise doesn’t mean their
doctor’s recommendation to do so is unsound; it just means that (for a
myriad of potential reasons) the person has trouble quitting smoking or opts
not to eat healthy and exercise. 5
4
I deeply respect the work of magistrate and district judges, and I recognize and
appreciate the amount of work that has to be expended on discovery issues. While most of
what they do is well within discretion, the reality is that mistakes, including severe ones,
can be made, and that is what we are addressing here.
5
Turnipseed lists other reasons why a patient may not undergo a recommended
treatment—a patient may have limited financial resources and may not be able to afford the
procedure; or the patient may have developed a more pressing health concern. There are
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The magistrate judge inexplicably concluded otherwise, asserting that
“other courts” have recognized the relevance of such information. Those
“other courts,” however, are two district courts that issued unpublished
orders discussing topics only tangentially related to the relevant inquiry. In
Fusco v. Levine, No. 16-cv-1454 (W.D. La. Feb. 21, 2019) (order denying
motion to quash), for example, a magistrate judge considered a subpoena
issued on a nonparty treating physician seeking a wide array of statistical
information concerning his treatment of other patients. Id. at 2–3. But the
relevant motion to quash was dismissed for procedural reasons. Id. at 10.
The magistrate judge opined (in dicta) that the requested information could
be “potentially relevant” to the doctor’s credibility but also stated that “the
number of procedures undergone by other patients is not, in and of itself,
directly relevant to plaintiff’s need for future procedures.” Id. Importantly,
the Fusco court never decided if the information was discoverable—the case
settled shortly after the order issued.
Furthermore, in Chauppette v. Northland Insurance Co., No. 08-4193,
2009 WL 3447291, at *1 (E.D. La. Oct. 21, 2009), a magistrate judge stated
that a motion to quash a subpoena and limit it only to “areas involving the
plaintiff, her medical bills, and her medical treatment” swept too broadly. Id.But the magistrate judge concluded the relevant information was the
nonparty physician’s financial interest arising from his previous relationship
with plaintiff’s counsel, as fees earned by experts in previous cases speak to
credibility and possible bias. Id. Those facts are inapplicable to the instant
matter. In short, the magistrate judge’s conclusion here regarding the
also valid reasons why a patient might not undergo the procedure with the recommending
physician—they may have moved to a different city or been referred to another provider.
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relevance of the requested materials—supported only by irrelevant,
unpublished, and non-binding authority—was clearly erroneous.
In terms of the burden this discovery order places on Turnipseed, I
emphasize that a Rule 45 subpoena requires a nonparty to “produce
designated documents, electronically stored information, or tangible things
in that person’s possession, custody, or control”—i.e., material that already
exists. See Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). Conversely,
the discovery order at issue here forces Turnipseed to audit his patient’s files
and create new data reflecting how often he recommends repeated cervical
neurotomies and how often patients follow that recommendation. Such a
request goes beyond the bounds of Rule 45. See also Majority Op. at 13 n.7.
Worse, it does so for entirely irrelevant information.
In sum, I highlight two important conclusions. First, the flaws in the
district court’s discovery order and in its “decision making process” created
a “patently erroneous result.” See In re Volkswagen, 545 F.3d at 312 (internal
quotation marks and citation omitted). Second, forcing Turnipseed to seek
sanctions and risk his medical license for relief from that clearly erroneous
order is an unacceptable obstacle that renders such relief “effectively
unobtainable.” See In re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 289 (5th Cir.
2015). Taking these two considerations in tandem, we are left with the
extraordinary circumstance where Turnipseed is “without adequate means
to review” a clear and indisputable error. See id. at 288. Assuming arguendo
that we cannot hear this case as a collateral order and grant relief that way,
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Turnipseed is entitled to a writ of mandamus, and I respectfully dissent from
the majority opinion’s conclusion to the contrary. 6
6
For the reasons articulated in this dissenting opinion, I am also “satisfied that the
writ is appropriate under the circumstances.” See Cheney v. U.S. Dist. Ct. for D.C., 542
U.S. 367, 381 (2004).
23