How Does a Non-Party Seek Appellate Review of an Order to Produce Protected Documents?

July 5, 2006

Appellate courts normally refuse to hear interlocutory appeals of discovery matters — instead waiting until the entire case is over. Given the “cat out of the bag” nature of privilege fights, however, appellate courts have wrestled with the process under which someone ordered to produce a protected document may seek an immediate appeal.

In United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 444 F.3d 462 (6th Cir. 2006), the Sixth Circuit noted the debate among the circuits about the procedure for such appellate review. The Sixth Circuit declined to pick the preferred process, but noted that the company ordered by the district court to produce protected documents was a non-party — who could refuse to produce the documents, suffer a contempt citation, and then “immediately appeal an adjudication of either civil or criminal contempt.” Id. at 474 n.7. Because the company ordered to produce the protected documents had not followed this process, the Sixth Circuit dismissed its appeal.

The good news is that courts sometimes allow non-parties ordered to produce protected documents to seek an immediate appeal of those orders — the bad news is that the non-party may have to suffer being cited for civil or criminal contempt to earn that right.