Appealing the Unappealable: Writ May be Only Hope

You are in the middle of a case. Discovery is hot and heavy. You object to requested discovery on the ground that the information sought is privileged. To your surprise, the court grants opposing counsel’s motion to compel production.

The judge is just wrong. Absolutely, unequivocally wrong. Your client says “Let’s appeal!!” You have to explain that appeals only come at the end of the case, and only in the rarest of circumstances can a party seek interlocutory appellate review, no matter how wrong you might think the trial court is. What to do?

Occasionally, you may find yourself in a situation where your client really needs relief from a discovery order that doesn’t fall under Minn. R. Civ. App. P. 103.03 and therefore is not appealable. For example, you might be on the losing end of a discovery order requiring your client to produce privileged information. Even if you could seek review of the order at the conclusion of your case, at that point it will be too late—the privileged information will have been disclosed. So your choices are to comply with the order and waive privilege or wait to be held in contempt and appeal from the contempt judgment, neither of which is a very good option. What do you do to get an appellate court to intervene before the opportunity for meaningful relief has passed? You apply for a writ.

The type of writ you need depends on the relief you are seeking. The two most commonly used writs—mandamus and prohibition—are two sides of the same coin. You need a writ of mandamus if you are seeking to compel a lower tribunal or government entity to act. A writ of prohibition is appropriate if you are seeking to restrain a lower tribunal or government entity from acting. Both can be used to seek review of discovery orders, depending on the relief you’re seeking. See 3 Minnesota Civil Practice 4th ed., § 28.11 at n. 87 (Matthew Bender 2015). For example, a writ of prohibition has been issued to prevent a trial court from compelling a plaintiff to appear at a second independent medical examination in the absence of a showing of good cause. Loveland v. Kremer, 464 N.W.2d 306, 309 (Minn. App. 1990). Mandamus was held to be an appropriate mechanism for review of a district court’s denial of a plaintiff’s motion to compel the deposition of a defense expert, where the question was whether the expert deposition was permitted by the rules. Leininger v. Swadner, 279 Minn. 251, 251-52, 259, 156 N.W.2d 254, 255-56, 260 (1968).

Writs of prohibition and mandamus are considered extraordinary remedies, so they’re not easy to get. The U.S. Supreme Court has noted that mandamus and prohibition are not substitutes for appeal and “should be resorted to only where appeals is a clearly inadequate remedy.” Ex parte Fahey, 332 U.S. 258, 260 (1947). Minnesota courts have explained that permitting review of discovery orders in this manner is intended to prevent litigants from having to choose between compliance with an unlawful order and subjecting themselves to contempt findings to get relief, not to interfere with the discretion of trial courts. See, e.g., Thermorama, Inc. v. Shiller, 271 Minn. 79, 84-85, 135 N.W.2d 43, 46-47 (1965). But under the right circumstances, these writs are powerful tools, not to mention the only hope for getting meaningful relief from an appellate court.

Extraordinary writs are commonly sought by parties seeking to protect privileged or proprietary information from discovery. For instance, the D.C. Circuit recently granted a petition for a writ of mandamus to vacate a district court order compelling production of documents protected by the attorney-client and work product privileges because they were created during the course of a defense contractor’s internal investigation. In re Kellogg Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. 2015). The court’s order marked the second time it had granted mandamus relief with respect to the same internal investigation documents in that case. On remand after mandamus was granted the first time, the district court concluded that the defense contractor had waived the privilege and ordered that the internal investigation documents be produced. The contractor argued that it should be permitted to strike the portion of its pleadings that the district court said constituted waiver, but the district court refused to vacate its order unless the contractor agreed to default on the entire suit. Id. at 142. Faced with a choice between production of privileged materials and default, the contractor sought and was granted mandamus relief a second time. Although it is certainly unusual to see mandamus relief granted twice in the same case over the same set of documents, the case is a good illustration of the sort of dilemma that is likely to inspire an appellate court to grant an extraordinary writ.

In rare instances, an extraordinary writ may prove to be the only available avenue for appellate review. For example, like in In re Kellogg Brown & Root, the only way to challenge pre-trial discovery orders compelling production of information that is not discoverable is by extraordinary writ. See, e.g., Mampel v. Eastern Heights State Bank of St. Paul, 254 N.W.2d 375 (Minn. 1977) (granting prohibition to prevent depositions of state commissioners and production of their notes in appeal of an administrative decision). In Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916 (Minn. 1990), the Minnesota Supreme Court reversed the court of appeals’ refusal to issue a writ of prohibition to prevent the discovery of the personal financial information of former partners in a law firm that had dissolved. The court specifically noted that the personal financial information sought was clearly not discoverable. Because no other remedy could have protected the former partners’ from a significant intrusion into their private financial affairs, the court issued the writ. But in cases challenging discovery orders, a writ will issue only if it is clear that the information the court has ordered produced is not discoverable. See Blue Cross & Blue Shield of Minn. v. Larson, 472 N.W.2d 885, 886 (Minn. App. 1991) (denying writ of prohibition because existence of a right to withhold patient information was not sufficiently clear).

Some federal courts have permitted appeals of certain discovery orders as a matter of right under 28 U.S.C. § 1291, which permits appeals of “final decisions” of district courts. The Third Circuit, for example, has adopted a bright-line rule permitting appeals as a matter of right under 28 U.S.C. § 1291 from discovery orders requiring the disclosure of information asserted to be protected by the work product doctrine or attorney-client privilege. Montgomery Cnty. v. Microvote Corp., 175 F.3d 296, 300 (3d Cir. 1999). Courts in Minnesota, however, have not adopted an analogous rule, so extraordinary writs essentially remain the sole mechanism for a party to pursue meaningful review of a discovery order in state court.

Given that extraordinary writs are sometimes the only practical means for seeking effective appellate review of discovery orders—and in rare cases, may be the exclusive means of obtaining appellate review—lawyers should be familiar with the availability of writs and the process for securing them. Sometimes a writ is your client’s, and your, only hope.

Reprinted with permission of Minnesota Lawyer ©2016