In Re Donna E. SHALALA, Secretary of Health and Human Services, Petitioner

996 F.2d 962, 1993 U.S. App. LEXIS 15493, 1993 WL 227664
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 29, 1993
Docket93-2083
StatusPublished
Cited by5 cases

This text of 996 F.2d 962 (In Re Donna E. SHALALA, Secretary of Health and Human Services, Petitioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Donna E. SHALALA, Secretary of Health and Human Services, Petitioner, 996 F.2d 962, 1993 U.S. App. LEXIS 15493, 1993 WL 227664 (8th Cir. 1993).

Opinions

BEAM, Circuit Judge.

In this dispute over a discovery matter, the district court denied the Secretary of Health and Human Services’ motion for a protective order and directed her to produce certain documents by May 7, 1993. In response, the Secretary petitioned this court for a writ of mandamus. We issued a temporary continuance of the production date pending our consideration of the Secretary’s [963]*963petition. We now vacate our order, deny the petition for writ of mandamus, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The plaintiffs in the underlying action1 are a class of Missouri Social Security disability applicants who allege that the Secretary, and several state officials, failed to develop and evaluate their disability complaints according to the mandates of Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) (subsequent history omitted). The documents at the heart of the present controversy are part of the plaintiffs’ third request for production of documents. Specifically, the Secretary objects to producing certain documents responsive to requests 58, 59, and 60 that she claims are subject to the deliberative process privilege, the attorney-client privilege, or both.2

The underlying action has been pending in the district court since May 29, 1990. In an order dated May 20, 1992, the district court scheduled discovery to end on October 31, 1992, and set the case for trial on February 8, 1993. The plaintiffs mailed their third request for production of documents on September 4, 1992, a little less than two months before the end of discovery. The Secretary filed a motion on October 5, 1992, seeking more time to respond. The district court granted the Secretary’s motion, permitting her to produce the requested documents by October 19, 1992. The court denied, however, “[a]ny implied request for an enlargement of time to file objections.” Cuffee v. Sullivan, No. 90-0460-CV-W-5, Order (W.D.Mo. Oct. 14, 1992). The Secretary produced some of the documents responsive to the plaintiffs’ third request for production of documents on October 19, 1992, but refused to produce the documents responsive to requests 58, 59, and 60, claiming that these documents were protected by the deliberative process and attorney-client privileges.

On October 21, 1992, the Secretary filed a motion requesting that the district court reconsider its order denying her an extension of time to file objections. The district court denied the motion for reconsideration on November 19, 1992. In the same order, the district court amended its scheduling order, at the request of the Secretary, to extend discovery until March 15, 1993, and set a later trial date. The Secretary again asked the court to reconsider its order denying an extension of time to file objections. The district court reviewed its earlier order, and considered the merits of the Secretary’s objections for the first time. On December 15, 1992, the court overruled the Secretary’s objections on the merits and ordered the Secretary to produce the requested documents.

The Secretary mailed a supplemental response to the plaintiffs’ third document request on January 4,1993, and produced some of the requested documents. However, the Secretary again produced only those documents that she deemed “not protected by privilege.” On February 26, 1993, the plaintiffs moved for an order of contempt under Federal Rule of Civil Procedure 37(b) citing, among other things, the Secretary’s failure to produce all of the requested documents pursuant to the court’s order. The Secretary responded on March 18, 1993, three days after the end of the extended discovery period, by filing for a protective order to prohibit discovery of those documents subject to the attorney-client or deliberative process privilege. The Secretary appended to her motion a one hundred fifty-four page index identifying the documents that she believed to be privileged, and detailing the nature of each document, the privileges asserted, and the reasons for asserting the privileges.

On April 20, 1993, the district court issued an order refusing to reconsider the Secretary’s privilege claims. The court noted that the scheduled discovery period had ended and that the Secretary had filed her motion [964]*964for a protective order approximately three months after her objections to the document request were overruled. In an effort to prevent further delay, the court ordered the Secretary to produce the disputed documents, except those to which the court had already sustained objections, “immediately.” The court subsequently clarified its order, stating that the Secretary must produce the requested documents on or before May 7, 1993. The Secretary then petitioned this court for a writ of mandamus to direct the district court to enter a protective order prohibiting discovery of certain documents. We granted a continuance of the district court’s order pending our consideration of the Secretary’s petition.

II. DISCUSSION

This case is before us on the Secretary’s petition for a writ of mandamus because discovery orders are not otherwise appealable until the district court has entered a final judgment in the underlying lawsuit. Ordinarily, parties must decide whether to obey interlocutory discovery orders or to endure contempt or other sanctions under Federal Rule of Civil Procedure 37(b). Since interlocutory civil contempt orders against parties to an action are not immediately appealable, Omaha Indem. Co. v. Wining, 949 F.2d 235, 238 (8th Cir.1991), even if a party endures contempt sanctions, we ordinarily will not review the underlying order until a final judgment has been entered.3 The Secretary contends, however, that this case is one of those rare exceptions to the rule against interlocutory review of discovery orders which requires immediate appellate review by way of a writ of mandamus.

Our discretionary authority to issue writs of mandamus derives from the All Writs Act, 28 U.S.C. § 1651. This Circuit does not lightly authorize mandamus. We will issue a writ of mandamus only where there is a clear abuse of discretion or usurpation of judicial power. In re Remington Arms Co., Inc., 952 F.2d 1029, 1031 (8th Cir.1991). Mandamus is not ordinarily available to obtain immediate review of discovery orders. In re Burlington Northern, Inc., 679 F.2d 762, 767 (8th Cir.1982).

We explained our cautious authorization of mandamus to vacate a district court’s order compelling discovery in Burlington. “Its use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation.” Id. Furthermore, as we emphasized in Burlington, we will not issue the writ unless the “party seeking issuance ha[s] no other adequate means to attain the relief [s]he desires.” Id. (quoting

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Bluebook (online)
996 F.2d 962, 1993 U.S. App. LEXIS 15493, 1993 WL 227664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-donna-e-shalala-secretary-of-health-and-human-services-petitioner-ca8-1993.