Union Carbide Corp. v. U.S. Cutting Service, Inc.

782 F.2d 710
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 28, 1986
DocketNos. 85-2926, 85-2965 and 85-3039
StatusPublished
Cited by47 cases

This text of 782 F.2d 710 (Union Carbide Corp. v. U.S. Cutting Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710 (7th Cir. 1986).

Opinions

POSNER, Circuit Judge.

We have consolidated for decision two interlocutory appeals (alternatively pleaded as petitions for mandamus, see 28 U.S.C. § 1651) filed by Union Carbide Corporation, a defendant in a large antitrust class action (now in the discovery stage in the district court) brought on behalf of buyers of industrial gases. In the first (Nos. 85-2965 and 85-3039), Union Carbide is trying to appeal from an order by Judge Getzendanner refusing to allow it to interview persons employed by members of the plaintiff class. Because the class is so [712]*712large (it has 172,000 members), the order prevents Union Carbide from interviewing many potential witnesses — notably, former employees of Union Carbide now employed elsewhere. About the merits of Judge Getzendanner’s order we shall have nothing to say. We do not think the order is appealable or mandamus a proper substitute for an appeal. The general and very salutary rule is that discovery orders are not appealable until the end of the case." See, e.g., Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1157-58 (7th Cir.1984) (en banc), rev’d on other grounds, — U.S.-, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); 8 Wright & Miller, Federal Practice and Procedure § 2006 (1970). There is a safety value: if the party disobeys the order and is punished for contempt or by the entry of final judgment or by any other sanction that has the character of a final decision, he can appeal from that. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-83, 29 L.Ed.2d 85 (1971); Marrese v. American Academy of Orthopaedic Surgeons, supra, 726 F.2d at 1157. But Union Carbide has not yet attempted to avail itself of this route.

It argues however that this case is special because it involves a question under the First Amendment. It is true that in free-speech cases interlocutory appeals sometimes are more freely allowed, and writs of mandamus sometimes more freely issued, than in other types of case, especially where the interlocutory order can be characterized as imposing a “prior restraint” on speech or the press. See, e.g., Chase v. Robson, 435 F.2d 1059, 1062 (7th Cir.1970) (per curiam); In re San Juan Star Co., 662 F.2d 108, 113 (1st Cir. 1981). It is also true that an order limiting communication between named plaintiffs (and their lawyers) and members of the plaintiff class was invalidated on First Amendment grounds in Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Éd.2d 693 (1981). The present case is different, however. Without meaning to prejudge the merits of Union Carbide’s constitutional challenge, we note that the limitation here is on communications with an adversary, that such a limitation grows out of the established principle that a lawyer for one party is forbidden to communicate directly with the opposing party, and that Union Carbide is seeking not to communicate its own views but merely to question witnesses. Cf. Resnick v. American Dental Ass’n, 95 F.R.D. 372, 376-77 (N;D.Ill. 1982). The threat to free speech is not so palpable as to warrant a departure from the usual principle of finality that governs federal appeals. Even more clearly, Union Carbide’s nonconstitutional challenge to the order (that the judge misinterpreted the provision of the Code of Professional Responsibility that forbids lawyers to contact an opposing party directly) cannot be appealed at this time.

Union Carbide’s other challenge is to Judge Getzendanner’s denial of its motion that she recuse herself from the case. This challenge fits within an exception to the final-judgment rule. A judge's refusal to recuse himself in the face of a substantial challenge casts a shadow not only over the individual litigation but over the integrity of the federal judicial process as a whole. The shadow should be dispelled at the earliest possible opportunity by an authoritative judgment either upholding or rejecting the challenge. In recognition of this point we have been liberal in allowing the use of the extraordinary writ of mandamus to review orders denying motions to disqualify. See, e.g., Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985); SCA Services, Inc. v. Morgan, 557 F.2d 110,117-18 (7th Cir.1977) (per curiam); see also In re IBM Corp., 618 F.2d 923, 926-27 (2d Cir.1980); In re United States, 666 F.2d 690, 694 (1st Cir.1981); 9 Moore’s Federal Practice ¶ 110.13[10] (2d ed. 1985).

Of course in frivolous and even routine cases in which a party challenges the judge’s refusal to recuse himself, mandamus will be denied — with sanctions, if the petition for mandamus is frivolous. But where a serious question is raised, we shall interpret generously our power to issue the [713]*713writ, in order that we may lay the question to rest at the earliest possible time. . We therefore need not decide the difficult question whether a ruling on disqualification can ever be certified for an immediate appeal under 28 U.S.C. § 1292(b), as Judge Getzendanner attempted to do here.

There is another point. We have held, in part because of the importance “of preventing injury to the public perception of the judicial system before it has a chance to occur,” that mandamus is the only method of correcting a judge’s erroneous refusal to recuse himself under 28 U.S.C. § 455(a), which requires a judge to recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir.1985). As it happens, one of Union Carbide’s grounds for recusal of Judge Getzendanner is based on section 455(a); and it is so closely related to the company’s section 455(b) ground that both should be decided together, which can only be done in this mandamus proceeding.

The recusal issue, unique in our experience, arises as follows. The suit was filed in July 1980 and a few months later assigned to Judge Getzendanner, who two and a half years later, in February 1983, married a man whose self-managed retirement account happened to contain some $100,000 worth of stock of IBM and Kodak. The judge had no reason to think that her marriage would have any effect on the propriety of her continuing to preside over the case.

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Bluebook (online)
782 F.2d 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-carbide-corp-v-us-cutting-service-inc-ca7-1986.