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Appeals Regarding Discovery and Pretrial Examinations of Parties

A discovery order, or an order granting or denying discovery order can be reviewed on appeal from the final judgment in the case.[i]  Generally, such an order is interlocutory and not subject to immediate review.[ii]  Discovery orders are appealable where the particular circumstances surrounding a discovery order fulfill the requirements of one or more of the various exceptions or qualifications to the final judgment rule, such as:

  • The discovery sought is an end within itself,
  • It is not merely an incident to either a pending or a contemplated suit,
  • It cannot be reviewed otherwise than by an appeal from the order itself.[iii]

However, a declaratory judgment addressing discovery issues is a final decree and therefore appealable.[iv]  An order for the production of documents over which a privilege is asserted finally resolves a collateral discovery issue, and thus is appealable.[v]  A discovery order is appealable under a statute allowing an appeal from an interlocutory order where:

  • the order affects a substantial right and is made in special proceedings,
  • any resulting harm to the prompt and orderly disposition of the litigation is relatively slight, and
  • an appeal after final judgment will be impractical because the harm caused by the order may not be corrected on appeal.[vi]

Moreover, where the merits of a protracted controversy would be facilitated by allowing an immediate appeal, an appeal of a discovery order may be allowed.[vii]  A discovery order issued in aid of an action pending in another state is appealable, if such appeal provides the only means for review of the correctness of the order.[viii]  For purposes of appeal, a discovery order directed at a nonparty witness, which is entered by a court in a district other than where the case had been filed and is currently pending, is final.[ix]

[i] State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982)

[ii] F.T.C. v. Alaska Land Leasing, Inc., 778 F.2d 577, 3 Fed. R. Serv. 3d 465 (10th Cir. 1985);

[iii] Warford v. Childers, 642 S.W.2d 63 (Tex. App. Amarillo 1982);

[iv] Fisher-Rabin Medical Center v. Burdick Corp., a Div. of Kone Instruments, Inc., 525 So. 2d 1178 (La. Ct. App. 5th Cir. 1988),

[v]Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007).

[vi] In re Guardianship of Johnson, 35 Ohio App. 3d 41, 519 N.E.2d 655 (10th Dist. Franklin County 1987).

[vii] Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975).

[viii] Premium Service Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 19 Fed. R. Serv. 2d 1400 (9th Cir. 1975);

[ix] In re Madden, 151 F.3d 125, 49 Fed. R. Evid. Serv. 1106 (3d Cir. 1998).

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