Robert P. Miller et al., Appellees, v. Kenneth Reighter, Appellant, 581 F.2d 1181 (8th Cir. 1978)Annotate this Case
Marilyn Hutchinson, Asst. Atty. Gen., Lincoln, Neb., for appellant; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief.
Brian J. Waid, Legal Services of S. E. Nebraska, Lincoln, Neb., for appellee.
Before HEANEY and STEPHENSON, Circuit Judges and HANSON, Senior District Judge.*
Robert P. Miller brought a class action under 42 U.S.C. § 1983 against Dr. Kenneth Reighter and others seeking declaratory and injunctive relief in respect to psychiatric care at the Penitentiary Unit of the Nebraska State Penal and Correction Complex. Reighter is presently seeking review of an order entered on February 7, 1978 in which the District Court allowed Miller's attorneys and experts to examine certain medical and psychiatric records maintained by Reighter. Reighter argues that these records are privileged.
Miller argues that this Court lacks jurisdiction to review this order. Reighter argues, however, that this was a final order because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). We disagree. Ordinarily, a discovery order directed to the production of documents, and which imposes no sanctions, is not a final order appealable under 28 U.S.C. § 1291. Gialde v. Time, Inc., 480 F.2d 1295, 1300 (8th Cir. 1973). Denial of immediate review of the District Court's discovery order would not render meaningful review at a subsequent time impossible. See United States v. Ryan, 402 U.S. 530, 533, 91 S. Ct. 1580, 29 L. Ed. 2d 85 (1971). Thus, we dismiss the appeal for lack of jurisdiction.
The Honorable William C. Hanson, United States Senior District Judge for the Southern District of Iowa, sitting by designation