Placer U.S. Inc., Formerly Known As Placer Amex Inc., Acalifornia Corporation, Plaintiff-appellee, v. John A. Dahlstrom; John A. Dahlstrom, Jr.; James Derekdahlstrom; Elizabeth A. Cook; Amy Dahlstrom;kathryn Alison Wadsworth, Defendants-appellants, 9 F.3d 117 (10th Cir. 1993)Annotate this Case
Oct. 19, 1993
Before SEYMOUR and EBEL, Circuit Judges, and THOMPSON,** District Judge.
ORDER AND JUDGMENT1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Defendants and nonparty witness Olympusco appeal the district court's order denying Olympusco's motion to quash plaintiff's subpoena duces tecum directed at Olympusco and for a protective order preventing further discovery against Olympusco. Plaintiff moved to dismiss for lack of jurisdiction on the basis that the order appealed from was not a final order nor otherwise appealable. We directed the parties to brief the jurisdiction issue. The jurisdiction issue was referred to the merits panel, and the parties then filed their merits briefs.
On consideration of the parties' briefs and the district court's order, we conclude that we do not have jurisdiction to hear the appeal. Discovery orders generally are interlocutory and not immediately appealable, and this case provides no basis for an exception to that rule. See FTC v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir. 1985) (dismissing as premature appeal of discovery order compelling nonparty witness to testify at deposition and produce documents). "To perfect standing to appeal from a civil pretrial discovery order, a non-party deponent must refuse to comply and submit to a contempt proceeding." Id. We note that the deposition and document production have already taken place.
Honorable RalphG. Thompson, District Judge, United States District Court for the Western District of Oklahoma, sitting by designation
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3