An Appealable Discovery Order

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.


Claiborne Case Sparks Debate

In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines.  The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its technical mootness.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error?  The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.

Judicial Council Soliciting Comments on Proposal for Electronic Submission of Appellate Briefs to Supreme Court

Parties to an appeal are currently required to serve the Supreme Court with four copies of the briefs they file in the Court of Appeal.  A proposed change to rule 8.212, California Rules of Court, would allow the parties to submit a single electronic copy to the Supreme Court instead.  Good idea, and the technical requirements in the proposed rule seem to make sense.

The California Judicial Council is seeking comments on the proposed rule change.  Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail.  The deadline for submissions is July 13, 2007.

Judicial Council Soliciting Comments on Proposed Changes to Rules for Appeals to Appellate Division of the Superior Court

The California Judicial Council is seeking comments on proposed changes to the rules governing appeals to the appellate division of the Superior Court, which hears appeals from limited civil cases and misdemeanors.  I haven’t had a chance to look at the proposals yet, but here’s the description from the Judicial Council’s website:

This proposal would completely revise all of the rules relating to the superior court appellate divisions to place the rules in a more logical order, reflect current practices, fill in gaps in the rules, eliminate outdated language, and update the remaining language so it is similar to the recently revised rules for the Courts of Appeal. A complete package of new forms for civil and criminal appeals and writ proceedings in the appellate divisions are also proposed to assist litigants, particularly self-represented litigants, in these proceedings.

Go here for a link to the proposal, a link for submitting comments on-line, and information for submitting comments by mail.  The deadline for submissions is July 13, 2007.

Appellate Jurisdiction: Order Denying Motion to Vacate

An order denying a motion to vacate usually isn’t appealable unless the motion is a statutory motion under Code of Civil Procedure section 663.  But in Carr v. Kamins, case no. B191247 (May 31, 2007), the California Court of Appeal reminds us of an exception.

The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The trial court denied the motion, and defendant appealed.

The court rejected the plaintiff’s contention that the order was not appealable.  The reason: the order gave effect to a void judgment, and any order doing so is itself void and appealable as a special order after judgment under Code of Civil Procedure section 904.1, subd. (a)(2), even if no appeal is taken from the underlying judgment.

Liberalized Standards for Publication of Appellate Opinions

Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week.  The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29.

I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results?

Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c).  The changes are summarized by the advisory committee at p. 57 of its report.  They:

(a) Replace the presumption against publication with a presumption in favor of publication if the opinion meets one or more of the criteria specified in the rule;

(b) Clarify and expand the criteria that the Courts of Appeal and the appellate divisions of the superior courts should consider when deciding whether to certify an opinion for publication; and

(c)  Identify factors that should not be considered in deciding whether to certify an opinion for publication.

A press release from the Supreme Court last December also summarizes the changes and provides a comparison of the old and new rule, and quotes from the report in stating that the changes should:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

Whether a recent spike in opinions reflects these changes or not, we should certainly see an increase in the percentage of published opinions over time.

Some Appellate Law Reminders Coming Up

Last week saw several published decisions with good discussions of appellate procedure and jurisdiction.  The most in-depth is the Ninth Circuit case I blogged about here, but there are several California decisions to note.  I finally got a chance to catch up on some of them over the weekend, and will post about them in the next few days. (They ought to remain good law for at least that long!) They are great reminders of some lesser-known rules applicable in unusual situations.