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.

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Election Contest Not Appropriate for Writ Review

In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges.  In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been sworn in to office.  But the court also evaluates the classic factors for determining the appropriateness of writ review (see Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266) — at least, those that it finds applicable to a petition brought after trial, when appeal is readily available.  Since the legislature had specifically provided for relief by way of appeal (Elections Code section 16900) and expedited that relief by giving election cases preference on appeal (Code of Civil Procedure section 44), , the court finds that the petitioner has an adequate remedy by way of appeal.  In the absence of any constitutional question, conflict in trial court decisions, or impending elections that might be affected by the statewide ramifications of an ultimate ruling, the court holds that writ review is inappropriate in this case.

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