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The Fifth Circuit Makes it Easier for Non-Parties to Appeal Subpoena Rulings

Third parties who receive trial subpoenas can face adverse rulings that are costly and time-consuming. The Fifth Circuit Court of Appeals recently made it easier for these parties to appeal, expressing concern for non-parties who get dragged into litigation.

Under the new rule, third parties can immediately file an interlocutory appeal if they can show a trial court ordered the disclosure of religious materials. Before this ruling, third parties had to wait until a final judgment in the case. This expansive ruling is currently before the U.S. Supreme Court, which may soon weigh in on how lower courts should address adverse rulings against non-parties.

Final Judgment Rule and Exceptions

The final judgment rule states that parties and non-parties may not appeal trial court rulings while the case is ongoing. It only allows for an appeal from the final judgment. Generally, a “final judgment” is defined as a judgment that concludes a case by resolving all claims asserted by all parties, leaving nothing for the trial court to do but to execute the judgment.

The final judgment rule is subject to a few narrow exceptions. For third parties, the most relevant exception is the collateral order doctrine, which permits appeals of interlocutory decisions (a) that are conclusive, (b) that resolve important questions separate from the merits, and (c) that are effectively unreviewable on appeal from a final judgment. As applied to discovery rulings, in Mohawk Industries v. Carpenter, 558 U.S. 100 (2009), the Supreme Court held that rulings related to attorney-client privilege are not appealable under the collateral order doctrine.

Fifth Circuit’s Decision and Rule

The Fifth Circuit recently distinguished Mohawk and held that a district court’s order demanding discovery from a third party is appealable under the collateral order doctrine. In Whole Woman’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018), the Fifth Circuit held Mohawk did not apply where a non-party was appealing a discovery ruling where the non-party invoked religious freedom-based privileges under the First Amendment and the Religious Freedom Restoration Act (“RFRA”).

In Whole Woman’s Health, an organization that provides abortion services sued the State of Texas over a law addressing the disposal of fetal remains. In March 2018, Whole Woman’s Health sought documents from the Texas Catholic Conference of Bishops, including internal communications. The Bishops provided documents in response to the subpoena, but withheld some materials concerning private communications. The Bishops, in part, argued the materials were privileged under the First Amendment and RFRA. The district court ordered the Bishops to provide the communications. Subsequently, the Bishops appealed to the Fifth Circuit, which overturned the lower court’s decision and in doing so, allowed the Bishops to appeal a discovery ruling from the lower court under the collateral order doctrine.

While Whole Woman’s Health appears to be at odds with Mohawk, the Fifth Circuit distinguished Mohawk by reasoning that the Bishops were not parties to the underlying litigation and “Mohawk does not speak to the predicament of third parties.” Further, Whole Woman’s Health is different, according to the Fifth Circuit, because it invokes privilege under the First Amendment and RFRA, which “go to the heart of the constitutional protection of religious belief and practice as well as citizens’ right to advocate sensitive policies in the public square.”

Whole Woman’s Health recently petitioned the Supreme Court to consider, among other issues, whether the Fifth Circuit’s decision to permit an interlocutory appeal conflicts with Mohawk. The Bishops’ response to the petition is due this Friday. If the Supreme Court decides to review the question, the Fifth Circuit’s expansion of the collateral order doctrine could spread nationwide. On the other hand, the Court could reverse the Fifth Circuit or further limit the scope of the exception.

Take-Aways for Non-Parties

Under the existing Fifth Circuit rule, non-parties in Texas, Louisiana, and Mississippi have a new avenue under the collateral order doctrine to pursue relief against unfavorable discovery decisions. Under Whole Woman’s Health, non-parties should argue that they are entitled to an immediate appeal. Non-parties outside the jurisdiction of the Fifth Circuit may be able to get relief under the reasoning of Whole Woman’s Health, especially in cases involving religious freedom.

To make forceful arguments under the new framework and be in the best position to combat discovery abuses, third parties should engage outside counsel as soon as they are served with a subpoena. Even if a court orders the disclosure of materials, counsel may be able to obtain a protective order or other measure to make the disclosure less worrisome.

Visit our website to learn more about V&E’s Government Investigations practice. For more information, please contact Vinson & Elkins lawyer Jennifer Freel.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.