Daker v. Bland et al
ORDER denying 77 Motion for Certificate of Appealability. Plaintiff is reminded of his obligation to comply with the Court's October 14, 2021 Order. Failure to comply may result in sanctions, including dismissal of this case. Signed by Magistrate Judge Benjamin W. Cheesbro on 11/18/2021. (kjm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:20-cv-90
SHERRY BLAND, et al.,
This matter is before the Court on Plaintiff’s Motion for 28 U.S.C. § 1292(b) Certificate
of Appealability. Doc. 77. Plaintiff asks this Court to enter a certificate of appealability of the
Court’s October 14, 2021 Order granting Defendants’ Motion to Compel. Id. Plaintiff contends
the matter is immediately appealable for the same reasons set forth in his objections to the
Motion to Compel, doc. 69, motion for reconsideration, doc. 72, and motion to stay pending
appeal, doc. 73.1 Section 1292(b) requires the appealing party to demonstrate: “(1) the order
presents a controlling question of law; (2) over which there is a substantial ground for difference
of opinion among courts; and (3) the immediate resolution of the issue would materially advance
the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Plaintiff fails to identify a
controlling question of law over which there is a substantial ground for difference of opinion
among courts as is required under Section 1292(b). Indeed, Plaintiff has not identified any
question of law which is in dispute.
The Court has already denied Plaintiff’s motion for reconsideration and motion to stay. Doc. 78.
Further, discovery disputes are not a controlling question of law that form the basis upon
which a certificate of appealability may be entered. A controlling question of law is one that is
both controlling and purely legal. A question is controlling when it is “outcome determinative.”
Javier Rivera v. Sellers, No. CV 113-161, 2019 WL 2583634, at *3 (S.D. Ga. June 21, 2019)
(citing E.A. Renfroe & Co. v. Rigsby, No. 06-AR-1752, 2008 WL 11375424, at *2 (N.D. Ala.
Jan. 17, 2008). Discovery-related issues are not controlling because they are not dispositive. Id.
(citing Scoggins v. Floyd Healthcare Mgmt., No. 4:14-CV-0274, 2016 WL 11544903, at *3
(N.D. Ga. Apr. 4, 2016).
To the extent Plaintiff argues the collateral order doctrine implicates a controlling
question of law, the argument fails. Plaintiff contends the collateral order doctrine applies
because the Court’s Order would require him to turn over privileged attorney-client
communication in other cases, including his criminal case. Doc. 73 at 20. The Court’s Order
does not require Plaintiff to disclose any privileged communication. Moreover, even if
disclosure of privileged communication were at issue, the Eleventh Circuit Court of Appeals has
held an order requiring disclosure of such privileged communications is not interlocutory
appealable when the privilege holder is a party to the litigation who could appeal after final
judgment. Drummond Co., Inc. v. Terrance P. Collingsworth, Conrad & Scherer, LLP, 816 F.3d
1319, 1323 (11th Cir. 2016). In this case, Plaintiff is the privilege holder and is also party to the
Accordingly, the Court DENIES Plaintiff’s Motion for 28 U.S.C. Certificate of
Appealability. Plaintiff is again reminded of his obligation to comply with the Court’s October
14, 2021 Order. As he cannot appeal this Order on an interlocutory basis, there is no justification
for any delay in complying with it. Plaintiff’s failure to comply may result in sanctions,
including dismissal of his case.
SO ORDERED, this 18th day of November, 2021.
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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