Swoboda v. Manders et al

Filing 86

RULING denying 68 Motion for Certification Under § 1292(b) and Motion for Stay. Signed by Magistrate Judge Stephen C. Riedlinger on 12/22/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL SWOBODA
VERSUS

CIVIL ACTION

KARL MANDERS, ET AL

NUMBER 14-19-SCR

RULING ON MOTION FOR CERTIFICATION UNDER §1292(b)
AND MOTION FOR STAY
Before the court is a Motion for Certification Under § 1292(b)
and Motion for Stay filed by defendant Continental Incorporated,
Inc. d/b/a Continental Enterprises.

Record document number 68.

The motion is opposed.1
This motion pertains to the court’s April 20, 2015 Ruling on
Motion to Compel Discovery,2 which decided the issues raised in the
Motion to Compel filed by the plaintiff.3

The ruling required

defendant Continental, which is in the business of investigating
suspected infringement of intellectual property rights, to produce
documents created in connection with the investigation of the
plaintiff with regard to the G36 Airsoft pellet gun.

Heckler &

Koch, Inc. (“H&K”) have a trademark on the G36 pellet gun.
hired Continental to investigate the plaintiff.

1

Record document number 70.

2

Record document number 49.

3

Record document number 26.

H&K

In the ruling the

court rejected the defendant’s claim that the emails and documents
it generated, during the investigation conducted by H&K, were
entitled to attorney-client privilege and work product protection.
Defendant argued that an interlocutory appeal and stay of the
ruling under § 1292(b) is appropriate because: (1) the ruling
involves a controlling question of law for which there is a
substantial difference of opinion; (2)

it could avoid unnecessary

additional discovery tasks and work related to the privileged
materials; (3) it prevents a manifest injustice to defendant and
H&K; and, (4) it would narrow the issues to be tried and materially
advance the termination of the lawsuit.
Plaintiff argued that an interlocutory appeal and stay should
not be granted because generally appeals from discovery orders are
inappropriate.

Plaintiff

argued

that

ruling

should

not

be

certified or stayed because there is no controlling question of
law, only a ruling based on the particular facts of this case.
Furthermore, plaintiff argued, use of § 1292(b) will not materially
advance the litigation but merely delay its ultimate resolution.
Generally, discovery orders do not constitute final decisions
under 28 U.S.C. § 1291 and are not immediately appealable.

A-Mark

Auction Galleries, Inc. v. American Numismatic Ass’n, 233 F.3d 895,
897 (5th Cir. 2000).

Discovery orders also are generally not

appealable under the Cohen collateral order doctrine.

Goodman v.

Harris County, 443 F.3d 464, 467 (5th Cir. 2006); Texaco Inc. v.

2

Louisiana Land and Exploration Co., 995 F.2d 43 (5th Cir. 1993).4
The statute relied on by the defendant § 1292(b), addresses
orders not otherwise appealable and provides, in relevant part, as
follows:
When a district judge, in making in a civil action an
order not otherwise appealable under this section, shall
be of the opinion that such order involves a controlling
question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, he shall so state in
writing in such order. The Court of Appeals which would
have jurisdiction of an appeal of such action may
thereupon, in its discretion, permit an appeal to be
taken from such order, if application is made to it
within ten days after the entry of the order; Provided,
however, That application for an appeal hereunder shall
not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof
shall so order.
Section § 1292(b) is a rarely used exception to the strong
judicial policy disfavoring piecemeal appeals.

The party moving

for interlocutory certification has the burden of establishing its
right to appeal under the factors set forth in the statute.

Clark-

Dietz and Associates-Engineers, Inc. v. Basic Construction Company,
702 F.2d 67 (5th Cir. 1983); Ferrand v. Schedler, 2012 WL 2087399
(E.D. La. June 8, 2012).

4

Under the Cohen doctrine, the court has jurisdiction over an
otherwise unappealable order if the appellant demonstrates that the
order: (1) conclusively determines the disputed question; (2)
resolves an important issue completely separate from the merits of
the action; and, (3) is effectively unreviewable on appeal from a
final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 69 S.Ct. 1221 (1949); Goodman, 443 F.3d at 468.
3

In light of these principles, the plaintiff’s arguments are
persuasive.
The first consideration for certification is whether the
discovery order involves a controlling question of law as to which
there is substantial ground for difference of opinion.

Defendant

acknowledged that the discovery ruling is not dispositive of the
case, but suggested that it involves a question of law that is
controlling
litigation.

because

it

However,

determines
the

the

defendant

future

failed

course

to

of

the

identify

any

controlling question of law to which there is substantial ground
for difference of opinion.

Defendant simply cites the same

evidence and recites the same arguments it relied on to oppose the
plaintiff’s Motion to Compel Discovery.5

It is apparent that the

defendant just wants a redetermination of the privilege issue,
based on the same facts already presented in connection with the
plaintiff’s Motion to Compel and its Motion for Reconsideration of
Ruling Compelling Production of Privilege Documents.6
Defendant also argued that if the request for interlocutory
appeal is denied, the review and production of the documents will
significantly increase the length and complexity of this litigation

5

Record document number 68-1, Memorandum in Support of Motion
for Certification Under § 1292(b) and Motion for Stay, pp. 3-6.
6

Record document number 64,
Reconsideration of Ruling Compelling
Documents.
4

Ruling on Motion for
Production of Privilege

and the trial, but if the ruling is reversed on appeal this
additional time and expense will be avoided.
conclusory and unsupported.

This argument is

The discovery ruling at issue was

limited to a specific time frame and subject matter.7

Defendant

failed to provide any specific information, facts, explanation, or
time estimates to support the assertion that complying with the
ruling will significantly increase the length and complexity of the
remainder of the case.
Defendant also claimed an interlocutory appeal would not delay
this case in any way.
Clearly,

allowing

an

Again, this assertion is unsupported.
interlocutory

appeal

and

significantly delay the resolution of this case.
essentially

argued

that

once

the

documents

are

stay

will

Defendant also
produced

the

privilege will be waived, and a reversal at the end of the case
will be too late to protect the status of the documents.
argument is also unpersuasive.

This

Defendant’s argument on this point

would apply to the compelled production of most documents and
consequently does not satisfy the § 1292(b) criteria required for
the court to certify an interlocutory appeal.

Defendant’s waiver

argument is unpersuasive, too.

The production required by the

ruling is clearly not voluntary.

And assuming the defendant takes

reasonable steps to produce only what is required by the ruling, no

7

Record document number 49, Ruling on Motion to Compel
Discovery, p. 15.
5

issue of waiver by inadvertent production should arise.
In

summary,

the

defendant’s

arguments

are

conclusory,

unsupported, and insufficient to establish that it is appropriate
to certify the discovery ruling for interlocutory appeal under §
1292(b).
Accordingly, Motion for Certification Under § 1292(b) and
Motion for Stay filed by defendant Continental Incorporated, Inc.
d/b/a Continental Enterprises is denied.
Baton Rouge, Louisiana, December 22, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

6