Opinion
No. 79-1889.
Submitted February 14, 1980.
Decided February 28, 1980.
Jesse I. Levine, Shaw Levine, Garden City, N. Y., on brief for appellant.
Edward W. Rothe and James T. Malysiak, Freeman, Rothe, Freeman Salzman, Chicago, Ill., on brief for appellee.
Appeal from the United States District Court for the Northern District of Iowa.
Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.
In Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949 (8th Cir.), cert. denied, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979), this court vacated an order of the district court modifying an earlier protective order that covered allegedly confidential business information, and directed that the protective order be reinstated in full. We explained that we lacked appellate jurisdiction in that case not only under 28 U.S.C. § 1291 and 1292, but also under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We nonetheless issued mandamus under authority of the All Writs Act, 28 U.S.C. § 1651(b), which was "meant to be used only in the exceptional case where there is a clear abuse of discretion of `usurpation of judicial power.' " 601 F.2d at 953, quoting Bankers Life Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). Subsequently, we modified our opinion to deny formal issuance of the writ, concluding that that was improvident. 601 F.2d at 956.
Now the Bohack Corporation, appearing as intervenor-appellant, appeals a further order of the district court denying appellant's motion to modify the protective order. Specifically, appellant seeks clarification of this court's prior orders and a ruling that the district court may modify its protective order to accommodate appellant's request for discovery.
The district court granted that part of intervenor-appellants' motion requesting that it be allowed to intervene, but denied that portion of the motion seeking modification of the protective order.
Clearly the order complained of is a non-final interlocutory action appealable, if at all, only upon certification by the district court pursuant to 28 U.S.C. § 1292(b). No such certification is shown, and thus we dismiss for lack of jurisdiction.
While acknowledging that the order in question is not final, appellant urges us to recognize an exception to the general requirement of finality in cases where, as here, a request for discovery is denied in an ancillary forum. See e.g., Premium Service Corp. v. Sperry Hutchinson Co., 511 F.2d 225 (9th Cir. 1975); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967); Westinghouse Electric Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762 (D.C. Cir. 1965); 4 Moore's Federal Practice ¶ 26.83[5] (1979). We believe, however, that this is not an appropriate case to apply the exception. The issues raised here are closely akin to those presented in the underlying litigation and only recently considered by this court in Iowa Beef Processors v. Bagley, supra. Cf. Westinghouse Electric Corp. v. City of Burlington, supra, 122 U.S.App.D.C. at 69, 351 F.2d at 766 (issues involved were separable from those involved in the main case).
Appellant raises no claim under the All Writs Act, and we see no basis for applying that Act here.