Opinion
Cause No. IP 00-1468-C H/G.
December 19, 2000.
ENTRY ON MOTION FOR LEAVE TO APPEAL
Mitsubishi International Corporation seeks leave to appeal an interlocutory discovery order by the Bankruptcy Court. The order in question ordered Mitsubishi to produce documents and to pay the opponents' costs, including fees, caused by Mitsubishi's failure to respond to the document requests.
The parties have submitted extensive briefs addressing the merits of the Bankruptcy Court's order, but this case drops out at this point at the more basic level. There is no doubt that the Bankruptcy Court's order of August 14, 2000, was an interlocutory order. See Reise v. Board of Regents, 957 F.2d 293, 295 (7th Cir. 1992) (discovery orders are not final decisions and can, if erroneous, be corrected on appeal after a final decision). The district court therefore must grant leave for an appeal before such an appeal can proceed. See 28 U.S.C. § 158(a)(3).
Other district courts have looked to 28 U.S.C. § 1292(b) and cases construing it for guidance as to how they should exercise their discretion in such cases under § 158(a)(3). See, e.g., Gouveia v. Internal Revenue Service, 228 B.R. 412, 413 (N.D. Ind. 1998); In re Gracey, 80 B.R. 675, 677-78 (E.D. Pa. 1987), aff'd mem., 849 F.2d 601 (3d Cir. 1988). This court does likewise, recognizing that the standard under § 158(a)(3) may be more flexible than under § 1292(b). See generally Fruehauf Corp. v. Jartran, Inc., 886 F.2d 859, 866 (7th Cir. 1989) (exercising jurisdiction over interlocutory appeal from bankruptcy court; "we decline to read anything into subsection (a) other than what it clearly says — that interlocutory appeals may proceed with leave of the district court").
Mitsubishi has not shown that the case turns on a controlling question of law as to which there is substantial ground for difference of opinion. Whether to award costs as part of a discovery order is a discretionary decision best made by the judicial officer responsible for managing the case in question. Mitsubishi has not identified a controlling question of law here. See Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d 674, 677 (7th Cir. 2000) (denying leave for interlocutory appeal of denial of summary judgment because it did not present "controlling question of law"; appropriate question would be "a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record"). Mitsubishi's proposed controlling questions of law are intensely fact-specific, requiring close attention to the record in this case.
Mitsubishi argues that it never had an opportunity to be heard on the issue of costs, and it seeks to find a general question of law in terms of its right to be heard. In fact, the order in question in this case does not specify an amount of costs, but contemplates an additional opportunity for Mitsubishi to be heard on the question of the amount. See August 14, 2000, Order, Concl. of Law 18. In addition, Rule 37(a)(4) and Rule 26(c) in effect presume that an award of costs is appropriate when a motion for protective order is denied. See Fed.R.Civ.P. 37, Advisory Committee Notes for 1970 amendment to Rule 37(a)(4) ("The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court."). To the extent the Bankruptcy Court might have erred procedurally, and this court does not mean to suggest that it did, there remained (and still remains) ample opportunity for the Bankruptcy Court to cure any perceived problem. That opportunity weighs heavily against allowing an interlocutory appeal of the discovery order.
Mitsubishi also has failed to show how an immediate appeal of this routine discovery order is likely to advance the ultimate resolution of the case. On the contrary, allowing leave to appeal such interlocutory discovery orders would be an invitation to numerous and disruptive delays while interlocutory appeals were considered. Cf. Gouveia v. Internal Revenue Service, 228 B.R. at 414 (interlocutory appeal would cause only delay and add expense).
Accordingly, the motion for leave to appeal is hereby denied, and this appeal is dismissed.
So ordered.