                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                            September 4, 2014
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
In re: RBS SECURITIES, INC.; RBS                              No. 14-3151
ACCEPTANCE, INC.; FINANCIAL                       (D.C. No. 2:11-CV-02340-JWL-JPO)
ASSET SECURITIES CORP.,

      Petitioners.
                         _________________________________

                                      ORDER
                         _________________________________

Before BRISCOE, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.
                    _________________________________

       This matter is before the court following the panel’s determination, sua sponte,

that the order issued originally in this case on August 25, 2014, should be published. As

part of that publication, we note a slight amendment to the second sentence of the last

paragraph on page 4. With that modification, the clerk is directed to reissue the order in

published form. A copy of the published decision is attached to this order.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk
                                                                              FILED
                                                                  United States Court of Appeals
                                       PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  September 4, 2014
                                                                     Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                      Clerk of Court


In re:

RBS SECURITIES, INC.;
RBS ACCEPTANCE, INC.,                                       No. 14-3151
FINANCIAL ASSET SECURITIES                      (D.C. No. 2:11-CV-02340-JWL-JPO)
CORP.,                                                       (D. Kan.)

               Petitioners.


                                        ORDER


Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.


         RBS Securities, Inc., RBS Acceptance, Inc., and Financial Asset Securities

Corp. (collectively “RBS”) petition “this Court for a writ of mandamus directing the

District Court to strike Section 2 of the Master Discovery Protocol and vacate all

discovery orders entered in this case pursuant to Section 2.” Pet. at 2. For the

reasons explained below, we conclude that RBS has failed to establish its entitlement

to the extraordinary remedy of a writ of mandamus.

         I. Background

         The National Credit Union Administration Board (“NCUA”) has brought a

number of actions against RBS and other defendants in the District of Kansas, the

Central District of California, and the Southern District of New York. RBS and the
other defendants moved pursuant to 28 U.S.C. § 1407 to centralize the litigation in

the District of Kansas. NCUA opposed the request for consolidation, but agreed that

coordination of its actions would create efficiencies. The Judicial Panel on

Multidistrict Litigation (“JPML”) denied the consolidation request, noting that the

cases did not share sufficient common questions to warrant consolidation. But the

JPML order indicated that “alternatives to centralization exist, in particular informal

cooperation among the involved attorneys and coordination between the involved

courts, that may minimize whatever possibilities there may be of duplicative

discovery or inconsistent pretrial rulings.” Pet. App., Vol. 4 at 834.

      After the JPML issued its order, the defendants, including RBS, submitted a

letter to the three district courts overseeing NCUA’s cases in Kansas, California, and

New York and stated that they would agree to the entry of some form of a master

discovery protocol to apply in all of the related litigation in all three districts. NCUA

then submitted a specific proposal on coordination, suggesting that all three judges

designate a coordination judge and noting that the coordination judge could confer

with the other judges before issuing a ruling.

      In early April, there was a joint hearing held to discuss coordinating discovery

in the related litigation in all three districts. Judge Cote from New York reported that

she and the other judges (Judge Lungstrum and Magistrate Judge O’Hara from

Kansas and Judge Wu from California) had been consulting with each other, had

decided that there would be a coordination judge, and that she would serve in that


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role. RBS aired its objections during the hearing, but ultimately, the judges decided

to move forward with the coordination plan. Subsequently, a “Master Discovery

Protocol” (“MDP” or “the Protocol”) was entered in each of the related cases pending

in each of the three districts.

       RBS seeks to strike Section 2 of the Protocol through this mandamus petition.

That section is titled “Procedure for Presenting Discovery Dispute” and provides:

              To avoid unnecessary conflicts and inconsistencies in the rulings
       in the Actions, Judge Cote is designated as the “Coordination Judge” for
       all Actions. All discovery applications and disputes shall be brought to
       the Coordination Judge in the form of a two-page letter, with copies
       simultaneously provided to the other three Judges. Following
       consultation with Judges Lungstrum and/or O’Hara, and Judge Wu, the
       Coordination Judge will endeavor to respond promptly.

              All applications and disputes regarding discovery in any Action
       will be filed in the lead case pending in the Southern District of New
       York (currently 13 Civ. 6705). If the application or dispute applies to
       fewer than all Actions, then the submission should be filed as well in
       the Action or Actions to which it applies. The discovery parameters and
       limitations set forth in the ruling by the Coordination Judge on the
       application or dispute will be given effect in all Actions, unless the
       ruling indicates otherwise.

Add. to Pet. at 4.

       At the end of April, RBS and Nomura, one of the other defendants, filed a

motion in the District of Kansas to modify the MDP requesting that the district court

strike Section 2. The district court denied the motion to modify.

       Subsequently, RBS filed the instant mandamus petition. Nomura did not join

in the mandamus petition and neither have the other seven defendants in these

actions. RBS has also filed mandamus petitions in the Second and Ninth Circuits

                                         -3-
seeking orders directing the district courts in those circuits to strike Section 2 of the

MDP.

       II. Discussion

       “[A] writ of mandamus is a drastic remedy, and is to be invoked only in

extraordinary circumstances.” In re Cooper & Tire Rubber Co., 568 F.3d 1180, 1186

(10th Cir. 2009) (internal quotation marks omitted). It is “used only to confine an

inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to

exercise its authority when it is its duty to do so.” Id. (internal quotation marks

omitted). In order to be entitled to a writ of mandamus, three conditions must be

met:

       First, because a writ is not a substitute for an appeal, the party seeking
       issuance of the writ must have no other adequate means to attain the
       relief he desires. Second, the petitioner must demonstrate that his right
       to the writ is clear and indisputable. Finally, the issuing court, in the
       exercise of its discretion, must be satisfied that the writ is appropriate
       under the circumstances.

Id. at 1187 (internal citations and quotation marks omitted).

       Discovery orders, like the one at issue in this case, are interlocutory and not

subject to appeal until final judgment. On occasion, we have permitted review of

discovery orders in the mandamus context. See, e.g., id. at 1183 (reviewing

mandamus petition involving claim that district court disregarded the Federal Rules

of Civil Procedure in ordering discovery); Barclaysamerican Corp. v. Kane, 746 F.2d

653, 654 (10th Cir. 1984) (reviewing mandamus petition involving claim that district



                                           -4-
court’s order required disclosure of privileged information). RBS’s challenge to the

Protocol is appropriate for mandamus review.

       RBS, however, has failed to demonstrate that its right to the writ is clear and

indisputable. RBS’s primary argument is that Section 2 of the MDP improperly gives

Judge Cote authority to decide issues in the Kansas cases without complying with the

local rules and statutory provisions for transferring cases or the process for

designating a judge for service in another circuit. In a related argument, RBS also

contends that Section 2 permits the district court in Kansas to abstain from deciding

disputes in the cases before it and cede its authority to a court outside of this circuit.

       We appreciate the concerns RBS raises in its petition as the procedure adopted

by the Protocol in Section 2 is broadly stated. We also note that Judge Cote initially

issued some rulings in Kansas cases that did not contain a signature of a Kansas

judge. In Judge Lungstrum’s order denying the motion to modify the Protocol,

however, he explained that:

       [T]his Court does not understand or intend the MDP to provide for
       rulings by Judge Cote that are binding in the Kansas cases. The MDP
       expressly requires Judge Cote to consult with a judge from this district
       on any discovery dispute. To the extent that an issue affects or applies
       to a Kansas case, it will be decided by a Kansas judge (after
       consultation in accordance with the MDP’s procedure), and no order
       will be effective in the Kansas cases unless it is signed by a Kansas
       judge and filed in this Court.

Add. to Pet. at 13-14. He further explained that:

              Although the judges of this Court did consult and decide how the
       issues would be resolved for purposes of the Kansas cases, did authorize
       Orders to be issued bearing this Court’s caption and listing the names of

                                           -5-
      the judges of this Court, and did cause the resulting orders to be filed in
      this Court, in a few recent instances the signature of a Kansas judge was
      inadvertently omitted from the orders. The Court will issue orders
      nunc pro tunc to give those unsigned orders effect in the Kansas cases.

Id. at 14 n.1. Judge Lungstrum then entered the nunc pro tunc orders that same day.

See, e.g., Pet. App., Vol. 2 at 538-43. Since that time, there have been no orders

issued in a Kansas case that have not been signed by a Kansas judge.

      Under these circumstances, RBS has not demonstrated that its right to

mandamus relief is clear and indisputable. Judge Lungstrum unambiguously stated

that he or Judge O’Hara would be deciding any issues that affect or apply to the

Kansas cases, and that no order would be effective in a Kansas case unless it is

signed by a Kansas judge and filed in that court.

      Accordingly, we deny the petition for a writ of mandamus.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




                                         -6-
