
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                    ____________________        No. 95-1281                                 VEDA BENNETT, ET AL.,                                Plaintiffs, Appellees,                                          v.                               CITY OF BOSTON, ET AL.,                                Defendants, Appellees.                                                                                      __________                            COMMONWEALTH OF MASSACHUSETTS,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Scott  Harshbarger,  Attorney  General,  and  William  J.   Meade,            __________________                            ___________________        Assistant Attorney General, on memorandum of law for appellant.            Mitchell H.  Kaplan,  Diane L.  Azarian, Richard  J. Maloney,  and            ___________________   _________________  ___________________        Choate, Hall & Stewart on  memorandum of law for appellees  Yvonne and        ______________________        Shannon Jenkins.                                 ____________________                                     May 9, 1995                                 ____________________                 Per Curiam.   In this pending  civil rights action,  the                 __________            District  Attorney for Suffolk  County in Massachusetts seeks            to appeal from an  order mandating that various investigative            materials in  his  possession  be  disclosed  to  plaintiffs.            Because   we   lack   jurisdiction  to   entertain   such  an            interlocutory challenge to a discovery order, the appeal will            be dismissed.                                          I.                 The underlying action arises out of the investigation of            Willie Bennett for the murder of Carol DiMaiti Stuart.  Eight            relatives and acquaintances  of Bennett complain  of unlawful            searches of  their homes  and seizures  of their  persons and            property  in   connection  with   that  investigation.     In            particular,  they contend  that the  defendants--the City  of            Boston, its police  commissioner and  five police  officers--            coerced   two  teenagers   into   giving   false   statements            implicating  Bennett  and  thereafter  wrongfully  used  such            statements  to   obtain  search   warrants   and  for   other            investigative purposes.                 In the course of pretrial proceedings, plaintiffs served            upon the Suffolk District Attorney  (a non-party to the case)            a subpoena duces tecum  requesting an assortment of materials            pertaining  to the  murder  investigation.   Among the  items            sought were  grand jury transcripts,  witness statements, and            various  materials  concerning  witness  interviews  and  the                                         -2-            procurement of search  warrants (e.g., police reports,  audio                                             ____            and video  tapes, transcripts,  and physical evidence).   The            District  Attorney moved  to quash,  arguing that  such items            were  privileged investigative materials and thus were exempt            from disclosure.   See, e.g.,  United States v.  Cintolo, 818                               ___  ____   _____________     _______            F.2d 980,  1002 (1st Cir.) (recognizing  "qualified privilege            against   compelled   government   disclosure  of   sensitive            investigative  techniques"),  cert.  denied,  484   U.S.  913                                          _____________            (1987).1   Following  a  hearing, the  district court  agreed            that the grand  jury transcripts need  not be disclosed,  but            ordered that all non-grand-jury materials be produced subject            to a  protective order.   The District Attorney  has appealed            from the latter  portion of this  ruling, and appellees  have            moved to dismiss for lack of jurisdiction.                                           II.                 Each  of the District  Attorney's attempts  to establish            appellate   jurisdiction  is  effectively   rebuffed  by  our            decision  in Corporacion  Insular de  Seguros v.  Garcia, 876                         ________________________________     ______            F.2d 254 (1st Cir.  1989).  As we there  explained, discovery            orders, "whether directed at  parties or at non-parties," are            generally not appealable as "final decisions" under 28 U.S.C.              1291.   Id. at 256.   They are generally  not appealable as                      ___            "injunctions"  under 28 U.S.C.    1292(a)(1).  Id.   And they                                                           ___                                            ____________________            1.  The   District   Attorney   has  also   made   reference,            secondarily,  to  a  privilege  embracing  "prosecutorial  or            deliberative processes or work product."                                           -3-            are  generally  not appealable  under the  "collateral order"            exception  to the final judgment  rule set forth  in Cohen v.                                                                 _____            Beneficial Indus.  Loan Corp.,  337 U.S. 541,  545-47 (1949).            _____________________________            One of  the prerequisites to invoking the  Cohen exception is                                                       _____            that the order be "effectively  unreviewable on appeal from a            final judgment."  Doughty v. Underwriters at Lloyd's, London,                              _______    _______________________________            6 F.3d 856, 862 (1st  Cir. 1993).  Such is not the case here;            the  District Attorney "can gain the right of appeal from the            discovery order  by defying it,  being held in  contempt, and            then  appealing  from the  contempt order,  which would  be a            final  judgment as  to  [him]."   Garcia,  876 F.2d  at  257;                                              ______            accord, e.g.,  Firestone Tire  & Rubber  Co. v.  Risjord, 449            ______  ____   _____________________________     _______            U.S.  368, 377 (1981); MDK, Inc. v. Mike's Train House, Inc.,                                   _________    ________________________            27 F.3d 116, 120-22 (4th Cir.),  cert. denied, 115 S. Ct. 510                                             ____________            (1994); see  generally In re  Recticel Foam  Corp., 859  F.2d                    ______________ ___________________________            1000, 1004 (1st Cir.  1988) ("discovery orders rarely satisfy            all four of [the Cohen] criteria").                             _____                 While acknowledging  that incurring a  contempt citation            is the ordinary  route to appellate  review in this  context,            the  District Attorney argues  that his status  as an elected            government official  and the  county's chief  law enforcement            officer calls for a  different procedure.  He relies  in this            regard  on United States v. Nixon, 418 U.S. 683 (1974), where                       _____________    _____            the Court allowed President Nixon to appeal from  a discovery            order without first being cited for contempt.  It explained:                                          -4-                 To  require a  President  of the  United States  to                 place himself in the posture of disobeying an order                 of  a  court  merely  to  trigger   the  procedural                 mechanism  for  review  of   the  ruling  would  be                 unseemly, and would present an unnecessary occasion                 for   constitutional   confrontation  between   two                 branches of the Government.            Id. at 691-92.  A similar argument was advanced by the Garcia            ___                                                    ______            appellants (aides to the President of the Puerto  Rico Senate            and the Puerto Rico Governor, respectively).  We deemed Nixon                                                                    _____            inapplicable, describing it as a  "unique case" that was  not            "meant to  extend ... to  any government official  other than            the  President himself."  876  F.2d at 257-58.   Other courts            have  read Nixon in a  similarly narrow fashion.   See, e.g.,                       _____                                   ___  ____            Simmons v.  City of Racine,  PFC, 37 F.3d 325,  328 (7th Cir.            _______     ____________________            1994)  (refusing   to  extend   Nixon  exception   to  police                                            _____            department officers and employees);  In re United States, 985                                                 ___________________            F.2d  510, 511  (11th  Cir.) (per  curiam)  (same as  to  FDA            Commissioner), cert. denied, 114 S. Ct. 545 (1993); Newton v.                           ____________                         ______            National Broadcasting Co., 726 F.2d 591, 593  (9th Cir. 1984)            _________________________            (per curiam)  (same as to state gaming control board); United                                                                   ______            States v. Winner, 641 F.2d 825, 830 (10th Cir. 1981) (same as            ______    ______            to Deputy Attorney General  and Assistant Attorney General of            United States); In re Attorney  General of the United States,                            ____________________________________________            596  F.2d 58,  62 (2d  Cir.) (same  as to  Attorney General),            cert. denied, 444 U.S. 903 (1979).2            ____________                                            ____________________            2.  Contrary to the District Attorney's suggestion, Socialist                                                                _________            Workers Party v. Grubisic, 604 F.2d 1005 (7th Cir. 1979) (per            _____________    ________            curiam), on which  he heavily relies,  did not conclude  that                                         -5-                 In several of these cases, it is true, the courts relied            on the principles underlying  the Nixon exception to conclude                                              _____            that  the  circumstances  were  sufficiently  exceptional  to            warrant mandamus relief.   See In re United States,  985 F.2d                                       ___ ___________________            at 511-12; Winner, 641 F.2d at 830-31; In re Attorney General                       ______                      ______________________            of  the United  States,  596 F.2d  at  62-64.   The  District            ______________________            Attorney requests, in  the alternative, that  we do the  same            here.    Assuming, without  deciding, that  the extraordinary            remedy of mandamus might  on occasion be appropriate in  this            context, we readily conclude--just  as we did in  Garcia, 876                                                              ______            F.2d at 261--that such relief is unwarranted here.                   Several factors  underlie this  conclusion.  First,  the            District Attorney  has satisfied  neither of  the traditional            prerequisites  to  mandamus relief:  (1)  a  showing of  some            special risk of irreparable harm, and (2) a  demonstration of            clear  entitlement to  the relief  requested, i.e.,  that the            district  court's order  is palpably  erroneous.   See, e.g.,                                                               ___  ____            Doughty, 6 F.3d at 865; In re Pearson, 990 F.2d 653, 656 (1st            _______                 _____________            Cir.  1993).  Second, the  discovery ruling at  issue here is                                            ____________________            the  appellant   State's  Attorney  fell  within   the  Nixon                                                                    _____            exception; the  court there ended up  invoking the collateral            order exception.  The same court, more  recently, has applied            Nixon narrowly  and confined  Grubisic to the  "narrow facts"            _____                         ________            presented.  See  Simmons, 37  F.3d at 328-29.   We also  note                        ___  _______            that the principal case on  which the Grubisic court relied--                                                  ________            Covey  Oil Co.  v. Continental  Oil Co.,  340 F.2d  993 (10th            ______________     ____________________            Cir.),  cert. denied,  380  U.S. 964  (1965)--has since  been                    ____________            discredited.   See, e.g., MDK, Inc., 27 F.3d at 120; Boughton                           ___  ____  _________                  ________            v. Cotter Corp., 10 F.3d 746, 749 (10th Cir. 1993).               ____________                                         -6-            one largely entrusted to the district court's discretion, and            "mandamus, as  a  general rule,  will  not issue  to  control            exercises of judicial discretion."  In re Insurers Syndicate,                                                ________________________            864  F.2d 208,  211  (1st Cir.  1988);  accord, e.g.,  In  re                                                    ______  ____   ______            Recticel  Foam  Corp.,   859  F.2d  at  1006.     Third,  the            _____________________            possibility  of  a  "softened" contempt  decree  involving  a            citation  without further  sanction, see,  e.g., Garcia,  876                                                 ___   ____  ______            F.2d at 259 (quoting  National Super Spuds, Inc. v.  New York                                  __________________________     ________            Mercantile Exchange, 591 F.2d 174, 180 (2d Cir. 1979)), might            ___________________            go far  to mitigate  any "unseemliness" that  might otherwise            arise   from  holding  the  District  Attorney  in  contempt.            Finally, the recent decision in Globe Newspaper Co. v. Police                                            ___________________    ______            Comm'r  of Boston, 419 Mass. 852 (1995), in which the Supreme            _________________            Judicial Court  ordered public  dissemination of many  of the            same materials at issue here, further undercuts the propriety            of ordering such extraordinary relief.                  The appeal is dismissed for  lack of jurisdiction.   The                 ________________________________________________________            temporary stay  issued on March 22, 1995 is hereby dissolved.            _____________________________________________________________            Appellant's motion to stay the appeal is denied as moot.             ________________________________________________________                                         -7-
