Can We Appeal Now? (Continued from page 32)
or refusing to disqualify counsel;105 order
compelling production of documents claimed to be protected by attorney-cli- ent privilege;106
order compelling
non-party governmental agency to pro- duce to civil defendant records on minor plaintiff in lead paint action which records were required, by statute, to be kept con- fidential.107
Stein,108
3. The Stein Exception: The Effectively Unreviewable, Not Quite Collateral Order Doctrine In Department of Social Services v. a lead paint action, the Court of
Appeals held immediately appealable an interlocutory order compelling the De-
104
Harris, supra, 310 Md. at 315-19. See also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 438-39 (1985).
105
Peat, supra, 284 Md. at 91-98. The court con- sidered the doctrine inapplicable because the subject of the order was not of sufficient impor- tance to merit immediate appellate consideration and because it was effectively reviewable on ap- peal from a final judgment. Id. at 94. See also Flanagan v. United States, 465 U.S. 259 (1984)(criminal); Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 669 (1948)(civil case).
106
Electronic Data Systems Federal Corp. v. Westmoreland Associates, Inc., 311 Md. 555, 556 (1988).
107
Stein, supra, 328 Md. at 13. The court never- theless went on to hold that the order was immediately appealable due, in large measure, to the harm which might ensue if review were delayed. Id. at 18-21. See also Porter Hayden Co. v. Commercial Union Insurance Co., 339 Md. 150, 163-65 (1995) 108328 Md. 1 (1992).
partment to produce the minor plaintiff’s medical records.109
relief.”112 The Department,
which had not been made a party to the action, had moved for a protective order on the ground that it was obligated by statute to keep the records confidential.110 The Court held the collateral order doc- trine did not apply to discovery orders directed to a non-party which had no le- gal stake in the merits of the action. It noted that the plaintiffs to the action had not sought and been denied a protective order.111
In holding the order was never-
theless appealable, the Court stressed the harm which would otherwise ensue to the agency and to the public if an immediate appeal were denied: “Were appellate re- view of the court’s order that the records be disclosed be deferred until after dis- closure has been made, the purpose of the statute would be frustrated and the con- fidentiality claim would be forever lost. Discovery of the contents of the agency file is itself the harm to be avoided. Once the file has been disclosed, an appellate court will be unable to provide effective
109 Id. at 12-13. 110
The court carefully and nar-
rowly limited its holding to discovery orders directed to non-party government agencies which are obligated to maintain the confidentiality of records.113
Deci-
sions since Stein have continued to treat the Stein exception as “somewhat differ- ent” from the collateral order doctrine, and limited the holding to situations in which the appellant was a non-party to the underlying action, as to whom “the discovery disclosure had all of the at- tributes of finality” recognized by the Court of Appeals.114
4. Jurisdictional Exception The Court of Appeals has held that an immediate appeal will lie from an inter- locutory order which exceeds the jurisdiction of the trial court.115
The rule
has been stated to apply only “where the issue on appeal is not the wisdom or cor- rectness of an order, but whether the lower court had the power to pass an order[.]”116 Thus, for example, the rule ordinarily does not apply to permit an appeal of an order denying a challenge to the trial court’s subject matter jurisdiction.117
This is be-
Id. at 4-5, relying on Md. Ann. Code Art. 88A, § 6 (1957, 1991 Repl. Vol.). The statute per- mits the release of the records only pursuant to court order. The Department also asserted vari- ous privileges against disclosure, but none were addressed by the court. Id. at 18-20.
111
Id. at 12-13. In so holding, the Court referred to persuasive authority supporting the proposi- tion that the doctrine was not intended to apply to orders compelling production of information from non-party witnesses. Interestingly, else- where in the opinion, the court refers to author- ity indicating the irrelevance of party status to the issue of the finality and, hence, the appeal- ability of a discovery order. Id. at 14.
cause the court has jurisdiction to determine the question of its own juris- diction.118
On the other hand, the rule
has been held to permit an appeal from a 112
Id. at 19-20. 113 Id.
114 Judicial Watch, supra, 356 Md. at 126. 115
Cohen v. Willett, 269 Md. 194, 195 (1973). See also Waters, supra, 277 Md. at 196; Mont- gomery County, supra, 235 Md. at 51; Eastern States v. Eisler, 181 Md. 526, 535 (1943); Scheve v. McPherson, 44 Md. App. 398, 402 n. 3 (1979); Flower World of America, Inc. v. Whittington, 39 Md. App. 187, 192-95 (1978).
116 117
Waters, supra, 277 Md. at 196; Cohen, supra, 269 Md. at 195.
Highfield Water, supra, 295 Md. at 415-16 (de- nial of motion challenging jurisdiction on basis there was a pending federal action concerning the same res was not within the exceeding juris- diction exception). See also Eisel v. Howell, 220 Md. 584, 586-87 (1959)(holding an order de- nying a jurisdictional challenge on the asserted basis the parties were contractually obligated to arbitrate was not immediately appealable); Wa- ters, supra, 277 Md. at 197 (order referring ac- tion to master for cost evaluation was within power of court and not immediately appealable). Cf. Flower World, supra, 39 Md. App. at 194- 95 (order of court designating geographic loca- tion for arbitration was immediately appealable because beyond power of court in that parties’ agreement specified location).
118 Id. 34 Trial Reporter Summer 2000
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